The State v Benjamin Never

The accused was a game ranger employed by the Parks and Wild Life Management Authority. On 29 October 2005 at approximately 3 am, he shot and killed Panganayi Muromba in the Mupfurudzi Game Park in Shamva. The deceased had been poaching wildlife in the game park together with three companions (Maxmore Mukubvu, William Mukubvu, and Tawanda Magora), armed with spears and axes and accompanied by 12 dogs. They had killed a hare and were hunting a klipspringer when the accused, who was on anti-poaching patrol, confronted them. The accused shot the deceased in the left upper thigh, causing fatal bleeding. The deceased's companions fled the scene when the accused appeared. There were conflicting accounts from the State witnesses about the sequence of events, including when shots were fired and how the accused interacted with the deceased. The Attorney General had authorized prosecution under s 4(b) of the Protection of Wild Life (Indemnity) Act.

• Whether the accused acted in good faith for purposes of suppressing unlawful hunting of wildlife under s 3 of the Protection of Wild Life (Indemnity) Act
• Whether the State established a prima facie case of murder or that the accused acted dishonestly or with an ulterior motive
• Whether the accused should be discharged at the close of the State case under s 198(3) of the Criminal Procedure and Evidence Act

The accused was found not guilty and acquitted of the charge of murder and any other competent verdict arising therefrom. The court declined to place the accused on his defence at the close of the State case.

Under s 3 of the Protection of Wild Life (Indemnity) Act, no criminal liability attaches to an indemnified person (including employees of the Parks and Wild Life Management Authority) for acts done in good faith for purposes of or in connection with suppressing unlawful hunting of wildlife. The phrase "in good faith" requires honesty and absence of ulterior motive. The onus rests on the State to prove that the accused acted dishonestly or with an ulterior motive to overcome the statutory indemnity. At the close of the State case, discharge is appropriate where the evidence lacks a basis upon which a reasonable court, acting carefully, might properly convict.

The court observed that the discrepancies in witness testimony demonstrated unreliability, particularly given that the poaching occurred in darkness which made clear observation difficult. The court noted that the probabilities suggested that all poachers, including the deceased, ran away upon sensing the accused's presence, as they were all engaged in illegal hunting and aware they were committing a criminal offence (evidenced by hunting in the early morning hours). The court cited with approval the interpretation of "in good faith" from S v Gwevera & Ors 1978 RLR 466 (GD), which dealt with similarly worded indemnity legislation in the terrorism context, applying the principle to wildlife protection.

This case is significant in Zimbabwean jurisprudence as it interprets and applies the Protection of Wild Life (Indemnity) Act, particularly s 3 which provides criminal indemnity to authorized persons acting in good faith to suppress unlawful wildlife hunting. It establishes that the onus lies on the State to prove dishonesty or ulterior motive to overcome the statutory indemnity. The case demonstrates the protective legal framework for game rangers and wildlife protection officers engaged in anti-poaching activities, balancing the use of force in wildlife conservation against criminal liability. It also illustrates the application of the test for discharge at the close of the State case, requiring evidence upon which a reasonable court acting carefully might convict.