Chumlong Lemthongthai v The State

The appellant, a Thai national acting as an agent for a Thai company (Xaysavang Trading Export-Import), fraudulently obtained 26 permits to shoot and kill rhinos under the pretense of trophy hunting. In reality, the purpose was to illegally trade in rhino horn. The appellant used the identification particulars of other persons to procure the permits through outfitters/landowners who were unaware of the fraud. The persons named on the permits did not participate in the hunts. The appellant then unlawfully manipulated customs documents to export the rhino horn by changing consignee names and destination countries, contrary to CITES permits. The 26 rhinos killed were surplus bulls that would have been destined for legitimate trophy hunters. The appellant was charged with 26 counts of contravening s 80(1)(i) of the Customs and Excise Act 91 of 1964 (improper use of customs documents) and 26 counts of contravening s 57(1) read with other sections of the National Environmental Management: Biodiversity Act 10 of 2004 (trading in protected species without proper permits). The appellant initially pleaded guilty to some counts, then changed to not guilty, and finally pleaded guilty to all 52 counts. He was in custody for 16 months awaiting trial.

• Whether the sentences imposed by the regional court and high court were appropriate for contraventions of s 80(1)(i) of the Customs and Excise Act 91 of 1964 and s 57(1) of the National Environmental Management: Biodiversity Act 10 of 2004
• Whether the trial court and high court misdirected themselves in sentencing
• What sentence would appropriately balance the objectives of deterrence, retribution and the constitutional imperative to protect biodiversity for present and future generations
• Whether a non-custodial sentence was appropriate given the manipulation of the permit system and the need to combat illegal trade in rhino horn
• The appropriate consideration of mitigating and aggravating factors in sentencing

The appeal was upheld. The order of the high court was set aside and substituted with: (i) In respect of counts 1 to 26 (Customs and Excise Act contraventions): a fine of R1 million or five years' imprisonment in default; (ii) In respect of counts 27 to 52 (NEMBA contraventions): imprisonment of six months on each count; (iii) Effective sentence: payment of a fine of R1 million plus a period of imprisonment of thirteen years, antedated to 9 July 2011, and failing payment of the fine, an effective period of imprisonment of 18 years.

The binding legal principles established are: (1) Sentences for environmental crimes involving manipulation of permit systems to illegally trade in endangered species must be proportionate and not induce a sense of shock when compared to sentences for other serious offences; (2) Courts must not make unsubstantiated assumptions in aggravation of sentence (such as assuming syndicate membership without evidence); (3) While non-custodial sentences are inappropriate for serious manipulation of environmental permit systems involving protected species, sentences must still be proportionate; (4) The constitutional imperative under s 24 of the Constitution to protect the environment for present and future generations must inform sentencing in environmental crimes; (5) The objectives of NEMBA to manage and conserve biological diversity within the framework of the National Environmental Management Act must be given effect through appropriate sentences; (6) Courts must distinguish between different types of environmental offenders (e.g., manipulators of permit systems versus typical poachers) when determining appropriate sentences; (7) Heavy fines in addition to imprisonment are appropriate for contraventions of the Customs and Excise Act where the offender acted for commercial gain; (8) Courts should not arbitrarily group counts for sentencing purposes without rational justification; (9) Time spent in pre-trial custody must be properly taken into account in sentencing.

The court made several important non-binding observations: (1) Government officials responsible for supervising authorized hunts can be criticized for lack of proper supervision, and photographs suggested some officials probably knew the permit terms were being violated and the stated purpose was false; (2) The rhinos killed in this case were surplus bulls destined to be shot by trophy hunters anyway, which distinguishes this case from conventional poaching where animals are killed indiscriminately without any pretense at legality; (3) A non-custodial sentence would send out the wrong message and allowing such behavior to be dealt with too leniently would have the opposite effect to what was intended by NEMBA; (4) Constitutional values dictate a more caring attitude towards fellow humans, animals and the environment in general; (5) Illegal activities such as those engaged in by the appellant fuel the fire of illicit international trade in rhino horn; (6) The duty to protect and conserve biodiversity is owed to present and future generations and in so doing, past neglect will be redressed; (7) The heavy fine imposed would impact not only on the appellant but also on the directing minds behind the offences; (8) The rhino population since 2010 has been in decline due to illegal rhino poaching, and if appropriate sentences are not imposed, these magnificent creatures would be decimated from earth.

This judgment is significant in South African environmental and criminal law for several reasons: (1) It emphasizes the constitutional imperative under s 24 of the Constitution to protect the environment for present and future generations through reasonable legislative measures that promote conservation; (2) It interprets and applies the penal provisions of the National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA) in the context of illegal rhino horn trade; (3) It demonstrates the complementary nature of NEMBA and the Customs and Excise Act in combating wildlife crime; (4) It establishes sentencing guidelines for serious environmental crimes involving manipulation of permit systems and illegal trade in endangered species; (5) It balances the need for deterrent sentences against proportionality principles in sentencing; (6) It highlights the government's responsibility for proper supervision of permit systems and criticizes officials who may have been complicit or negligent; (7) It contributes to South Africa's jurisprudence on protecting biodiversity and combating organized wildlife crime while maintaining proportionate sentencing principles. The case is particularly important in the context of South Africa's rhino poaching crisis that escalated significantly from 2010 onwards.