Administrative Action https://old.zimlii.org/taxonomy/term/6776/all en Anjin Investments (Private) Limited v The Minister of Mines and Mining Development & 3 Others (CCZ 6/18, Constitutional Application No. CCZ 38/16) [2018] ZWCC 6 (27 June 2018); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2018/6 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong><strong>        (6)</strong></p> <p> </p> <p> </p> <p><strong>ANJIN     INVESTMENTS    (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <ol> <li> </li> </ol> <p> </p> <p> </p> <p> </p> <p><strong>CONSTITUTIONAL COURT OF ZIMBABWE</strong></p> <p><strong>MALABA CJ, GWAUNZA JCC, GOWORA JCC, </strong></p> <p><strong>HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, </strong></p> <p><strong>MAVANGIRA JCC, UCHENA JCC &amp; ZIYAMBI AJCC</strong></p> <p><strong>HARARE, 19 JULY, 2017 AND 27 JUNE, 2018.</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>T Mpofu </em>with<em> P Ranchhod</em>, for the applicant</p> <p><em>L Uriri</em>, for the first and second respondents</p> <p><em>J.R Tsivama</em>, for the third and fourth respondents</p> <p> </p> <p> </p> <p> </p> <p><strong>HLATSHWAYO JCC:             </strong>This is an application for relief made in terms of s 85 (1) (a) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 (“the Constitution”).  </p> <p> </p> <p> </p> <p><strong>             </strong>The applicant seeks a declaration that its right to fair administrative justice provided for in s 68 (1) of the Constitution and its right to freedom of association in s 58 (1) of the Constitution have been infringed by the conduct of the first, second and fourth respondents arising from the issue of a summary notice on 22 February 2016 declaring Special Grant No. 4765 to be void. The applicant is also seeking an order directing the second respondent and any police officer acting under the instructions of the first and second respondents to cease any action that has the effect of preventing the applicant from lawfully accessing and conducting its  business in the area encompassed by Special Grant No. 4765.  Further, the applicant seeks a declaration to the effect that the fourth respondent cease forthwith to claim any right or benefit from the area encompassed by special Grant No. 4765 issued to applicant.  An order of costs on a legal practitioner and client scale against the first, second and fourth respondents, jointly and severally, the one paying the others to be absolved, is also being sought by the applicant.</p> <p> </p> <p>The factual background leading to this application is set out hereunder.</p> <p> </p> <p><strong>Background </strong></p> <p>The applicant is a mining company incorporated in terms of the laws of Zimbabwe.  Until the 22 February 2016, the applicant was one of the many companies that were carrying out mining operations in Chiadzwa, Marange District.</p> <p> </p> <p>Through a letter dated 22 February 2016, the Secretary for Mines and Mining Development communicated to the applicant’s chief executive officer that Special Grants 4765 and 5247 for diamonds that had been issued to the applicant had since expired and, consequently, the applicant was to cease all mining activities with immediate effect. The applicant was also ordered to vacate the mining areas covered by the two special Grants.</p> <p> </p> <p>On the same date, the Minister of Mines and Mining Development issued a press statement on the consolidation of all diamond mining activities in the grant areas. The statement declared that the government of Zimbabwe had resolved to consolidate the diamond mining entities that were either already conducting mining activities or those that intended to do so in future, in the area.</p> <p>This decision by the government of Zimbabwe to, firstly, declare Special Grants 4765 and 5247 void and, secondly, consolidate all mining entities in Chiadzwa, did not find favour with the applicant. The applicant avers that the above decisions had a material and ongoing prejudicial effect on it. The applicant’s right to property was also violated by this decision according to the applicant.</p> <p> </p> <p>The applicant filed an urgent chamber application with the High Court in Case No. HC 2183/16. It must be noted that the parties before the High Court in the urgent application, although not identical, are substantially similar to the ones before this court. Before the High Court were three respondents, namely, the Minister of Mines &amp; Mining Development, the Minister of Home Affairs and the Commissioner- General of the Zimbabwe Republic Police.  The Zimbabwe Mining Development Corporation (which falls under the Ministry of Mines and Mining Development) and the Zimbabwe Consolidated Diamond Company (an outcome and vehicle of the consolidation policy) were not parties before the High Court but are parties in <em>casu</em>. In the urgent application, the applicant sought interim relief setting aside the first respondent’s directive and having the parties return to the <em>status</em> <em>quo ante</em> 22 February, 2016.