KUDYA
J: This is an application made in terms
of s 198 (3) of the Criminal Procedure and Evidence Act [Cap 9:07] for the discharge of the accused person at the close of
the State case.
The
accused person was (and still is) a game ranger employed by the Parks and Wild
Life Management Authority at the time he shot Panganayi Muromba on the left
thigh and killed him in the Mupfurudzi Game Park in Shamva. He was charged with
murder after the Attorney General authorised his prosecution in terms of s 4
(b) of the Protection of Wild Life (Indemnity) Act [Cap 20:15]. The events leading to the death of the deceased on 29
October 2005 at 3 am were set out by the evidence of seven State witnesses. The
evidence of Sergeant Simon Hlongwane, Sergeant Nala and Dr Kujinga were
accepted into evidence by consent in terms of s 314 of the Criminal Procedure
and Evidence Act, supra. Maxmore
Mukubvu, William Mukubvu, Tawanda Magora and Marko Chimudende gave oral
testimony of the events of that fateful morning. Dr Gwiza was called in the
absence of Dr Kujinga to explain the meaning of the medical terms used in the
post mortem report, exh 1.
Maxmore
Mukubvu, William Mukubvu and Tawanda Magora left Muromba
Village in Chief Nyajina's area in the
Uzumba Maramba Pfungwe district of Mashonaland East Province in the company of the
deceased in the early hours of 29 October 2005 to hunt for wildlife in the Mupfurudzi Game Park.
They were armed with spears and axes and had a pack of 12 dogs. In the game
park they first killed a hare before they cornered a klipspringer which ran up a
nearby rock. Maxmore went up the rock while his fellow hunters advanced from
the right hand side of the rock towards their query. He saw the accused person
grab hold of deceased by his belt and assault him with the butt of his rifle
before he ran away from the scene. As he was running away he heard the sound of
three gunshots fired in rapid succession. When he was a kilometer away he heard
another round of three gunshots.
Under
cross examination he averred that the accused first fired three warning shots
into the air before he grabbed hold of the deceased. He saw all his colleagues
take to their heels at the sound of the gun. As he scampered down the rock he
saw the accused grab hold of the deceased and belabor him with the butt of his
rifle. He changed his version and averred that the accused held the deceased
with his left hand by his belt and used the right hand to fire three shots into
the air while supporting the rifle with his right thigh. Thereafter he hit
deceased with the butt of the rifle twice on his buttocks. The statement he
gave to the police on 16 September 2006 was produced as exh 2. He told the
police that his two friends who testified with him were on one side of the rock
while the deceased was on the other side of the rock. He also stated in the
statement that the accused set upon the deceased and hit him on his back above
the waist with the butt of the rifle which he held in both his hands. He also
told the police that after running for a kilometer he heard a gunshot.
The
discrepancies in Maxmore's version demonstrate that he did not fully observe
the actions of the accused person towards the deceased because he was busy
scampering down the rock in a bid to make good his escape without detection.
William
testified that as they were surrounding the klipspringer, the accused suddenly
appeared and set upon the deceased whom he hit once on the back just above the
waist with the rifle butt as he shouted the words poachers twice. The witness
and Tawanda Magora ran away leaving Maxmore on top of the rock. The deceased
never ran away from the scene where he was apprehended by the accused. As he
was running away he heard the sound of three gunshots which were followed ten
minutes later by another three shots. Under cross examination he stated that the
accused was four metres from the witness when he fired the rifle in his
direction. He conceded that he did not wish to shoot him as he would not have
missed him at such a short distance. His version in court was different from
the one he gave to the police on 16 September 2006 in exh 3, as regards the
number of shots he heard. In his statement he averred that he heard two shots
fired in rapid succession and after he had run for a distance of 500 m he heard
another shot.
Tawanda
Magora was prompted to run off the scene by William who threw away his hunting
weapons before he took to his heels. He had run for about 20 meters when he
heard the sound of three gunshots. A fourth rang out after he had run for about
five minutes. In his statement to the police in September 2006 he stated that
he first heard two gunshots and then a single gunshot later.
