The State v Shamiso Munkuli and Others

Eight separate criminal cases were brought on review involving multiple accused persons charged with contravening s 45(1)(b) of the Parks & Wildlife Act [Chapter 20:14] as read with s 128. The accused persons were convicted of unlawfully possessing specially protected animals (pangolins and python skins/scales) without permits. All were sentenced to 9 years imprisonment by various magistrates courts. The cases involved: Shamiso Munkuli (145 pangolin shells), Moses Masuku (live pangolin), Moses Mwinde (python skin), Francis Shoko (live pangolin), Tama Muleya and two co-accused (2 pangolin skins), Smart Munkuli and Themba Tshuma (120 pangolin scales), Damason Mutale (71 pangolin scales), and Mthabisi Sivako and Mehleli Ndlovu (live pangolin). Most accused pleaded guilty; some were convicted after trial. In all cases except one, forfeiture orders were granted. The magistrates courts applied s 128 which imposed mandatory minimum sentences of 9 years for first offenders, after finding no special circumstances.

• Whether s 128 of the Parks & Wildlife Act, prescribing mandatory minimum sentences of 9 years imprisonment, was applicable to convictions for unlawful possession of pangolins and pythons
• Whether the magistrates courts correctly applied the penalty provisions of the Parks & Wildlife Act
• Whether the sentences of 9 years imprisonment were in accordance with real and substantial justice
• What the appropriate sentences should be under s 45(2) of the Parks & Wildlife Act

1. The convictions in all cases were confirmed as being in accordance with real and substantial justice. 2. The forfeiture orders were confirmed where granted. 3. The sentences of 9 years imprisonment imposed on each accused were set aside. 4. New sentences were imposed: (a) Shamiso Munkuli, Moses Mwinde, and the accused in CRB BNG 396-8/18, 495-6/18, and 497/18 received fines of $100 or 6 months imprisonment in default; (b) Moses Masuku and Francis Shoko received 12 months imprisonment (deemed served); (c) Mthabisi Sivako and Mehleli Ndlovu received 3 years imprisonment with 1 year suspended for 5 years on conditions (effective 2 years). 5. The Registrar was directed to immediately issue warrants liberating all accused persons except those in CRB BYO R426 and 428/18.

In the absence of a statutory instrument by the relevant Minister specifying an animal (such as a pangolin or python) as a specially protected animal, the mandatory minimum sentences prescribed in s 128 of the Parks & Wildlife Act [Chapter 20:14] are not triggered upon conviction for unlawful possession under s 45(1)(b). The applicable penalty provision is s 45(2), which provides for a fine not exceeding level eight or imprisonment not exceeding three years, or both. Courts must apply the correct statutory penalty provisions and consider all relevant mitigating and aggravating factors when sentencing for wildlife offences. The consideration of special circumstances only arises where mandatory minimum sentences are applicable.

The court observed that wildlife crimes involving specially protected animals are commercial in nature and that the legislative intention is to protect endangered animals from extinction. However, the court noted that the legislature has made the option of a fine available and that the maximum custodial sentence under s 45(2) is not particularly stiff, suggesting that effective custodial sentences should be reserved for bad cases. The court distinguished between different categories of offenders, noting that some (like Mthabisi Sivako and Mehleli Ndlovu) were 'motorized organized criminals' deserving of effective custodial sentences, while others who pleaded guilty, were first offenders, did not benefit from their crimes, and had mitigating family circumstances should be treated more leniently. The court also commented that in cases involving total recovery and where offenders did not benefit from their criminal conduct, this should weigh in favor of more lenient sentences.

This case is significant in Zimbabwean criminal and environmental law as it clarifies the applicable sentencing provisions for offences involving specially protected animals under the Parks & Wildlife Act. It established that without a statutory instrument by the Minister designating specific animals as specially protected, the mandatory minimum sentences under s 128 do not apply, and courts must instead apply the general penalty provision in s 45(2). The judgment demonstrates the importance of proper statutory interpretation in sentencing and the court's review powers to correct gross misdirections resulting in manifestly excessive sentences. It also provides guidance on balancing the need to protect endangered species with proportionate sentencing that considers individual circumstances and mitigating factors. The case resulted in immediate release of several offenders who had served sentences far in excess of what was legally appropriate.