The State v Nkulumani Moyo and The State v Mpilo Ncube

Moyo and Ncube appeared before the same magistrate at Lupane on 21 July 2015 on separate records. Each faced a charge of contravening section 45(1)(b) of the Parks and Wildlife Act [Chapter 20:14] for possession of a python skin without a permit. Both pleaded guilty and were convicted. The magistrate sentenced each accused to 9 years imprisonment (described as "mandatory") and ordered forfeiture of the python skins to the State. The proceedings were confirmed by a single judge on 29 September 2015. The records were returned for further review following the appeal judgment in Tatenda Mhango, Brighton Ngwenyama and Kudzai Ruvangu Shava v The State HMA 33/19.

• Whether section 128 of the Parks and Wildlife Act could be applied to impose a mandatory 9-year sentence when the accused were not charged under section 45(1)(b) read with section 128
• What the competent sentence was for a conviction under section 45(1)(b) of the Parks and Wildlife Act
• What remedy was appropriate where accused persons had already served custodial sentences in excess of the statutory maximum

1. The conviction of each accused was certified as being in accordance with real and substantial justice. 2. The 9 years imprisonment imposed on each accused was set aside. 3. In place thereof, each accused was ordered to pay a fine of $100, in default of payment each shall serve 6 months imprisonment. 4. The forfeiture orders remained undisturbed. The Registrar of the High Court was directed to forthwith issue warrants of liberation of both accused.

Where an accused person is charged with contravening section 45(1)(b) of the Parks and Wildlife Act [Chapter 20:14] for possession of wildlife products without a permit, but is not charged with contravening that section as read with section 128 of the Act, the mandatory minimum sentence under section 128 cannot be imposed. The competent sentence in such cases is that provided under section 45(2): a fine not exceeding level eight or imprisonment not exceeding three years or both. Where an accused has already served a sentence in excess of the statutory maximum due to an irregularly imposed sentence, they are entitled to immediate release without having to pay any substituted fine.

The court observed that an exhaustive analysis of the appropriate sentence in each case would be an academic exercise given that both accused had already served custodial sentences exceeding the statutory maximum. The court noted that the forfeiture orders were appropriate and should remain undisturbed despite the setting aside of the custodial sentences.

This case is significant in Zimbabwean criminal law as it emphasizes the fundamental principle that an accused person can only be sentenced under provisions with which they were charged. It demonstrates the importance of proper charging procedures and illustrates the remedial powers of the High Court on review to correct gross sentencing irregularities. The case also provides guidance on appropriate remedies where accused persons have already served sentences exceeding statutory maximums, confirming their entitlement to immediate release. It forms part of a line of cases addressing improper application of mandatory minimum sentences under wildlife protection legislation.