Court name
High Court
Case number
3247 of 2005
Case name
Van Rensburg and Another v Government of the Republic of Namibia
Media neutral citation
[2009] NAHC 17



REPORTABLE

 

CASE NO.: (P) I 3247/2005

 

 

IN THE HIGH COURT OF NAMIBIA

 

 

In the matter between:

 

 

TINUS VAN RENSBURG FIRST PLAINTIFF

 

PETRUS JACOBUS ALBERTS SECOND PLAINTIFF

 

 

and

 

 

THE GOVERNMENT OF THE

REPUBLIC OF NAMIBIA DEFENDANT

 

 

 

CORAM: DAMASEB, JP

 

 

Heard on: 10th – 12th/06/2008; 17th – 18th/09/2008

 

Delivered on: 27th March 2009

 

________________________________________________________________________

 

JUDGMENT

 

DAMASEB, JP:

 

[1] The plaintiffs’ claims can be summed up as follows:

 

i. (a) That the first plaintiff’s Land Cruiser was stopped at the

roadblock without just cause and without valid reason;

(b) That the first plaintiff’s vehicle was unlawfully confiscated;

(c) That the Land Cruiser and the Mountain zebra were seized arbitrarily and without a search warrant and without reasonable or probable cause;

(d) Contrary to articles 8, 13 and 21 of the Constitution

 

ii. (a) That the defendant’s employees unlawfully entered the first

plaintiffs farm without a warrant for search and seizure, in violation article 13 of the Constitution;

(b) That the said employees falsely accused first or second plaintiff of having stolen a Mountain zebra.

 

iii. That as a result of these actions of the employees of the defendant, the plaintiffs suffered: injury to personality, dignity and reputation; suffered pain, distress, inconvenience and emotional torment and were deprived of their fundamental rights to dignity, privacy, liberty and freedom of movement contrary to articles 7,8,11,13 and 21 of the Constitution.

 

[2] First plaintiff claims N$50, 000 for pain, suffering, distress and inconvenience; N$ 50 000 for contumelia, injury to personality, dignity and reputation, humiliation, deprivation of privacy, liberty freedom of movement and deprivation of constitutional rights. He also claims N$20 000 for the fair and reasonable value of the items/goods damaged and or stolen during the search and seizure. The second plaintiff’s claims are identical in terms to that of the first plaintiff, except that he claims N$20 000 for each of the heads and only N$ 10 000 for goods/items damaged and /or stolen during the search and seizure. All told therefore, the first plaintiff claims N$120 000, while the second plaintiff claims N$50 000.

 

[3] In addition to the above claims, the first plaintiff claims loss of income resulting from the four Finnish tourists cancelling hunting reservations after witnessing the alleged unlawful conduct of the defendant’s employees. For this he claims N$ 149 773.30. He then adds:

 

As a further direct result of the unlawful actions of the officials of the Ministry of Nature Conservation and Ministry of Safety and Security, another 6 (six) Finnish tourists/hunters destined for hunting safaris with the First Plaintiff, also cancelled their reservations with the First Plaintiff which cancellations resulted in a further loss of income for the First Plaintiff to the sum of N$35 940-00 (Thirty Five Thousand Nine Hundred and Forty Namibia Dollars).’’ (My underlining)

 

Altogether, therefore, the first plaintiff claims N$ 185 713-40 for the alleged cancellation of bookings by Finnish tourists as a result of the alleged unlawful actions of the defendant’s employees.

 

[4] The plaintiffs were represented by Mr Brandt while the defendant was represented by Mr Swanepoel and Ms Katjihongua of the Government Attorneys office. The parties agreed at the commencement of the trial to deal only with the merits of the case. This judgment is therefore only concerned with that issue.

 

[5] The first plaintiff (or Van Rensburg) is a professional hunter and owner of a hunting safari known as Osonjiva Hunting Safaris (“Osonjiva’’). The latter is in the professional hunting business for gain. The second plaintiff (or Alberts) is in the employ of the first plaintiff as a professional trophy hunter. The way the business works is that overseas hunters contract with the first plaintiff’s Osonjiva to take them to hunting sites in Namibia where they hunt game for trophy. Such hunts also occur on farms that belong to others with their permission. The plaintiffs then take the visitors on hunting trips and actually hunt the game with the visitors for trophy. The plaintiffs would acquire the necessary permits from the Namibian authorities in advance of the visitors coming to Namibia.

