Judgment record
Reason Madzura v The State
HH 303-21HH 303-212021
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HH 303-21
B 1880/20
CRB KAR 1710/19
CA 832/19
REASON MADZURA
versus
THE STATE
HIGH COURT OF ZIMBABWE
CHITAPI J
HARARE, 23 November 2020 & 22 June 2021
Reasons for judgment- Bail Pending Appeal
Applicant in person
A. Muzwi, for respondent
CHITAPI J: The applicant applied for bail pending appeal. I dismissed the
application on 23 November 2020. The applicant has requested for a fully dressed judgment
and this is it. The applicant together with his co-accused were charged with and convicted on
three counts as follows –
Count 1 related to a contravention of s 45(1)(b) as read with s 45(2) of the Parks and
Wildlife Act, [Chapter 20:14]” Possession or sale of specially protected animal.” The details
of the charge were that on 25 October 2019 and at Chikura Village, Chief Chundu, Karoi. the
applicant and his co-accused were found in possession of a 6 metre python which is a
protected animal under the Act.
Count 2 related to a contravention of s 82(1)(a) of the Parks & Wildlife General
Regulations SI 362/90 as read with s 128(1)(b) of the Parks & Wildlife Act, [Chapter 20:14].
Found in possession of elephant ivory without a permit.” The details were that on the same
date and place, the applicant and his co-accused were found in unlawful possession of two
elephant tusks weighting 5 kilograms without a permit as required under the quoted Act.
Count 3 related to a contravention of s 38(1)(a)(b) of the Parks & Wildlife Act,
[Chapter 20:14]. “Hunt or removal of animals or animal products from a Safari Area.” The
details were that on the same date and place in counts 1 and 2, the applicant and his co-
accused were found in possession of a leopard skin in contravention of the Act.
The applicant pleaded not guilty to the charges but was convicted after a contested
trial on the three charges. In count I, the applicant was sentenced to 3 years imprisonment
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with one suspended on condition of future good behaviour leaving an effective 2 years
imprisonment. In count 2, no special circumstances to avoid the minimum mandatory
sentence were found to be established. The applicant was sentenced to 9 years imprisonment.
In count 3, the applicant was sentenced to pay a fine of $1000 in default of payment, to serve
30 days imprisonment.
The applicant and his co-accused noted an appeal on 18 December 2020 against both
conviction and sentence. The grounds of appeal against conviction were stated as follows-
1. The learned magistrate erred in concluding that the State had proved its case beyond a
reasonable doubt notwithstanding that the evidence that was placed before him did not reach
the threshold of proof beyond a reasonable doubt in respect of both the physical and mental
elements of possession of both the python trophy and the ivory.
2. The a quo misdirected itself in convicting the Appellants when in actual fact the Appellants
has proffered a reasonable and probable explanation in their defence that was reasonably and
probably true, which explanation was not proved to be false beyond reasonable doubt.
3. The learned magistrate erred and misdirected himself in failing to analyse the credibility of all
the State witnesses given that their testimonies differed materially and were riddled with
several inconsistencies and improbabilities on an extent it was extremely dangerous to rely on
such evidence to convict the appellants.
4. The court a quo erred and misdirected itself in convicting the appellants on the basis of
circumstantial evidence notwithstanding that the inference drawn was not consistent with any
proved facts whatsoever, and further that the circumstances of the case did not point to only
one reasonable inference.”
Against sentence the grounds of appeal were stated as follows:
“GROUNDS OF APPEAL AGAINST SENTENCE
5. In the alternative, assuming this court were to uphold the conviction it will be argued
that the court a quo erred and misdirected itself in imposing harsh sentences which
raises shock in its failure to strike a delicate balance between the conflicting interests
of the society at large and those of the appellants and playing around the mitigation
and aggravating factors which all culminated in a miscarriage of justice and warrants
this court to interfere with the sentence in terms of the law.
6. The learned magistrate misdirected himself by failing to consider that the totality of
evidence laid out before him a regards possession of ivory constituted special
circumstances moreso the facts revealed that the police trap had promoted the
commission of the offence by the appellants who would not otherwise have
committed the offence, and further that second appellant’s moral blameworthiness
had been reduced by the fact that he was a mere unsophisticated rural dweller.
7. The learned magistrate having found appellants guilty on two counts, erred in failing
to order both sentences to run concurrently to the other, thereby imposing a sentence
that is not just and fair in the circumstances.”
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The applicant followed upon the filing of the appeal by filing this application for his
release on bail pending the determination of the appeal. The approach of the court to such an
application is that the court considers the following factors:
“(a) the likelihood of the applicant to abscond.
