Juliet Simango v The State

### Preamble
1
HMA 17/19
Case No CA 64/18
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JULIET SIMANGO

versus

THE STATE

HIGH COURT OF ZIMBABWE

MAWADZE J & MAFUSIRE J

MASVINGO, 13 February 2019

Date of written judgment: 6 May 2019

Criminal appeal

Mr C. Ndlovu, for the appellant

Mr M. Tembo, for the respondent

MAFUSIRE J

[1]	This was an appeal against sentence only. In the court a quo the appellant was unrepresented. She was convicted on her own plea of guilty to contravening s 82(1) of the Parks and Wild Life (General) Regulations of 1990 (SI 362 of 1990) (“the Parks Regulations”), as read with s 128 of the Parks and Wildlife Act, Cap 20:14 (“the Act”). These provisions relate to the illegal possession of ivory.

[2]	The facts were these. On 9 September 2018, at around 10:00 hours, the appellant was herding cattle in Save Valley Conservancy. She came across a dead elephant. She removed one tusk and took it home. The following day she went back to the dead elephant. She removed the other tusk and again took it home. The police received a tip off. Following a search of her homestead the police recovered the two tusks. They had been hidden in one of the appellant’s houses. She was arrested. That was on 11 September 2018, i.e. a day after she had taken the second tusk, or two days after she had taken the first.

[3]	Section 128 of the Act provides for a special penalty for certain offences. By the use of the non-obstante clause, “notwithstanding any other provision of this Act …” it overrides all other provisions of the Act and any regulations made under it.

[4]	In substance, s 128 provides for a mandatory minimum sentence of 9 years for a first offender convicted of, inter alia, the unlawful possession of ivory or any trophy of any specially protected animal, unless they can show some special circumstances justifying the imposition of a lesser penalty. If special circumstances are found to exist, the first offender may be sentenced to a fine four times the value of the ivory or any trophy, or to imprisonment for a period not exceeding five years, or to both such fine and such imprisonment.

[5]	The court a quo found no special circumstances. The appellant was sentenced to the mandatory minimum sentence of 9 years imprisonment. In addition the ivory was forfeited to the State. It was valued at $3 852-50.

[6]	The appellant appealed to this court on a single ground which was explained in several ways. It was said by finding no special circumstances the court a quo erred. How and why the court was said to have erred was explained this way:

It never asked the appellant why she had decided to remove the ivory and keep it.

The appellant had found the elephant dead. She had not killed it herself. She had found it by chance. She had been tempted.

The appellant had never attempted to sell or deal in the ivory. She had innocently possessed it.

The appellant was an unsophisticated female offender who had a suckling child aged 1 year at the time.

[7]	The State thought the appeal had merit. It said the court a quo did not adequately explain the meaning of special circumstances. Both Mr Ndlovu, for the appellant, and Mr Tembo, for the State, argued that the trial magistrate had been perfunctory in his explanation of the term ‘special circumstances’ and that he had not gone beyond the technical. Both Counsel argued that the court should have asked the appellant the motive for her possession of the tusks.

[8]	Mr Tembo went further to say in terms of s 47(3) of the Act, a person who takes possession of any trophy has at least 7 days to surrender it to the appropriate authority. In casu, the appellant had been arrested only a day after taking the second tusk, and only two days after taking the first.

[9]	Probably taking a cue from Mr Tembo’s s 47(3) argument aforesaid, Mr Ndlovu indicated from the Bar the appellant had not appreciated that the taking or keeping of elephant tusks was illegal and that, at any rate, in due course she intended to report her find to the local traditional leaders. She was still within the 7 days when she was arrested. If the trial court had just as much as asked her the reason for taking the ivory, the appellant would have given that explanation.

[10]	Both Counsel relied on a number of authorities on the meaning of special circumstances and the nature of the explanation expected. These included S v Chisiwa 1981 ZLR 666; S v Dube & Anor 1988 (2) ZLR 385 (SC); S v Chidembo SC 118-89; S v Manase 2015 (1) ZLR 160 (H); S v Kambuzuma HH 175-15 and S v Fumise HMA 21-17.

[11]	Mr Ndlovu relied heavily on the remarks in a review judgment by MUREMBA J in Manase above (with which my Brother MAWADZE J concurred) to the effect that:

the court has a duty to explain what is meant by special circumstances;

the court should invite the accused to address it on special circumstances;

the court should advise the accused that in addressing it on special circumstances, it is his or her right to lead evidence from witnesses if he or she wishes;

the right to lead evidence on special circumstances (and concomitantly, the court’s duty to explain) is even greater in circumstances where the accused is unrepresented and he or she risks being sentenced to a minimum mandatory sentence.

[12]	We were not impressed. All these cases are distinguishable. At the end of argument we dismissed the appeal for lack of merit and gave our reasons ex tempore. Mr Ndlovu has now asked for them in writing.

[13]	In the court a quo, the explanation and response on special circumstances went like this:

“Anyone convicted of unlawful possession of ivory must be sentenced to a term of imprisonment of not less than 9 years imprisonment. However, one can avert such a sentence by satisfying the court that there are special circumstances justifying the imposition of a lesser penalty. Special circumstances have been taken to mean things which by their very nature are out of the ordinary. These may be peculiar to the offence or to the offender.

