Hlupani Austin Sibanda and Ellmone Nkomo v The State

On 11 April 2024, detectives from the CID Minerals, Flora and Fauna Unit in Bulawayo, acting on information, observed the two appellants at Entumbane High School turn off. The first appellant was carrying a white sack. When the detectives approached and identified themselves, the first appellant attempted to run away but stopped when a warning shot was fired. The sack contained two pieces of unmarked raw ivory weighing 21.75 kilograms. The appellants could not produce any license or permit for lawful possession and were arrested. The first appellant claimed he found the ivory tusks in the bush in Lupane while searching for his uncle's cattle on 10 April 2024. He contacted the second appellant who advised him to bring the tusks to Bulawayo, claiming they could get a reward from Zimbabwe Parks and Wildlife offices for surrendering them. The appellants' defence was that they were arrested while waiting for transport to take the ivory to Parks and Wildlife offices to surrender it for a reward, and that they were within the 15-day period allowed by law to register ivory.

• Whether the appellants were in lawful possession of unregistered raw ivory under section 82(1) of the Parks and Wildlife (General) Regulations, SI 362/90
• Whether the 15-day period provided in section 77 of SI 362/90 for registration of ivory applies to persons who unlawfully acquired ivory
• The proper interpretation of sections 77, 82 and 85 of SI 362/90 read together
• Whether the State discharged its onus to prove the essential elements of unlawful possession of ivory
• Whether the appellants' stated intention to surrender the ivory for a reward constituted lawful possession

The appeal was dismissed in its entirety. The Supreme Court upheld the Magistrates Court conviction for contravening section 82(1) of the Parks and Wildlife (General) Regulations, SI 362/90 as read with section 128(b) of the Parks and Wildlife Act [Chapter 20:14]. The sentences of 11 years imprisonment for the first appellant and 9 years imprisonment for the second appellant were confirmed.

Sections 77, 82 and 85 of the Parks and Wildlife (General) Regulations SI 362/90 must be read together. Section 82(1) creates the offence of unlawful possession of unregistered raw ivory and provides limited exceptions for lawful possession. The 15-day period in section 77 for registration of ivory only applies to persons who have lawfully acquired ivory under one of the exceptions in section 82(1) - namely, ivory lawfully taken from an animal lawfully hunted, ivory lawfully taken from an animal that died on land for which the person is the appropriate authority, or ivory lawfully imported. A person in possession of ivory who does not fall within these exceptions is in unlawful possession regardless of any intention to surrender or register the ivory. The burden of proving lawful acquisition and possession rests on the accused person under section 82(3). An intention to surrender ivory for a reward does not constitute lawful possession under the statutory scheme, which contemplates registration, not surrender for reward.

The Court noted that ignorance of the law is no defence. The Court observed that if the appellants' possession had been lawful, they would not have attempted to run away when confronted by police officers. The Court commented that the explanation that the appellants came all the way to Bulawayo with the ivory was not credible as a genuine attempt to surrender it, as the first appellant could have done so in Lupane or Hwange if that was the true intention. The Court observed that the first appellant's conduct in leaving Lupane at 1am and not telling his uncle about finding the ivory showed consciousness of unlawful possession. The Court noted that the Parks and Wildlife offices do not give rewards for surrendering ivory, undermining the credibility of the appellants' defence.

This case provides important clarification on the interpretation of Zimbabwe's wildlife protection legislation, specifically the Parks and Wildlife (General) Regulations SI 362/90. The judgment establishes that the 15-day grace period for registration of ivory under section 77 is only available to persons who have lawfully acquired ivory under the limited exceptions in section 82(1). It confirms that unlawful acquisition cannot be remedied by a subsequent intention to surrender or register the ivory. The case reinforces the strict liability nature of wildlife protection offences and demonstrates the courts' approach to combating illegal ivory trafficking by rejecting technical defences based on misinterpretation of statutory provisions. It confirms that sections 77, 82 and 85 of SI 362/90 must be read together as an integrated scheme for regulating ivory possession. The judgment also establishes that circumstantial evidence of guilt (such as furtive behavior, traveling long distances with ivory, and attempting to flee from police) can support findings of unlawful possession and undermine defences based on claimed lawful intentions.