NDOU J: The
accused was convicted by a Bulawayo magistrate of unlawfully possessing animal
trophy without a licence in contravention of section 46 (b) of the Parks and
Wild Life Act [Chapter 20:14]. He had in his possession a total of thirteen
(13) pairs of impala horns. The matter
was referred to me for review by the learned scrutinizing Regional Magistrate
who is concerned about the propriety of the sentence. He feels that the sentence imposed is
lenient. I am in agreement with the
learned Regional Magistrate that the sentence imposed is manifestly lenient. The accused was in possession of a large
quantity of impala horns and it can be safely inferred that this was for
commercial purposes. This involves a
mass slaughter of animals by poachers.
The accused resides on the farm designated for resettlement. He must have appreciated that such
depredation will lead to the extermination of the animals. A sentence of 9 months all of which is
suspended on appropriate conditions imposed here will encourage large scale
poaching. For the land reform programme
to succeed in places like Matabeleland North, the new settlers themselves
should be in the forefront in the battle against poaching and not to become
poachers or facilitators of poaching activities.
Be that as it may, the issue of
sentence in casu, is rendered
academic as the conviction itself cannot stand. This is so because section 46 (b) does not
create an offence. It deals with the
Minister's powers to issue permits, “to keep, have in his possession or sell
any specially protected animal or the meat or trophy of any such animal.” An impala is not a specially protected animal
as defined in section 43 of the Act. All
specially protected animals are specified in the Sixth Schedule, and impala is
not specified therein.
The accused, should have been
charged either under section 33 (if the area in question is a sanctuary) or
under section 38 (if the area is a safari area). The trial record does not state whether the
area in question is a sanctuary or a safari area. From the foregoing, the conviction cannot
stand.
Accordingly, the conviction is
quashed and the sentence set aside. A
trial de novo is hereby ordered before a different magistrate.
Ndou J
……………………………………..
Cheda J
…………………………………….. I agree
