Damason Mutale V THE State

### Preamble
1
HB 85.20
HCB 154/19
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DAMASON MUTALE

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 4 JUNE 2019 AND 21 MAY 2020

Application for Bail Pending Appeal

K Ngwenya, for the applicant

K Jaravaza, for the respondent

MABHIKWA J:		The applicant in this matter was arrested and charged with the crime of Contravening Section 45 (1) (b) as read with section 128 (1) (b) of the Parks and Wildlife Act, Chapter 20:14 “Unlawful Possession of Pangolin Trophy Scales”.

It is alleged that on 11 November 2018, and at Chininga area, along Binga-Siabuwa Road, the appellant unlawfully and intentionally had in his possession, 71 pangolin trophy scales weighing 400 grames, without a valid permit issued in terms thereby contravening the Act.

The applicant appeared before a Provincial Magistrate sitting at Binga Magistrates’ Court. After trial and conviction, the applicant was sentenced to nine (9) years imprisonment the court having found no special circumstances in his case.

The applicant seeks bail pending appeal.  He relied mainly on his right to liberty until proven guilty.  He also submitted that he believed that a higher court could well come up with a different decision and sentence him to a less severe sentence.  The appeal is against sentence.

The State opposed bail on the basis that the applicant had already been convicted on his own plea of guilt and sentenced to the minimum mandatory sentence of nine (9) years imprisonment.  The State argued that under those circumstances, the presumption of innocence no longer applies and that the lengthy imprisonment period was likely to entice him (applicant) to abscond once granted bail.  The State further submitted that the trial Magistrate did not err in finding that there were no “special reasons” in applicant’s case necessitating departure from the statutory mandatory sentence.  The State relied on the cases of State v Chisiiwa 1981 ZLR 667 and R v Rawstrom 1982 (2) ZLR 221 per DUMBUTSHENA J (as he then was).

The court notes also that the outline of the state case, which the applicant had, agreed to during the plea recording portrayed him as not being a proper candidate for bail and a flight risk.  The outline states after receiving a “tip off” Police detectives teamed up with Parks and Wildlife Investigators plus the informant.  They pursued the applicant from Binga centre towards Siabuwa and eventually intercepted him in Chininga area.  Paragraph 7 says after the Pangolin scales were found on him, the applicant escaped and fled into the bush.  The team had to pursue him again and later arrested him.

Under those circumstances and indeed at the time of this hearing, the applicant would not be a proper candidate for bail pending appeal.

However, basing on the recent interpretations and pronouncements by the Superior Courts on the section and charge as well as sentences relating to Unlawful Possession of a Pangolin or Pangolin trophy, the likelihood is that the sentence may well be altered on appeal.

For that reason, if applicant’s case is not one of those already reviewed by this Honourable Court, then he be immediately released on the following bail conditions.

That he be released on his own recognissance.

That he continues to reside at his homestead at Chininga Village, Chief Sinakona, Binga until the matter is finalised.

Mvhiringi and Associates c/o T. J Mabhikwa and Partners, applicant’s legal practioners