Environmental Case Law Index

The court considered a criminal appeal against the sentence imposed on the accused, who was sentenced to a mandatory 2-year imprisonment for contravening s 368 (1), which dealt with the illegal mining of gold, under the Mines and Minerals Act

Before imposing a mandatory sentence, the court asked the accused if there were any special circumstances relating to the commission of the offence which would result in the requisite sentence not being imposed. 

The accused held that his special circumstances were that he did not have enough money for a bus fare. The court found that this did not constitute a special circumstance as poverty desperation could not be excused for the commission of a crime.

The court found that a special circumstance is within the court’s discretion and thus it should be taken to be any extenuating circumstance. Further, that the court should enquire into all circumstances put forward by an accused to validate the aspect of a special circumstance. 

The court held that a trial court had to ensure that economic situations leading to commission of crimes under economic circumstances at the time did not operate differently for the rich and for the poor. The court found that the court below should have performed a proper enquiry and that the accused should be given the benefit of the doubt. Accordingly, the appeal succeeded.

This was a review in the High Court concerning two accused persons who had been charged with and convicted for contravening s 368(2) as read with s 368 (4) of the Mines and Minerals Act [Chapter 21:05] for prospecting for minerals when they were not holders of licences or permits.

The issue facing the court was to determine whether the accused persons, being widows with minor children, were acting under special circumstances, as the trial magistrate had found. The court held that the learned trial magistrate completely misdirected himself in holding that the circumstances of the accused persons amounted to special circumstances, as there was nothing out of the ordinary about being a widow with minor children to look after. The court also held that the learned magistrate’s line of reasoning was faulty in calling that widows and widowers with minor children should be excused when they break the law so as to fend for the minor children, since it was a recipe for anarchy as there were so many widows and widowers in the country.

Consequently, the sentence imposed by the trial magistrate was not allowed to stand and, therefore, set aside. The matter was sent back to the trial court to recall the two accused persons and impose the sentence of two years imprisonment as mandated by law. Since both accused persons had already served four months imprisonment in the form of community service, they were to serve an effective term of 20 months imprisonment.

This was a case in the High Court where two accused persons were convicted on their own pleas of guilty to contravening s 368 of the Mines and Minerals Act by the Provincial Magistrate.

Having found special circumstances as would entitle the trial court to impose a sentence other than the mandatory one provided in the act; the magistrate sentenced each of the accused persons to 24 months imprisonment of which 12 months imprisonment were suspended for 5 years on condition of good future behaviour. The remaining 12 months were suspended on condition they each complete 420 hours of community service.

The issue before the court was to determine the special circumstances as found by the trial court. The judge applied the rule of Judge J Ebrahim in S v Mbewe and others 1988 (1) ZLR 7(H) to make the determination. The judge’s view was that the trial court erred because the issues put up by the accused were mitigating factors of general application which clearly did not amount to special circumstances at all.

Consequently, the judge ordered that the conviction of the two accused persons stood, and set aside the finding of the trial magistrate that there were special circumstances; and the sentence. The judge also ordered the matter to be sent back to the trial court for it to recall the accused persons and impose the appropriate sentence according to law by deducting from it 53 days equivalent to 420 hours community service already served.

The court considered a criminal appeal against the sentence imposed on the accused. 

The accused was convicted, on his own guilty plea, for contravening s 3(1)(a) of the Gold Trade Act by being in possession of 0.15 grams of gold without authorisation.

The evidence revealed that the accused was asked whether there were any special circumstances, which the court below established did not exist and sentenced him to the mandatory minimum sentence.

The accused argued that the trial judge did not explain in full what special circumstances meant and the inadequate explanation prejudiced him. The respondent agreed and stated that the explanation was “special or extraordinary mitigating factors” where it should have referred to special circumstances. 

The court found that the Act did not define special circumstances, and it was on a case by case basis. However, the court below took all necessary steps to explain the meaning and import of special circumstances, which was given in clear unambiguous terms. 

The court found that the accused was not an illiterate person and appreciated what was taking place and there was nothing preventing him from asking the magistrate for clarity. Further, that the accused’s conduct once arrested, in running away illustrated a guilty state of mind. 

The court found that the accused’s special circumstance of “being the only breadwinner” was clear that he was aware of the offence being committed. As such, the court found no merit in the appeal. 

This was an application for the discharge of the accused persons for lack of evidence pursuant to s 198 (3) of the Criminal Procedure and Evidence Act. The state had alleged that the accused persons were acting in common purpose through a series of fraudulent misrepresentations to the Government of Zimbabwe, the Ministry of Mines and Mining Development and Zimbabwe Mining Development Corporation (ZMDC) and induced ZMDC to enter into a joint venture agreement of diamond mining with Core Mining (Pvt) Ltd. They fronted Benny Steinmeitz Group Resources (BSGR) as its guarantor and on that representation, the government approved a contract, it never would have otherwise approved. 

Relying on the parole evidence rule that posits that parties are strictly bound by the four corners of the contractual document and nothing outside it, the court held that both government and ZMDC cannot be heard to complain that they were duped into signing the contractual document under the mistaken belief that BSGR was standing as guarantor for Core Mining when the contractual document makes no mention of BSGR at all.

Court further held that the state closed its case without leading any evidence pertaining to the misrepresentations allegedly made by the accused concerning the due diligence exercise on Core Mining. That misrepresentation is a vital component of the crime of fraud without which the crime cannot be committed. The state having failed to establish a prima facie case against the accused, it was accordingly ordered that both accused be acquitted and discharged.

The accused was charged on several counts for the unlawful possession of gold without a licence, smuggling and the use of a vehicle with secret or disguised places for concealing goods. In his defence, the accused stated that he was not aware of the presence of gold on the vehicle having borrowed it from another person who was a gold dealer.

The main issue for the court’s consideration was whether the accused person had knowledge of the existence of the gold. The court noted that the burden of proof in criminal matters rests on the state and that the state is required to prove its case beyond reasonable doubt. The court found that the state failed to adduce sufficient evidence to prove that the accused indeed had knowledge of the existence of the gold and the compartments. 

Given these circumstances the court gave the accused person the benefit of the doubt and he was acquitted on all three counts.