Two men from Lower Gwelo have been arrested for illegal possession of two unmarked raw ivory elephant tusks.
Jonathan Mkhwebu (33) and Brilliant Mkhosana (39) were apprehended on Tuesday in Bulawayo after an attempted sale went wrong.
An all-female CID homicide crack team code-named Lozikeyi, posed as interested buyers after they received a tip-off that the duo was selling their ivory pieces.
The court heard that Mkhwebu and Mkhosana approached the police officers at Bulawayo Chiefs Sports Club, carrying a black satchel that contained a sack that had the ivory pieces. They were selling them for US$5 000.
The men appeared before Bulawayo Regional Magistrate, Joseph Mabeza, and they initially pleaded guilty to the offence.
However, with the help of their relatives, they managed to secure a legal representative, Tinashe Dzipe of Morris-Davies and Company law firm.
Dzipe, who arrived at court mid-session of the proceedings, subsequently made an application to the court, seeking to halt the proceedings and alter the men’s pleas from guilty to not guilty.
Dzipe submitted that his clients were “unsophisticated” members of the society who did not fully comprehend what they had admitted to. He said his clients had pleaded under duress from the arresting detectives and they had been told that should they admit to the charges, the court would have “mercy” on them for not wasting its time.
“The law makes provisions for an accused person to alter their plea. Where the accused wishes to alter the plea of guilty to not guilty, the accused has no onus to himself to alter. All that is required is for the accused to give a reasonable explanation of why in the first place he tendered a plea of guilty. The law also states that the altering of a plea by the accused is based on the balance of probabilities,” Dzipe submitted.
“The two applicants are of the class of what I would term as unsophisticated citizens. They are deep rooted with a rural background, and are not well educated. The reasons why they rendered a guilty plea is because they were held sway by the police detectives who arrested them, that should they appear in court, they must admit to the charges and in return the court would forgive them for not wasting the time of the court.
“They also indicated that they were assaulted by the police to manipulate an admission to the charge, which threat they were constantly reminded of even as they came to court today.”
Dzipe further stated that in terms of the legal processes, being found in possession of something goes beyond the dictionary definition of the word, hence the court should have properly explained that aspect to his clients so that they could plead from an informed position.
“The two applicants would also state that they incorrectly admitted to the essential elements of the charge. For example, the issue of possession. Possession is a technical term, which in the field of law means more than just its dictionary definition. In casu, we are of view that the court should have taken a position to explain what possession in the court of law,” Dzipe said.
“When a plea is made under some form
of inducement or threat by the police, that aspect can only be disposed through a trial within a trial. These two applicants believe that they have managed to give a reasonable explanation for the withdrawal of the guilty plea.”
Dzipe also submitted that his clients had not offered any mitigation, to which had they, and offered their reasons for committing the crime, at that juncture, their plea could be said to be voluntary.
Magistrate Mabeza informed Dzipe that the court had clearly explained the essential elements of the offense to the duo, and they had confirmed that they knew they were in possession of elephant tasks and they acknowledged that they had no permits not licenses to hold such.
In response, Dzipe explained that the court environment can be intimidating to people are not used to it and the best way to prove beyond reasonable doubt, the validity of the reasons tabled, would be to conduct a “trail within a trial” where the arresting officers would be called in to ascertain if the claims of the accused persons were indeed true.
However, the State, represented by Dominic Moyo, was opposed to the application made by the defence counsel.
Moyo argued that the reasons stated did not bring out why the plea had to be altered, citing that the court was not convinced by the submissions made.
“In such an application, the accused must give reason why they pleaded guilty to an offense. It is only when the court is fully satisfied that the plea can be altered. The reasons given here are two, one is assult, and they were told if they plead guilty they would be treated better. And the second that they unknowingly pleaded guilty to the essential elements of the charge owing to the interpretation by the interpreter,” Moyo said.
“For the first reason, there is no further explanation to it. It has become common practice that the accused persons throw accusations of assault to the police after being arrested. The court finds this false.
“On the issue of possession, the court fails to appreciate who in particular failed to appreciate possession. How can one argue that I was forced to admit to the charge then later on go on to say I was wrongly admitted, I did not understand the essential elements of the charge.”
Magistrate Mabeza remanded Mkhwebu and Mkhosana in custody until July 23, 2024, when he is set to make a ruling on the application.
