“This is a good day for the rhinos, and a good day for the communities in conservation in the Grahamstown area,” a relieved Dr William Fowlds commented after the High Court in Makhanda on Tuesday 24 November dismissed the appeal of convicted rhino poachers Jabulani, Forget and Sibusiso Ndlovu.
And Premier Oscar Mabuyane has pledged the government’s continued support against poaching in the Eastern Cape. Mabuyane coined the phrase #NotInOurProvince almost exactly two years ago when he led an anti-poaching march ahead of sentencing in the Ndlovu trial. Today, he told Grocott’s Mail, “As the people of the province, in all our sectors, we are united in fighting rhino poachers and we will continue fighting rhino poachers.”
In a complex case heard over a period of three years, the Ndlovus faced various charges connected with 10 rhino poaching incidents over three years at farms and nature reserves in Albany, Jansenville, Graaff Reinet and Cradock. Each incident carried five counts. Judge Jeremy Pickering convicted them on most of the charges.
The trio’s modus operandi was to dart the animals and remove their horns while they were immobilised but fully conscious. Wildlife veterinarian Fowlds attended to most of the Ndlovus’ poaching scenes and in his testimony described the extraordinarily cruelty of the animals’ deaths as their horns were gouged out of their skulls to extract the maximum amount.
“It’s very uplifting for all those people out there on the front lines, keeping rhinos safe, as well as those who have to work with the aftermath of these very brutal and tragic poaching scenes,” Fowlds told Grocott’s Mail after the appeal verdict was handed down yesterday.
Senior Counsel, Advocate Terry Price represented the Ndlovus in their trial, as well as their appeal which was on two grounds – that the evidence police seized from the men’s chalet on 17 June 2016 should not be admitted because it was unlawfully obtained; and that the effective 25-year sentences handed down were excessively long.
Senior State Prosecutor Buks Coetzee appeared for the State during the trial and the appeal. Judge Jeremy Pickering was the trial judge. He dismissed the initial application to appeal. Following a petition to the Supreme Court of Appeal, leave to appeal to a full bench was granted. The appeal bench comprised Judges David Viljoen, Judith Roberson and Rob Griffiths.
The appeal application argued that evidence obtained by the police during an unprocedural search at Makana Resort on 17 June 2016 should not have been admitted. This evidence included a freshly removed rhino horn, tranquilliser dart gun, darts, tranquilliser, a bow saw, .22 blank ammunition, knives, side cutters, a cordless drill and six cellphones.
Price argued that because the police entered the men’s chalet without a search warrant, not only had their constitutional rights been violated and so they were denied a fair trial, but the reputation of the Court and the justice system would be in question.
The appeal Bench supported Judge Pickering’s ruling in the “trial within a trial” that had determined the evidence seized in the chalet was admissible.
Among other points, the Judges quoted from a landmark Constitutional Court ruling (Zuma), affirming that the right to a fair trial didn’t only comprise “a number of discrete sub-rights” but a “comprehensive and integrated right” established on a case by case basis.
The Bench noted that Judge Pickering had fully acknowledged that the search was unprocedural, but had contextualised it in the rapidly unfolding events of that night and the two preceding days. The Judge had emphasised public interest in the matter as well as the impact of not admitting the evidence.
“Between 2012 and the date of the trial, 6 913 rhinos were slaughtered for their horns, of which 91 were poached in the Eastern Cape… the [Supreme Court of Appeal] recognised the threat which the poaching of rhinos poses to our biodiversity heritage and the protection of the animal as an endangered species. It held that the imposition of lenient sentences would send out the wrong message.”
The Bench also reiterated Judge Pickering’s emphasis in his judgment of the sheer brutality of the rhinos’ deaths as their horns were removed while they were alive, and the fact that most had succumbed to loss of blood and terrible pain. It noted the public outrage.
On the men’s sentence, the appeal bench noted Judge Pickering’s detailed reasoning in handing down sentences that totalled more than 400 years, but which would run concurrently to achieve effective sentences of 25 years.
“We are very pleased with the outcome of the appeal,” said Fowlds. “It justifies the incredible detail Judge Pickering went into during the extended trial. We were concerned that the justice system had the potential to create a loophole on technicalities. But it seems the original ruling was judged to be sound.”
Ayesha Cantor, of the Kragga Kamma Game Park outside Port Elizabeth, travelled to Makhanda for the judgment.
“If [the Ndlovus]had walked out today, it would have been signing the rights for rhinos’ exctinction in South Africa,” Cantor said. Kragga Kamma lost a white rhino, Bella, to poachers in June 2018. The alleged perpetrators were arrested and are yet to stand trial.
“For the rhino community, this is a big day. We really can say #NotInOurProvince”.
Ikhala Veterinary Clinic Veterinary Nurse Candice Momberg, who like Fowlds has attended many of the poaching scenes, and followed the trial closely, was elated.
“I am very proud of our Province’s law enforcement and justice systems,” Momberg said. “Incredibly proud.”
Commenting today on the appeal judgment, Premier Mabuyane said, “Government welcomes the decision of the court because the crime that [the Ndlovus]were convicted for is a serious crime. We hope this sends a strong message to any person who may still be involved in this criminality.
“As the people of the province, in all our sectors, we are united in fighting rhino poachers and we will continue fighting rhino poachers to protect our flora and fauna. This is a victory for law enforcement because of the role they played in arresting these criminals.”
The appeal judgment handed down on 24 November 2020 noted that the application for leave to appeal against the convictions and sentences of Jabulani, Sibusiso and Forget Ndlovu was unsuccessful. The appeal was heard 17 August 2020.