 

[6] It is common cause that on 14 June 2005, Osonjiva took out 4 trophy hunting permits in favour of four Finnish tourists for the hunting of, amongst others, Mountain zebra which, it is common cause, is specially protected game.1 The permits were produced in evidence as annexures A1, A2, B1, B2, C1, C2, D1 and D2. Being specially protected game, Mountain zebra can only be hunted by a lawful holder of a permit granted by the Minister of Nature Conservation.2

 

The plaintiffs’ case

[7] Using the permits, Alberts on 5 July 2005 accompanied two Finnish trophy hunters to a farm called Eendrag/Geduld where they shot a Mountain zebra and removed its intestines. Another was wounded but fled. It is common cause that farm Eendrag on which the Mountain zebra was shot did not belong to either of the plaintiffs. Having shot the Mountain zebra, Alberts and the two Finish hunters loaded it on the Land Cruiser belonging to Osonjiva and transported it to Otjiwarongo where they stopped at the first plaintiff’s Taxidermy. Having stopped at the Taxidermy, and having showed the two Finish hunters the mounting options for their trophies, Alberts drove the Land Cruiser with the dead zebra thereon to a nearby service station to refuel. Whilst at the service station, he realised that he had forgotten a bag in which was contained the hunting permit and some other personal effects. He rushed back to the Taxidermy with the Land Cruiser (with the Mountain Zebra on) and when he got there found that Van Rensburg had in the meantime left the Taxidermy. Alberts did therefore not find the bag he was looking for. He radioed Van Rensburg on a two-way radio and was assured that the bag was taken by the latter who had in the meantime driven back to Osonjiva.

 

[8] Alberts, together with the two Finish hunters, then drove with the Land Cruiser to Osonjiva. About 20km before they reached farm Osonjiva, the party encountered a road block manned by officials of the Ministry of Nature Conservation led by Mr Member Tueutjua (“Member”). Member held the rank of ranger and was at the time a “nature conservator” appointed in terms of s79 (1) of the Ordinance and thus competent to act in terms of s81 (1) infra of the Ordinance. It is common cause that Alberts was unable to produce a permit when asked by Member to produce one.

 

[9] In his evidence Alberts stated that he informed Member that the permit was in another vehicle which had been driven by Van Rensburg who was then at Osonjiva; and that the permit could be brought to the road block upon Alberts requesting Van Rensburg to do so. Alberts testified that Member would have none of that and accused him of poaching/illegal hunting and accused him of transporting specially protected game without a transport permit as required by law. Section 48(1) of the Ordinance states:

 

No person shall transport game or game meat unless he – (a) is the holder of a permit, written authority or written permission granted and issued in terms of this Ordinance, such authorizing him to hunt, capture, or keep such game, or to import such game into the Territory or to export such game from the Territory, and has such permit, written authority or written permission on his person a the time of such transport…” (My underlining)

[10] According to Alberts, Member insisted that he (Alberts) accompany him to Okakarara but he refused to do so as it would be against the law to leave the foreign hunters alone; the law requiring that foreign trophy hunters always be accompanied by a professional hunter3. Alberts testified that he then made contact via radio with Van Rensburg and informed him of the situation and Van Rensburg promised to bring the permit. In the meantime, Van Rensburg had called one Piet Burger who was a colleague of Member’s stationed at Otjiwarongo and informed him of the situation. Alberts further testified that while they were still at the road block, Piet Burger then called and spoke to Alberts who then also explained the situation that he found himself in. Albert’s evidence is that Burger then asked to speak to Member who took the telephone and spoke to Burger and said that he would not take any instructions from Burger and would only take instructions from the responsible Minister.

 

[11] Alberts also testified that after Burger’s call, another employee of the Ministry, one Beytel, who is a Deputy Director and a superior of Member’s, then called and spoke to Member. Alberts testified that he overheard Member tell Beytel too that he would not take any instructions from him and would only take instructions from the Minister. The tenor of the evidence is that Burger informed Member that nothing unlawful had happened and that Alberts had the necessary permit for the Mountain zebra. Alberts testified that Member insisted that Alberts accompany him to the police station. He refused to do so and indicated that he could not do so as he could not leave the two Finnish hunters alone. Alberts testified that Member then suggested to him that the tracker (Katjinamunene), who was with Alberts, drive the two Finnish hunters back to the farm Osonjiva, whereupon Alberts again refused saying that it was against regulations for him to leave the foreign trophy hunters unattended and that, in any event, the tracker did not have a licence to drive the vehicle. According to Alberts, Member and his party then informed Alberts that they were going to offload the Mountain zebra from the Land Cruiser onto a vehicle of the Ministry and proceeded to do so. After Member and party had done so, according to Alberts, they could see a motor vehicle approaching from the direction of farm Osonjiva which they were able to identify by its lights. Alberts testified that at that point Member refused to wait for this vehicle (which certainly would have been Van Rensburg on Albert’s version) and Member sped away. Alberts testified that Member’s actions and the presence of armed officers made him ‘’nervous’’, traumatised him and shook him up.

