The Court of Appeal (CoA) has freed two men who were found guilty of possessing ivory because the state failed to prove that they were involved in organised crime.
President of the CoA, Ian Kirby stated that Mlungisi Dlamini and Molataemang Mazwimbo were first offenders and there was no evidence of any additional aggravating features. Therefore, the trial magistrate and the High Court which increased the original sentence from seven to 10 years on appeal were misdirected in giving such severe sentences. “The tusks were recovered and the two did not benefit financially. In those circumstances, the sentence of seven years imprisonment imposed by the magistrate was too severe and the appeal court (High Court) should not have increased it. An appropriate sentence is one or two years imprisonment,” Kirby said.
He said the appellants were first offenders and that a single pair of tusks was involved with no evidence of any organised crime.
He said that a magistrate convicting an offender for possession of elephant tusks would do well to consider a sentence in the region of two years imprisonment for a single pair of tusks found in the possession of a first offender. “The sentence is increased appropriately according to the number of tusks involved and other aggravating circumstances such as trafficking, recidivism, and involvement in elephant poaching or organised crime. Each case of course is considered on its own facts,” he said. Kirby gave the duo a two-year imprisonment term but emphasised that since they had already been in custody for a longer period, they deserved liberty.
The two men were serving 10 years after they were convicted and sentenced by a Letlhakane magistrate in 2011.
When they appealed their conviction and seven-year sentence, the High Court added three more years to prolong their stay in prison to 10 years.