Mthabisi Sivako v The State

On 5 September 2018, along a tarred road opposite stand number 5720 Luveve 5, Bulawayo, the appellant and two accomplices were found in possession of a live animal alleged to be a pangolin without a permit. Detectives from the Minerals and Border Control Unit Crack Team, on a joint operation with members from the Department of Parks and Wildlife, received a tip-off, searched the vehicle boot, and recovered an animal inside a box. The appellant and accomplices were charged with contravening section 45(1) as read with section 128(b) of the Parks and Wildlife Act [Chapter 20:14] for possessing a specially protected animal (pangolin) without a permit. At trial, the appellant and one accomplice were convicted and the appellant was sentenced to a mandatory 9 years imprisonment. One accomplice was acquitted. The appellant appealed both conviction and sentence.

• Whether the State proved beyond reasonable doubt that the animal found in the vehicle was indeed a pangolin
• Whether expert evidence was properly adduced to establish the identity of the animal
• Whether documents allegedly from Dr. Mkwananzi and Stanley Nyamayedenga were properly admitted as evidence
• Whether the presumptions in sections 97(6) and 97(13) of the Parks and Wildlife Act operate before the prosecution proves the identity of the animal
• Whether cross-examination of the appellant on previous convictions was properly permitted
• Whether the mandatory sentence of 9 years imprisonment was competent
• Whether the trial court conducted an inquiry into special circumstances before imposing the mandatory sentence

The appeal was allowed. The conviction and sentence were set aside.

In prosecutions under wildlife protection legislation, statutory presumptions regarding possession (section 97(6)) and the species of animal (section 97(13)) only become operational after the prosecution has first discharged its primary onus of proving the identity of the animal through proper expert evidence. The identity of a protected animal species cannot be presumed and must be established by oral expert evidence, affidavit evidence in terms of section 278(1) of the Criminal Procedure and Evidence Act, or a certificate of identification. Documents that have not been properly tendered as exhibits, admitted by consent, or introduced through witness testimony do not form part of the record of proceedings and cannot be relied upon to prove essential elements of an offence. Cross-examination of an accused on previous convictions is only permissible in the circumstances set out in sections 260 and 290 of the Criminal Procedure and Evidence Act, and permitting such cross-examination outside these circumstances constitutes an irregularity that violates the right to a fair trial.

The court noted in passing that the trial court's permission for co-accused's counsel to cross-examine the appellant on his previous convictions was an irregularity that militated against any perception of fair play and was prejudicial to the appellant as it negatively affected his right to a fair trial. The court also observed that the fact that the animal itself was not physically tendered as an exhibit does not necessarily taint the finding that an animal was found in the boot of the vehicle - the critical issue was the proper proof of the identity of that animal. The court indicated that there was also no evidence proving that the animal presented to Dr. Mkwananzi was the same animal found in the boot of the vehicle and for which the appellant was arrested.

This case clarifies the burden of proof in wildlife protection prosecutions under the Parks and Wildlife Act in Zimbabwe (applicable to South African jurisprudence on similar statutory interpretation). It establishes that before any statutory presumptions or reverse onus provisions can operate against an accused, the prosecution must first prove the essential elements of the offence, including the identity of the protected animal through proper expert evidence. The case also reinforces the rules of evidence regarding the admission of documentary evidence and affidavits in criminal trials, and reaffirms the protection against improper cross-examination on previous convictions as part of the right to a fair trial.