 

[12] According to Alberts, Member came the next morning to farm Osonjiva with several men, including armed police officers and soldiers in camouflage uniform carrying AK 47 assault rifles. Alberts testified that the foreign tourists were present and observed this and were agitated and concerned about their safety. Alberts said that Member then served two summonses on him for unlawfully transporting protected game and refusing to obey an official instruction. Albert’s testimony was that the visitors upon seeing this, and fearing for their safety, immediately cancelled their contracted hunting bookings with Osonjiva and left the farm. Alberts' testimony is that Osonjiva (or first plaintiff) as a result lost income because of the cancellation of the trophy hunts by the Finnish tourists. He said that the skin of the Mountain zebra had in the meantime deteriorated (or totally wasted) after it had been taken possession of by Member and his party and that this too resulted in loss and damage to Van Rensburg’s business.

 

[13] The first plaintiff’s evidence is material to the extent that it corroborates the second plaintiff that the latter forgot the bag containing the permit at the Taxidermy which he (the first plaintiff) then later took to farm Osonjiva. It also corroborates the second plaintiff to the effect that the first plaintiff got a call from Alberts while at the road block about being confronted by Member and his party; that he promised to bring the permit and had spoken to Burger and Beytel to speak to Member. Van Rensburg conceded that when the nature conservation officers (led by Member) and the police (led by one Van Wyk infra) came to his farm, they never forcibly entered his premises or searched his home. Van Rensburg also made no mention of being accused of poaching or stealing the zebra.

 

[14] It appears Van Rensburg’s quarrel is the fact that many armed law enforcement officers came to his farm; according to him causing great drama and scarring the tourists who cancelled bookings as a result of which his business lost income. Van Rensburg’s evidence is rather scanty in support of his claims. As far as the alleged cancellations by the Finnish hunters are concerned, his only contribution to the evidence is that the four tourists booked with Osonjiva for the period of 2 July to 8 July. Van Rensburg’s evidence in respect of the alleged damage to the zebra skin is equally scanty. I will quote from the record the sum total of what he had to say on both scores:

 

During the morning Mr Member appeared with a government vehicle as well as a police vehicle at the farm court. They were about 6 armed officers at the back, on the back of the police vehicle. I asked Mr Member what, what was wrong whether murder had been committed so that the Police Officers had to come armed? He told me that he was looking for Mr. Alberts as well as the particulars of the farm. I told him that just to get these particulars it was not necessary that these people had to be armed in public because the guest were quite alarmed. Some of the guest wanted to make telephone contact with their country of origin. Just to tell them, to tell their wives and relatives that there was a possibility that they would not be able to return. I tried to calm down the guest and I talked to Mr Member about what was going on. Mr Member as well as the police left the farm some time later. In the afternoon it was just before dusk, Mr Member arrived with the vehicle the Land cruiser plus one other vehicle. I told Mr Member that I would take photos of the Zebra whereupon Mr Member tried to knock the camera out of my hands. And he told me that I was not allowed to take photos thereof. I instructed Mr Alberts to take the vehicle with the Zebra onto the slaughtering place. At that time the Zebra was shot 24 hours ago. And from experience I knew that the day would damage the skin. We took off the skin and put on a card because that is the procedure with every skin”. (My underlining for emphasis)

 

[15] When cross-examined on the allegation of the searching of his home at the farm he said the following:

 

Mr Swanepoel: I just want to take you to the summons that your attorney prepared, I just want to focus on one specific claim. The claim in summons regarding the part that is claiming that your premises were unlawfully searched. I just want to focus a little bit on that, in further particulars I requested whether your premises was, indeed, searched and your attorney replied on that no it was not searched you then, is that correct that my understanding is according to the evidence today that your premises were not ever illegally searched before I mistake you saying that?

Van Rensburg: No My Lord. It was never searched.’’

 

[16] Van Rensburg testified that he had the necessary permission from the owner of Eendrag to hunt on that farm on the 5th July. In cross-examination of the two plaintiffs and in argument, counsel for the defendant raised hue and cry over the fact that the plaintiffs did not allegedly have permission (in terms of s35 (1) of the Ordinance4) to hunt on farm Eendrag/Geduld. However, the plea is conspicuous by its silence on that issue. It was never raised as an issue in the plea that the Mountain zebra was hunted illegally at farm Eendrag. The plaintiffs were therefore not required to replicate thereto or to meet it in evidence. However, when the matter was raised in evidence (for the first time in cross-examination) Van Rensburg said that he had permission from the owner of Eendrag/Geduld to hunt there and even offered to bring proof to Court if given the opportunity to do so. He said he had the documents to prove it although not discovered. On reflection, it was really not necessary for him to discover the same as the plea had not placed the matter in dispute. This notwithstanding, when the defendant’s witness George Masielo was cross-examined by Mr Brandt, the latter showed him and produced in evidence the permission given by the owners of Eendrag and Geduld for Osonjiva to hunt on those properties. I therefore find it was established that the Mountain zebra was lawfully hunted on the 5th July by Alberts and the Finish tourists.

