FRANCISTOWN: A man who was indicted for illegal possession of an elephant tusk, breathed a sigh of relief this week after he was acquitted and discharged of the offence.
Moses Enock was alleged to have been found in possession of an elephant tusk worth P31,681.70 at Thapama Hotel on June 1, 2015, in Francistown.
Enock was initially charged with Thabani Nkomo, a Zimbabwean, who was found guilty of the offence and sentenced accordingly. Nkomo was convicted after he pleaded guilty to the offence.
When delivering her ruling on the matter on Tuesday, Chief Magistrate Faith Ngandu-Dlamini said according to the summary of the evidence, Enock and Nkomo knew each other very well since the former used to engage the latter in his construction company.
In addition, the magistrate said that Enock used to borrow Nkomo his car. “The police testified to the effect that they got information from their reliable sources that Enock and Nkomo were in possession of an elephant tusk at Thapama Hotel and were also offering it for sale.
“When the police arrived at Thapama, they found the accused (Enock) sitting on the drivers’ seat while Nkomo was sitting at the back seat of Enock’s Toyota Regis car,” said Ngandu-Dlamini.
Ngandu-Dlamini said before the police began to search the car, they enlisted the help of an independent witness who observed how the search was conducted.
After the police sought the assistance of an independent witness, Ngandu-Dlamini explained, they began asking Enock and Nkomo if they knew anything about the ivory which was said to be inside the car.
Nkomo admitted to knowing about the tusk while Enock denied any knowledge of the ivory, said Dlamini-Ngandu. “When the police were searching the car to find the ivory, Nkomo showed them where the elephant tusk was hidden while Enock reiterated that he knew nothing about the ivory that was hidden inside his car. Enock also told the police that shortly before they arrived to search the car, he had just borrowed Nkomo the car,” Dlamini-Ngandu explained.
She said that it was common cause that both accused persons had no licence or any document that authorised them to possess the tusk.
At the close of the state’s case, Enock through his attorney Morgan Moseki made an application of no case to answer. “It should be clear that Nkomo accepted both physical and mental elements of possessing the tusk while Enock denied that.
“The accused does not come across to me as a person who knew anything about the existence of the tusk that was hidden in his car at the time the police searched it.
“He had just borrowed his car to Nkomo before the police searched it and retrieved the tusk from one of the car’s back seats,” said the magistrate. She added that Nkomo even showed the police where the tusk was hidden in the car. Dlamini-Ngandu explained that while other elements were not disputed by Enock, he only disputed that he did not know anything about the tusk.
This, Dlamini-Ngandu explained, enjoined the prosecution to prove its case against Enock beyond reasonable doubt. “It is the court’s considered view that the prosecution has failed to link the accused with possession of the elephant tusk even though it was found in his car.
“It is also clear that Enock and Nkomo never had a discussion about the tusk prior to Enock’s car being searched by the police.
“From the above reasons, it is the court’s decision that the state has failed to prove any prima facie case against the accused. The accused is therefore acquitted and discharged of the offence,” said Ngandu-Dlamini. After the court delivered its verdict, Moseki made an application for Enock’s car to be returned to him. The vehicle was confiscated by the police after he was charged with the offence. Dlamini-Ngandu then ordered that the state releases the car to Enock since it was not even brought to court as part of the evidence in the matter.