Brighton Ngwenyama v The State

### Preamble
1
HMA 73-20
CA 23/18
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BRIGHTON NGWENYAMA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MAWADZE J & MAFUSIRE J

MASVINGO, 2 & 10 December 2020

Criminal appeal

Prof L. Madhuku, with him, Mr C. Ndlovu, for the appellant

Ms M. Mutumhe, for the respondent

MAFUSIRE J

[1]	This is a remittal from the Supreme Court. We are to assess an appropriate sentence for the appellant. The order of remittal reads:

“IT IS ORDERED BY CONSENT THAT:-

The appeal be and is hereby allowed.

The sentence imposed upon the appellant is set aside.

The matter is remitted to the court a quo for assessment of an appropriate sentence.”

[2]	There is no judgment from the Supreme Court. There are no reasons why the appeal against our previous judgment was allowed. There are no reasons why the sentence that we had previously imposed on the appellant was set aside. There is no indication as to what an appropriate sentence should now be.

[3]	This matter has an interesting background. It all started in the magistrate’s court in 2016. Then there were 3 accused persons. The appellant was one of them. Together they had a pangolin. A pangolin is a specially protected animal. As such, it is unlawful to hunt or keep or possess or sell or dispose of it or its meat or trophy except in terms of a permit. The accused were selling it. They had no permit. Following a joint operation by the police and officers from the Parks and Wildlife Authority, they were all arrested, amid some drama which involved the use of force. They were charged with contravention of s 45(1) (b) of the Parks and Wildlife Act [Chapter 20:14], as read with s 128 of that Act. In paraphrase, s 45(1) (b) prohibits the keeping, possession or selling of any live specially protected animal. On conviction, the sentence is a fine not exceeding level 14 or imprisonment for a period not exceeding 3 years or both such a fine and such imprisonment.

[4]	However, the charge was to be read together with s 128 of the Act. In terms of this section, once one is convicted of a contravention of s 45, the minimum mandatory sentence is 9 years, for a first offender, and 11 years, for a repeat offender. Only if there are special circumstances in the particular case will a court be at liberty to impose a sentence less than the prescribed minima. Section 128 starts with the usual non-obstante phrase: “Notwithstanding any other provision of this Act …” Thus, any provision of the Act saying anything to the contrary is overridden. Consequently, the s 45 penalty gives way to the mandatory 9 years’ imprisonment. The court a quo found no special circumstances. The accused were first offenders. They were sentenced to 9 years imprisonment.

[5]	The one interesting aspect of the case starts with the judgment of the magistrate’s court. It is to do with how s 128 of the Act is worded. Relevant portions read as follows:

“128 	Special penalty for certain offences

(1)	Notwithstanding any other provision of this Act, any person who is guilty of an offence under this Act involving—

(a)	…………………………………..

(b)	the unlawful possession of, or trading in, ivory or any trophy of rhinoceros or of any other specially protected animal that may be specified by the Minister by statutory instrument; shall be liable—

on a first conviction, to imprisonment for a period of not less than nine years …”;

……………………………………:

Provided … … …” (highlighted for emphasis)

[6]	Section 45 of the Act caters for the specially protected wild species. These are listed on the Sixth Schedule to the Act. Excluding other wild species, there are 8 mammals in all. The pangolin is one of them. But by virtue of its sentencing provisions and the non-obstante clause, s 128 seeks to provide even greater protection to certain other type of wild species as specified on the Sixth Schedule. It achieves this by imposing an even harsher penalty that leaves little room for debate. This category of animals singled out for this special protection is identified either by their names or their trophies. They are the elephant and the rhinoceros. The section leaves it to the Minister to expand the category by specifying any other animal through a statutory instrument.

