The State v Muchaveni Tomori

The accused was convicted on two counts of contravening section 5 as read with section 30(1)(a) of the Trapping of Animals Central Act [Cap 20:21]. On the first count, he set up 30 wire snares at a ranch in Mwenezi belonging to Zimbabwe Bio Energy Company on 16 August 2009 and caught 4 zebras valued at US$4,000.00. On the second count, he set up 6 snares on 3 November 2009 at the same farm and caught an impala valued at US$500.00. All the meat was recovered in both instances. The magistrate convicted the accused and sentenced him to 24 months imprisonment with 6 months suspended for 5 years on condition of good behaviour, and ordered restitution of US$4,500.00 to the complainant.

• Whether the conviction was valid despite the charge referring to section 30(1)(a) which had been repealed by Act No 22 of 2001
• Whether the order for restitution of US$4,500.00 was appropriate where all the meat had been recovered
• Whether the magistrate misdirected himself by not suspending a portion of the sentence on condition of restitution

The conviction was confirmed. The sentence was confirmed only to the extent of the custodial term of an effective 18 months imprisonment. The order for restitution in the sum of US$4,500.00 was set aside.

When ordering restitution in criminal cases, courts must calculate the actual loss suffered by the complainant, taking into account any property recovered. Where property has been recovered (even in a different form), restitution should be limited to the difference between the value of the original property and the value of what was recovered, not the full original value. A court misdirects itself when it orders restitution without suspending any portion of the custodial sentence on condition of such restitution being paid. A defective charge that refers to a repealed provision will not necessarily invalidate a conviction if the defect does not prejudice the accused or offend the attainment of real and substantial justice.

The court observed that the magistrate should not have convicted the accused as charged given that the charge was defective, but decided to confirm the conviction because the wording did not prejudice the accused to the extent that it offended real and substantial justice. The court also noted that no evidence was led to determine the actual difference in value between the live animals and the recovered meat.

This case establishes important principles regarding the calculation of restitution orders in wildlife crimes where the property (meat) has been recovered. It demonstrates the court's willingness to overlook technical defects in charges where they do not prejudice the accused or affect substantial justice. The case also clarifies that when ordering restitution, courts must consider what actual loss was suffered and cannot simply order compensation for the full value of property when it has been substantially recovered.