Lunt (40) was charged along with Nyasha Mutendawafa (31)
for allegedly violating the provisions of the Parks and Wildlife Act after they
were allegedly found in possession of the rhino horns without authority.
Lunt approached the High Court seeking review of the
decision by trial magistrate Ms Barbara Mateko dismissing his application for
discharge at the close of the State case.
A superior court will only interfere in un-terminated
proceedings of a lower court in exceptional circumstances of gross irregularity
or where not to do so may result in grave injustice.
In this case, during trial, the magistrate refused to
acquit Lunt at the close of the State case, despite making a finding that the
prosecution had failed to prove the essential elements of the crime, in
particular that the four horns came from one of the two species of African
rhinos, the only two that are specially protected in Zimbabwean law.
There was no evidence to prove that the trophies were from
a black or square lipped rhinoceros which are the specially protected species
of rhinoceros in terms of the Parks and Wildlife Act, but the trial magistrate
went on to exercise a discretion which apparently does not exist by putting
Lunt to his defence.
The State could not oppose the application by Lunt,
conceding that the merits of the application and substantive aspects of the law
for the matter had already been decided by the same court in the case of his
co-accused, Mutendawafa.
In a judgment delivered yesterday, Justice Samuel Deme
ruled that if the prosecution failed to prove that the horns were that of the
rhinoceros, “one wonders what could be the magistrate’s basis for believing
that prosecution had established a prima facie case warranting to put accused
to his defence”.
Justice Deme ruled that once satisfied that the State had
failed to prove essential elements of the crime, the magistrate should have
discharged Lunt at the close of the State case.
Mutendawafa successfully challenged the decision of the
trial court on similar grounds in February this year, and Justice Deme
associated himself with the court’s findings in the case of Mutendawafa.
He said the facts in the present case could not be
distinguished from the case of Mutendawafa.
Their trial commenced before Harare magistrate Ms Mateko
and the prosecution led evidence from all its witnesses, but failed to prove
the elements of the offence.
But the trial magistrate without justification went on to
conclude that a prima facie case was established and threw out the duo’s
application for discharge at the close of the State case.
In the case of Mutendawafa in February this year, Justice
Jacob Manzunzu noted that the offence under which the duo was charged consists
of two elements, that is possession, and a trophy of a specially protected
animal.
In this case, the rhinoceros that are protected by the law
are the two African species, the black rhino, diceros bicornis, and the
square-lipped, ceratotherium simum. This specific definition including only
African rhinos excluded any other type of rhinoceros from the bracket of
specially protected animals.
It was on this basis that Justice Manzunzu ruled that it
was the duty of the State to prove possession of a trophy of a specially
protected animal.
After identifying the essential elements of the offence
against which the State had a duty to prove and found that the prosecution
evidence was marred with inconsistencies, Justice Manzunzu said the trial
magistrate abruptly, without any justifiable cause, concluded that a prima
facie case was established.
Charges against the duo arose on July 2 last year, when
detectives from CID Minerals, Flora and Fauna, Harare, were tipped that Lunt
and Mutendawafa were in possession of rhino horns, which they intended to sell
in Msasa.
It is alleged the informer indicated that the duo was
moving around in a white Toyota Mark X and the detectives swiftly proceeded to
Msasa, where they spotted the car driving along Mutare Road.
The detectives allegedly followed the vehicle, driven by
Mutendawafa with Lunt sitting in the front passenger seat.
The detectives allegedly blocked the vehicle, which pulled
off the road and stopped.
The trial court also heard that the detectives identified
themselves and requested to search the duo and their vehicle.
The court heard that Lunt had a blue bag and a laptop on
his lap. The detectives allegedly searched the bag and found four rhino horns inside.
They also searched the accused persons and the vehicle, but
nothing was found. The accused persons were asked to produce documents
authorising them to be in possession of the rhino horns and they failed,
leading to their arrest. Herald
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