Marko
Chimudende testified that he was on anti-poaching patrol duties in the game
park in question with the accused person. They divided the area of patrol
between them and agreed to meet at a certain rendezvous in the game park. When
he reached the rendezvous he heard the three gunshots ringing in the air in
rapid succession. The accused made a report to him of how he shot one of the
poachers as he tried to shoot one of the fleeing hunting dogs. The two went to
check the deceased and found him in the throes of death bleeding from the thigh
injury. When the police arrived, they picked three spent cartridges from the
three different spots.
Dr
Edmore Gwiza, a medical practitioner with the Family Support Clinic in Harare explained the
medical terms recorded by Dr Kujinga in the post mortem report. The pathologist
recorded that the deceased sustained a gunshot wound on the left upper thigh.
The bullet entered from the side on the back of left upper thigh and exited
from the middle of the front part of the same thigh. He concluded that death
was a result of bleeding from that injury.
The
State closed its case and Mr Zhangazha
for the accused applied for his discharge and acquittal. He relied on the
provisions of s 3 of the Protection of Wild Life (Indemnity) Act, supra, which reads:
“3 Indemnity
No criminal liability shall attach to any person who,
at the relevant time, was an indemnified person, in respect of any act or thing
whatsoever advised, commanded, directed or done or omitted to be done by him,
whether before, on or after the date of commencement of this Act, in good faith
for the purposes of or in connection with the suppression of the unlawful
hunting of wild life”.
The statute in question came
into operation on 8 September 1989. The deceased was shot and killed on 29
October 2005 at around 3 am while he was poaching with fellow villagers. His
partners in crime testified that they all knew that they were committing a
criminal offence by hunting in a game park without a requisite licence. That
they were aware that they were not permitted to hunt in the game park was
further demonstrated by the fact that they went to do so in the bewitching
hours of the morning. The discrepancies in the testimony of Maxmore on what he
saw the accused doing demonstrate his unreliability as a witness. It seems to
me that as they were hunting in the dark it was difficult for him to clearly
observe the actions of the accused in relation to the deceased. His version was
at variance with that of his partner in crime William. It was clear to me that
on sensing the presence of the accused amongst them, William took flight as did
Tawanda. These witnesses' testimony demonstrated that the shots were first
fired after they had commenced flight and not before they did so as stated by
Maxmore. The probabilities seem to be that on sensing the presence of the
accused amongst them all the poachers including the deceased ran away. After
all, they were all engaged in the illegal hunting of wildlife.
The testimony of Marko showed
that the accused was an employee of the Parks and Wild Life Management
Authority who is an indemnified person as defined in para (b) of s 2 of the
Protection of Wild Life (Indemnity) Act, supra.
In dealing with the Indemnity
and Compensation Act, 1975 which was similarly worded BECK J with the
concurrence of SMITH J in S v Gwevera & Ors 1978 RLR 466 (GD) at
467 G stated that:
“The words “in good faith” have been used in s 4 to
accentuate the need for honesty, and hence for the absence of an ulterior
motive, in relation to anything done for the purposes of, or in connexion with
the suppression of terrorism.”
The onus lay on the State to
prove a prima facie case against the
accused person that he acted dishonestly or with an ulterior motive in shooting
the deceased. The testimonies of the State witnesses lack evidence upon which a
reasonable court, acting carefully, might properly convict. See S v
Kachipare 1998 (2) ZLR 271 (S) at 276 D-E. It does not show that the
accused was not acting in good faith or that he acted with an ulterior motive
for the purposes of or in connection with the suppression of the unlawful
hunting of wild life. The concession by
Mr Nyahunzvi, for the State, for the
discharge of the accused at the close of the State case was therefore properly
made.
In the result, I decline to
place the accused person on his defence. He is found not guilty and is
acquitted of the charge of murder or any other competent verdict that might
arise therefrom.
Attorney General's
Office, legal practitioners for the State
Chinamasa, Mudimu,
Chinogwenya & Dondo, accused person's
legal practitioners
