Mashudu Netsianda, Senior Court Reporter
THE High Court has ordered the Zimbabwe Parks and Wildlife Management Authority (Zimparks) to release two fishing rigs, which it had illegally impounded from a Binga businessman for fishing in prohibited ‘‘breeding waters” on the Zambezi River.
The ruling by Bulawayo High Court judge Justice Maxwell Takuva followed a court application by Mr Taurai Marava challenging the seizure of his two fishing rigs last year in August.
In papers before the court under case number HC 2712/17, Mr Marava, through his lawyers Shenje and Company, cited Zimparks as the respondent.
Zimparks rangers impounded Mr Marava’s rigs for fishing in prohibited ‘‘breeding waters” in the Zambezi River and forced his three employees to pay admission of guilt fines of $20 each, but they refused to release the vessels demanding $2 000 per boat.
Justice Takuva ruled that it was illegal for Zimparks to impound the two vessels and ordered the authority to immediately release them within 24 hours.
“’The impounding of the applicant’s vessels KF3026 and KF2144 on the 26th of August 2017 be and hereby declared illegal and to that extent, null and void. The respondent be and hereby ordered to release the two vessels unconditionally within 24 hours of service of this order,” ruled the judge.
He also ordered Zimparks to bear the legal costs incurred by Mr Marava.
Justice Takuva said according to section 38 of Statutory Instrument 362/90, Zimparks is only legally obliged to impound vessels that are not registered in terms of the Inland and Shipping Regulations RGN 832/1971 and to the vessels that are not licensed to sail on the waters or fish without a permit issued by relevant authorities.
“These are the sort of vessels that are not lawfully on the waters and liable to be impounded by Zimparks and this is why the appropriate fee is $2 000 per vessel,” he said.
In his founding affidavit, Mr Marava sought an order for the release of the rigs, arguing that Zimparks was legally mistaken in its view regarding the justification of holding his property.
“The respondent (Zimparks) is mistaken in its view regarding the justification of holding applicant’s property. If, as respondent alleges, the applicant‘s employees were guilty of fishing in a prohibited area the Principal Act clearly provides criminal penal sanctions, amongst which is payment of a fine of level five or imprisonment not exceeding 6 months, or to both such fine and imprisonment ,” he said.
Mr Marava said although the vessels fished in a prohibited area, they were not on the water unlawfully since they were registered and licensed to fish on the general water of the river.
“The Act grants the respondent the choice to accept a fine or take accused person to court but once a choice has been made, the respondent would have to live with that,” he said.
Mr Marava argued that Zimparks had no legal basis to be clinging to his property, let alone demand a prohibitive release fee per vessel, saying the authority made its own bed when it accepted the $20 fines.
Zimparks in its defence, through its lawyers Coghlan and Welsh Legal Practitioners, said it was justified to impound the vessels and subsequently demanding $2 000 per vessel because the boats’ activities in the Zambezi River sought to frustrate conservation and adherence to ethical fishing.
Zimparks argued that the two vessels were impounded because they were operating in a prohibited area hence they were not in that water lawfully.
On August 26 in 2017 at around 5AM, the two rigs were found fishing at the mouth of Sengwe River, which is a prohibited area by virtue of being a fish breeding zone. Zimparks rangers pounced on Mr Marava’s employees and they fined them $20 each before impounding the two vessels. Mr Marava was ordered to pay $2 000 per rig for their release. —@mashnets