Question:	Have you understood my explanation?

Answer:	Yes.

Question:	Do you have any such reason?

Answer:	Yes

Accused states:

My children are still young. May the court be lenient with me. That is all.

State Counsel

From what the accused has said it appears there are no special circumstances.

By Court

What accused has said does not amount to special circumstances as envisaged by the Act. That accused has minor children cannot be taken as a special circumstance. Accordingly, the court finds that there are no special circumstances in this matter.”

[14]	Mr Ndlovu argued that the appellant’s response was no more than mitigating circumstances. That, he said, showed that she had not at all understood the court’s explanation, thus exposing the inadequacy of the court’s explanation.

[15]	We were not persuaded. The adequacy or otherwise of the court’s explanation on special circumstances cannot be judged by the response of the accused. The measure is whether or not the court’s explanation is reasonably adequate. In casu, we found that it was.

[16]	There is no template on special circumstances. None of the cases relied upon suggested any prototype explanation.  Only guidelines are given. That is as it should be. Every case depends on its own set of facts. The adequacy of the explanation is judged objectively.

[17]	At any rate, and quite interestingly, even those factors listed in the notice of appeal did not amount to such special circumstances as would avoid the mandatory minimum sentences. They were all mitigatory. Special circumstances are factors out of the ordinary, either in their extent or in their nature: see S v Chisiwa, supra, at p 671. Not all mitigatory factors may be special circumstances.

[18]	If after the above explanation by the court a quo, and with the second opportunity provided by the appeal, all that the appellant could give were mitigatory factors, the plain conclusion is that there were no special circumstances. The mitigatory factors were plainly nothing out of the ordinary.

[19]	The argument that the appellant should have been asked about her motive for picking and keeping the ivory was to confuse and conflate issues. The offence with which she was convicted of was unlawful possession of ivory, not the selling of, or an intention to sell ivory. The State Outline had been read back to her. She had admitted all the averments, including the fact that the ivory had been found hidden in one of her houses. The essential elements of the offence had been adequately canvassed. Indeed Counsel took no issue with any of these factors. At any rate, the proceedings would have been translated to the appellant’s ‘mother tongue’.

[20]	Therefore, there could have been no question of any misunderstanding. That being the case, the crime had been complete if the appellant possessed the ivory without a permit. It was clear she had the intention to possess it. After being found guilty, that she had very young children; that she was an unsophisticated female offender, or that it was not herself that had killed the elephant but had just stumbled upon it by chance, and that she had harboured no intention of selling the ivory, were all mere mitigatory features that would perhaps invoke sympathy, and would, in all probability, reduce any other penalty as could be assessed. But unfortunately, there exists a mandatory penalty. The courts’ hands are tied.

[21]	Mr Tembo’s s 47(3) argument was a red herring. That section reads:

“47 Trophies of specially protected animals which are State trophies

Subject to subsection (2), the trophy of any specially protected animal killed or found dead shall be deemed to be a State trophy.

(2)	Subsection (1) shall not apply in respect of the trophy of any specially protected animal which—

(a)	has been killed in terms of a permit issued in terms of section forty-six; or

(b) 	was in lawful captivity immediately before its death.

(3) 	Subject to the proviso to subsection (1) of section sixty-three, any person who takes possession of any trophy which is a State trophy in terms of subsection (1) shall, as soon as possible and in any event within seven days, surrender such trophy to the appropriate authority for the land on which it was found or to the nearest convenient office of the Authority or police station or to the local authority for the area concerned.

(4)	Any person who contravenes subsection (3) shall be guilty of an offence and liable to a fine not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.

(5)	The burden of proof of any matter referred to in subsection (2) which would make lawful the failure to surrender any trophy in terms of subsection (3) shall, in any prosecution relating to such failure, lie upon the person charged.”

[22]	The appellant was not charged with contravening s 47 (failure to surrender a trophy). She was charged for contravening the Parks Regulations, as read with the penalty provision of the Act (illegal possession of ivory).

[23]	If despite the appellant not having been charged for failure to surrender a trophy, but nonetheless wanted to use the 7 day window period of s 47 as a special circumstance, alleging that she intended to surrender the ivory in due course (the onus of which would lie on her), surely she had the opportunity, on no less than four occasions, to have told the court that she had intended to report her find to the appropriate authority. Those four occasions were:

when the charge was put to her and she pleaded guilty;

when the facts were read out to her and she agreed with all of them without any variation;

when the essential elements were canvassed and, among other things, she admitted she had no defence to proffer, and

finally, when special circumstances were explored and all she could say was that her children were very young.

[24]	The appellant’s alleged lack of sophistication should not be elevated to ridiculous levels. The administration of justice should not be unnecessarily hampered by presumptive ignorance or the inventiveness of Counsel. That she had hidden the ivory in one of her houses did not quite reflect a clean motive on her part or exhibit a lack of sophistry.

[25]	It was upon those reasons that we found no misdirection by the court a quo and dismissed the appeal.

6 May 2019

Mawadze J agrees	Signed on original

Ndlovu & Hwacha, appellant’s legal practitioners

National Prosecution Authority, respondent’s legal practitioners