NDOU J: The
appellants appealed against sentence imposed by a Bulawayo regional
Magistrate. We dismissed the appeal and
indicated that our reasons for doing so will follow. These are they. The background facts are the following. The appellants were convicted on their own
pleas of the unlawful possession of raw ivory in contravention of section 82(1)
of Statutory Instrument 362/1990 as read with section 128(b)(i) of the Parks
and Wild Life Act [Chapter 20:14]. They
were each sentenced to a fine of US$5 000,00 or in default of payment 2 years
imprisonment. In addition they were each
sentenced to 2 years imprisonment wholly suspended for 5 years on the customary
conditions of future good behavior.
The facts reveal that on 23 February
2009, the appellants, in company of three other accomplices, connived to commit
the offence. They left Hwange in a
Nissan motor vehicle belonging to one of them.
Their destination was Binga. In
Binga, quite a long distance from Hwange, they unlawfully acquired a total of
seventeen (17) unmarked i.e elephant tusks.
They took the ivory back to Hwange town.
They embarked on selling these tusks.
Lady luck was not smiling at them.
They unknowingly tried to sell the ivory to detectives from the Criminal
Investigation Department, Minerals Section.
They were arrested. In the
circumstances, the detection of the crime was not as result of change of heart
on the part of the appellants but it was as a result of police effort. It is common knowledge that poaching in
general is very rife in Matabeleland North.
Notwithstanding their size and
stature, elephants have not been spared by poachers. Admittedly, there is no evidence that the
appellant killed the elephants that produced the seventeen tusks, but they
provided ready market for such wanton killing of wild animals. Their moral blameworthiness is not that
different from the poachers themselves.
To produce a total of seventeen tusks, there must have been at least
nine elephants killed by the poachers.
The appellants and their accomplices organized themselves into a gang of
five which travelled well over one hundred (100) kilometers to commit this
offence.
I our view, if the learned trial
Regional magistrate erred, it is on the side of leniency. But the trial court exercised its sentencing
discretion. We find no legal
justification to interfere with the sentence – S v Ramushu SC-25-93 and S v Nhumwa
SC-40-88. It is for the above reasons
that we dismiss the appeal against sentence.
CHEDA J: I agree
