G and W INDUSTRIAL MINERALS (PVT) LTD
versus
THE SECRETARY FOR MINES AND MINING DEVELOPMENT
and
SELDO MINING (PVT) LTD
and
THE PROVINCIAL MINING DIRECTOR-MASHONALAND CENTRAL
HIGH COURT OF ZIMBABWE
CHITAKUNYE & CHIRAWU-MUGOMBA JJ
HARARE, 15th and 16th May 2018
Civil Appeal
S. M Hashiti, for the appellant
P. Macheka, for the 1st and 3rd respondents
E. T Muhlekiwa, for the 2nd respondent
ARNOLD BVUTO
versus
THE STATE
HIGH COURT OF ZIMBABWE
HUNGWE & MUSHORE JJ
HARARE, 3 August 2017
Criminal Appeal
J Makiseni, for the appellants
Mrs F Kachidza, for the respondent
The court considered an appeal against a prior criminal conviction.
The appellants had extracted gold ore from a gold mine and were intercepted and arrested by the police. They were charged under s368(2) of the Mines and Minerals Act for illegally prospecting for minerals. They pleaded guilty, were convicted and sentenced to the mandatory two-year prison sentence. They appealed on the ground that they were convicted on a charge which was not supported by the facts admitted between them and the State.
The court had to consider whether the appellants’ plea of guilty was sufficient to convict them for contravening s368(2) of the Act. The court found that courts have a duty to protect the rights of the accused and to ensure that they fully understand the charge and the essential elements, as well as that they genuinely, and unequivocally admit to the charge, its essential elements, and the facts alleged by the prosecution.
In this case, the lower court simply accepted the uninformed admission of guilt by the accused as proof and disregarded the fact that the charge was not proved by the facts relied upon by the State.
Further, the court found that the appellants did not prospect for minerals, they simply stored gold ore from a known mine, thus contravening s379 not s368.
Accordingly, the appeal was upheld.
1
HB 131/17
HC 2031/15
K & G MINING SYNDICATE
Versus
RONALD MUGANGAVARI
And
PROVINCIAL MINING DIRECTOR – MIDLANDS
And
MINISTRY OF MINES & MINING DEVELOPMENT N.O.
IN THE HIGH COURT OF ZIMBABWE
TAKUVA J
BULAWAYO 1 FEBRUARY & 1 JUNE 2017
Opposed Matter
This High Court case concerned an application for review in which the applicant sought an order that the third respondentÕs decision cancelling the applicants mining registration be set aside.
The dispute arose between the applicant and the second respondent allegedly due to a double allocation of the same mining area to the applicant and the first respondent. The third respondent convinced that there was a double allocation cancelled the applicants mining rights to the extent that their boundaries were overlapping. His reasoning was that the first respondent was the first to be allocated the disputed area. The applicant was dissatisfied with the decision and hence applied for a review to the High Court.
The issue for determination by the Court was thus whether the third respondentÕs decision was justified. The Court held that since the matter was first decided in the Mining CommissionerÕs Court, the appeal was supposed to be directed to the High Court per s361 of the Mines and Minerals Act of 1961 and not to the Minister. The High Court thus held that the entire proceeding, and the decision that followed it, was a nullity.
As such, the determination by the third respondent cancelling the applicantÕs Mining registration certificate held by the applicant was set aside with cost.
Judgment No. S.C. 119/83 Crim. Appeal No. 305/83
ROUND MAKANDA v THE STATE
SUPREME COURT OP ZIMBABWE,
GEORGES, CJ, BECK, JA & GUBBAY, JA,
HARARE, NOVEMBER 1, 1983.
A.P. de Bourbon, for the appellant
P.J. Batty, for the respondent
The court considered an appeal against the conviction and sentence of the appellant. The appellant had been convicted and sentenced for wrongfully, and unlawfully possessing 269 grains of concentrates containing gold, valued at $1 896,23 while not being the holder of a licence or permit, and not being the employee of any permit or licence holder, in contravention of s 3 of the Gold Trade Act.
In considering the evidence, the court noted that a detective constable jumped over the fence towards the back of the house and saw the appellant (who had a smelting pot in his hand) and another person. The constable succeeded in grabbing a plastic bag protruding from the appellant's pocket as he ran through a gate, dropping two gold stones in the process. The appellant was later arrested, giving a warned and cautioned statement, in the presence of his legal practitioner.
The court upheld that although the statement made it very clear that the appellant knew that gold was being smelted in his workshop, his defence was that he was unaware of that fact until the police were about to come on the scene. This explanation might have raised a modicum of doubt but since it had been confirmed some months later in the presence of the appellant's legal representative, it was inherently improbable.
The court found that on that state of the evidence, it was quite clear that the conviction was fully justified on the facts and the appeal was thus dismissed.
1
HH 270-16
CRB 35-39/11
THE STATE
versus
1. LOVEMORE KUROTWI
2. DOMINIC MUBAIWA
HIGH COURT OF ZIMBABWE
BHUNU J
HARARE, 15 February 2011, 13 February 2015 and 4 May 2016
Assessors: 1. Mr Chidyausiku.
2. Mr Shenje.
Criminal trial
C. Mutangadura, for the State
Mrs B. Mtetwa, for the 1st accused
L. Uriri, for the 2nd accused
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.
1
HH 9-16
HC 12579/15
PHILLIP S RANKIN
versus
SYLVESTER NYATSURO
and
VERONICA NYATSURO
and
THE MINISTER OF LANDS AND LAND RESTTLEMENT N.O.
and
MAGISTRATE SINGANO
HIGH COURT OF ZIMBABWE
CHAREWA J
HARARE, 31 December 2015
Urgent Chamber Application
BUBYE MINERALS (PVT) LTD
versus
THE REGISTRAR OF THE HIGH COURT
and
THE MINISTER OF MINES AND MINING DEVELOPMENT
and
THE MINING COMMISSIONER, MASVINGO
and
The matter at hand arose following a decision in the High Court which the applicant wanted to appeal. In compliance with rule 15 of the Rules of the Supreme Court, the registrar of the High Court prepared the record of appeal and, thereafter, invited the parties to inspect the record before forwarding it to the Supreme Court.
The applicant’s legal practitioner inspected the record and opined that the record was incomplete. An exchange of letters then followed between the registrar and the practitioner about the relevance of the alleged missing information. In the process, the prescribed ten days for inspection lapsed, prompting the registrar to inform the applicant that he had, therefore, abandoned the appeal.
The court had to determine the meaning of ‘inspection’ in terms of the rules and whether the applicant complied with the rules for inspection or not.
The court held that the word ‘inspect’ meant ‘to look at or examine carefully’ and where such examination has occurred, the examiner should certify this. To merely examine without such a seal would be of no relevancy to the process.
The court held that the applicant’s practitioner had done this as evidenced by opining after the fact for the inclusion of information, but failed to comply with the signing off requirement which he refused to do and, therefore, could not have been said to comply with the rules of the court in that aspect and as a result the time lapsed.
Accordingly, the appeal failed.
