Tatenda Mhango and Brighton Ngwenyama and Kudzai Ruvangu Shava v The State

Three appellants were convicted by the Provincial Magistrate at Masvingo on 10 April 2018 for contravening section 45(1)(b) read with section 128 of the Parks and Wild Life Act [Cap 20:14] - unlawfully possessing and attempting to sell a live pangolin (a specially protected animal) without a permit. On 11 April 2016, police detectives received information that the accused were selling a live pangolin at Buka business centre. Police officers posed as buyers and were introduced to the appellants by an informer. One officer was shown the live pangolin by the second appellant and confirmed its presence. The first appellant placed the pangolin (in a sack) into the boot of the police vehicle. During negotiations for the US$5000 selling price, police arrested all three appellants. The third appellant attempted to flee and was shot in the thigh after warning shots. The pangolin (weighing 9.9948kg, valued at $5000) was recovered and later released to Gonarezhou National Park. All appellants denied possession and claimed false arrest. They were each sentenced to 9 years imprisonment.

• Whether the animal in question was properly identified as a pangolin without expert testimony and without being presented to court
• Whether the state witnesses were credible and gave consistent evidence regarding the arrest and possession
• Whether the mandatory minimum sentence of 9 years imprisonment prescribed in section 128 of the Parks and Wild Life Act applied in the absence of a statutory instrument by the Minister specifying the pangolin as attracting such penalty
• Whether there were special circumstances justifying departure from the mandatory minimum sentence
• What the appropriate sentence should be if section 128 did not apply

1. Appeal against conviction dismissed. 2. Appeal against sentence partially upheld. 3. Charge amended to delete reference to section 128 of the Parks and Wildlife Act. 4. Sentence set aside and substituted with: 3 years imprisonment for each appellant, of which 1 year suspended for 5 years on condition of no similar offence. Effective sentence: 2 years imprisonment for each appellant.

The binding legal principle is that the mandatory minimum sentence of 9 years imprisonment prescribed in section 128 of the Parks and Wild Life Act [Cap 20:14] only applies to: (1) offences involving rhinoceros (specifically named in the statute), or (2) offences involving other specially protected animals that have been specified by the Minister through a published statutory instrument. In the absence of such a statutory instrument, the enhanced penalty provisions of section 128 do not apply to other specially protected animals listed in the Sixth Schedule, even though they are protected under section 45 of the Act. Such animals attract only the penalty specified in section 45(2): imprisonment not exceeding 3 years or a fine not exceeding level eight, or both. The court cannot invoke section 128 penalties merely because the animal is listed as specially protected or because previous courts may have overlooked this requirement. The principle of statutory interpretation requires that criminal penalties, especially mandatory minimums, must have clear and explicit statutory authority.

Mawadze J observed that the problem in interpretation would not have arisen if section 128 had been drafted to apply to all specially protected animals without requiring ministerial specification. He noted that if so drafted, section 45 might become superfluous. The judge also commented that the lacuna in the law (absence of the statutory instrument) should not detract from the fact that pangolins remain specially protected animals facing extinction. Mafusire J made general observations about appellate advocacy, citing with approval an article by LCT Harms on what irritates judges, noting that counsel should be astute enough to recognize doomed appeals and concentrate on meritorious points rather than taking too many weak points that obfuscate the good ones. He remarked that cases usually turn on one point, occasionally a few, and too many points tend to confuse rather than clarify. Both judges emphasized that the absence of a statutory instrument may reflect either legislative design or ministerial dereliction of duty, but the court cannot fill that gap. The judges also observed that no expert testimony is ordinarily required to identify common game animals like pangolins, rhinoceros, or elephants, any more than a court needs to see a corpse in a murder case when a pathologist testifies.

This case is significant for establishing important principles regarding the application of mandatory minimum sentences under Zimbabwean wildlife legislation. It clarifies that section 128 of the Parks and Wild Life Act only applies to: (1) rhinoceros specifically named in the statute, or (2) other specially protected animals specified by the Minister through a statutory instrument. Without such a statutory instrument, even specially protected animals listed in the Sixth Schedule (like pangolins) do not attract the enhanced mandatory minimum 9-year sentence, but rather the standard penalty under section 45(2). The judgment demonstrates the court's strict approach to statutory interpretation and the principle that criminal penalties must have clear statutory authority. It also highlights the judiciary's role in scrutinizing the proper invocation of mandatory sentencing provisions, even where previous cases may have overlooked such issues. The case reinforces that courts cannot simply impose enhanced penalties based on past practice without proper statutory foundation. It provides guidance on the identification of wildlife through experienced witnesses and the evidentiary standards for wildlife offences.