(b) the prospects of success of the appeal
(c) the likely delay before the appeal is heard
(d) right of the applicant to individual liberty. See S v Dzawo 1998 (1) ZLR 536
(S).
The applicant in terms of s 115C(2)(b) of the Criminal Procedure & Evidence Act
[Chapter 9:07] bears the onus to show on a balance of probabilities that it is in the interests of
justice to grant the applicant bail pending appeal.
In considering the factors aforesaid, they are considered cumulatively and none of
them is singularly determinant of the application. In practise however, the tendency is to
stress the prospect of success. There is good justification to place more weight on this factor
because a person who enjoys prospects of success is unlikely to abscond and will in all
probability stick around. On the other hand, where the prospects of success are slim or non-
existent, releasing an applicant in such circumstances especially in serious cases will be ill
advised as such applicant will in all probability abscond to avoid long detention.
The facts of the cases alleged by the State were that the applicant and his co-accused
were unemployed male adults. The applicant was ordinarily resident at number 112 Claudia
Karoi whilst his co-accused was resident in Chikura village, Chief Chundu Karoi. The two
were alleged to be friends. The arrest of both the applicant and his co-accused happened on25
October 2019 around 10.30 p.m. in an ambush. Police had received information around 5.00
p.m. of the same date about the applicant and his co-accused being in possession of a python
skin which they were selling. Police pretended to be buyers and arrested the applicant and his
co-accused whilst in unlawful possession of 6 metres of python skin. In the same ambush
police pretended to be buyers of elephant tusks which they had been informed were being
sold by the applicants and his co-accused. Upon arrest the applicant and his co-accused were
found in unlawful possession of 5 kg of elephant tusks. The police also recovered a leopard
skin from the possession of the applicants.
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The applicants were legally represented at their trial. In their jointly written defence
outline, they averred that the applicant was approached by one adult called Chris Kusakudza
who was in search of a leopard skin which was required by Chief Nemakonde. The said Chris
Kusakadza promised to pay the applicant a “facilitation fee” of ZWL$5000 if the applicant
managed to find a “buyer” (sic). The applicant warned up to the idea of earning the promised
fee because he saw it as opportunity to help himself from the economic hardships which the
applicant was facing as an unemployed person. The applicant then approached his friend the
applicant’s co-accused and sold him the deal. The applicant travelled from Karoi the co-
accused’s home in Chikura Village and sold him the deal. The applicant travelled to the co-
accused’s rural home in the company of the intending buyer, Chris Kusakadza. The co-
accused warmed up to the deal and advised that he knew some persons who were known
hunters in the area. The three of them, namely, the applicant, his co-accused and Chris then
proceeded to the local shopping centre. The applicant’s co-accused then introduced the
intending buyer, Chris to three male adults who were said to be known hunters.
The applicant averred that Chris entered into negotiations with the hunters who had
been linked to him by the applicant’s co-accused. The applicant averred that he was not party
to any sale negotiations. Chris then promised the applicant that a Chief’s policeman would
bring the facilitation fee on the following day. The applicant further averred that his
accomplice and Chris met the following day at the shopping centre. The applicant and his
accomplice were arrested on the following day whilst in the company of Chris. The
“policemen” whom the applicant believed to be led by the Chief’s policemen came to where
the applicant, his co-accused and Chris were drinking beer and asked them to jump into the
car which they did. The team then arrested the applicant and the co-accused. The applicant
and his accomplice were then placed under arrest. They were only accused and charged for
the offence in casu on arrival at the police station. It was at the police station that they were
for the 1st time shown the exhibits involved in each of the three charges. The applicant in
essence therefore, denied being in physical possession at any time of the subject matter of the
charges in each count. The applicant averred that he was a victim of circumstances because
he realized later that he had been trapped and “duped”.
The state led evidence from the arresting police details. From a reading of their
evidence it was common cause that the applicant, his co-accused and the witnesses met under
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circumstances wherein the only point of material departure was whether the applicant and his
co-accused were in possession of the exhibit subject of the three counts. Possession of the
exhibits was the major point of differences in evidence in that the applicant claimed to have
been merely a facilitator who through his co-accused, linked the police informer to hunters
who ultimately escaped and were not caught. The applicant’s evidence was that as facilitator,
he stood to get a consideration of $500-00 if the informer Chris was able to get a leopard
skin. The applicant on the evidence of police arresting details was however at the scene of the
alleged recovery of the exhibits although the applicant stated that he saw the exhibits at the
police station for the first time together with the elephant tasks and python skin.
