THE State V Thomas Ndima AND Trymore Mugwara AND Rabson Ndima

### Preamble
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HB 153/19
HCAR 1863/19
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THE STATE

Versus

THOMAS NDIMA

And

TRYMORE MUGWARA

And

RABSON NDIMA

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 10 OCTOBER 2019

Criminal Review

MAKONESE J:	The above matter has been placed before me by the scrutinizing Regional Magistrate.

The accused persons in this matter appeared before a Provincial Magistrate at Esigodini on 8th of January 2019.  They faced charges of contravening section 59(a) of the Parks and Wild Life Act (Chapter 20:14), that is, hunting any animal on any land.  Accused persons pleaded guilty to the charge and were convicted and sentenced to 12 months imprisonment.  A period of 6 months was suspended for 5 years on the usual condition of future good conduct.  The remaining 2 months imprisonment was effective.

The factual background to this matter is that on 5th January 2019 in the early hours of the morning at Mazibuko Farm, Fort Rixon, the accused persons hunted and killed a male impala contrary to the provisions of the Act.  Accused persons were tracked by farm guards.  They were located at a homestead nearby and were apprehended.  Police officers conducted a search at accused’s residence and some dried game meat was recovered.  The impala was valued at $1 000.

The Regional Magistrate directed a query to the trial magistrate directing him to the provisions of section 104 (1) (a) and requesting him to comment on why compensation was not ordered.  In a long winded response the trial magistrate defended his sentence and reasoned as follows:

“… Like what I highlighted in my first response when the scrutinizing magistrate raised the query, I will still  reiterate and maintain that position ad est the animal that was slaughtered by the three convicts was not a domestic animal in terms of section 105(1) of the Parks and Wildlife Act,.  So the issue of compensation falls away.

Again in terms of section 104(1)(b)(i) of the Parks and Wildlife Act the slaughtered animal was killed inside an individual’s farm i.e. OSF farm which farm is not any way any of the following:

a national park

a botanical garden

a botanical reserve

a sanctuary

a safari area

a recreational park

or  any of the specially protected animal to the Authority.

Like what I highlighted in my first response the animal in question was just hunted and slaughtered in OSF farm but given that OSF farm does not fall within the above stated categories i.e. (i) to (vii) the issue of payment in terms of section 104 or compensation in terms of section 105 of the Parks and Wildlife Act falls away.  The slaughtered animal qualifies to be called a wanderer, or a rover or a roamer and for the record it does not qualify to be referred to as a domestic animal in terms of section 105 as read with section 104(1) (b) (i) of the Parks and Wildlife Act.  For the avoidance of doubt animals kept under section 104(1) (b) (i) do qualify to be referred to as domestic animals and not the one that the three convicts slaughtered. …”

It is difficult to follow the trial magistrate’s reasoning given the factual background of this matter and the clear provisions of the Act.  Section 59 provides for the hunting, removal and sale of live animals and animal products.  In section 59(1) it is provided that this section shall not apply to national parks, sanctuaries or safari areas.  It is further provided in section 59(2) that subject to subsection (4), no person shall;

(a)	 hunt any animal on any land .( emphasis added)

(b)	remove  any animal or any part of an animal from any land or from one place to another on any land; except in terms of a permit issued in terms of paragraph (c) of subsection (4).

It is not in dispute that the accused persons did not have a permit or authority from the owners of the land to carry out the hunt.  The hunting of the impala was in violation of the Act.  What caused some confusion on the part of the trial magistrate is his interpretation and application of the provisions of section 104(1) (b) (ii) of the Parks and Wildlife Act.  Section 104 provides for payment of compensation for hunting of animal.  It is provided thus:

“104(1)	Where a person is convicted of an offence in terms of this Act involving the hunting of any animal, the picking of any plant or the catching of any fish and –

…

(b)	… the court shall, in addition to any penalty which it may impose on the person convicted, order him to pay …

(ii)	in any other case, to the appropriate authority of the land on which the animal was hunted or the plant was picked, or for the water in which the fish was caught;

Such amount as may be specified in respect of the animal, plant or fish concerned in terms of subsection (2).”

It is clear that the hunting of the impala on the land without permission from the appropriate authority, being the owner of the farm, contravened section 59 (1) of the Act.  In terms of section 104(b) (ii) the accused persons were required to pay compensation amounting to the value of the animal in question.

It is my view, that the conviction is proper.  The effective sentence of 6 months is not unduly harsh and does not induce a sense of shock.  There would be no justifiable reason for the court to interfere with the sentence.  The hunting of wild animals without authority is in simple terms, known as poaching.  The intention of the legislature was to discourage illegal hunting of wild animals.  I have already indicated that the trial magistrate’s explanation for not ordering compensation is difficult to follow.  The trial magistrate misdirected himself on the aspect of compensation.  I however, do not consider it to be in the interests of justice for the matter to be referred back to the court a quo.   I will, accordingly confirm the conviction and sentence.  I will however withhold my certificate, for the reasons given in this judgement.