State Appeals 'Poaching Kingpin' Accused Case
Goitsemodimo Akanyang | Monday March 11, 2019 12:16
More so that the State has already been barred by a magistrate to produce the rhino horn that Moyo was allegedly found in possession of as part of its evidence. The magistrate expunged the horn to be used as part of evidence because the prosecution did not comply with case management rules showing that the horn would be used as an exhibit in the matter during trial.The State’s case may further be compounded by the fact that the prosecution failed to appeal the magistrate’s ruling on time – a process that triggered the prosecution’s current application before the High Court.
During the hearing to appeal the magistrate’s ruling on Friday, Moyo’s attorney Kagiso Jani prayed with Justice Barnabas Nyamadzabo to dismiss the State’s application to appeal the magistrate’s ruling out of time.
Jani said: “We are in short saying that the court should not consider the application to appeal out of time. It is not necessary to go to great lengths explaining that because the ruling the prosecution wants to appeal is not appealable. We have cited authorities to that effect in our heads of argument. An apex court ruling that we have cited in our heads put this matter to rest. An interlocutory ruling, which does not define the rights of the parties is not appealable.”
In a spirited attempt to convince the court to condone the State’s case, prosecutor Koziba Nthanga said: “In short, this appeal is a mixture that was triggered by a procedural irregularity. Such an irregularity should not have triggered the lower court to expunge the exhibit we want to use as an exhibit during trial.”
She added: “We have a case that shows that our appeal is appealable. The Court of Appeal (CoA) has stated that interlocutory appeals are not appealable but went an extra mile to say that there are instances whereby they can be appealed. This is a case that is special, which warrants the court to deviate from the norm. Our heads already show how special the case is.”
When you look at the ruling that was delivered by the lower court on June 7, 2018, Nthanga said, it actually deals with the substantial part of the trial and, if so, then we are saying that we have rightly appealed the ruling.“On the surface, the ruling is not a ruling because of reasons I have just stated.
The ruling says that the horn should be expunged as an exhibit. We are saying that if we proceed to trial without the exhibit, surely there will be no use to do so because both parties know the result of that. That will lead to the acquittal of the accused. We are saying that the nature of the offence requires this court to make an appropriate order and allow the prosecution to utilise the exhibit during trial,” Nthanga said.
When replying to Nthanga’s submissions in points of law, Jani said: “Before we proceed, we remind the court that what is before it is an application to appeal out of time. We are saying so because the prosecution speaks as if the court has already granted them the opportunity to appeal out of time.”
He added: “We have cited a CoA ruling that says that the lower court was right in denying the state to use the exhibit. We are simply asking the court to follow the precedent that was set by the CoA.” Justice Nyamadzabo will deliver a short ruling on the respondent’s points in limine on April 3.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.