 

The defence case

[17] The main character in this drama on behalf of the defence is Member Tueutjua, who at the material time was a ranger and, it is not in dispute, a nature conservation officer and a peace officer. In his testimony before me, Member denied that Alberts told him at the roadblock that he had a valid permit for hunting the Mountain zebra, or that it was with van Rensburg at farm Osonjiva. He denied accusing either plaintiff of stealing the Mountain zebra or of illegal hunting. He also denied that he was aware that van Rensburg was on his way to the road block with the permit before he drove off to the police station at Okakarara. Member also testified that when he left for Okakarara he expected Alberts to follow him to Okakarara so that they could resolve the issue there. He maintained that if Alberts came to Okakarara with the permit, his intention was to issue him with the summonses there, give him back the zebra and to let Alberts go. (He could of course not satisfactorily explain why he could not do all that at the roadblock.)

 

[18] Member also testified that his suggestion to Alberts at the road block was that one of his (Member’s) colleague drive the Finnish hunters back to Osonjiva while Alberts and he proceeded to Okakarara to deal with the matter. This explanation is utterly nonsensical because Member was unable to explain how his colleague was then to make his way back to Okakarara. As far as his denial is concerned that he did not know that Van Rensburg was on the way to the roadblock having been called by Alberts to bring the permit, the following cross-examination of Van Rensburg by his own counsel put this suggestion to paid:

 

Mr Swanepoel: Then the night of the 5th July 2005 again if we can go back to that evening when you drove to the roadblock, Mr Member will also testify that there was an allegation that he saw the vehicle. That he saw you coming from a distance and that he left at that point. He will testify that he didn’t know it was you that was arriving and before he left or that was coming from a distance? ---

 

Van Rensburg: I was continuously in radio contact with Mr Alberts and I told him that Member should wait until we arrived.

Mr Swanepoel: Mr Member will also testify that reason he also left that or left at that time was because of previous dealings with yourself and your attitude towards him and other members of the Nature Conservation that he was in fact intimidated by your previous attitude and that’s why he left and thought that its more suitable that this matter can be resolved a the police and that’s why he requested or informed Mr Alberts to tell you to meet him at the police station? ---

 

Van Rensburg: No, Mr Member did not want to see the permit. If he wanted to see it he would have waited and there were also two police officers with him.” (My underlining for emphasis)

 

[19] Member clearly knew Van Rensburg was on the way; otherwise why would he feel “intimidated’’. As I said, Member vehemently denied that Alberts told him that the permit to hunt the Mountain zebra was with Van Rensburg at the farm. He however later explained, especially when questioned by the Court, that the reason he went to Okakarara with the Mountain zebra was that he expected Alberts and Van Rensburg to come there and show him the permit so that he could then issue them with ‘admissions of guilt’ fines and to release the Mountain zebra. That is consistent with Alberts’ explanation that he had informed Member that the licence was with Van Rensburg. How else could Member have expected the permit to be brought if Alberts never told him that such a permit existed?

 

[20] Member denied that he ever said to Burger or Beytel that he would not take instructions from them. He emphatically denied that Burger and Beytel informed him, while at the road block, that Alberts had a valid permit to transport the Mountain zebra. Although confirmed by defence witness Katjinamunene that he in fact did so, Member also denied that he had asked that Katjinamunene drive the Finnish tourists to farm Osonjiva. I find Member to be untruthful in material respects as I have shown. I am thus satisfied that Member was told that there was a valid permit for hunting the Mountain zebra but that he regardless intentionally and wrongfully accused Alberts of illegally hunting the Mountain zebra.

 

[21] Mr Ben Katjinamunene also testified on behalf of the defence. At the time of the incident he was in the employ of the first plaintiff. He had accompanied Alberts and the Finnish tourists to the farm Eendrag on the 5th July. He confirmed that Alberts failed to produce the permit at the roadblock when asked by Member to do so. He testified that 5th July was a very cold evening; a fact confirmed by Alberts when he said that after being stopped by Member he had to keep the Land Cruiser’s engine idling in order to keep the tourists warm. Katjinamunene also confirmed the radio contact that Alberts made and as result of which someone came from the farm to fetch them. Katjinamunene confirmed that he had no driving licence and that Alberts refused that he drives the tourists to the farm at Members’ request. He confirmed that he, Alberts and the Finnish hunters went to hunt again in the morning following the roadblock. He confirmed skinning the zebra returned by Member that day and tagging it for the hunters. He also testified that on the 7th July he returned to Eendrag with the hunters and retrieved a Mountain Zebra they had wounded on 5 July but which fled. Crucially, he testified that before the hunting excursion on 5 July, the hunters had been on the farm for 3 days and after the 5th July remained there for another 4 days. He testified that after the 5th July he had hunted with the same tourists at Osonjiva and shot kudu, zebra, warthog and buffaloes.

