THE State Versus Ruvengo Jonisaya AND USHE Fumai THE State Versus Tivaringire Nhoya

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HH 85–2006
CRB No. C987-8/05
CRB No. C1274/05
THE STATE
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THE STATE versus RUVENGO JONISAYA AND USHE FUMAI

THE STATE versus TIVARINGIRE NHOYA

HIGH COURT OF ZIMBABWE PATEL J HARARE, 20 July 2006

Criminal Reviews

PATEL J: The Regional Magistrate for Masvingo Province has referred these two matters to this Court for directions and corrective measures. Both cases involved offences under the Parks and Wild life Act [Chapter 20:14] and were dealt with by the same trial magistrate. In order to address the issues raised by the learned Regional Magistrate, it is necessary to set out the relevant provisions of the Parks and Wildlife Act.

Parks and Wildlife Act

Section 59(2) of the Act provides as follows:

“Subject to subsection (4), no person shall—

(a) hunt any animal on any land; or
(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).”

By virtue of section 59(4), in its relevant portions:

“Subject to this Act, the appropriate authority for any land may—

(a) ................................................; or
(b) ................................................; or
(c) issue a permit to any person allowing him or any other person or any class of persons to hunt any animal on the land or to remove any animal or any part of an animal from the land or from one place to another on the land.”

In terms of section 91(1) of the Act:


“No person shall possess a fishing net—
(a) unless he is a registered dealer in or manufacturer of fishing nets; or
(b) except in terms of a permit issued in terms of paragraph (a) or (e) of section ninety-four; or
(c) unless such person is an appropriate authority for any waters.”

Section 93(1) stipulates that:

“No person shall, in any waters, use any fishing gear other than—
(a) a rod and line or hand line ………………; or
(b) a spear; or
(c) a spear gun; or
(d) a basket trap; except in terms of a permit issued in terms of section ninety-four: Provided that an appropriate authority for any waters may use a fishing net in the waters for which it is the appropriate authority.”

Section 104(1) deals with the payment of compensation and provides in its relevant portions as follows:

“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—
(a) ………………………; or
(b) ………………………; the court shall, in addition to any penalty which it may impose on the person convicted, order him to pay—
(i) in the case of an animal, plant or fish which was hunted, picked or caught in a national park, botanical reserve, botanical garden, sanctuary, safari area or recreational park, or of any specially protected animal, to the Authority;
(ii) in any other case, to the appropriate authority for 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).”

Section 106(3) provides for the forfeiture of the subject-matter of an offence and stipulates that:

“Where any person is convicted of an offence in terms of this Act, the court may order that any animal, other than a specially protected animal, or the meat or trophy of any such animal or any fish in respect of which the offence was committed shall be forfeited to the appropriate authority for the land on which or the appropriate authority for the waters in which, as the case may be, the offence was committed.”

Appropriate Authority

The term “appropriate authority” is extensively defined in section 2 of the Act. In relation to alienated land, it means the owner, purchaser or lessee of such land or any person appointed by such owner, purchaser or lessee. In the case of unalienated land which is forest land the appropriate authority is the Forestry Commission, while the Authority is designated as such in respect of parks and wild life land or State land other than forest land. As regards Communal Land, the appropriate authority denotes the relevant rural district council appointed for that purpose or, where no such appointment has been made, the Minister. In relation to any waters, the appropriate authority is the person specified by notice in terms of section 83 or, if no person has been so specified, the appropriate authority for the land riparian to such waters. Lastly, the word “Authority” is defined to mean the Parks and Wild Life Management Authority established by section 3 of the Act.

Pursuant to the provisions of the Act, the Parks and Wildlife (Appropriate Authority for Communal Land) Notice 2001 (S.I. 354 of 2001, as amended by S.I. 122 of 2003) identifies the rural district councils appointed as appropriate authorities in respect of Communal Land. Similarly, the Parks and Wildlife (Appropriate Authorities for Waters) Notice 1981 (S.I. 29 of 1981, as amended by S.I. 31 of 1985 and S.I. 116 of 1993) designates the relevant appropriate authorities in respect of specified waters.

Jonisaya and Fumai case

The accused persons were convicted on their pleas of guilty to a charge of unlawfully using unauthorised fishing gear, i.e. a large fishing net. They were caught fishing in Muteri Dam, Hippo Valley,
 Chiredzi, and were charged and convicted of contravening section 93(1) as read with section 94(4) of the Parks and Wild life Act. They were each sentenced to a fine of $100,000 or 1 month imprisonment in default of payment of the fine. Additionally, the fish and fishing net in question were declared to be forfeited to the State.

The Regional Magistrate has raised three queries in this case. Firstly, he states that the wrong sections were cited and that the accused should have been charged under section 91 of the Act. Secondly, he correctly points out that the fish and fishing net concerned should have been forfeited to the appropriate authority. Thirdly, he indicates that the alternative term of 1 month imprisonment is not proportionate to the fine of $100,000.

Taking the third point first, I agree that the prevailing hyperinflationary environment renders rather questionable the equation of a paltry fine of $100,000 with a prison term of 1 month. In the present case, however, both the accused persons are unemployed with no regular source of income. That being so, it is difficult to apply the general principle that the alternative term of imprisonment should, as far as is possible, approximate the period of time that it would take the accused to earn the amount of the fine. In the event, although the point is well taken, I think it unnecessary to interfere with the sentence imposed *in casu*.

