Bishop Mwembe v The State

### Preamble
1
HB 266/22
HC (COND) 47/22
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BISHOP MWEMBE

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 24 OCTOBER 2022

Chamber application for condonation of the late noting of an appeal

Z.C. Ncube for the applicant

A. Nyathi for the respondent

MOYO J:	This is an appeal that was brought to me via the chamber book.  I dealt with the matter in chambers and dismissed the application for lack of prospects of success on appeal.

The application has sought detailed reasons.  Here are they:

The applicant was convicted by the magistrate sitting at Binga Magistrates’ Court of contravening section 45 (1) as read with section 128 (b) and another count of contravening section 45 (1) of the Parks and Wildlife Act (Chapter 20:14).  On the 1st count he was sentenced to the mandatory 9 years imprisonment.  On the 2nd count, he was sentenced to 12 months imprisonment which was however, ordered to run concurrently with the 1st count.

The facts of the matter are that the accused was arrested whilst carrying 6 pangolin scales worth US$5 000 in a sack.  The police acted on a tip off and arrested the accused person who did not have a permit as required by law.

In the 2nd count, upon further search accused was found with 2 python skins.  He also failed to produce a permit regarding those.

Ad conviction

It is the appellant’s contention that the learned magistrate misdirected herself in convicting the appellant for unlawful possession when the state had not proved same.  Also that the court a quo misdirected itself in dismissing the appellant’s contention that he inherited the trophies.  The learned magistrate held the view that once the appellant was found in possession of these items, he then had to come up with a reasonable explanation of his possession, that is to say, he brings the possession within the ambit of the law.  The state witnesses told the court that appellant never told them that he intended to take the items to Parks and Wildlife.  The learned magistrate in a way threw out accused’s version and accepted the version of the state witnesses in the 2nd from last paragraph at page 3 of the judgment wherein he states that the witnesses told the court that accused said he was selling the items and that they never heard of Reward Munkuli.

In essence the court adopted the version of the state witnesses.  The magistrate in my view correctly applied section 97 (8) of the Parks and Wildlife Act as logically, once the state has proved physical possession, it is for the accused to wriggle his way out of culpability by giving a reasonable explanation for the possession by coming up with a version concerning his possession that rebuts the state case.  The learned magistrate held that the accused failed in this regard.

Ad sentence

That the state in the court a quo conceded that there are special circumstances is not apparent from the court record as at page 40 of the bundle, the state submitted that it did not concede that there were special circumstances, but that if the court found them it should impose a deterrent sentence so this ground is premised on information not supported by the court record.  Again the court would logically not find that being given the items by his grandfather would constitute special circumstances after it had found that he was selling them.  I hold the view that the issue of special circumstances would only be for consideration if he still held them as inheritance from the grandfather.  The learned magistrate distinguished the case that was cited by the defence.

With regard to the sentence relating to the 2nd count, it appears the accused person is attacking that sentence not on the ground that it induces a sense of shock or that it is excessive or unduly harsh but that the appellant is of the view that it is inappropriate.  I have not found the sentence to be excessive and unduly harsh so as to induce a sense of shock.  Sentencing as it is trite, is the province of the trial court and an appellate court will only interfere with it where there is a clear misdirection.

Obviously for an application of this nature to succeed, there must be the first rung of enquiry which is whether there is a reasonable explanation for the delay in noting an appeal.  I have not dwelt much on the requirement for such as I hold the view that the explanation is reasonable and as clearly shown by the order I made that the application failed due to lack of prospects of success on appeal.

It is for these reasons that I declined the order.

Ncube & Partners, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners