Hlupani Austin Sibanda & Ellmone Nkomo v The State

### Preamble
Judgment No. SC 80/25
1
Civil Appeal No. SCB 120/24
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REPORTABLE   (80)

HLUPANI     AUSTIN     SIBANDA     (2)     ELLMONE      NKOMO

v

THE      STATE

SUPREME COURT OF ZIMBABWE

GUVAVA JA, MAKONI JA & CHATUKUTA JA

BULAWAYO: 21 & 24 JULY 2025

K. Ngwenya, for the appellants

S. Pedzisayi, for the respondent

GUVAVA JA

This is an appeal against the judgment of the High Court sitting at Bulawayo (“court a quo”) in which it upheld the Magistrates Court finding that the appellants were guilty of contravening s 82(1) of the Parks and Wildlife (General) Regulations, Statutory Instrument 362 of 1990 (S.I 362/90) as read with s 128(b) of the Parks and Wildlife Act [Chapter 20:14] as amended by s 11 of the General Laws Amendment 5 of 2011.  The court a quo further confirmed the sentences imposed on the first appellant, of 11 years imprisonment and nine years imprisonment for the second appellant.

After hearing counsel, the Court dismissed the appeal and indicated that reasons would be availed for the decision.  I set out hereunder the reasons thereof.

FACTUAL BACKGROUND

The appellants were charged before the Magistrates Court with unlawful possession of two raw unmarked/unregistered pieces of ivory weighing 21.75 kilograms without a license or permit in contravention of s 82 (1) of Parks and Wildlife (General) Regulations 1990 as read with s 128 (b) of the Parks and Wildlife Act [Chapter 20:14].

The following facts are largely common cause.  On 11 April 2024 at around 0700 hours, Detectives from CID Minerals, Flora and Fauna Unit (MFFU), Bulawayo, acting on information from an informer, proceeded to Entumbane High School turn off, Bulawayo. They observed the appellants standing by a dust road leading into a residential area.  The first appellant was carrying a white sack.  When the detectives approached the appellants and identified themselves, the first appellant attempted to run away but stopped when one of the detectives fired a shot in the air.  The detectives opened the white sack which was in the possession of the first appellant and found two pieces of unmarked ivory.  The appellants failed to produce any license or permit upon request by the detectives to show that they were in lawful possession of the ivory.  They were both arrested.  The two pieces of ivory were taken to a Zimbabwe Parks and Wildlife (ZIMPARKS) Ecologist who confirmed that they were indeed unmarked raw pieces of ivory.

At the trial, the appellants entered pleas of not guilty.  While accepting that they were indeed in possession of the ivory, they sought to explain their possession in a joint defence outline.  They stated that the first appellant visited his uncle in Lupane on 9 April 2024. On the morning of 10 April 2024, he saw the two elephant tusks in the bush where he had gone to search for his uncle’s cattle.  He took the tusks and hid them.  He did not tell his uncle about the finding.  He contacted the second appellant who advised him to bring the tusks to Bulawayo the following morning.  The second appellant told him that he had once heard, at some ZIMPARKS campaign, that any person who would have come into possession of certain animals like a pangolin, or a porcupine or elephants tusks, could get a reward if they surrendered these animals or animal trophies to the Parks and Wildlife offices.  The appellants stated that with this in mind they decided to take the raw ivory to the Parks and Wildlife Offices.

They stated that they were arrested while waiting for transport to go to the Parks and Wildlife office located in the city center of Bulawayo in order to surrender the ivory. They stated that they were permitted by the law to produce the ivory to a specified officer at any Parks and Wildlife office within fifteen days.  They stated that they had not committed any criminal offence as they were arrested before the fifteen-day period allowed by the law had lapsed.

The State led evidence from Albert Venganai and Honest Zvoushe, both police officers attached to the MFFU, who were part of the team that arrested the appellants.  Their evidence was not disputed by the appellants.  The only point of departure related to the evidence of Honest Zvoushe who testified that in terms of s 77 of the S.I 362/90, a person found in possession of ivory has fifteen days to present it to a specified officer, only if the ivory was lawfully acquired.  The witness testified that the appellants should have surrendered the ivory to a responsible authority, such as the Zimbabwe Parks and Wildlife, the Zimbabwe Republic Police or even a chief nearest to them in Lupane or Hwange instead of transporting the ivory to Bulawayo.