</p> <p> </p> <p>Seized with the urgent application, the High Court dismissed it on grounds, <em>inter alia,</em> that the Special Grants 4765 and 5247 had ceased to exist five years ago <em>ex lege</em>.  This High Court decision has not been appealed against.  It remains extant. What is before this Court is a direct application to the Constitutional Court in terms of s 85 (1) (a) and not an appeal directly to the Constitutional Court from the High Court.</p> <p> </p> <p>The respondents have fervently opposed the application. The first respondent in particular took a number of preliminary points, among them that the application is improperly before the court as it appears to be a response to the judgment of the High Court. The proper recourse the applicant should have taken was to appeal the High Court judgment and not to mount a direct application to this Court.</p> <p> </p> <p>The second preliminary point taken is that the cause of action is <em>res judicata</em>. The third preliminary point taken is that the applicant has a substituting non-constitutional remedy which it could have utilised before approaching this Court. In other words, the first respondent argues that the principle of avoidance finds application in this matter. The final preliminary point raised is that the relief sought seeks to perpetuate an illegality.</p> <p> </p> <p>At the hearing, parties extensively made argument on the preliminary points raised and judgment thereon was reserved. I will address the preliminary points raised hereunder.</p> <p> </p> <p><strong>Whether or not the application is properly before the court</strong></p> <p> The first and second preliminary points raised by the first respondent will be addressed under the same heading above. The first respondent in his opposing affidavit takes the point that the application is improperly before this Court. The basis of this argument is that the application was brought in response to the judgment of the High Court per Mr Justice MANGOTA in <em>Anjin Investments (Private) Limited v The Minister of Mines &amp; Mining Development &amp; Ors</em> HH-228-16. Could it be said that the application this Court is seized with is a disguised appeal which should have been brought in terms of s 167 (5) (b) of the Constitution? It would appear so, and for a very good reason that a proper appeal could not have been validly pursued from the High Court proceedings.</p> <p>Before the court a <em>quo</em> was an application for interim relief. No constitutional question was decided by the court a <em>quo</em> which the applicant could have appealed against in terms of s 167 (5) (b) of the Constitution.  Hence this disguised attempt to reverse the High Court decision.</p> <p> </p> <p>The second preliminary point taken is that the cause of action is <em>res judicata</em>. The principle of <em>res judicata</em> precludes the court from re-opening a case that has been litigated to finality. The principle was aptly defined in the case of <em>Custom Credit Corporation (Pty) Ltd v Shembe </em>1972 (3) SA 462 (A) at 472 A-B.  The South African Appellate Division had this to say:</p> <p>“If a cause of action has been finally litigated between the parties, then a   subsequent attempt by one to proceed against the other on the same cause for the same relief can be met by an <em>exceptio rei judicatae vel litis finitae</em>.”</p> <p> </p> <p> </p> <p>The immediate question then is whether the same cause for the same relief between the same parties or their privies has been pursued by the applicant in <em>casu</em>, after the matter has been finally determined?</p> <p> </p> <p>To be successful, where <em>res judicata</em> is raised, all the requisites for the plea must exist. These requisites were didactically stated in the case of <em>African Wanderers Football Club (Pty) Ltd v Wanderers Football Club</em> 1977 (2) SA 38 (A) at 45 E-G as follows:</p> <p>“There is nevertheless no room for this exception (of <em>res judicata</em>) unless a suit which had been brought to an end is set in motion afresh between the same persons about the same matter and on the same cause for claiming, so that the exception falls away if one of these three things is lacking.”</p> <p> </p> <p> </p> <p> </p> <p>What was before the court a <em>quo</em> was an urgent application for interim relief with the effect of reinstating the applicant to the <em>status</em> <em>quo ante</em>.  In the present case, the applicant is seeking a declaration that certain of its fundamental rights have been violated. In the event that this Court is to agree with the applicant, it seeks an order that has the effect of restoring the <em>status</em> <em>quo ante</em>, that is, the applicant retains powers to mine in Chiadzwa.  Although the <em>basis </em>of the application has changed with the introduction of the constitutional question, the <em>effect</em> of the relief sought remains the same. Whether this disjuncture between the bases upon which relief is sought while the <em>effect</em> remains the same negates the plea of <em>res judicata</em> at all or only in specific circumstances I will leave open for now as there are other less disputable grounds upon which this matter may be resolved.