CASE NO
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.
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.
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 hunter.
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 Ordinance)
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:
[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”
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.
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
Van Rensburg and Another v Government of the Republic of Namibia ((P) I 3247/2005 ) ((P) I 3247/2005) [2009] NAHC 17 (27 March 2009);