Cong Yuling v Mr Mutsambiwa (Director General of Parks and Wildlife Authority) and Others

The applicant and her translator, Quinling Zhang, were arrested on 4 July 2005 for possessing 72 pieces of raw ivory without requisite permits, dealing in raw ivory and attempted export without necessary documents. The applicant had purchased the ivory from a dealer licensed by the Parks and Wildlife Management Authority to manufacture ivory but not to sell raw ivory. The police seized the ivory and surrendered it to the Parks and Wildlife Authority for storage pending prosecution. The prosecuting authority declined to prosecute on three occasions (28 November 2005, 4 January and 9 August 2006), taking the view that the accused lacked mens rea as they had relied on the dealer's advice that the ivory was processed. The prosecuting authority initially recommended releasing the ivory to "legitimate owners" and later suggested negotiations with the Authority or forfeiture to the State. Negotiations between the applicant and the Authority broke down, with the Authority maintaining that the ivory was not processed to the required standard and was needed as an exhibit for prosecuting the dealer. The Authority was also concerned about Zimbabwe's compliance with CITES (Convention on International Trade in Endangered Species).

• Whether the applicant had a valid cause of action to seek return of the ivory
• Whether the applicant could lawfully possess the ivory in question
• Whether the ivory constituted 'raw ivory' or 'manufactured ivory' under the Parks and Wildlife (General) Regulations SI 362/1990
• Whether section 59(1)(a) of the Criminal Procedure and Evidence Act provides a cause of action for return of exhibits
• Whether the par delictum rule and its exceptions applied to allow the court to order return of the ivory despite illegality

The application was dismissed both in the main and in the alternative, with costs awarded against the applicant.

1. Section 59(1)(a) of the Criminal Procedure and Evidence Act does not create a cause of action for a person from whom exhibits are seized, but merely confers discretion on investigating officers regarding disposal of exhibits where no criminal proceedings are instituted. 2. Under the Parks and Wildlife (General) Regulations SI 362/1990, 'raw ivory' means ivory that is not manufactured, while 'manufactured ivory' requires ivory to be transformed through a skilled process of manufacture, carving or embellishment into a utensil, ornament or article of adornment. Merely removing roots and evening out ends does not constitute manufacturing. 3. A person seeking return of seized property must establish a valid cause of action based on ownership or lawful possession; they cannot substitute themselves for the police or rely on the police's powers under section 59(1)(a). 4. The par delictum rule only applies where both parties to a contract are equally in the wrong; it does not apply where a third party (not party to an illegal contract) holds property.

The court observed that even if the par delictum rule and its exceptions were applicable, the court would decline to exercise discretion in favour of the applicant because doing so would have catastrophic consequences for Zimbabwe's continued enjoyment of favourable terms under CITES. This reflects the court's recognition of the broader public interest in maintaining international treaty compliance in wildlife protection. The court also noted that the prosecuting authority's opinions, even those of the Attorney-General, cannot found a cause of action, though this is clearly established law.

This case is significant in Zimbabwean wildlife protection law as it clarifies the legal framework governing possession of ivory and the definition of 'raw' versus 'manufactured' ivory under the Parks and Wildlife (General) Regulations. It demonstrates the courts' commitment to upholding Zimbabwe's international obligations under CITES. The judgment also clarifies important procedural points: that section 59(1)(a) of the Criminal Procedure and Evidence Act does not create a cause of action for persons from whom exhibits are seized, and that a person seeking return of seized property must establish a valid legal basis (such as ownership or lawful possession) for such return. The case demonstrates the courts' unwillingness to use equitable discretion to circumvent wildlife protection legislation, even where the applicant may have acted innocently in reliance on representations from a licensed dealer.