Nongerayi Freeman v The State

The applicant and his co-accused were convicted after a full trial by the Regional Magistrate sitting at Bulawayo on 21 January 2022 for contravening section 45(1)(b) as read with section 128(b) of the Parks and Wildlife Act [Chapter 20:14] - possession of a specially protected animal trophy (pangolin carcass). They were sentenced to the minimum mandatory imprisonment of nine years. The trial court found that on 4 August 2021, the applicant's co-accused was carrying a sack containing a pangolin skin while walking with the applicant towards Munyoro Shops. The co-accused handed the sack to the applicant while he returned home to collect a mask. Police arrested the applicant while he was in actual physical possession of the sack containing the pangolin skin. Neither applicant nor his co-accused had a licence or permit to possess the pangolin skin. A Zimbabwe Parks Ecologist confirmed the recovered skin was from a pangolin. The applicant noted an appeal against both conviction and sentence and applied for bail pending appeal.

• Whether the applicant has reasonable prospects of success on appeal against conviction
• Whether the applicant has reasonable prospects of success on appeal against sentence
• Whether the applicant is likely to abscond if released on bail pending appeal
• Whether the trial court erred in finding the applicant had knowledge of the contents of the bag
• Whether the trial court misdirected itself in rejecting the co-accused's evidence that exonerated the applicant
• Whether special circumstances existed to warrant departure from the minimum mandatory sentence
• Whether the applicant was in actual possession of the pangolin skin

The application for bail pending appeal was dismissed.

In applications for bail pending appeal: (1) Bail pending appeal is not a right and the applicant must establish positive grounds for the court to exercise its discretion in their favour; (2) The main factors are prospects of success on appeal and likelihood of abscondment, which are inter-connected and must be balanced - the less likely the prospects of success, the more inducement to abscond; (3) In wildlife offences, possession is a distinct legal concept from ownership - a person has possession if they know of something's presence and have physical control or the power and intention to control it; actual physical control constitutes actual possession; (4) Where an applicant has no reasonable prospects of success on appeal and faces a lengthy sentence for a serious offence, the probability of abscondment is high and considerations of liberty and delay recede to the background; (5) The onus is on the applicant to show why justice requires bail be granted.

The court noted that the applicant was a part-time lecturer at the University of Science and Technology (NUST) and a private tutor, and that he had complied with bail conditions during trial. However, the court observed that these factors were insufficient to outweigh the concerns arising from the lack of prospects of success and the lengthy sentence. The court also commented that the applicant had experienced the rigours of imprisonment for over three months and still faced a long remaining sentence, which would likely cause him to abscond if released. The court referenced the principle from S v Kilpin 1978 RLR 282 (A) that the brighter the prospects of success, the lesser the likelihood of abscondment and vice versa.

This case reinforces the stringent requirements for bail pending appeal in Zimbabwe, particularly in serious wildlife offences carrying mandatory minimum sentences. It clarifies the distinction between ownership and possession in wildlife protection offences, emphasizing that actual physical control constitutes possession regardless of ownership. The judgment demonstrates the application of the inter-connected factors of prospects of success and likelihood of abscondment, and confirms that the severity of sentence and poor prospects of success increase flight risk. The case also illustrates the application of the legal definition of possession established in The State v MPA, which is broader than the common understanding, encompassing situations where a person has physical control and knowledge of an item's presence.