 

[22] Sergeant Daniel van Wyk of the Namibian police stationed at Okakarara also testified on behalf of the defence. He accompanied Member to Osonjiva on the 6th of July. He confirmed that he saw the subject Mountain zebra and the Land Cruiser at the Okakarara police station. Van Wyk, with four of his officers, at the request of the station commander, accompanied Member to the first plaintiff’s farm. The officers bore firearms. Van Wyk testified that when they reached Osonjiva Member sought to serve a summons on Alberts who was then not present. They therefore drove back to Okakarara. They again returned to farm Osonjiva in the afternoon. On this occasion they took along the Land Cruiser and the Mountain zebra of the first plaintiff. When they reached the farm, they found the first plaintiff who directed vulgar remarks towards Member and mockingly asked wheat the ‘troop’ had come to do there as if a murder had been committed. Member then asked second plaintiff to produce his identification document but he was uncooperative; whereupon Van Wyk warned him of the consequences of not complying. Alberts then went to fetch a driver’s licence whereupon Member issued the summonses against Alberts in his absence as the latter had in the meantime been sent away by the first plaintiff. The summonses were therefore left with a lady who was at the premises.

 

[23] Van Wyk testified that after taking possession of the Mountain zebra and the Land Cruiser, Alberts never said anything about damage to the vehicle or the zebra nor of any item stolen from the vehicle. Van Wyk said he personally saw no damage to the zebra or experienced any foul smell from it. He confirmed that on both visits to the farm they had not conducted any search of the first plaintiff’s premises. Van Wyk testified that the first plaintiff was very aggressive towards them when they came to the farm.

 

[24] I did not find the evidence of the other two defence witnesses Willem Mutuezu and George Masielo useful in determining the outcome of this case and consequently make no reference thereto in this judgment.

 

[25] On the evidence led before me, I am satisfied that Member accused Alberts of illegal hunting (or poaching). He based that accusation solely on the fact that Alberts did not have the permit with him at the time he encountered the roadblock. The probabilities overwhelmingly favour the version that the permit for hunting the Mountain zebra was with Van Rensburg at the time and could be brought for Member’s sight if he wanted to see it. I also find it established that Member’s superiors had told him while he was at the roadblock that Alberts had not done anything unlawful in hunting the zebra; but Member would have none of that. Accordingly, there was no lawful justification for Member accusing Alberts that he had hunted the Mountain zebra illegally. That he indeed so accused him is more than amply demonstrated by the fact that Member confiscated the Mountain zebra. That he had been told by Alberts of the existence of the permit is corroborated by his own testimony that he had gone to Okakarara Police station so that the plaintiffs could bring the permit there for him to fine them and to release the zebra.

 

[26] The defence puts up the following propositions to defeat the plaintiff’s claims. The first is that the Mountain zebra was hunted illegally on farm Eendrag. The second proposition is that Alberts did not have a permit necessary to transport the Mountain zebra from the place it was shot to anywhere else. The third proposition is that Alberts did not have the permit “on his person” when encountered on the roadblock. Of these, the proposition relating to illegally hunting at farm Eendrag stands to be rejected for reasons I have already given. The defendant maintains that the keys of the Land Cruiser were seized in terms of section 81(1) (e) of the Ordinance and that the actions of the nature conservation officers, led by Member, in mounting the roadblock and inspecting Albert’s vehicle, were justified by that provision.

 

[27] Section 81(1) of the Ordinance provides:

 

A nature conservator may exercise and perform all those powers, duties and functions granted to or imposed on him by or in terms of this Ordinance and may, in addition thereto-

 

[a] at any time conduct any investigation which he deems necessary in order to determine whether the provisions of this Ordinance are being complied with;

[b] at any time without warrant and without permission enter upon any land, premises, waters, building, tent, camping or other place, vehicle, vessel, boat, raft, aircraft or other means of conveyance and there conduct the investigation and inspection (including an investigation and inspection of any container or other thing found thereon or therein) which he deems necessary in order to determine whether the provisions of this Ordinance are being complied with;

 

[c] at any time without warrant and without permission enter upon any land, premises, waters, building, tent, camping or other place, vehicle, vessel, boat, raft, aircraft or other means of conveyance or container of whatever description, and there conduct a search if he reasonably suspects that there is anything thereon or therein which –

 

[i] is being used or has been used for the purpose of, or in or in connection with;

[ii] in his option forms or has formed an element in;

[iii] in his opinion will, or may furnish proof of the commission of an offence in terms of this Ordinance;

 

(d) at any time in the course of any investigation or inspection which he conducts or intends conducting in terms of this Ordinance, without warrant and without permission demand that any vehicle, vessel, boat, raft, aircraft or other means of conveyance be brought to a standstill and remain stationary until he has completed his investigation or inspection and has given permission that it may depart or continue its journey.