</p> <p> </p> <p>Similarly, although the parties in the High Court are not identical to current ones, they are similar as indicated earlier and, in my view, may be taken as privies of those now before this Court.</p> <p> </p> <p><strong>Whether the applicant has a substituting non-constitutional remedy</strong></p> <p>All respondents argue that this is a proper case for the application of the avoidance principle.  At the centre of the avoidance principle is the concept of ripeness which dictates that a court should not adjudicate a matter that is not ready for resolution. The Constitutional Court is thus prevented from deciding on an issue too early, when it could be decided by means of legislation subordinate to the constitution, general criminal or civil law and should not be made into a constitutional issue.  In the case of <em>National Coalition for Gay &amp; Lesbian Equality &amp; Others v Minister of Home Affairs &amp; Others</em> 2000 (2) SA 1 (CC) for example, it was held that:</p> <p>“Ripeness and constitutional avoidance are sometimes inter-related. If it is possible to decide a matter without determining the constitutional validity of legislation or other action, the principle of avoidance may lead to the conclusion that the constitutional question is not ripe to be determined. While the concept of ripeness is not precisely defined, it embraces a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”</p> <p> </p> <p>In our jurisdiction, this Court has had occasion to pronounce on the principle of avoidance. In the case of <em>Zinyemba v Minister of Lands &amp; Rural Settlement and Anor</em> CCZ 6/16, this Court reiterated the need to observe the avoidance principle. MALABA DCJ (as he then was) concluded that remedies should be found in legislation before resorting to constitutional ones:</p> <p>“Two principles discourage reliance on the Constitutional rights to administrative justice.  The first is the principle of avoidance which dictates that remedies should be found in legislation before resorting to Constitutional remedies.  The second principle is one of subsidiarity which holds that the norms of greater specificity should be relied on before norms of greater abstraction.</p> <p>The applicant is not challenging the constitutional validity of any provision of AJA (Administrative Justice Act) nor is she seeking to use the constitutional rights to administrative justice to interpret the provisions of AJA.  The exceptional circumstances in which an applicant can rely on the constitutional rights to administrative justice do not apply to the applicant.  She ought to have used the remedies provided for under AJA to enforce her rights to just administrative conduct.”</p> <p> </p> <p> </p> <p> </p> <p>The pith of the present application is that certain rights of the applicant enshrined in the Constitution have been violated. The applicant avers that its right to fair administrative conduct and due process as guaranteed in s 68 (1) of the Constitution have been violated. The applicant further avers that its right to property in terms of s 71 (2) of the constitution has been violated. The final allegation is that applicant’s right to freedom of association in terms of s 58 (1) has also been infringed. It is alleged that the action and conduct of the first, second and fourth respondents since 22 February 2016, which conduct persists, has been violating the above-mentioned fundamental rights of the applicant.</p> <p> </p> <p>The right to just administrative action which forms the bulk of the applicant’s argument is protected under the Administrative Justice Act [<em>Chapter 10:28</em>]. The allegation of violation of the right to property as well as the right to freedom of association finds its root in the decision taken or communicated on 22 February 2016. The issuing of a Special Grant by the Secretary for Mines and Mining Development in terms of s 291 of the Mines and Minerals Act [<em>Chapter 21:05</em>] is an administrative decision in term of the Administrative Justice Act. The terms on which the Special Grant is issued, including when it will expire, is governed by the Mine and Minerals Act.</p> <p> </p> <p>The import of the letter dated 22 February 2016 is that there was no valid Special Grant issued in the first place for want of specifying the lifespan of the special grant as required in s 291 of the Mines and Minerals Act. The letter also communicated that the Special Grants were deemed to have been granted for the period which applicant had requested in its application. The decision taken by the Ministry of Mines undoubtedly is an administrative action whose legality is prescribed in relevant specific legislation in particular and the Administrative Justice Act, in general.</p> <p> </p> <p>The press statement declaring the issued Special Grants void without affording the applicant an opportunity to be heard can be addressed in terms of the Administrative Justice Act. The applicant’s founding affidavit registers grief over the lack of prior warning on the impugned decision of.  