The evidence of the arresting details was that it was the applicant who had possession
of the exhibits in all the three counts. It was the applicant who was the party that negotiated
with the arresting details for the sale of the exhibits. Police acted on information from their
informer who pretended to the applicant that the informer was an agent of Chief Nemakonde
who wanted a leopard skin. The police evidence was clear and coherent. Whatever
differences there could have been related to matters of detail of movements during meetings
with the applicant and therefore were of no great moment. It was not disputed that the parties
were together at the material time. All that the magistrate had to decide was who to believe
between the applicant and the police details in regard to whether it was the applicant who was
in possession of the exhibits or the police planted themon the applicant at the police station
before charging the applicant for unlawful possession of the same.
In the judgment, the magistrate summarized the evidence of all three police details
who arrested the applicant and his co-accused. The magistrate noted that there was a slight
deviation between the evidence of two of the witnesses with that of the third witness. The
magistrate commented that the deviations were not of such magnitude as to affect the
credibility of the evidence. It was a finding of fact by the magistrate that the police only
arrested the applicant and the co-accused after police had physically seen the exhibits in
question. On p 5 of the judgment, the magistrate stated as follows:
“The million dollar question is whether or not the state managed to prove beyond reasonable
doubt that the accused committed the offences as charged. The defence counsel answered
this question in his closing submissions. I will, however answer this question in the
affirmative for the following reasons. It is apparently clear from the testimony, that the
accused persons brought the items to the state witness, even in their defence outline, the
accused persons do not place themselves far away from the scene. They, however sought to
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only associate themselves to the leopard skin not to all the items. With all due respect, this is
merely an attempt by the accused persons to escape criminal liability. I have no hesitation to
conclude that the accused persons are the ones who brought python skin, leopard skin and
ivory. There is nothing to suggest that the state witness might have a motive to falsely
implicate the accused persons. They hereby testified on what the (sic) perceived that the
accused persons indeed brought the items in question. The items in question were brought to
court as exhibits.”
The magistrate also dealt with the question of possession. He reasoned that the
applicant and his co-accused had the intention to possess the items because they could not
have offered to sell what they did not possess. What is however clear from the judgment is
that the magistrate believed the evidence of state witnesses and disbelieved the evidence of
the applicant and his co-accused. The magistrate was justified to believe the state witness’
evidence because it accorded with probabilities. The police details would not have spent the
greater part of the night in the company of the applicant and driving from one point to
another if there were no deals being struck to buy and sell the items. There was no
justification or plausible explanation on why the police would have spent time and resources
only to pick up an innocent person in the name of the appellant and drive him all the way to
the police where exhibits were placed before him and ownership and possession thereof
attributed to the applicant. The applicant’s explanation of events was so incoherent and not
plausible as to be decidedly false. He was from the evidence, the main actor who led the way
and the sale negotiations. The grounds of appeal do not have prospects of success. The first
ground of appeal is too generalized and vague and embarrassing. It lacks specificity. The
explanation of the applicant of his involvement as noted was improbable and was properly
rejected. In regard to inconsistences in the evidence of state witness, the magistrate found the
inconsistences to be of no great moment or material. The last ground of appeal avers that the
magistrate wrongly convicted the applicant on circumstantial evidence. This is incorrect. The
magistrate believed state witnesses’ evidence that the applicant with his accomplice offered
the exhibits for sale to police in an arranged trap. This is not circumstantial evidence but
direct evidence proven by oral testimony of what happened. There is therefore no prospect of
that ground of appeal succeeding. It was ill conceived. It followed that there were no
prospects of success against conviction.
In relation to sentence, I considered that the applicant had some prospect of success.
In particular the seventh ground of appeal invites meaningful debate. The applicant will seek
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to argue that the magistrate should have ordered the sentences in the first and second counts
to run concurrently. Such approach would result in applicant serving only 9 years
imprisonment, being the sentence in the second count. The offences resulted from only one
course of conduct. Charges were split because the possession of each individual animal
trophy product is separately outlined. Therefore, whilst it was proper to individually charge
the applicant in regard to each trophy and to impose individual sentences for each charge,
there was room to consider ordering that the sentences be served concurrently. There is
therefore a reasonable chance that the appeal court may be persuaded to agree on the
concurrent sentence argument and order that the effective imprisonment term in count should
run concurrently with the one in count two.
Notwithstanding the finding of prospects of success on appeal on sentence, it was
nonetheless my considered view that the applicant would still serve the mandatory nine years
imprisonment at least. There was no justification to release the applicant on bail in the light
of the fact that jail time of at least nine years was a foregone or a given. Hence, bail pending
appeal was denied.
National Prosecuting Authority, State legal representative