MATHONSI
J: The accused was changed and convicted
of 2 counts of contravening section 5 as
read with s 30 (1) (a) of the Trapping of Animals Central Act, [Cap 20:21]. On the first count he had
set up 30 wire snares at a ranch in Mwenezi belonging to Zimbabwe Bio Energy
Company on 16 August 2009 and had caught 4 zebras valued at US $4 000.00. The meat was recovered.
On
the 2nd count he set up 6 snares on 3 November 2009 at the same farm
and caught an impala valued at US$500.00 which was also recovered. The learned
magistrate found the accused guilty as charged and treating both
counts as one for purposes of sentence, he sentenced the accused to 24months imprisonment
of which 6 months was suspended, for 5 years on condition of good
behaviour. In addition, the magistrate
ordered the accused to compensate the complainant in the sum of $4 500.00 being the value of
the animals. None of the sentence was
suspended on condition of the restitution ordered.
Section 5 of the
Act provides :
“Any person who
makes, possesses or uses a class 1 trap for the purpose of trapping any animal
shall be guilty of an offence and liable to a fine not exceeding level 8 or to
imprisonment for a period not exceeding 3 years or to both such fine and such
imprisonment.”
The
entire s 30 of [Cap 20:21] was repealed by s 4 of Act No 22 of 2001. Therefore the charge as it stands was
defective and the magistrate should not have convicted accused person as
charged . I have however decided to
confirm the conviction because the wording of the charge does not offend the
attainment of real and substantial justice to the extent that it does not
prejudice the accused person.
It
is the imposition of restitution as part of the sentence which is not in
accordance with real and substantial justice.
In the first place, all the meat was recovered and presumably restored
to the complainant. Even assuming that
the value thereof would be less than the value of live animals, it cannot be
said that the complainant still lost $4 500.00.
If indeed it was necessary to restitute, what should have been ordered
is the difference between the value of the live animals and the meat which was
recovered and not the full $4 500.00. No
evidence was led to determine this value.
I
have also noted that the magistrate did not suspend a portion of the sentence
on condition of restitution and this was a misdirection.
For these reasons I order as
follows:
(a)
That the conviction
is confirmed.
(b)
That the sentence is confirmed only to the extent of
the custodial term of an effective 18 months, and
(c)
That the order for restitution in the sum of US$4 500.00 be and is hereby set
aside.
MATHONSI J ……………………………………..
