CHAPTER FIVE
CRIMINAL PROSECUTION OF ABALONE POACHING OFFENDERS
This chapter examines the difficulties that the criminal justice authorities encounter when bringing the alleged abalone poachers to book. The chapter will look into how people who are charged with poaching abalone are dealt with by the criminal justice process. The discussion will focus mainly on the procedural steps of the case. But the chapter will start by describing briefly the state agencies responsible for monitoring, preventing, and investigation the abalone poaching. Thereafter the discussion will turn to the actual procedural steps through which the case goes once a suspect has been arrested. The discussion here will look particularly at the following aspects: the arrest; formulating of the charges, bail proceedings; plea bargaining; the trial itself, including matters that are germane to it, such as in which courts such trials are usually held; the general biographic profiles of the accused (e.g. age, nationality, occupation);the question of legal representation; the witness protection scheme; the calling of and cross examination of witnesses, the length of the trial issues related to the trial itself, such as language interpretation, delays and the general outcome of the case.
5.1 State organs responsible for monitoring, preventing, and investigation the abalone poaching
5.1.1 The Specialised marine investigation unit: The environmental management inspectorate (EMI)
The Environmental Management Inspectorate, which consists of a network of environmental enforcement officials across spheres of government and across environmental media, has also been dubbed the ‘Green Scorpions’ by the media.163 It has a distinctive national identity and profile, but consists of officials from various government bodies.
The Department of Environmental Affairs (DEA), and other relevant departments employ Environmental Management Inspectorates, a network of environmental enforcement officials from various municipal, provincial and national government departments established by the National Environmental Management Act (NEMA) of 2008.164
The EMIs are not permitted to prosecute cases in court. All cases are handed over to the National Prosecuting Authority (NPA) for prosecution. Yet, the EMIs work closely with prosecutors to ensure the successful prosecution of offenders throughout the country. There are specific prescribed qualification requirements165 and the first set of bridging training courses have recently been completed, leading to the appointment of the first group of EMI's. The new, more comprehensive basic training course is currently been presented, as well as specialised courses on specific subjects.
A close relationship between EMI's and the SAPS needs to be created, a process that has already commenced, as was pointed out above. The further development of a mutual understanding of each other's responsibilities and specific fields of expertise and domains of operation is of utmost importance to ensure effective investigation of environmental crime. In terms of section 310 of NEMA, all members of the SAPS have all the powers of an EMI except the power to conduct routine inspections according to section 31(k), and the power to issue and enforce compliance notices in accordance with sections 31(l) to 31(o) of NEMA. All SAPS members are also Fisheries Control Officers’ (FCO) who are appointed in terms of section 9 of the MLRA and therefore have all the powers set out in section 51 of the MLRA.166
EMI's have the functions of monitoring compliance and enforcing laws. Such as NEMA, the Biodiversity Act, and the Protected Areas Act. Other future SEMA's will have similar powers. But other national environmental legislation, provincial legislation and municipal by-laws are not within the ambit of their function. EMI's have the powers to conduct routine inspections, investigations, enforcement, and to exercise administrative authority, such as issuing compliance notices.
The EMI's will continue to work closely with the SAPS and will also use SAPS procedures and support where necessary. Various mechanisms are used to ensure effective co-operation with the SAPS, including a standard operating procedure for co-operation between DEAT and the SAPS, as well as the updating of the Crime Administration System ("CAS") to make provision for environmental crime offences. The continuing role of the SAPS is discussed below.
5.1.2 The South African Police Service (SAPS)
The SAPS is constitutionally authorised to investigate crime of any nature. It is established as a nationwide service and performs its policing responsibility in respect of all nine provinces in South Africa. The current service comprises 1 115 police stations, with a police/population ratio of 1:365.
Section 205(3) of the Constitution describes the core function of the SAPS as the duty to prevent, combat and investigate crime, which therefore includes the task of investigating environmental crime. The SAPS code of conduct further contains the undertaking that the SAPS will co-operate with the community, government at every level and all other related role players in achieving this objective.167
Anti-abalone poaching, as an environmental crime, was often not a priority for the SAPS in light of the high levels of crime generally and because of the limited resources available within the SAPS. In spite of this, much success was achieved by units such as the Directorate for Priority Crime Investigation (DPCI), the Organised Crime Investigative Unit and the now defunct Endangered Species Protection Unit, which played a big role in the detection and investigation of environmental crime . In many cases local police members were involved in both the detection as well as the investigation of environmental crime, especially in the field of illegal exploitation and trade in wildlife and marine products.168
There was often close co-operation between investigators of the various national and provincial environmental enforcement agencies and the SAPS in joint projects and investigations. The SAPS also assisted in the setting up of road blocks, execution of search warrants, and provision of protection to enforcement officials. They manned border post controls and assisted with dogs trained to find wildlife products.