Chronicle Editor
Mashudu Netsianda, Senior Court Reporter
THE Supreme Court has set aside the conviction and sentence of two Zimbabwe Parks and Wildlife Management Authority (ZimParks) rangers who ordered a Zambian man to swim across Zambezi River with his four-year-old son on his back resulting in them drowning.
Jefrey Munkuli (39) and Benjamin Nhidza (38) were punishing Abel Ngandu who was aged 30 and his countrymen for poaching fish on the Zimbabwean side of the river.
They arrested Ngandu and took away a canoe, fishing nets and fish before ordering them to swim back to their country.
Ngandu had gone fishing with his little son Dennis. The minor slipped off his father’s back as the two were being swept downstream.
Munkuli and Nhidza, who were initially facing a murder charge, were convicted of a lesser charge of culpable homicide by Bulawayo High Court judge Justice Thompson Mabhikwa during a court circuit in Hwange.
They were sentenced to 12 years each of which four years were suspended for five years on condition of good behaviour.
Aggrieved by Justice Mabhikwa’s ruling, Munkuli and Nhidza, through their lawyers Chinogwenya and Zhangazha Legal Practitioners filed an appeal at the Supreme Court challenging their conviction and sentence.
In papers before the court, they cited the State as a respondent.
Justice Antonia Guvava, who was sitting with Justices Tendai Uchena and Alphas Chitakunye during a Supreme Court circuit in Bulawayo, upheld the appeal.
She remitted the matter to the same judge of the low court.
“The judgment of the court a quo is hereby set aside. The matter be and is hereby remitted to the court a quo before the same judge for consideration of whether appellants (Munkuli and Nhidza) are indemnified in terms of section 3 of the Protection of Wildlife (Indemnity Act),” ruled Justice Guvava.
In their grounds of appeal, Munkuli and Nhidza argued that their conviction was based on admissible hearsay evidence.
The appellants’ lawyers argued that the judge of the lower court attached criminal liability to their clients who are indemnified by a legal statute.
“The court a quo erred at law in convicting the appellants of culpable homicide in spite of the fact that they are indemnified by statute of any criminal liability arising from their acts and omissions committed in good faith for the suppression of unlawful hunting of wildlife,” argued the lawyers.
Munkuli and Nhidza said the testimonies by two Zambian witnesses who testified during trial were not enough to warrant a criminal conviction, arguing that they could not understand Shona.
They further argued that the judge erred and misdirected himself by not giving due weight to the fact that the deceased were committing an offence leading to their deaths.
Mr Kudakwashe Jaravaza, for the State, opposed the appeal, arguing that the lower court clearly analysed the mitigatory and aggravating circumstances and arrived at an appropriate sentence.
“The fact that the appellants were performing law enforcement duties is neither here nor there for it has already been submitted that their actions were mala fide. What was particularly aggravating was that two lives were needlessly lost while the appellants showed no remorse,” he argued.
According to court papers, it was stated that on October 16, 2010, Munkuli and Nhidza were patrolling on Chomuzi Island in the Zambezi River when they saw five Zambians who had crossed into Zimbabwe illegally and were poaching fish in the river.
They arrested Ngandu and took away a canoe, fishing nets and fish before ordering them to swim back to their country. Ngandu carried his son on his shoulders and attempted to swim across but both drowned in the process. Their bodies were later recovered on the Zambian side. —@mashnets.
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