MAPHOSA v THE STATE (SC 07 of 2026) [2026] ZWSC 2 (9 January 2026)

Judgment No. SC 07/26 Civil Appeal No. SC 756/24 1 REPORTABLE

(07) MUNASHE MAPHOSA v THE STATE SUPREME COURT OF ZIMBABWE BHUNU JA, CHIWESHE JA & MUSAKWA JA HARARE: 28 MARCH 2025 & 09 JANUARY 2026 L. Madhuku, for the appellant T. Mapfuwa, for the respondent BHUNU JA:

Introduction

1. On 16 January 2024, the appellant was jointly charged in the Harare Magistrates Court together with an accomplice for unlawful keeping, possessing, selling or otherwise disposing of any live specially protected animal in contravention of s 45 (1) (b) as read with s 128(b) of the Parks and Wildlife Act [Chapter 20:14] .

2. He pleaded not guilty to the charge but was found guilty of unlawful possession of a pangolin trophy after a full contest. The offence attracts a minimum sentence of 9 years imprisonment in the absence of any special circumstances. The trial magistrate found that there were no special circumstances surrounding the commission of the offence. The appellant was accordingly sentenced to the minimum mandatory sentence of 9 years imprisonment.

3. The appellant appealed to the High Court (the court a quo) without success. He now appeals to this Court for relief against both conviction and sentence. Judgment No. SC 07/26 Civil Appeal No. SC 756/24 2

Brief Summary of the Case

4. The facts of this case are by and large common cause. The undisputed facts are that on 2 March 2022 police detectives received information pertaining to the unlawful sale of a pangolin trophy. Acting on the information, they lured the appellant and two accomplices to the corner of George Silundika Avenue and First Street, Harare with Detective Assistant Inspector Banhu posing as a pangolin trophy buyer.

5. Upon arrival at the agreed venue, Detective Assistant Inspector Banhu contacted the accused persons on the appellant’s cell phone. The appellant and his co-accused Oswell Chingwara proceeded to where detective Banhu was and boarded his motor vehicle. The appellant sat in the front seat of the motor vehicle. Detective Banhu engaged the second accused in conversation regarding the sale of the pangolin trophy. He insisted on the trophy being brought to the motor vehicle.

6. The pangolin trophy was brought to the motor vehicle now accompanied by the third accused as well. The third accused is still at large and a fugitive from justice. The appellant continued to sit in the front seat without participating in the sale negotiations of the pangolin trophy. It is the second and third accused persons who engaged in the sale negotiations and exhibited the pangolin trophy to detective Banhu. During the course of the negotiations, detective Banhu signaled his colleagues waiting in ambush by flicking his brake lights. They pounced on the trio and arrested them. The allegations against the appellant were basically that he was guilty of the illegal possession of the pangolin trophy by assisting and acting in common purpose with his two co-accused in a bid to sell the Pangolin trophy contrary to law. To that end, it was alleged that he had arranged for the trophy to be kept at his uncle’s work place in town to facilitate the sale. Judgment No. SC 07/26 Civil Appeal No. SC 756/24 3

7. The appellant admitted having assisted his co-accused persons in their bid to sell the pangolin trophy. He accompanied them all the way from Chipinge to Harare for the purpose. He however denied that he had a guilty frame of mind when he assisted them. He denied ever having been in physical possession of the pangolin trophy. All what he did was to show them around Harare in their bid to sell the pangolin trophy as they were not familiar with the town. It was his defence that he only assisted them because they had lied to him that they had the necessary permit authorizing them to sell the pangolin trophy.

Determination by the Magistrate

8. The trial magistrate convicted the appellant on the basis of the common purpose doctrine as defined in Burchell & Milton at p 399 where the learned authors state that: “Where two or more people agree to commit a crime or actively associate in joint unlawful enterprise each will be responsible for specific criminal conduct committed by one of their number which falls within their common design”.

9. In articulating the ratio decidendi for the conviction, the trial magistrate had this to say: “The first accused in his own words stated in his defence outline paragraph number 4, ‘the first accused’s involvement and role is that he was invited by Vincent Sigauke and second accused to accompany them to Harare to sell pangolin, the trophy. He on p 44 of the proceedings indicated that he was aware that he had a pangolin that he wanted to sell. He also did not dispute that his cell phone number is the one which was used to communicate with potential buyer Banhu. Then the shop where the said blue suitcase was placed awaiting the purported buyer was where his uncle was. Further to that, he in para 4 of the defence outline was clear that he accompanied the other two to Harare to sell the pangolin. He was very much aware and had the requisite mental possession in casu, there is a causal connection between the first accused person and the accomplices in assistance and commission of the crime. From the oral evidence and documentary exhibits, it is clear that both accused persons had the mental possession and they acted in common purpose to commit the offence. And on Judgment No. SC 07/26 Civil Appeal No. SC 756/24 4 that basis the State managed to prove its case beyond reasonable doubt. And the two accused are found guilty as charged.” THE HIGH COURT DETERMINATION ON APPEAL

10. Dissatisfied with the decision of the trial court, the appellant appealed to the court a quo against both conviction and sentence. The court a quo upheld the Magistrate Court’s judgment and dismissed the appeal in its entirety on 13 December 2024. In dismissing the appeal, the court a quo reasoned that: “For purposes of satisfying the requirement of physical possession, there is no requirement of physical detention. There is no requirement for literal holding of the thing concerned. It is sufficient that he is aware of the physical presence of the object and in control of it.”

11. Thus the court a quo held that actual physical contact with the object was not the only mode of possession. A person can be liable for possession without coming into physical contact with the forbidden object.

