Environmental Case Law Index

This was a bail appeal against the decision of the magistrate that denied the appellants bail on grounds that they were likely to abscond trial.

The appellants were charged with unlawful prospecting for minerals, oil and natural gas without a valid license contrary to s 368 (1)(a) as read with s 4 of the Mines and Minerals Act 1 of 2006.

The court noted that the magistrate condemned the applicants to imprisonment where the state was not opposing bail, without evidence that the appellants were likely to abscond trial and without any defence from the appellants on the bail issue.

The court found that the state could not oppose the appeal since they had already conceded that the appellants were good candidates for bail.

It was held that the magistrate misdirected himself. Accordingly, bail was granted subject to conditions. The appellants were required to deposit US$20 with the clerk of Court Bindura Magistrate Court, to continue residing at their places of residence until finalization of the matter and to report to respective police stations as directed by the court.

The court considered an application for review concerning the decision handed down by the Magistrate’s Court on whether the accused’s case should have been discharged. The facts were that whilst the complainant was being investigated by the police for theft by finding of gold, the accused, a magistrate, approached the complainant and solicited him for a bribe to dispose of his case. The complainant made a report to the police who set a trap to arrest the accused, after she had received the money.

The defence applied for a discharge of the case, which was granted on the basis that the state witnesses were not truthful.
The court considered whether the magistrate’s decision to the discharge the case was exercised judicially. The court found that the trial court had a discretion to discharge or continue with the trial, and that such discretion ought to have be exercised judicially. 

The court stated that a discharge was appropriate where: there was no evidence to prove an essential element of the offence; or no evidence on which a reasonable court would convict; or where the evidence was so unreliable that no reasonable court could act on it.   The court held that there was nothing indicating that the witnesses had been discredited and that it was a misdirection for the magistrate to treat the assertions made by the accused as though they were evidence. Accordingly, the court set aside the accused’s discharge and referred the matter back to court for continuation of trial. 

The court considered an application to review a sentence imposed on the accused. The accused was charged with contravening s 3(1) of the Gold Trade Act by virtue of being found in possession of 0.62g of gold valued at $20.62. The accused pleaded guilty and was convicted. The lower court imposed a short sentence whereas as the act stipulated of not less than 5 years for persons found guilty of the offence, unless special circumstances existed showing cause why the mandatory sentence should not be imposed. The magistrate relied on special circumstances pleaded in mitigation.

The special circumstances referred to by the accused were that his wife was in hospital and was going to undergo surgery and that he committed the offence to raise hospital fees and money for the surgery 

The court found that these were not special circumstances as envisaged by the act but that what the accused relied on was a common occurrence and did not entail that persons in such situations ought to resort to crime. The court held further, that his illegal action was not a solution to this problem nor would $20 be enough to pay the hospital bills.  

The court held that there was no reason why the mandatory sentence should not be imposed. Accordingly, the court set aside the sentence imposed by the trial court and remitted it back to impose the mandatory sentence. 

This Supreme Court case revolved around exploration prospecting licenses (EPL) provided by the first appellant, to the second appellant and the respondent over different mining groups of nuclear resources but in the same land. 

At the High Court, the respondent challenged the first appellant’s action (the responsible minister) for giving prospecting and mining rights to another company over an area that the respondent had an EPL agreement to operate in. The High Court had quashed the first appellant’s decision in favour of the second appellant, asserting that the first appellant in offering the EPL agreement to the second appellant did not consider the interest of the respondent as required per sections 68(h) and 69(2)(c)(i) of the Minerals (Prospecting and Mining) Act of 1992. Aggrieved, the appellants appealed. 

On appeal, the main issue for consideration was whether the first appellant was justified to issue EPL over an area that the respondent had pre-existing EPL. The  Supreme Court upheld the decision of the High Court stating that the first appellant was duty-bound to take into consideration the provisions of ss 68(h) and 69(2)(c)(i) of the act which requires regard to be given on what impact will the additional activities have on the existing EPL holders. The Supreme Court held that natural justice requires that a hearing must be given to the person(s) already holding EPL over an area likely to be affected with subsequent EPLs. In conclusion, the Supreme Court upheld the High Court decision and dismissed the appeal with costs.