Denny Mtetwa, Witness Saize, Isaac Mlambo v The State

On 12 October 2018, Jeremiah Mhlanga, an investigator employed by the Ministry of Environment and Tourism, received information about five persons selling elephant tusks and soliciting buyers. He contacted the third appellant who confirmed they had two elephant tusks for sale. A meeting was arranged at Charuma Primary School, Chief Mutema, Chipinge. The appellants directed the state witnesses through a dust road to Charuma Primary School. The three appellants left, took some time, and returned with two additional men, one carrying a sack. The appellants boarded the car where the purported buyer was, and the sack containing two ivory tusks (weighing 13.5 kilograms total) was loaded in the boot. The appellants were arrested. They were convicted by a Magistrate at Chipinge of contravening section 82 of the Parks and Wildlife General Regulations SI 362 of 1990 as read with section 128(1)(b) of the Parks and Wildlife Act [Chapter 20:14] and sentenced to the mandatory 9-year imprisonment term each.

• Whether the appellants were guilty of unlawful possession of or dealing in ivory
• Whether the appellants were in possession of the ivory when they did not have direct physical possession
• Whether the evidence of 'trap' witnesses was reliable
• Whether there were special circumstances justifying departure from the mandatory minimum sentence of 9 years imprisonment
• Whether entrapment constitutes a special circumstance for sentencing purposes

The appeal against both conviction and sentence was dismissed. The conviction under section 82 of the Parks and Wildlife General Regulations SI 362 of 1990 read with section 128(1)(b) of the Parks and Wildlife Act [Chapter 20:14] was upheld. The sentence of 9 years imprisonment for each appellant was upheld.

Possession of contraband in wildlife offences does not require direct physical possession; constructive possession suffices where the accused has knowledge of the contraband, exercises control over it, and demonstrates ability to access it by directing others to it and arranging for its delivery. Dealing in ivory includes exposing ivory for sale and making arrangements for its sale. Entrapment does not automatically constitute a 'special circumstance' justifying departure from mandatory minimum sentences for wildlife offences - it may only be considered a special circumstance where the trapping promoted commission of an offence by someone who would not otherwise have committed it. Where the offence was already being committed before police intervention and the trap merely facilitated arrest, no special circumstances exist and the mandatory minimum sentence must be imposed.

The court observed that possession is 'a nebulous concept' that requires contextual interpretation. The court noted that in wildlife crime cases, it is not a technical issue of who physically carries contraband when multiple accused act in concert. The court commented that five men would not necessarily all carry two tusks if one man could do so. The court remarked that the legislature, in providing mandatory minimum sentences for ivory offences, must have been aware that most convictions result from police traps, which means entrapment cannot per se be regarded as a special reason for lesser sentences. The court also observed that courts have long distinguished between acceptable and unacceptable forms of trapping, which is a recognized basis for judicial distinction.

This Zimbabwean case is significant for its interpretation of 'possession' in wildlife crime cases, establishing that possession need not be direct physical possession but can be constructive possession through knowledge, control and ability to access contraband. The case clarifies the limited application of entrapment as a special circumstance for sentencing purposes in wildlife offences, holding that where the offence was already being committed and the trap merely facilitated arrest, entrapment does not constitute a special circumstance. The judgment reinforces the strict approach taken to ivory trafficking offences and the application of mandatory minimum sentences in the absence of genuine special circumstances. While this is a Zimbabwean case and not binding South African law, it may have persuasive value in South African courts dealing with similar wildlife protection legislation.