Denny Mtetwa, Witness Saize, Isaac Mlambo v The State

### Preamble
1
HMA 10-20
CRB CHP 921-23/19
DENNY MTETWA
WITNESS SAIZE
ISAAC MLAMBO
Versus
THE STATE
HIGH COURT OF ZIMBABWE
MAWADZE J and WAMAMBO J
MASVINGO, 17 JULY, 2019 AND 13 MAY 2020
Criminal Appeal
L. Mhungu with him A. Nkumbula, for the appellants
T.Chikwati for the respondent
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Provided that where on conviction the convicted person satisfies the court thatthere are special circumstances in the particular case justifying the imposition of a lesser penalty the facts of which shall be recorded by the court, the convicted person, shall be liable to a fine four times the value of the ivory or any trophy or to imprisonment for a period not exceeding five yearsor to both such fine and such imprisonment

(`2) ………………………………….."

When regard is had to the grounds of appeal against convictiontwo grounds remain.  The first ground of appeal is a general and broad ground that is not clear and specific.To allege that there was no evidence pointing to appellants guilt is clearly not a ground of appeal.  The remaining grounds are basically attacking the findings by the trial Magistrate that the appellants possessed the ivory while the last ground attacks the "trap" evidence.  To better understand the evidence relating to the possession or otherwise of the ivory it is instructive to consider the evidence in more detail.  The star state witness was JeremiahMhlanga.  The other state witness corroborated Jeremiah’s evidence in all material respects.  Where there were disagreements they did not goto the material aspects of the case.  Jeremiah’s evidence was not seriously challenged in cross examination.Jeremiah Mhlanga testified that after receiving a tip off about people selling ivory he met 2nd and 3rd appellants.  The 2 appellants introduced themselves "with joy”; and spoke of the "item" being available. The two were transportedto Heleni’s bar after promising to meet the following morning.Second appellant volunteered information thathe and others also had a lion’s head.  Contact between Jeremiah Mhlanga and the 2 appellants werelive resulting in the appellants coming over to Jeremiah and his team.  The appellants were the ones who directed the witnesses through a dust road from Bichenoughbridge toMutema and then toCharuma Primary School.

What transpired after the car was parked is that the three appellants left and took some time before they returned.Upon theirreturn they were now five in numbers.   The 3 appellants were walking behind two men one of whom was carrying a sack.   The three appellants boarded the car where thepurported buyer was.   The sack was loaded in the car boot.   The sack contained two ivory tusks.  The trial court found that technically there was a trap.Nothing turns on this finding.

The evidence reveals that the appellants volunteered information to the state witnesses.   The appellants led the way, located the ivory and returnedin the company of two others. One of the two accompliceswas carryingthe sack containing the ivory.

We are convinced that the appellants not only knew where to find the ivory but actually proceeded to bring the ivory albeit through their accomplices.

It did not end there.  Negotiationssupposed totake place for the sale of ivory attractedthe appellants into the buyer’s car.  The bag was also placed in the car.

The appellants were clearly not trappedinto committing the offence.  They already were in possession of the elephant tusks before the authorities got windof suchinformation.  The appellants volunteered information, directions and led the authorities to the tusks in question.

The Trial Court found that the appellant dealt in ivory.   The case of S v Solomon Mtisi HMA 28-H was cited as authority.

Possession has been often described as a nebulous concept.  In this case although not having what has been described in argument as direct physical possession the appellants not only led the authorities to the place where the tusks were.  They disappeared and returned in the companyof the two other persons with one of them carrying the tusks.

It is not a technical issue of who was physically carrying the tusk. Surely five men would not necessarily carry two tusks if one mancould.  The appellants did not only have knowledge ofthe presenceof tusks but returned with themalbetin the company of their accomplices.  The evidence established that they werekeenlyaware thatthere were tusks at Charuma area and that they were for sale.

The tusks were being bought to the physical attention of the buyers for them to buy.  From the start the negotiations between thestate witnesses and, the appellants revolved around buying the tusks.

The Magistrate found theappellants guilty of the offence charged.  The offence as preferred by the State is for either possession or dealing in ivory. Having found that the appellants dealt in	the ivory in question the conviction is thus proper on the circumstances.  When it comes to the sentence the ground ofappealis already not clear and specific as is required by the Rules.

To aver that the trial Court should have found special circumstances without attacking or alleging the said special circumstances is very broad and not specific.  To further aver that a sentence of a fine or community service was the proper sentence is not sufficient.

The penalty clause clearly provides that where there are no special circumstances a fine four times the value of the trophy or imprisonment of 5 years imprisonment or both is the proper sentence.  There clearlyis no room for community service.

To aver in headsof argument and in oral argument that entrapmentis a special circumstance is not entirely correct.

The matter of S v Kamtande 1983(1) ZLR 302 was cited as authorityfor this proposition.   The facts in the Kamtande matter (supra) arecaptured in the headnote as follows:

"In   providing in Act 1 of 1982 the amendment to the Precious Stones Trade Act, 1978 which laid  down minimum prison sentences for certain offences under  the  Act unless the  convicted person can show that there "are special reasons" why  such a sentence should not  be imposed, the legislature must have been aware that most convictions for the offences of  unlawfully dealing in or possessing precious stones result from traps set by the Police.   This means that entrapment cannot per se be regarded as a " special reason " for a sentence less severe than the specified minimum, but in certain cases it can be so regarded.

The Courts have long distinguished between trapping which is acceptable and trapping which is not and it can be assumed that this isa recognised basis for distinction as far as the legislature is concerned.For example, if the trapping was such that it promoted the commission of the offence by someone who would not otherwise have committed it, that may be regarded as a special reason.

Whether in any particular case it is to be regarded as a special reason is left by the lawmaker to the opinion of the trial court."

Clearly the Kamtande case (supra) does not say if an offender is trapped that entrapment automatically avails the offender as a special reason or special circumstance.  In fact,it is authority for the proposition that there are special cases such as under Precious Stones Trade Act, 1978 wherein police entrapments is expected because of the nature of the offence.

The learned Trial Magistrate when dealing with the issue ofspecial circumstances had this to say at page 22 of the record.

"The   question now, is it that the accused persons in case were trapped into committing the offonce as they allege.  I do not agree to this motion for the offonce had already been committed whereby at Chauma Village there were elephant tusks in the possession of Lovemore and Clemence for which the accused persons dealt in by soliciting and scouring for buyers.  This explains why thethree of them were present at Charuma Village on the day and time of the commission of the offence.  The trap was therefore for purposes of facilitating their arrest for an offence they all had already and were committing………………………….

We agree with these findings in the circumstances of this case.  We thus find that there are no special circumstances in this case.  It follows that the mandatory minimum sentence is the correct sentence.

We therefore uphold both the conviction and sentence and order as follows:

The appeal by the appellants against conviction and sentence is hereby dismissed.

MAWADZE J AGREES………………………………………………………...

Mhunga and Associates, appellants legal practitioner

National Prosecuting authority, respondent’s legal practitioner’s