As regards the first query, the learned Regional Magistrate is quite correct in alluding to the erroneous citation of a non-existent section 94(4). However, he appears to have misunderstood the meaning and purport of sections 91(1) and 93(1) of the Act. Section 91(1) proscribes the unauthorised possession of a fishing net, while section 93(1) criminalises the unlawful use of any fishing gear other than that prescribed in that subsection. A fishing net does not fall within the list of specified fishing gear and, therefore, its use by anyone other than an appropriate authority constitutes an offence punishable under section 93. It follows that the citation of section
 93, as opposed to section 91, was perfectly proper and that the conviction of the accused persons for contravening section 93(1) was quite correct on the facts of this case.

In any event, although section 93(1) was correctly cited, the mis-citation of a non-existent provision (section 94(4)) needs to be corrected. Accordingly, the charge in this matter is amended to one of contravening section 93(1) of the Parks and Wildlife Act [Chapter 20:14] and the conviction of the accused persons on the charge as so amended is confirmed.

As regards the final point, I entirely agree that the trial magistrate erred in ordering forfeiture simply to the State without identifying the specific appropriate authority to whom the items forfeited should be handed over. The reasons for complying rigorously with the provisions of the Act are self-evident. Firstly, the Legislature has differentiated the State in great detail for the purpose of identifying the precise authority in favour of whom forfeiture should be ordered. Moreover, it has specifically stipulated that forfeiture should be made to the appropriate authority and not to any other authority. Secondly, from a practical standpoint, to order forfeiture to the State simpliciter is obviously vague in the context of the Parks and Wildlife Act and leaves the matter open to considerable doubt.

In casu, Statutory Instrument 29 of 1981, as amended, does not designate any appropriate authority in respect of the waters in question, i.e. Muteri Dam in Hippo Valley. Therefore, in terms of the applicable definition in section 2 of the Act, the appropriate authority for the land riparian to this dam is the authority to whom forfeiture must be made. It is not ascertainable from the record as to whether the land concerned is private or State land or Communal Land and, consequently, who the appropriate authority might be. Accordingly, this matter is remitted to the trial magistrate for an inquiry to be conducted to determine the appropriate riparian authority to whom forfeiture of the fish and fishing net in question should be ordered. In every other respect, the sentence imposed upon the accused persons is confirmed.

**Nhoya case**

The accused in this case was convicted on his plea of guilty to a charge of unlawfully hunting a duiker without a permit in contravention of section 59(2)(a) of the Parks and Wild life Act. The offence was committed at the accused’s homestead, Plot 108 Chegwite, Humani Ranch, Mkwasine. He was sentenced to a fine of $100,000 or 2 weeks imprisonment in default of payment of the fine. In addition, a compensatory order was made in favour of the complainant, i.e. the State, in the sum of $750,000.

The Regional Magistrate points out that the element of unlawfulness was not canvassed by the trial magistrate in dealing with the essential elements of the offence. He also raises the fact that the compensatory order does not specify the appropriate authority to whom compensation is to be paid.

In traversing the essential elements of the offence created by section 59(2)(a) of the Act, the relevant inquiry is to ascertain whether or not the accused hunted an animal on any land without being in possession of a permit for that purpose issued by the appropriate authority for that land. The question of unlawfulness is not a distinct and separate element but is intrinsically tied up with the possession or otherwise of a permit from the appropriate authority. In other words, the absence of such permit necessarily renders unlawful the act of hunting.

In casu, the trial magistrate merely enquired from the accused as to whether he had the consent of the owner of the land to hunt. He did not specifically delve into the question of whether or not the accused had a permit for that purpose issued by the appropriate authority. The latter was assumed to be the State qua complainant in the matter.


It is trite that in canvassing a plea of guilty it is incumbent upon the trial court to ensure that the essential elements of the offence charged are fully understood and confirmed by the accused. The proceedings should not be perfunctorily handled and regarded as a mere formality. In short, great care must be taken to avoid the possibility of an ill-informed and mistaken plea of guilty. This is particularly important where the accused person is not legally represented as was the position in casu.

The record presently under review indicates that the accused was fully apprised of the charge preferred and the facts alleged against him. It is also fairly clear that there is no possibility of him having failed to grasp the essential elements of the offence charged. Taking the record of proceedings as a whole, I am satisfied that the accused’s plea of guilty was properly accepted and that there has been no miscarriage of justice in this case. I am therefore inclined, despite the trial magistrate’s obvious laxity in canvassing the charge and its essential elements, to confirm the conviction of the accused as being in accordance with real and substantial justice.

Turning to the order for compensation made by the trial magistrate, it is again clear that the court erred in granting the order simply in favour of the complainant, i.e. the State, without identifying the specific appropriate authority to whom compensation should be paid. I need not regurgitate the reasons set out above, in relation to forfeiture, for meticulously complying with the provisions of the Act.

In the instant case, the status of the land upon which the offence was committed is not clear from the record, viz. whether the land concerned is forest land, parks and wildlife land, Communal Land or State land generally, and it is therefore not possible to identify the appropriate authority therefor. It is obviously necessary to ascertain the correct identity of the appropriate authority in this case for the purpose of awarding compensation. Accordingly, this matter is also remitted to the trial magistrate for an inquiry to be conducted to determine the appropriate authority to whom compensation should be paid. Apart from this aspect, the sentence imposed upon the accused is confirmed.

KAMOCHA J: I agree.
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