FRANCISTOWN: An alleged elephant tusks and rhino horns poaching kingpin in the Southern Africa Development Community (SADC) region, Dumisani Moyo, may walk scot-free after the court barred the State from producing a rhino horn he is alleged to have unlawfully been found in possession of as part of evidence.
The turn of events follows a previous ruling that was delivered by Magistrate Lebogang Kebeetsweng.
Before the State appealed Kebeetsweng’s ruling at the High Court, Kebeetsweng had barred the State from producing the rhino horn as part of its evidence because the State did not comply with case management rules showing that the horn would be used as an exhibit in the matter.
The failure by the State to appeal Kebeetsweng’s ruling on time technically means that Moyo may walk free because there is no evidence to be used against him when the case continues in January next year.
The State also did not appeal Kebeetsweng’s ruling on time but has now approached the High Court to be condoned to appeal Kebeetsweng’s ruling out of time.
Quoting from case law, Moyo maintains that… “There is a general principle that it is inconvenient and indeed undesirable to hear appeals piecemeal and the courts have declined to do so except where unusual circumstances called for such procedure”.
The case law continues: “Based upon the maxim interest reipublicae ut sit finis litium (in the interest of society as a whole, litigation must come to an end), the idea of a trial, especially criminal trials, is that it should be as much as possible continuous and that it should not stopped. To hold otherwise would open the floodgates of appeals and reviews and permit every interlocutory ruling or decision made in matters of evidence, oral or documentary, to be appealed against in piecemeal when such matters could have be saved or stored and made grounds of appeal…”
According to the particulars of the offence, Moyo, 52, and others not before court at or near Francistown-Orapa junction acting together in concert were found in unlawful possession of rhinoceros horn without a licence or
When the parties in the matter appeared before Justice Barnabas Nyamadzabo on Friday for status hearing, Moyo’s attorney Kagiso Jani told the court that he had filed his points in limine (technical points that are dealt with before substantive issues in the case can be dealt with) before court on December 7 and was ready to proceed with the matter.
However, the State attorney Koziba Nthanga told the court that the Directorate of Public Prosecutions (DPP) had not yet received Moyo’s heads of arguments despite evidence showing that the DPP was served with Moyo’s documents on December 10.
Nthanga then pleaded with the court for its indulgence to allow the DPP to be given chance to reply to Moyo’s heads of argument.
Jani did not object to the postponement sought by the DPP, but applied that the DPP should pay costs for Friday’s appearance for its failure to reply to Moyo’s heads of arguments being the applicant in the matter.
In response Nthanga admitted that the DPP was in mora (in delay or default) for having not responded to Moyo’s papers.
Nthanga did not also oppose that the DPP should pay the costs of Friday’s hearing.
Justice Nyamadzabo postponed the matter to March 8, 2019 for argument in points in limine and merits of the matter.
He ordered the State to pay for Friday’s hearing. According to a study entitled ‘Beyond Borders: Crime, conservation and criminal networks in illicit rhino horn trade’, that was carried out by the Global Initiative against Transactional Organised Crime, Moyo is a holder of both Zimbabwe and Zambia passports.
The study adds that Interpol has issued an international red notice calling for member states to arrest Moyo.