 

(e) at any time without warrant seize anything-

 

(i) in respect of which he reasonably suspects that it Is being used or has been used for the purpose of or in or in connection with;

(ii) In his opinion forms or has formed an element in;

(iii) In his opinion will or may furnish proof of the commission of an offence in terms of this Ordinance;

 

[f] at any time question any person who in his opinion may possibly

be able to furnish any information which he requires in connection with the enforcement of any provision of this Ordinance, and for that purpose, without warrant and without permission demand that any vehicle, vessel, boat, raft, aircraft or other means of conveyance be brought to a standstill and remain stationary until he has completed his questioning and has given permission that it may depart or continue its journey;

 

[g] at any time order any person who in his opinion may possibly have information which is material in connection with a contravention of this Ordinance, to furnish him with such information as such person may be able to give;

 

[h] demand the name an address of any person

 

[i] who has committed an offence in terms of this Ordinance, or who is reasonably suspected of having committed such an offence;

[ii] who is reasonably considered to be able to give evidence in connection with an offence committed in terms of this Ordinance, or is reasonably suspected of having been so committed.

[iii] remove any snare, trap, springtrap, pitfall, holding pen, trap-cage, net, birdlime, fishtrap, set line, fishing tackle, gun trap, jackal cannon or coyote getter or cartridges therefor, poison or any other like article, means or contrivance which is being used or which is being used of which is suspected of being used unlawfully to hunt or catch game or any wild animal or fish, from the place where it is found, or if such removal is impossible or dangerous or difficult, destroy or render it harmless;

 

[j] at any time demand from any person who performs or has performed an act, or in respect of whom it is reasonably suspected that he performing or his performed an act, for which a licence, permit, exemption, written authority or permission or any other document is necessary in terms of this Ordinance, that he shall produce, such licence, permit, exemption, written authority or permission or other document;

 

[k] at any time demand from any person who is required in terms of this Ordinance to keep a register, to produce such register, and inspect such register;

 

[l] without warrant seize and confiscate any game, wild animal, fish or plant which is found in possession of, or held in captivity by any person if –

 

(i) such person fails, at the demand of such nature conservator, to produce a permit, licence, exemption, written authority or permission or any other document authorising such possession or captivity; …’’ . (My underlining)

 

[28] It cannot be seriously disputed that Member was a nature conservator at the time and had set up the roadblock in question qua nature conservator.

 

[29] Section 16 of the Police Act provides:

 

(1) Without derogating from the functions referred to in section 13 and notwithstanding the provisions of any other law any officer may, when he or she considers it necessary for the maintenance of law and order or for the prevention and detection of crime-

(a) erect or place or cause to be erected or placed barriers , or cause a cordon to be formed in or across any road , street or any other public place in such manner as he or she may think fit.’’

In the view that I take of this matter I need not decide whether the roadblock erected by Member on 5 July and at which second plaintiff and his party were stooped was in compliance with s16 of the Police Act.

 

[30] The issues that call for decision are:

 

(i) What kind of permit did Alberts need to transport the Mountain zebra which they had shot at Eendrag?

 

(ii) Was Alberts in breach of the law in that the trophy hunting permit was not found “on his person”?

 

[31] Mountain zebra is specially protected game and can only be hunted with a permit issued by the Minister. It is common cause that the plaintiff’s Osonjiva Safaris had permits in favour of Finnish tourists to hunt Mountain zebra. It is also common cause that Alberts and two Finnish tourists hunted a Mountain zebra at farm Eendrag. It is beyond dispute that at the time that the trio hunted the Mountain zebra, they had the hunting permits in their possession as required by law. After they hunted the zebra they transported it to Otjiwarongo and thence to Osonjiva. The Plaintiffs maintain that on the strength of the trophy hunting permits they took out on 14 June 2005, they could lawfully transport the hunted Mountain zebra to the intended destination. That much was conceded by Member and George Masielo; the latter being a senior official of the Ministry. I am satisfied that the concession was properly made if regard is had to section 26(5). It states:

 

 

Any person, who hunts specially protected game under a permit granted in terms of this section, shall at all times have such permit in his possession while he is so hunting.” (My underlining)

 

 