[7]	So, what is interesting about the magistrate’s court judgment is that it was noted that the pangolin was not on the list for the purposes of s 128. It was also noted that as a matter of fact, there was no statutory instrument by the Minister specifying it for the s 128 listing. The situation got even more interesting. The court felt that the accused persons properly ought to be sentenced under s 45(2) of the Act. However, notwithstanding that observation, it went on to impose on each of the 3, the mandatory minimum penalty of 9 years, having found no special circumstances. The justification by the court for this approach was that historically, accused persons in similar circumstances had routinely been sentenced under s 128 and that such sentences had routinely been confirmed by this court on appeal or review. As such, the court felt bound by precedent and would therefore continue to mete out such type of punishment until such time that the anomaly was corrected by a superior court.

[8]	We corrected the anomaly. The accused appealed to this court. The appeal was against both conviction and sentence. Under judgment no HMA 33-19 that was released in July 2019, we dismissed the appeal against conviction. However, we upheld the appeal against sentence. The appeal panel comprised my brother MAWADZE J, who wrote the main judgment, and myself. Having established as a fact that there was no statutory instrument listing the pangolin as a specially protected animal for the purposes of s 128 of the Act, we set aside the sentence of the court a quo. Without in any way trying to gloat over that judgment or indulging in self-praise, the judgment was another example of the novelties of this case. It was in itself something of a rarity in that my brother and I both wrote our opinions separately. It is seldom done, especially in this jurisdiction.

[9]	Other interesting developments followed that judgment. They are not necessarily borne out by the record. We merely take judicial notice of them. The one development is now a matter of law. Following that judgment, the Government proceeded to promulgate Statutory Instrument 71 of 2020 to specify the pangolin, among several others, as specially protected for the purposes of s 128 of the Act. The other development, told to us by Prof Madhuku in his submissions on behalf of the appellant, is that following a glut of applications for release by prisoners still serving portions of sentences imposed in similar circumstances prior to our judgment, the Government simply granted a blanket amnesty.

[10]	In our judgment aforesaid, after having set aside the sentence of the court a quo, we considered that we were at large to assess the sentence that would be appropriate under s 45(2) of the Act. The judgment sets out the route by which we arrived at the sentence that we finally imposed. It highlights the factors that we took into account. Our thought process, our reasoning and our ultimate conclusion are all laid out openly. Without necessarily regurgitating the judgment, these were our considerations:

that despite the absence of a statutory instrument specifying it for the purposes of s 128 of the Act, the pangolin is still a specially protected animal;

the moral blameworthiness of the accused persons was very high given that they refused to reveal the source of the pangolin; at US$5 000-00 they very much appreciated its high value; the crime was committed out of greed since all of them followed gainful activities and none of them was an unsophisticated and illiterate rural person;

there was premeditation and so serious a determination to sell the pangolin that one of them could only be subdued after being shot at as he tried to flee;

none of the accused persons was contrite as it only took a protracted trial for them to be convicted.

given the absence of “any special mitigatory factors”, a non-custodial sentence was out of the question.

[11]	In the end, and in the exercise of our discretion, we sentenced each appellant to 3 years imprisonment, one year of which was suspended for 5 years on the usual condition of good behaviour. The effective sentence was 2 years imprisonment.

[12]	The present appellant had been appellant no 2 in that appeal. Apparently, he was dissatisfied with our sentence. He sought leave to appeal. WAMAMBO J, sitting in Chambers, granted the leave, citing the novelty of our findings. He noted that our judgment had gone against the general sentencing trends. By granting the leave, he hoped that the Supreme Court would make a definitive pronouncement on sentencing involving possession of pangolins.

[13]	We have now for the first time seen the appellant’s grounds of appeal to the Supreme Court. Several alleged misdirections are pointed out, namely:

ignoring the mitigatory features which far outweighed the aggravating features:

punishing the appellant for having exercised his constitutional right to plead not guilty;

ascribing greed as the reason for the offence simply because he was selling the pangolin for US$5 000-00 yet this happened to be its legal value;

disregarding the imposition of a fine or community service without giving reasons;

requiring the appellant to prove special mitigatory features to avoid a prison term.

