The
applicants are alleged to have shot and killed one white rhino with an FN rifle
belonging to Accused Two. They are said to have dehorned the rhino and Accused Three
and Four were later arrested at Sam Levy Village while selling the horns. The
two accused persons then led the police to Accused Five and Six who were found
in possession of the said rhino horns.
The six
accused persons appeared before the magistrate at Masvingo charged with
contravention of section 45(1) as read with section 128 of the Parks and
Wildlife Act (Control of Hunting of Specially Protected Animals and Products)
Act [Chapter 20:14].
Accused
Two, who is alleged to be the owner of the rifle used to kill the animal, has
since been granted bail.
The
three accused persons, who were denied bail, now appeal to this court arguing
that the hearing magistrate misdirected himself by denying them bail when they
were entitled to equal treatment with Accused Two. In fact, they were better
suited to be granted bail than the second accused who was the owner of the gun
used to kill the animal.
The
facts, as correctly found by the magistrate, tend to establish that all the
accused persons, with the exception of Accused Two, were caught red-handed
actively selling the rhino horns in question. Accused Two was only implicated
by his co-accused. He denied the allegations. The magistrate reasoned that the
State case was weak in respect of the second accused because his accomplices'
confessions were inadmissible against him and there was no other direct
evidence against him.
Indeed,
that is the correct position at law.
He then
granted the second accused bail on that basis. The rest of the accused were
denied bail on the basis that the State had a strong case against them in that
they were caught red-handed in the process of committing a very serious crime
thereby exposing themselves to a severe penalty which may prompt them to evade
trial.
I
honestly cannot find any fault with the magistrate's line of reasoning and
interpretation of the law. That being the case, the application for bail can
only fail. It is accordingly ordered that the application for bail be and is
hereby dismissed in respect of all the three applicants.