[32] In the Ordinance, the Legislature punctiliously draws a distinction between “in his possession” and “on his person” (See sections 26(5) and 48(1) respectively). Counsel on either side have not referred me to any authority that could shed light on the issue. The golden rule of statutory interpretation is that words must be given their ordinary grammatical meaning, unless doing so would produce an absurd result. “On his person”5 cannot mean that the permit must be physically possessed in the sense of it being held directly on the body of the permit holder. Such an interpretation would be absurd. What it probably means is that the permit must be in such a location (in proximity to the holder) that if the holder is asked to produce it, he or she can immediately reach for it and produce it there and then. On the contrary, “on his person’’ cannot mean that it suffices that a person is the holder of a valid permit and can produce it later even if he or she is unable upon demand by the authorities to immediately (there and then) produce proof of the permit.

 

[33] The latter proposition, which is what Mr Brandt is contending on behalf of the defendant, could not have been intended by the Legislature and is, in any event, in conflict with the ordinary grammatical meaning of the words “on his person”. In my view, the section separates the fact of the existence of a validly issued permit from the degree of control to be exercised over it at a certain time of legal relevance, i.e. when the person is transporting the game that has been shot. The policy behind the legislation, it appears to me, is to enable the authorities, if and when necessary, to do spot checks in a bid to control and stem illegal hunting. It would be absurd to expect that the authorities should, in every case where a person is unable to produce a permit on demand, let such person go (and in that way possibly lose evidence), or to accompany them to the place where they say the permit is being kept.

 

[34] Mr Brandt argued that s81 of the Ordinance is unconstitutional in that it violates the plaintiffs right to freedom of movement and privacy. I consider this to be recognition that, barring its unconstitutionality, the provision authorised the actions of Member and his colleagues in mounting a road block, stopping Alberts and the tourists and inspecting their vehicle. The constitutionality of s 81(1) was not the subject of challenge in the proceedings before me. It remains part of our law until struck and is of full legal force and effect and entitled Member and his colleagues to take the actions they took on 5 July 2005. That makes it unnecessary for me to consider if s16 of the Police Act covered the actions of Member and his colleagues in mounting the road block on 5 July 2005.

 

[35] I am accordingly satisfied that Alberts, contrary to s48 of the Ordinance, failed to have a permit “on his person” when he was stopped at the roadblock on the fateful night. Member was accordingly justified to confiscate the Mountain zebra and the Land Cruiser (including its key) on which the zebra was being conveyed.

 

[36] In the light of my finding that it was a breach of the law for Alberts to have transported the Mountain zebra without the permit “on his person”, it was not unlawful for Member to have seized the zebra, the key of the Land Cruiser and the Land Cruiser itself.

 

[37] The question arises whether in respect of the accusation of poaching made against Alberts, liability should attach. The accusation was intentionally made when regard is had to the fact that upon being asked, Alberts made it known to Member that a permit had been obtained for shooting the zebra and was not far away. The learned authors Neethling et al Law of delict, 5th ed. Observe (at p321, para 3.21):

 

A person’s dignity embraces his subjective feelings of dignity or self-respect. Any insulting words or belittling or contemptuous behaviour may amount to injury to dignitas. Publication of the insulting behaviour to third persons is unnecessary to constitute inuiria; publication to the plaintiff alone is sufficient’’.

 

To accuse a person who by mistake forgot to carry on his person a permit to transport game to be a poacher, without verifying facts, is contra boni mores: compare O’Keeffe v Argus Printing & Publications Co. Ltd 1954 (3) SA 244 (C).

 

I can see no basis either in logic or legal principle why, in the premises, Member should not be held liable on the action iniuriarum in favour of Alberts in respect of the unlawful and wrongful accusation of poaching; poaching being a criminal offence.6 As far as quantum goes, one cannot ignore the fact that Alberts had significantly contributed to the situation in which he found himself. We will of course deal with that question should the case proceed to determination of quantum.

 

[38] Apart from the Mountain zebra (then still unskinned) no other items or goods were mentioned in the particulars of claim or in the evidence of either the first or second plaintiffs as having been seized or stolen. As for the zebra skin which allegedly went bad, none of the two plaintiffs gave a description of how bad the skin had deteriorated after it had been confiscated and returned on the 6th of July. The ‘hairslip’ they say had occurred to the skin appeared not to have been visibly perceptible or deterred the plaintiffs from selling the skin to the hunters: Katjinamunene testified that the skin of the zebra was removed and tagged for the hunter(s) and Van Wyk was emphatic that he did not notice any deterioration in the skin of the zebra. It is common cause that it was quite cold during that period- a fact that would have delayed the onset of decomposition of the dead zebra. Van Wyk also mentioned that Alberts never mentioned that the skin had deteriorated when they were all present at the farm on the 6th July. That mush was not disputed. Damage to the zebra skin had therefore not been proved on balance of probabilities. Even if I am wrong in that respect, I had found that it was lawfully seized any way.