Section 4 (1) of the Administrative Justice Act provides for relief against administrative authorities.</p> <p> </p> <p>The applicant is also at pains to point out that it was not given an opportunity to make representations before the Special Grants conferred to it were cancelled. Clause 10 (ii) of the Special Grant mandates the Secretary for Mines and Mining Development to afford the holder of a special grant a reasonable opportunity to make representations in the matter. The applicant in its founding affidavit laments the failure to afford it a reasonable opportunity to make representations before its grant was declared void. This alleged failure is adequately addressed in the Administrative Justice Act. The common law tenets of natural justice also encompassed in the Act can adequately address the grievance of the applicant.</p> <p> </p> <p>In the event that the applicant is of the view that the High Court erred in not properly applying the rules of natural justice, the appeal avenue is open to the applicant to pursue. One is puzzled why the applicant has not appealed the decision of the High Court if it feels the court a <em>quo</em> erred or misdirected itself in any way.</p> <p> </p> <p>The substantive issues raised by the applicant are capable of determination outside the constitutional framework. That being the case, this Court ought not to assume jurisdiction over the issues. The finding in <em>S v Mhlungu</em> 1995(3) SA 867 (CC) is apposite wherein it was held:</p> <p>“I would lay it down as a general principle that where it is possible to decide any case, civil, or criminal, without reaching a constitutional issue that is the course which should be followed.”</p> <p> </p> <p> </p> <p> </p> <p>This matter can adequately be determined without raising any constitutional issues. Assuming that the applicant’s allegations are correct, they can be addressed in terms of specialised legislation, the Administrative Act and the common law. In the same vein, in <em>S v Dlamini</em> 1999 (4) SA 623 (CC) it was held that:</p> <p>“As a matter of judicial policy, constitutional issues are generally to be considered only if and when it is necessary to do so.”</p> <p> </p> <p> </p> <p> </p> <p>It is therefore not necessary to determine or consider the issues raised by the applicant in this Court as such issues can be considered by the Administrative Court or the High Court. The matter is therefore not ripe to be heard by the Constitutional Court.  </p> <p> </p> <p>Perhaps it bears reiteration for the benefit of legal practitioners in particular and litigants in general that this Court in mandated to deal with constitutional matters only, that is, matters in which there are issues or aspects of the interpretation, protection or enforcement of the constitution.  Litigants must disabuse themselves of the tendency to invariably seek direct access to the Constitutional Court whenever their causes of action have a mildly constitutional flavour.  There are a myriad and often more efficacious and speedier other avenues that the litigants can use, and certainly, such avenues existed which the current applicant could have adequately used to address its cause without raising a constitutional question. </p> <p> </p> <p>In the light of this finding, it is unnecessary to address the last preliminary point pertain to alleged illegality.</p> <p> </p> <p><strong>Costs</strong></p> <p>The applicant prayed for costs of suit on a legal practitioner and client scale. The first respondent also prayed for the dismissal of the application with costs on a punitive scale.</p> <p> </p> <p>While the issue of costs is within the province of the court’s discretion, sight should not be lost of the cardinal rule that constitutional litigation, whatever the outcome, might ordinarily bear not only on the interests of the particular litigants involved, but on the rights of all those in similar situations, i.e the broader public. In fact, it has the effect of enriching the general body of constitutional jurisprudence and adding texture to what it means to be living in a constitutional democracy. See <em>Biowatch Trust v Registrar Genetic Resources and Others</em> 2009 (6) SA 232 (CC).</p> <p> </p> <p> </p> <p>Nonetheless, constitutional litigation must be conducted without abuse of the court processes, which may attract punitive costs. However, the first respondent has not produced evidence of such abuse as would have necessitated the levying of punitive costs.  Therefore, the ordinary rule that costs follow the outcome should apply in this matter. </p> <p> </p> <p>In the result, the application is dismissed with costs on the ordinary scale.