[14]	As noted above, the appeal was allowed by consent. The record was returned to the registry at Masvingo, together with the order aforesaid. When it was brought to our attention, we enquired of the judgment to arrange set down of the matter. It was not there. Through the Registrar of this court we wrote to the Supreme Court as follows:

“May you kindly forward this record of appeal to the Registrar of the Supreme Court for purposes of seeking clarity from the Honourable Judges of appeal.

The appeal in respect of sentence was allowed by consent and the sentence imposed by this court set aside. The matter was remitted to this court for assessment of an appropriate sentence.

I have discussed the matter with my brother Mafusire J. Our humble view is that in the absence of the reasons as to the specific misdirection we made in assessing sentence as an appeal court, we are encumbered in complying with the Supreme Court order.

We note that the order by the Supreme Court is by consent. Our dilemma is that the state counsel is based in Harare and it is not possible for us to engage her and probably get the relevant aspects which inform the Supreme Court order vis-à-vis the grounds of appeal.”

[15]	The response from the Supreme Court, via the registry, was as follows:

“Kindly note that the correspondence from Honourable Mawadze J and Honourable Mafusire J was placed before the Honourable Judges of appeal.

The Honourable judges of appeal indicated that the order made was by consent of parties as such the query raised should be referred to the State counsel representing the National Prosecuting authority in the case.”

[16]	We had our misgivings. The response seemed rather unusual. Nonetheless, the National Prosecuting Authority [NPA] was engaged. Its response was as follows:

“I have received your correspondence dated 13 July 2020 on which you have raised concerns concerning the above mentioned matter.

I represented the state in the above mentioned, it was after arguments that I made concessions with regard to the sentence that was imposed by the court a quo before the matter was remitted back to the court a quo for proper sentencing. The issues raised were:

The court a quo did not take into account of the appellant’s mitigatory features.

The court did not specifically mention the inappropriateness of other noncustodial sentences i.e. a fine and community service taking into account that s 45 (2) of the Parks and Wildlife Act [Chapter 20:14] provides for a fine and or community service.

The court was at qualms on what was meant by ‘in the absence to special mitigatory features’ which was cited in the reasons for sentence by the court.”

[17]	We found it somewhat irregular. Courts talk through their judgments. It was difficult to re-hear a matter on the basis of a litigant’s own understanding of the reasons for a court’s conclusion. There is the danger that such understanding may be faulty. It was starkly demonstrated by the response from the NPA above. It says in part s 45(2) of the Act provides for community service. Of course, it does not. My brother and I pondered over what to do. We debated on what our next move should be. In the end we decided to set the matter down in compliance with the order of the superior court.

[18]	Before us, both counsel press for a non-custodial sentence in the form of a fine or community service. They more or less make the same points as in the letter from the NPA. Their common position, as stated in the heads of argument and expanded during oral argument, is that our previous judgment is silent on the reasons for the non-imposition of a non-custodial sentence. It is argued that our judgment was one sided. Only aggravating features were considered. It is silent on the mitigatory features. This is contrary to precedence, especially a case such as S v Mutenha & Anor 2016 (1) ZLR 419 (H). We ignored, without giving reasons, the propriety of imposing a fine. Yet this is a matter where a fine is permissible. Furthermore, the effective sentence of 2 years is within the range of sentences eligible for consideration for community service.

[19]	In this hearing, there has been an animated exchange between the Bar and the Bench. Counsel concedes the novelty of the situation which is that the court is having to determine a remittal in the absence of a judgment. However, he says it being an order or directive from a superior court, it has to be complied with.

[20]	We feel this case is just a merry-go-round, a dog chasing its tail. Incidentally, the issue of the alleged mitigating features was something that was never highlighted before us during the previous sitting. In this regard, we drew counsel’s attention to the appellants’ heads of argument in the previous sitting. There is only a fleeting reference to the penalty provision of s 45 of the Act and the plea for a fine. Yet in spite of counsel’s failure to highlight the mitigating factors, we did take them into account. We had the record from the magistrate’s court in front of us. All that there was to it in mitigation in respect of the second appellant was that he would be turning 51; that he was married to 1 wife and had 3 minor children; that he was a teacher and that the conviction would cost him his employment. It was also said that the appellants were all first offenders who had been in remand for close to 2 years.

