A tracking history in the Nelspruit Magistrate’s Court

Mozambicans Andelius Mukwebe and Jeremano Thive were found guilty of poaching-related activities in the Nelspruit Regional Court last week. Evidence of a tracking dog’s conduct was part of the evidence the magistrate, Mr Edward Hall, considered.

This Kruger National Park (KNP) tracking dog’s name is Killer. He, his handler (a KNP dog handler and spoor tracker) and one other tracker were responsible for tracking down the two poachers on January 19, 2013.

According to the trackers’ testimony they arrived at a rhino-poaching scene that morning. They heard gunshots and headed in the direction of the shots.  They saw a rhino spoor, which led them to a carcass, from where human footprints led them to Mukwebe and Thive. They had weapons and two rhino horns in their possession.

The accused admitted that they’d been in South Africa illegally, but denied all other charges against them. The weight of the evidence against them, however, led to a guilty verdict.

Read how this poaching case made history here.

The acceptance of evidence about a tracking dog’s conduct is a celebrated first for South African rhino-poaching cases.
Hall pointed out, however, that his acceptance of the dog handlers’ evidence of Killers’ tracking, did not rebut previous rulings on the issue of the admissibility of dog-tracking evidence.

In 1920, the court in Rex v Trupedo rejected evidence relating to the tracking or identification of tracking dogs in criminal cases.
In those days, the ability of a dog to track a spoor could not be proven and courts were understandably cautious. Mukwebe and Thive’s defence attorney, Mr Daniel Mabunda, also said that tracking dogs cannot give evidence themselves – evidence can only be led about their conduct.

These dogs can’t be cross-examined and the possibility of allowing evidence of their tracking was only considered again in 1986.

In that year in State v Shabalala, the court said the ruling in Rex v Trupedo was not the final say in the matter.
It was decided that, if a number of factors were present, such evidence may be relevant and admissable in our courts in future.
These factors included testimony of the dog’s breeding, tracking ability, testimony from the handler himself and surrounding circumstances on that day.

Hall pointed out that the circumstances in which the two Mozambicans were traced, were not the same as those in State v Shabalala. In the Shabalala-case, the tracking dog became part of the investigation when he sniffed a shoe found on a crime scene and identified the owner during an identity parade.

Hall said that a court’s finding on the issue will not, for example, be the same in these two cases, as the sets of facts were two completely different ones.

Hall also referred to our court’s approach in accepting the evidence of human’s tracking abilities. The first mention of human trackers was made in South Africa’s court records in 1908.  Hall said that a Mr Loverstare was part of a group of people who were camping. They left their camping spot to look for more ox wagons. When they returned to the spot, one of them was unaccounted for.

When Loverstare’s estate had to be finalised, proof of his death was a prerequisite.

As his body was never found, trackers who tracked his spoor on the night of his death, testified that it led to a nearby water source.

As this dam was home to a few crocodiles, the court presumed him dead after the trackers’ testimony.

As the state had led ample testimony on, among others, Killer’s breed, tracking abilities, training and the circumstances under which the two poachers were tracked down, the court allowed the testimony dealing with his conduct.

Testimony from his handler and KNP trackers were also allowed, as the courts have been allowing this since 1908.

Mukwebe and Thive would have been sentenced on Friday, but their sentencing had to be postponed as Mabunda could not be at court. They will be sentenced on October 27.