Both accused testified in their defence.  They maintained that they were in lawful possession of the two pieces of ivory as they had the intention of taking them to Zimbabwe Parks and Wildlife offices for a reward.  They testified that they attempted to run away from the police officers because they thought that they were criminals.  They were in civilian clothes and had not identified themselves.

The trial court held that the state witnesses were credible and reliable witnesses.  It however held that appellants’ defence that they wanted to surrender the ivory to Parks and Wildlife offices was not reasonably true as the offices concerned do not give out rewards.  It found that the first appellant should have surrendered the ivory to the Parks and Wild Life offices in either Lupane or Hwange or any nearest police station instead of traveling all the way to Bulawayo if they genuinely intended to surrender the tusks.  It further held that, had the possession of the ivory been lawful, the appellants would not have attempted to run away when they were confronted by the police officers.  The court disbelieved the appellant’s assertion that they attempted to run away from the police because they thought they were criminals.

The trial court found that s 77(2) of S.I 362/90 relied upon by the appellants as the basis for their defence provides for the registering of ivory which has been lawfully acquired.  It further found that the appellants did not intend to register the raw ivory but wanted to hand it over to the Parks and Wildlife Authority for a reward.  It held that the appellants were therefore not covered by s 77(2) of S.I 362/90.  On these findings the appellants were found guilty as charged and sentenced as already set out above.

Aggrieved by this decision, the appellants noted an appeal against both conviction and sentence before the court a quo.  They persisted with the same argument that they were protected by s 77 of the S.I 362/90 as they were still within the 15-day period during which they were permitted to surrender the ivory.  The appeal was vigorously opposed by the State.

The court a quo held that a person charged with contravening s 82(1) of S.I 362/90 can only escape liability if he/she demonstrates that the possession or transfer to another of the ivory was lawful.  The court a quo upheld the findings by the trial court that s 77 of the Parks and Wildlife Act did not apply to a person who is in possession of ivory unlawfully.

The court a quo further held that the defence by the appellants that they were in lawful possession of the ivory pieces because they were on their way to surrender it to the Parks and Wildlife officers was illogical because the Parks and Wildlife Act does not offer any rewards.  The court a quo held that possession of ivory, in the manner that the first appellant suggests, is not one of the means which can lead to a person being in lawful possession.  The court held that the offence was complete once the appellants were found in possession of the ivory.  The State only had a duty to show that the possession was unlawful.  The court therefore held that the defence by the appellants, that they still had fifteen days to surrender the ivory was not legally correct.  As a result, the court a quo dismissed the appeal in its entirety.

The appellants, totally dissatisfied with the decision of the court a quo, noted the present appeal, against conviction only, based on the following grounds:

GROUNDS OF APPEAL

“1. The court a quo erred and misdirected itself on the law by upholding the appellants’ conviction on the charge of ‘possession of raw unmarked/unregistered ivory’ when the State had failed to discharge the onus, as required by section 18(1) of the Criminal Law (Codification and Reform) [Chapter 9:23], to prove beyond a reasonable doubt two of the essential elements of the offence charged, namely the requirement to possess a license or permit and the contravention of the law as alleged in the charge.

The court a quo erred and misdirected itself on the law by upholding the appellants’ conviction on the charge of ‘possession of raw unmarked/unregistered ivory in that its reasoning and interpretation of section 77 of Statutory Instrument 362/90 is wrong.

The court a quo erred and misdirected itself on the law by upholding the appellants’ conviction on the charge of ‘possession of raw unmarked/unregistered ivory in that it failed to appreciate the legal effect of section 82(1) of Statutory Instrument 362/90 and section 85 (1) of Statutory Instrument 362/90.

SUBMISSIONS BEFORE THIS COURT

[15] 	During the hearing, Mr Ngwenya counsel for the appellants, made the following concessions. The appellants were in possession of ivory.  They were required at law to prove to a specified officer who would receive the ivory that their possession was lawful. They did not surrender the ivory to the nearest specified officer or authority.  Upon arrest the first appellant tried to run away and only stopped when warning shots were fired.

