The appellant was found guilty of hunting and killing one elephant without a licence and it was against that conviction that he filed the appeal in the High Court. The appellant had been convicted but the charge was defective in that it failed to disclose an offence. Prohibition of hunting under the regulations related to hunting within a tribal territory, but there was no allegation on the charge-sheet to indicate that the hunting was in such a territory. There was also no allegation that the appellant was a tribesman as it was only such a person who could be prosecuted under the regulation. The judge’s view was that no offence was disclosed on the charge-sheet and, where no offence was disclosed on a charge-sheet, then a failure of justice was inevitable. An offence could only have been disclosed if the allegation was that the appellant hunted within a Tribal Territory, and that he was a tribesman. The conviction and sentence passed on the appellant were set aside, and an order of acquittal and discharge was made in his favour. It was further ordered that if he had paid the fine imposed upon him, it would be refunded to him forthwith. The order disqualifying the appellant from being issued with a game licence was also set aside. It was also ordered that the tusks and hooves of the elephant be returned to the person who was in possession of the licence.
Country
Court
Type of court
Seat of court
Gaborone
Court jurisdiction
Date of opinion
1972
Abstract
Language of document
English
Reference number
[1972] (2) BLR 56]
Charges
Hunting protected game without a licence, contrary to Regulation 4 (1), Statutory Instrument 65, of Fauna Conservation Regulations, 1967, as read with Statutory Instrument 44 of 1971 (Batawana Tribal Hunting).
Species
Transnational
No
Decision
The conviction and sentence passed on the appellant were set aside, and an order of acquittal and discharge was made in his favour. It was further ordered that if he had paid the fine imposed upon him, it would be refunded to him forthwith. The order disqualifying the appellant from being issued with a game licence was also set aside. It was also ordered that the tusks and hooves of the elephant be returned to the person who was in possession of the licence.
Appealed
Yes
Court cases cited
Nkhahle Makoanyane v R. 1958 H:C.T.L.R. 44
R v Omargee 1955 (2) S.A. L. R. 546
R v Tucker 1953 (3) SA 150
Michael Dube v R (1953) 1926-53 H.C.T.L.R. 317
Legislation cited
Fauna Conservation Regulations, 1967
Criminal Procedure and Evidence Proclamation, 1939