The appellants in the court below were found to be in possession of game animal, alternatively government trophy, namely wildebeest skin, without being licenced or authorised to possess same. The appellants were convicted of the offence of unlawful possession of government trophy contrary to Section 71(1)(d) of the Wildlife Conservation and National Parks Act (Cap38.01). They pleaded guilty to the offence. The appellants appealed against their conviction and sentence on 4 grounds, namely, 1) Section 71(1)(d) does not create an offence, 2) that the charge was defective, 3) the sentence of a fine of P5 000.00, alternatively 5 years imprisonment in default of payment of the fine, was too excessive and endues a sense of shock, and 4) the court below acted outside its jurisdiction. On ground 1, the court found that the Section 71 (1)(d) did not disclose a defence, and as a result, the accused should have been charged in terms of Section 71 (3). However, even though a defence was not disclosed the accused were informed through the particulars of the offence and the facts as to the nature of the allegations against them. On ground 2, the court found that the defect in the charge sheet did not cause any prejudice to the appellants in their defence as they understood what they were being charged with. On ground 3 and 4, the court considered that the appellants were sentenced to the maximum penalty prescribed by the legislature, although the sentence to imprisonment was to effect in the event that the appellants defaulted in payment. The court found that the court below imposed a harsh penalty which was beyond its jurisdiction. Further, that the appellants were found in possession of wildebeest skin, as well as game meat. Thus, the case could not be said to be one that would attract the maximum penalty. In the premise, the court found that the sentence was disproportionate to the offence, and was manifestly excessive.
Country
Court
Type of court
Seat of court
Lobatse
Court jurisdiction
Date of opinion
2011
Abstract
Language of document
English
Reference number
2011 1 BLR 392 HC
Charges
Unlawful possession of government trophy contrary to Section 71(1)(d) of the Wildlife Conservation and National Parks Act (Cap38.01).
Species
Wildebeest
Transnational
No
Decision
The appeal against the conviction was dismissed. The appeal against the sentence was allowed. The appeal court set aside the sentence imposed by the court below and imposed a sentence of a fine of P2 000.00- or 2-years imprisonment in default of payment.
Appealed
Yes
Penalty
Imprisonment: 2 years (in default of payment) Fine: P2 000.00
Court cases cited
Kok v The State 1983 BLR 3
Legislation cited
Wildlife Conservation and National Parks Act, 28 of 1992, sec. 71(1)(d)