[16] 	In spite of these concessions counsel argued that the appellants that they were in lawful possession of the ivory.  It was Mr Ngwenya’s argument that the appellants’ belief that they would get a reward at the Parks and Wildlife offices was sufficient to clothe their conduct with lawfulness.  Counsel submitted that although s 77 of S.I 362/90 provides that the fifteen days period applies to a person who seeks registration of the ivory, the appellants still qualified under that provision as their goal was to surrender the ivory for a reward.  As such counsel submitted that once it was found that their possession was within the fifteen-day timeframe, their possession was therefore lawful, and they were protected in terms of s 77 of S.I 362/90.

[17] 	Per contra, Mr Pedzisayi, for the respondent, submitted that the appellants had failed to show that they were in lawful possession of the pieces of ivory.  He argued that causation was laid out in s 82 of S.I 362/90 and as the appellants were seeking a reward their possession remained unlawful.  He submitted further that the provisions of S.I 362/90 had to be read together and not individually.  Counsel thus prayed for the dismissal of the appeal.

ISSUE FOR DETERMINATION

[18] 	From the above submissions, it is apparent that the determination of this appeal is centered on the interpretation of ss 77, 82 and 85 of S.I 362/90. The question of whether the appellants were in lawful possession of the pieces of ivory, as it arises in the second and third grounds of appeal, inevitably disposes of the issue of onus arising from the first ground of appeal.

THE LAW

[19] 	The resolution of this matter lies in the interpretation of the Parks and Wildlife (General) Regulations, S.I 362/90 which outlines rules and regulations for the management and conservation of wildlife and protected areas in Zimbabwe.  The statutory instrument regulates the acquisition, possession and disposition of ivory or horn and guards against the unregulated possession and selling of ivory.

[20] 	Section 82 of S.I 362/90 regulates the acquisition, possession, sale or transfer of unregistered and unmarked ivory.  The section provides:

“82. (1) Subject to section 85, no person shall acquire, have in his possession, sell or transfer any raw ivory that, has not been registered unless the raw ivory-

(a) was lawfully taken from an animal that was lawfully hunted in terms of the Act; or;

(b) was lawfully taken from an animal that died on any land for which that person is the appropriate authority;

or;

(c) has been lawfully imported into Zimbabwe; and the period within which that person is required to produce the raw ivory for registration in terms of section 77 has not elapsed.

(2) Subject to subsection (5) of section 80 and to section 85, no person shall acquire, have in his possession, sell or transfer any piece of manufactured ivory which exceeds two hundred grams in mass unless such ivory is marked ivory.

(3)  In any prosecution arising out of a contravention of subsection (1), the burden of proving—

(a) any fact referred to in paragraph (a), (b) or (c) of that subsection; and

(b) that the period referred to in that subsection has not elapsed;

shall rest on the accused.”

[21] 	Section 82 (1) is the provision that creates the offence of unlawful possession of ivory. Thus, unless the person falls under any one of the exceptions set out in (a) to (c) and subsection (2), they are in unlawful possession of ivory.  Clearly s 82 is the foundation upon which any person who claims possession of unregistered ivory is governed.  It prescribes circumstances under which possession, sale or transfer of unregistered raw ivory may occur.  The provision further provides that a person in lawful possession of the unregistered ivory shall be exempt from prosecution if he/she is in possession of the ivory before the lapse of the fifteen days stipulated in s 77.  A proper reading of the provision shows that any person charged with contravening s 82(1) has the onus to establish the following elements in proving that he or she was in lawful possession of the ivory;

(a) that the animal was hunted in terms of the Parks and Wildlife Act,

(b) that the animal died on land for which the person is the appropriate authority and

(c) that it was lawfully imported into this country.

A person charged with contravening s 82(1) must also be aware of the legal requirement that lawful possession of ivory must be regularised by registering the ivory within the fifteen-day period as provided for in s 77.  The onus of proving whether the fifteen days has lapsed is on the accused person.

[22] 	Tied intrinsically to s 82 is s 77 and as such that these two provisions must be read in conjunction with each other.  Section 77 provides as follows:

“Ivory and horn to be registered.

