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S v Shumba (HCB 115-15) [2015] ZWBHC 207 (21 October 2015);

1

 

HB 207-15

 HCB 115-15

 

                                                                                                                                    

 

NEVER SHUMBA

versus

THE STATE

 

 

HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 23 SEPTEMBER AND 22 OCTOBER 2015

 

 

Bail pending appeal

 

 

J. T. Tsvangirai for applicant

S. Ndlovu for respondent

 

 

In the High Court, an appellant was applying for bail pending his appeal against both conviction and sentence by the trial court, having been convicted of contravening s368(2) as read with s368(4) of the Mines and Minerals Act [Chapter 21:01] that is, prospecting for gold without a licence. He had been sentenced to two years, being the mandatory minimum penalty for that offence after the magistrate failed to find any special circumstances.

The issue before the court was to exercise its discretion on whether to grant bail to the appellant. The court held that in exercising the discretion on whether or not to grant bail pending appeal, the court must be guided by the prospects of success on appeal and whether there is risk that the applicant would abscond. The judge held that from the court record there was a problem with the rebuttal of the applicant’s defence in the trial court. The applicant had argued that he was carrying a pot and a lid when the police pounced, but state witnesses alleged that he carried a shovel.

The judge was satisfied that the applicant had discharged the responsibility upon him and that the court should indeed exercise its discretion in the applicant’s favour. Accordingly, the judge granted the application on condition that he deposited a sum of $100.00 with the Clerk of Court, he resided at a particular village and to report at a police station twice a week on Mondays and Fridays between 6.00 am and 6.00 pm. 

S v Robinson (HB 21-08 ) [2008] ZWBHC 34 (14 May 2008);

THE STATE

 

Versus

 

MARK FREDERICK ROBINSON

 

IN THE HIGH COURT OF ZIMBABWE

NDOU J

BULAWAYO 15 MAY 2008

 

T Mkhwananzi,for the state

R M Smithwick,for the accused

 

Criminal Review

 

The court considered an application for review concerning the forfeiture of gold whereby the respondent was found guilty of contravening s 8(1) of the Gold Trade Act. The accused owned a jewelry shop whereby he traded gold. The Zimbabwe Republic Police Gold Squad regularly visited the accused’s shop to ensure that he was complying with the act. On one visit, it became clear that the accused had not registered 8.59g of gold into the register as required by the act. 

The court found that after the conviction of the accused, a review of the record revealed that the learned magistrate had not made an order for the forfeiture of the gold. Despite the accused attempting to secure the return of the gold, he was informed it had been forfeited to the state. Pursuant to the accused’s investigation, and obtaining the record again, the record appeared to make reference to the forfeiture of the gold. 

The court found that the only explanation was that the trial magistrate entered the forfeiture clause well after the sentence had been imposed and the accused started claiming the gold.  In conclusion, the court found that the conviction and sentence were adequate but held that the forfeiture clause contained in the record be set aside and the accused be sentenced afresh. 

Chase Minerals (Pvt) Ltd v Madzikita (HC 2867/2000) [2002] ZWBHC 44 (29 May 2002);

 

Judgment No. HB 44/2002

The court considered an application for the granting of an order to evict the respondent pending the hearing of an appeal. The applicant was the registered title holder of four mineral claims. It instituted action seeking an eviction of the respondent from its registered claims, which was subsequently granted. The dispute between the parties related to ownership and mining claims of the minerals. It was not disputed that the mineral claims were registered in the name of the applicant. 

The court considered the parties’ rights of ownership of the minerals. These rights were governed by s 172 of the Mines and Minerals Act, which stated that every holder of a registered block of claim would possess the exclusive right of mining or deposit of the mineral in respect of which the block was registered which occurred within the vertical limits of his block. The court found that the applicant had the exclusive right as the registered holder of the claim. 

The court found that to suspend the eviction pending the appeal would entitle the respondent to continue mining, which was an untenable situation and would create a judicial anomaly where the court became a party to the respondent’s unlawful conduct. Accordingly, the court granted the application. 

S v Ngoma and Another (CRB SHU 371-372/11) [2011] ZWBHC 116 (07 September 2011);

 

 

THE STATE

 

VERSUS

 

SARAH NGOMA

 

AND

 

LILLIAN NYONI

 

IN THE HIGH COURT OF ZIMBABWE

MATHONSI J

BULAWAYO 8 SEPTEMBER 2011

 

Review Judgment

 

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.

S v Shoko (Case No. HC 1702/10) [2010] ZWBHC 95 (24 August 2010);

THE STATE

 

Versus

 

EMMANUEL SHOKO

 

IN THE HIGH COURT OF ZIMBABWE

KAMOCHA J

BULAWAYO 25 AUGUST 2010

 

Criminal Review

 

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. 

