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Yuling v Mutsambiwa and others
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ECOLEX subject(s):
The applicant and her translator, Quinling Zhang, were arrested on 4 July 2005 for possessing 72 pieces of raw ivory without the requisite permits, dealing in raw ivory and attempted export of the same without the necessary export documents. She had purchased the ivory from a dealer who was licensed by the Respondent 2, the responsible authority for managing inter alia wild life products, to manufacture and not to sell raw ivory. The police seized the ivory and surrendered it to the responsible authority for storage purposes, pending the prosecution of the applicant and her translator. The prosecutor denied to prosecute them, taking the view that the two had acted, to their detriment, on the advice of the licenses dealer that the ivory was processed, and so lacked the essential mens rea to commit the offence. A recommendation was made to release the ivory to its "legitimate owners", and since the two could not lawfully possess the ivory in question, must negotiate with the responsible authority to regularize their future possession, and if this failed, it would be forfeited to the State. The responsible authority was concerned by the effect the suggested compromise would have on Zimbabwe's compliance with the requirement of the Convention on International Trade and Endangered Species (CITES). Although the applicant first argued her claim is based on ownership of the ivory, this was later retracted by her representative Ms. Munangati, as she would need to establish that the law allows her to own the ivory in question. So, Ms. Munangati suggested that the application was based on Section 59(1)(a) of the Criminal Procedure and Evidence Act, which empowers an investigating officer to dispose of exhibits in cases where no criminal proceedings are instituted, and empowers the return of the ivory exhibits to the applicant if she could legally possess them. Judgment: Section 59(1)(a) of the Criminal Procedure and Evidence Act provides no cause of action for the applicant. It seems that she could only base her claim on ownership or possession. She has strongly denied that she is approaching this Court on the basis of ownership. She also lost possession and does not have it. She cannot rely on Section 59(1)(a) of the Criminal Procedure and Evidence Act, and so, clearly has no cause of action by which to approach this Court. The application is therefore dismissed on the basis that she lacks a cause of action. (Provided by: UNODC SHERLOC)