77 (1).   Any person who-

acquires or comes into possession of any unregistered raw ivory or horn shall, within fifteen days of such acquisition or coming into possession; or

imports into Zimbabwe any unregistered raw ivory or horn shall, within twenty-four hours of such importation; produce the ivory or horn to a specified officer for registration.

(2)   A specified officer shall require evidence that any ivory or horn has been    lawfully acquired or imported or is lawfully possessed, as the case may be, by the person seeking to have it registered.”

[23]	The “person” envisaged under s 82, is mandated in terms of s 77 to produce the unregistered ivory to a specified officer for registration.  Section 77(2) further mandates that the specified officer in registering the ivory will require evidence that the ivory would have been acquired or imported or possessed lawfully.

[24]	Lastly, and closely entwined to s 82 and 77, is s 85 which provides for exemptions to the application of the two provisions.  Section 85 provides that:

“Sections 77, 82 and subsection (1) of section 84 shall not apply in respect of the acquisition or possession of ivory or horn by any museum or scientific or educational institution, where such ivory or horn is bona fide acquired or possessed for the purposes of the museum or for scientific or educational purposes.

Sections 77, 82 and subsection (1) of section 84 shall not apply in relation to the acquisition, possession, sale or transfer of any ivory or horn by any person in the lawful execution of his duties on behalf of the State.

Section 82 shall not apply in respect of the acquisition or possession of-

any unregistered ivory by any person in accordance with an authority granted to him by the Director; or

any marked ivory that has been lawfully imported into Zimbabwe after being manufactured outside Zimbabwe; or

any marked ivory that was manufactured prior to the 19th December 1986.

In any prosecution arising out of a contravention of section 77, 82 or subsection (1) of section 84, the burden of proving that he was entitled to an exemption in terms of this section shall rest on the person claiming such exemption.” (Underlining for emphasis)

[25]	Section 85(3) introduces a shield to criminal liability arising from s 82(1) when any person is found in unlawful possession of unregistered ivory in the identified circumstances.  When seeking shelter under these exemptions, the burden of proof is placed squarely on the shoulders of the person who claims such exemption, that is, the accused person.

[26]	The above referred provisions which are found in S. I 362/90 are worded in clear terms which admit of no ambiguity whatsoever and must therefore be given their ordinary grammatical meaning.  As was stated by Mcnally JA in Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S) 264 D-E:

“There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to as said in Grey v Pearson (1957) 10 ER 1216 at 1234,

‘unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further.’”

[27]	Further, in Lungu & Ors v Reserve Bank of Zimbabwe SC 4/24 it was noted that:

“It is trite that words in any document, statute, or contract must be given their ordinary dictionary meaning unless this would lead to an absurdity. In the absence of a contrary definition within the document, statute, or contract such words must be given their plain, ordinary and literal meaning. This is the literal or golden rule of interpretation. Only when ambiguity arises in the interpretation of such words can there be a departure from this rule.”

See also Zambezi Gas Zimbabwe (Pvt) Ltd v N. R. Barber (Pvt) Ltd & Anor 2020 (1) ZLR 138 (S).

ANALYSIS

[28]	The appellants’ main challenge before this Court is that the court a quo erred in its interpretation of s 77.  They allege that it failed to find that, as the appellants were still within the timeframe of fifteen days it meant that their possession of the ivory was lawful.  The appellants’ argument is that on a proper application of s 82(1), it can only apply after it has been established and proved that the fifteen-day period for the delivery of the ivory to a specified officer has lapsed.

[29]	The above cited provisions are clear and unambiguous.  They must be read together for a proper interpretation of the true intention of the legislature.  An interpretation of s 77 does not present the answer desired by the appellants.  What s 77 does is to give possessors of unregistered raw ivory, which has been lawfully acquired, a specified period to regularise their possession through registration.  However, this process can only be legal if two essential requirements are complied with, firstly, the person must be in lawful possession of the ivory as provided for in s 82(1) and secondly, the holder of the raw ivory must possess it with the intention to produce the ivory to a specified officer for registration. The overarching point is that any person(s) who seeks to rely on the fifteen-day period to found lawfulness to their possession of the ivory must be able to establish that the unregistered raw ivory is possessed in terms of s 82(1) and that the possession is with an intention to register the ivory.