12. As regards sentence, it found that there were no special circumstances surrounding the commission of the offence and sentenced the appellant to the minimal mandatory sentence of 9 years imprisonment. GROUNDS OF APPEAL TO THE SUPREME COURT

13. Disgruntled with the High Court judgment, the appellant mounted this appeal to the Supreme Court on the following grounds of appeal: “1. It having been common cause that the appellant was never at any stage in physical possession of the pangolin trophy, the court a quo misdirected itself and erred in law in not finding that the convicting court a quo misdirected itself and erred in law in finding that the convicting court (that is the Magistrates’ Court) had applied the wrong test in finding that “possession” had been Judgment No. SC 07/26 Civil Appeal No. SC 756/24 5 established beyond a reasonable doubt. In respect of the appellant by referring to what it called “common purpose” instead of applying the law on “joint possession” contemplated by s 196A (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

2. The court a quo misdirected itself and erred in law in not finding that the convicting court (that is the Magistrates Court) had erred in law in convicting the appellant in circumstances where the essential requirement of mens rea (as distinct from the mental element in possession) namely “subjectively knowing that there was no permit or licence”, had been established as a separate requirement.

3. As an alternative to 2 above, the court a quo misdirected itself and erred in law in finding that in crimes involving possession, there was no requirement for mens rea as a separate component from the mental element in possession in circumstances where that finding is contrary to s 9 (d) as read with the proviso to subs 17 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. (a) Having found that the sentencing court (the Magistrates Court had not applied the Criminal Procedure (Sentencing Guidelines) Regulations, 2023, the court a quo misdirected itself and erred in law in not finding that that failure on the part of the sentencing court rendered the sentence a nullity.”

The Relief Sought

14. If successful the appellant seeks the following relief:

1. That the appeal succeeds

2. That the judgment of the court a quo is set aside and in its place the following is substituted: “The first accused is found not guilty and acquitted.”

ALTERNATIVELY Judgment No. SC 07/26 Civil Appeal No. SC 756/24 6

1. The appeal partly succeeds in respect of sentence.

2. The judgment of the court a quo is set aside and in its place the following is substituted: (a) The appeal partly succeeds in respect of sentence. (b) The appeal against conviction is dismissed. (c) The part of judgment of the court a quo in respect of sentence is set aside. (d) The matter is remitted to the court a quo for sentencing on the basis of the Criminal Procedure (Sentencing Guidelines), 2023.”

15. The appellant challenged his conviction on essentially 3 grounds of appeal arguing that: (i) The actus reus of the offence had not been established. (ii) The essential element of mens rea had not been established. (iii) The mens rea pertaining to the liability of a co-perpetrator had not been established.

16. With regard to the appeal against sentence, the appellant contended that: (i) There was a failure to abide by the sentencing guidelines in relation to the imposition of a mandatory sentence. (ii) Improper consideration of the existence or otherwise of special circumstances. THE PARTIES’ ARGUMENTS ON APPEAL TO THIS COURT

17. In advancing his appeal in this Court, the appellant contended that the court a quo wrongly applied the mental element of the offence of possession to determine the physical element of possession. In this regard counsel submitted that the learned judge a quo misdirected himself by constantly referring to the appellant’s awareness of the presence of the pangolin trophy as evidence of the appellant’s intention to possess the forbidden trophy.

18. Relying on the case of S v Nkosi

(1) SA CR 284 (W) counsel for the appellant argued that the two-tier test for joint possession set out in that case was not met. The two requirements are that: (i) The group had the intention to possess through the actual perpetrator and Judgment No. SC 07/26 Civil Appeal No. SC 756/24 7 (ii) The actual perpetrator had the intention to hold for the group.

19. Counsel for the appellant further contended that the learned judge a quo misdirected himself and fell into error when he postulated that non-physical possession occurred whenever an accused is not in physical control but has the power to control the thing whether alone or together with some other person. It was counsel’s submission that where a person so possesses the forbidden contraband with an innocent frame of mind the person charged is innocent and should be found not guilty and discharged.

20. Regarding the intention to commit the crime, he argued that apart from the wrongful act of possession, the court a quo ought to have considered the mental element of subjectively knowing that the appellant’s co-perpetrators had no permit or licence to possess the pangolin trophy. He fortified his argument by reference to s 9 (d) of the Criminal Code which absolves an accused person of criminal conduct where the act is done without a blameworthy state of mind. In other words where the act is done with an innocent frame of mind no criminal liability attaches to the possessor. Citing the dictum in S v Young, 1983

(1) ZLR 258 (SC), counsel submitted that as the crime with which the appellant was charged was not a crime of strict liability, it was imperative that mens rea to commit the crime be established first before the appellant could be found guilty of the offence. The court a quo therefore erred at law in upholding the appellant’s conviction in the absence of the intention to commit the crime.

21. The State maintained its stance that a person is guilty of the crime of possession of a forbidden object regardless of him not having come into physical contact with the object. In this case it was sufficient that the appellant had travelled all the way from Chipinge to Harare in the company of his co-accused with the intention to sell the forbidden pangolin trophy. He had arranged for the safe keeping of the trophy in Judgment No. SC 07/26 Civil Appeal No. SC 756/24 8 Harare and had actively participated in contacting potential buyers. On that score, counsel for the state argued that the appellant was guilty as charged because he made it his common purpose with his co-accused to jointly possess and sell the pangolin trophy. To this end, the respondent sought to rely on the case of S v Mpa 2014

(1) ZLR 572 (H)

22. Regarding the application of s 196A of the Criminal Law (Codification and Reform) Act [Chapter 9:23], counsel submitted that the appellant was guilty as charged because the state proved that he was a co-perpetrator of the offence. The Court a quo was correct in convicting the appellant because he jointly possessed the trophy without the necessary permit or licence.