[21]	In our judgment, we had considered that none of those aspects was out of the ordinary. What is mitigatory about someone’s age? Counsel stresses the general principle that the sentence of a court must suit both the particular offence and the particular offender. He says unfortunately in this case the sentence only suits the offence and not the offender. But with all due respect, what is different or special about the appellant? It is not cast in stone that first offenders are always spared jail. It is not the law. How many of them are in jail? Losing one’s employment or the attendant hardships on family and dependants are the ordinary consequences of imprisonment. We are not saying these things only now. We said them in our judgment, obviously not in so many words. But after assessing the aggravating factors, we concluded that in the absence of any special mitigatory factors the maximum penalty permissible under s 45(2) would be appropriate. We expressly ruled out the imposition of a fine or community service for the reasons articulated from p 11 to 12 of the judgment.

[22]	The term “special mitigatory factors” is our own expression. Counsel says it is not the language of the statute and that our judgment left it unexplained. Frankly, that is nit picking. The context is completely ignored. The statute is neither prescriptive nor proscriptive. It cannot possibly be. No statute is drafted with divine prescience. As DENNING LJ (as he then was) said in Seaford Court Estates Ltd v Asher [1949] 2 All ER 155 (CA) at 164 E – H, albeit in a different context:

“Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. … … … … It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity.”

[23]	We ruled out the imposition of a fine or community service. That was our final conclusion. Counsel seems to be suggesting or implying that such a conclusion should have preceded the reasons for it. But that is hardly an argument. That cannot be an appeal point. Counsel denies that this is his point. He says his criticism is that the reason for discounting community service should have appeared ex facie the judgment. But this is just semantics. What is being said really is that unless we constructed our judgment in the manner, and expressed ourselves in the same terms as certain other judgments, we were off course. Naturally we do not agree.

[24]	Sentencing is a complex task. It is a balancing act. The penalty must suit the crime. It must also suit the offender. His or her personal interests must be balanced against those of justice. But at the end of the day, after everything else has been considered, the judicial officer comes down to the hard facts before him or her. There is no scope for an approach that is purely mathematical. A slavish adherence to precedence is injudicious.

[25] 	We have failed to appreciate what else was required of us before passing the sentence that we did. Counsel laments “the human inclination” to adhere to a decision previously made (see Health Professions Council v McGowan 1994 (2) ZLR 392 (S) at p 337C –D) and somewhat regrets that the matter was not remitted to a different panel. That may well be so. However, in all fairness to us, in the absence of a judgment, there has been no compass to guide us. But be that as it may, we take note that both counsel are agreed that a non-custodial sentence is appropriate. They were agreed on this before the Supreme Court. The Supreme Court has itself set aside the custodial sentence that we had previously imposed. The merry-go-round must stop at some stage. Therefore, and in spite of our own views, we have felt compelled to sentence the appellant afresh and differently. The new sentence is as follows:

i/	Thirty six (36) months imprisonment of which eighteen (18) months imprisonment is suspended for 5 years on condition that during this period the appellant does not commit an offence involving a contravention of s 45(1) of the Parks and Wildlife Act [Chapter 20:18] which upon conviction is sentenced to a term of imprisonment without the option of a fine. The remaining eighteen (18) months imprisonment is suspended on condition that the appellant performs community service.

ii/	The matter is remitted to the Trial Magistrate at Masvingo, and in his/her absence any other Magistrate at Masvingo for the placement on the appropriate hours at a suitable institution on the usual conditions after carrying out a proper inquiry and if no adverse finding is made the appellant to be ordered to perform community service.

iii/	The appellant shall present himself before the Clerk of Court, Masvingo Magistrates Court on 17 December, 2020 for purposes of compliance with paragraph (ii) above by 12.00 hrs.

10 December 2020

Mawadze J: I agree	-------------------------------------

Ndlovu & Hwacha, legal practitioners for the appellant

National Prosecuting Authority, legal practitioners for the respondent