[30]	In casu, the record is replete with evidence that the appellants did not fall under any one of the above requirements.  The first appellant, having picked up the two pieces of ivory in the bush in Lupane, travelled all the way to Bulawayo in the dead of night arriving in the early hours of the morning.  Once there, the first appellant together with the second appellant, allege that they decided to proceed to the Zimbabwe Parks and Wildlife offices to surrender the tusks and receive a reward.  Section 82(1) is clear in its wording with regard to who is protected.  The appellants fell dismally short of fitting into the ambit of such protection.  The appellants did not fit into any of the specified circumstances in which they could be regarded as being in lawful possession of the ivory.  They did not lawfully take the ivory from an animal that had been lawfully hunted, neither did they take the ivory from an animal that died on land for which they had authority, nor did they lawfully import the ivory.  The first appellant alleges that he simply picked up the ivory whilst herding cattle in Lupane and after communicating with the second appellant, agreed that they seek a reward from the Parks and Wildlife offices in Bulawayo for the ivory.  The land on which the ivory was picked up did not belong to the appellants and on that basis, they had no legal leg to stand on in claiming lawful possession of the ivory.

[31]	Further, the appellants did not fit in the definition of “persons” envisaged in s 82(1)(a), (b) and (c).  As correctly found by the court a quo ‘persons’ refers to any person who would have lawfully acquired the ivory.  I can do no better than quote from the judgment of the court a quo where the learned judge stated at para 15 as follows:

“The section proscribes, the acquisition by whatever means, the possession, sell (sic) or transfer to another of raw ivory. A person charged with the contravention of s 82(1) can only escape liability if he/she demonstrates that his/her possession/sell (sic)/transfer to another of raw ivory was lawful. That lawfulness can only be proved if that person demonstrates that he/she obtained the ivory by either taking it from an animal which they had lawfully hunted in terms of the Parks and Wildlife Act or from an animal which had died on a land for which the accused person was the appropriate authority….. ”

[32]	The appellants did not acquire the ivory lawfully and in turn could not lawfully possess it for registration purposes.  In any event the defence raised by the appellants was rendered meritless because they were in possession of the ivory in a bid to surrender it for a reward and not for registration as envisaged by s 77.  Looked at from all angles, at the time of their arrest the appellants were in contravention of s 82(1) of S.I 362/90.

[33]	The appellants’ interpretation of S.I 362/20 was clearly wrong at law. It has been stated time and again that ignorance of the law is no defence. The belief held by the appellants was not sufficient to cover their conduct with legality.  By all measure, the appellants were guilty of contravening s 82(1) as they did not acquire the ivory lawfully.  The first appellant had no authority over the land on which he picked up the elephant tusks.  On that basis alone, the appellants could not rely on the defence provided for in terms of s 77.

[34]	The trial court, as upheld by the court a quo, correctly found that the appellants’ possession of the ivory was not lawful as they not only tried to run away from the police, but their whole conduct in regards to the ivory showed that they were aware of their unlawful possession.  The first appellant left Lupane at 1am at night, he did not tell his uncle that he had found raw ivory whilst looking for the lost cattle.  If their possession was lawful, they would have behaved in a completely different way.

[35] 	The court a quo was also satisfied that the explanation by the appellants of coming all the way to Bulawayo with the ivory was not to surrender but to sell because if they had wanted to surrender it the first appellant could have done so in Lupane or Hwange.  The reasoning by the court a quo upholding the decision of the trial court is unassailable.  The factual findings of the court a quo were correct, and we find no basis for interfering with them.

DISPOSITION

[36]	The trial court as well as the court a quo correctly interpreted s 82(1), 77 and 85 of S.I 362/90.  The appeal clearly had no merit.  It was for the above reasons that the following order was issued:

“The appeal be and is hereby dismissed.”

MAKONI JA		:	I agree

CHATUKUTA JA	:	I agree

T.J. Mabhikwa & Partners, appellants’ legal practitioners.

National Prosecuting Authority, respondent’s legal practitioners.