Judgment No. HB 73/13

                                                                                                            Case No. HCAR 2115/12

                                                                                                            CRB SHU 590/12

THE STATE

Versus

SAYMORE MUSHINGA

IN THE HIGH COURT OF ZIMBABWE

CHEDA AJ

BULAWAYO 28 MARCH 2013

Review Judgment

            CHEDA AJ:       The accused was charged with contravening section 368 of the Mines and Minerals Act Chapter 21; that is, “prospecting for gold without a licence or permit”.  He pleaded guilty.

            The accused was arrested at a compound by detectives who were acting on information.  The facts say the detectives saw the accused person drying the gold ore on a fire and supplying his colleague the ore in the mortor.

            He failed to produce documents which authorized him to prospect for gold.  20 kilogrammes of gold ore was recovered.

He was asked for special circumstances and he replied that he wanted to raise money for his school fees as he is doing form 3.  He is an orphan and stays with his grandmother.

            The court then recorded that what he said was mitigation and not special circumstances.

            The court sentenced him to 2 years imprisonment.  The accused is 17 years old.  The court did not enquire where the ore came from, whether it belonged to him or his colleague.  The court did not enquire what the relationship was with his colleague.  It is not established if the colleague was an adult or another juvenile.  Nothing is said about the colleague and the other persons who were pounding the gold ore.

            The accused being a juvenile I am concerned about the extent of his involvement in the activity that was observed by the detectives.  The accused could have been simply assisting someone in order to also benefit.

            The section which provides the penalty for this offence is silent on the nature of special circumstances.  There is nothing to rule out any special circumstances where a juvenile might be acting with, or under the control or influence of an adult person.

            I am persuaded by the above consideration that the juvenile should have been given the benefit of the doubt on the issue of special circumstances, and the court should have found that there were special circumstances because of the above and his age.

            The accused was sentenced on 10 August 2012.  He has now served almost 7 months imprisonment. 

            In my view, the term he has served is enough.  The sentence imposed by the magistrate is set aside.  In its place I substitute a sentence of 7 months imprisonment.  The accused has already served that sentence and should now be released.

            The Registrar is directed to issue a warrant of his liberation from prison.

                                    Kamocha J ………………………………………………………I agree