Pansikwe Minerals Co-operative v Hlabangana and Another (Case No. HC 987/10) [2010] ZWBHC 33 (02 June 2010);

PANSIKWE MINERALS CO-OPERATIVE

 

Versus

 

FOREMAN MAZITHULELA HLABANGANA

 

And

 

CONSOLIDATED PRE-CO-OPERATIVE

 

IN THE HIGH COURT OF ZIMBABWE

NDOU J

The court considered an application for a provisional order seeking an interim interdict restraining the respondents from interfering in the applicant’s mining operations.  A dispute arose between the parties concerning the boundary between their two claims. It was argued that the commissioner found that the respondent was working outside one of his claims and inside one claim belonging to the applicant. 

The court considered whether the interim relief sought should be granted. The court found that the respondent acknowledged that the claim belonged to the applicant but that the commissioner erred in determining that the boundary was within the applicant’s claim. The court held that the applicant had established a prima facie right which required legal protection and that the respondent was entitled to challenge the commissioner’s determination. 

The court found further that the respondent did not exercise their right to challenge the determination by the commissioner but rather chose to write letters of complaint which were not sufficient. The court stated that the respondent ought to have formally challenged the commissioner’s boundary determination and in the circumstances could not legally resist the interdict sought by the applicant. The court therefore granted the interdict.

S v Sibanda CRB G 440/10 and Another (CRB G 440-1/10) [2011] ZWBHC 79 (20 April 2011);

THE STATE

 

Versus

 

  1. ANGELINE SIBANDA CRB G 440/10
  2. KHETI MOYO CRB G 441/10

 

IN THE HIGH COURT OF ZIMBABWE

KAMOCHA J

BULAWAYO 21 APRIL 2011

 

Review Judgment

 

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.

S v Matione (Case No. HC 725/10) [2010] ZWBHC 21 (09 June 2010);

 

THE STATE

VERSUS        

 

LOVENESS MATIONE

 

IN THE HIGH COURT OF ZIMBABWE

CHEDA J

GWERU 7 MAY 2010 AND 10 JUNE 2010

 

Review Judgment

 

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. 

Carslone Enterprises P/L v Svova (Case No. 1211/10) [2011] ZWBHC 35 (02 March 2011);

CARSLONE ENTERPRISES P/L

Versus

WILSON SVOVA

HIGH COURT OF ZIMBABWE

MATHONSI J

BULAWAYO 24 FEBRUARY AND 3 MARCH 2011

 

Mr Ncube, for the Applicant

Mr Dube, for the Respondent

 

OPPOSED APPLICATION

 

The case was in the High Court where the applicant sought to interdict the respondent from entering its diamond processing plant and from coming within 100 meters of the plant because the respondent was interfering with its operations.

The issue before the court was to determine if indeed the respondent interfered with the operations of the respondent. In this case, the judge accepted that the applicant had shown prima facie right over the diamond plant, as it set up the plant which it had been mining and operating from for three years. The court held that the right to mine there would have been in doubt but that did not disentitle the applicant to peaceful and undisturbed possession.

The judge also agreed with counsel for the applicant that the respondent had transgressed or disparaged the existing state of affairs by constantly forcing himself onto the plant claiming ownership of same and even attempting to take over the applicant’s employees which amounted to an infringement of the applicant’s rights. The court held that there could be no other remedy except to prevent the respondent from continuing with his unwarranted misadventures at the plant.

Consequently, the respondent, his agents and anyone acting on his instructions were permanently interdicted from entering the applicant’s diamond processing plant or coming within 100 meters of the said plant. The respondent was ordered to bear the costs of the application.

ZELA & Others v Anjin Inv. (Pvt) Ltd & Others (HC 9451/12) [2015] ZWHHC 523 (16 June 2015);

1

HH 523/15

HC 9451/12

 

ZIMBABWE ENVIRONMENTAL LAW ASSOCIATION

and

ZAKEU NHACHI

and

ROSEMARY MARUWA JENA

and

ELIAS MATSVERUKA

and

MAYIMBOTI MAYIMBOTI

and

ISAAC ZIWENJERE

versus

ANJIN INVESTMENTS (PRIVATE) LIMITED

and

MARANGE RESOURCES (PRIVATE) LIMITED

and

DIAMOND MINING COMPANY (PRIVATE) LIMITED

The court considered an application for a declaratory order and an interdict, declaring the defendants’ waste discharges unlawful and constituting pollution, and prohibiting the defendants from discharging their waste material.

The first and third defendants were mining companies and in conducting their business, they discharged their untreated waste material and effluence into a river. The plaintiffs were inhabitants on the banks of the river and relied on it for their subsistence. The plaintiffs contended that the discharge had polluted the water, aquatic life and disturbed the ecosystem.

The defendants opposed the application by bringing a special plea alleging that the court lacked jurisdiction to hear the matter and it ought to be heard by the Environmental Management Agency. Further, that an interdict should not be granted as there was an alternative remedy available under the Environmental Management Act. 

The court found that the argument that the court lacked jurisdiction was without merit. The court observed that there was a glaring need for a declaration as to the existence of a legal right claimed by the plaintiffs but this was not argued nor the fact that the EMA could not issue the declaratory orders sought by the plaintiffs although the plaintiffs were interested persons in the subject matter of the suit. The court found the plaintiffs had a direct and substantial interest in the matter and that there was a need for a declaration to the right claimed by the plaintiffs. Accordingly, the application for special plea was dismissed.

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