 

[39] The first plaintiff’s claim of unlawful search and seizure is unsupported by the evidence led before me, yet this claim was persisted with to the end without being abandoned, especially if regard is had to the fact that Mr Brandt in further particulars conceded that the home of first plaintiff had not been searched as alleged in the particulars. However, when Mr Brandt amended the particulars during the trial he did not even expunge that part.

 

[40] As Mr Swanepoel correctly submitted, the first plaintiff and Member never met at the roadblock on the 5th July. He could therefore not have been accused by Member of poaching. As regards the encounter at the farm, an independent witness, Van Wyk, gainsaid any such accusation by Member and the first plaintiff himself did not testify that he was accused by Member of poaching on that occasion. It is now also clear that the first plaintiff had not been stopped by Member or had his freedom of movement curtailed in any way.

 

[41] All of the first plaintiff’s claims based on injury to his personality interest are therefore baseless. I am unable to tell if these wild and exorbitant claims are the result of wrong professional advice or the sheer greed of the first plaintiff. Fact remains, there is simply no factual basis for it and the claims smack of greed and opportunism- conduct which deserves a special costs order.

 

[42] The next claim to be considered is that relating to the alleged loss of income by the first plaintiff from the alleged cancellation of bookings by the Finnish tourists. The Finnish tourists had not been called to verify the claim. Against this we have the testimony of Katjinamunene who stated that those Finnish tourists actually remained on the farm after the events of the 5th and 6th July and continued to hunt.

 

[43] The claim in respect of the six additional tourists who allegedly also cancelled bookings were not even elaborated upon in the evidence of the two plaintiffs. I am left to guess if they were actually on the farm Osonjiva at the time the events happened, or whether they cancelled before they got there and in what circumstances. The word “destined” in the plea implies it was the latter. In respect of both groups of Finnish tourists, apart from the mere say-so of the plaintiff’s, there is no other objective evidence to enable me to accept their version as opposed to that of Katjinamunene. There is insufficient evidence that establishes on balance of probabilities that the Finnish tourists cancelled bookings on account of any unlawful conduct of the defendant’s employees. The first plaintiff also failed to prove that the defendant’s employees did anything unlawful which could have resulted in the tourists cancelling their bookings with the first plaintiff. I find therefore that the claim for loss resulting from alleged cancellation of bookings was also not proved.

 

[44] The upshot of all this is that the first plaintiff failed to prove any of the claims on which he had brought proceedings against the defendant; while the second plaintiff only proved the claim of false accusation of illegal hunting.

 

[45] In the premises:

 

(i) First plaintiff’s claims 1 and 2 are dismissed with costs on the scale as between attorney and own client;

 

(ii) The second plaintiff is entitled to compensation by the defendant as a result of contumelia and injury to the second plaintiff’s dignity and personality on account of Member accusing him of poaching. Second plaintiff is entitled to the costs of that claim;

 

(iii) The balance of second plaintiff’s claim 1 is dismissed with costs.

 

 

 

 

_______________

DAMASEB, JP

 

 

 

 

 

ON BEHALF OF THE APPLICANTS: Mr C Brandt

 

Instructed By: Chris Brandt Attorneys

 

 

ON BEHALF OF THE RESPONDENT: Mr P Swanepoel

 

Assisted by: Ms V Katjihongua

 

Instructed By: Government-Attorney

 

1 Schedule 3 to the Nature Conservation Ordinance, No. 4 of 1975 (“the Ordinance”).

2 Section 26(1) of the Ordinance.

3

Regulation 110 of the Regulations made under the Ordinance states: “No person except a professional hunter, master hunting guide, hunting guide or public transport service may transport a trophy hunter in Namibia for the purpose of trophy hunting …”

4 “The owner of a farm or land, who, in terms of this Ordinance, has the right to hunt huntable game… may lease that right to any other person …”

5 Contrast consideration of found in possession in R v Wilson 1962 (2) SA 624 (A) ; R v Smythe 1968 2 SA 24-25®; R v Hassen 1956 4 SA 41 (N); R v Moosa 1960 3 SA 517 (A); R Manquka 1971 2 SA 365 (E); R v Zakwe 1964 1 SA 828 (N); S v Hoosain 1987 3 SA 1 (A); and ‘’ found on’’ in Lawrie v Union Govt 1930 TPD 402.

6 Section 26 of the ordinance makes the hunting of specially protected game without a licence a criminal offence, punishable with a fine of up to N$ 20 000 or to imprisonment for 5 years or to both a fine and imprisonment.