</p> <p> </p> <p><strong>MALABA CJ:</strong>                            I agree</p> <p> </p> <p><strong>GWAUNZA JCC:</strong>                     I agree</p> <p> </p> <p><strong>GOWORA JCC:</strong>                        I agree</p> <p> </p> <p><strong>PATEL JCC:      </strong>                        I agree</p> <p> </p> <p><strong>GUVAVA JCC:</strong>                         I agree</p> <p> </p> <p><strong>MAVANGIRA JCC:</strong>                 I agree</p> <p> </p> <p><strong>UCHENA JCC:</strong>                         I agree</p> <p> </p> <p><strong>ZIYAMBI AJCC:                      </strong>I agree</p> <p><em>Hussein Ranchod &amp; Co</em>, applicant’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office</em>, first and second respondents’ legal practitioners</p> <p><em>Sawyer &amp; Mkushi</em>, third and fourth respondents’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2018/6/2018-zwcc-6.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33591">2018-zwcc-6.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2018/6/2018-zwcc-6.pdf" type="application/pdf; length=171658">2018-zwcc-6.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/administrative-action">Administrative Action</a></li><li class="vocabulary-links field-item odd"><a href="/tags/administrative-review">Administrative Review</a></li><li class="vocabulary-links field-item even"><a href="/tags/judicial-review">Judicial Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags/minerals-oil-and-gas">Minerals, oil and gas</a></li><li class="vocabulary-links field-item even"><a href="/tags/el">EL</a></li></ul></span><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/constitutional-law">CONSTITUTIONAL LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/fundamental-rights">Fundamental rights</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/administrative-justice">Administrative justice</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/res-judicata">Res judicata</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-res-judicata">principles (Res judicata)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/requirements-res-judicata">requirements for (Res judicata)</a></li></ul></span><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>The applicant, had received a letter from the Secretary for Mines and Mining Development alerting them that their special grants for mining had expired and they had to cease all mining activities and vacate the covered mining areas. The Minister further issued a press statement on the consolidation of all diamond mining activities in the grant areas.</p> <p>The applicant averred that the above decisions had prejudicial effect on it which also violated its property rights.</p> <p>The respondents alluded that the application was improperly brought before the court as it appeared to be a response to the judgment of the High Court which the applicant had previously lodged but never appealed and that the cause of action was res judicata and that the avoidance principle applied here. The court, therefore, had to decide on these three main points.</p> <p>The court held that the appeal had been disguised as a case concerning constitutional points and should have been brought in terms of s167(5)(b) of the Constitution.</p> <p>It held that although the basis of the application had changed with the introduction of the constitutional question, the effect of the relief sought remained the same.</p> <p>The court also held that the bulk of the applicant’s case was on right to just administrative action which was protected under the Administrative Justice Act which had sufficient grounds to deal with the rights they alleged had been infringed.</p> <p>The matter was dismissed with costs.</p> </div></div></div><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2016/3">Zinyemba v Minister, Lands &amp; Rural Settlement &amp; Another (CCZ 3/2016 Const. Application No. CCZ 123/13) [2016] ZWCC 03 (24 June 2016);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/12">Administrative Justice Act [Chapter 10:28]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1961/38">Mines and Minerals Act [Chapter 21:05]</a></div></div></div> Fri, 20 Jul 2018 08:55:37 +0000 admin 8984 at https://old.zimlii.org S v Tinodya & 3 Others (HH 215-18, CA 668/16 Ref CRB 3503-7/16) [2018] ZWHHC 215 (25 April 2018); https://old.zimlii.org/node/8871 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>TAVENGERWEI TINODYA</p> <p>and</p> <p>AGNES MUCHINA</p> <p>and</p> <p>BESTI MUNGONO</p> <p>and</p> <p>FUNGAI WENGE</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>HUNGWE &amp; WAMAMBO JJ</p> <p>HARARE, 29 March 2018 &amp; 25 April 2018</p> <p> </p> <p> </p> <p><strong>Criminal appeal</strong></p> <p> </p> <p> </p> <p><em>D Mudadirwa</em>, for the appellant</p> <p>Mrs <em>S Fero</em>, for the respondent</p> <p> </p> <p>            HUNGWE J: The four appellants appeared before the court of the magistrate sitting at Chitungwiza facing a charge of contravening s 7 (1) (a) or (b) of the Communal Lands Act [<em>Chapter 20:04</em>] i.e occupying or using communal land without lawful authority. They were unrepresented. They pleaded guilty. They were convicted and sentenced to pay a fine of $50-00 or, in default of payment 30 days imprisonment. In addition 2 months imprisonment were imposed but were wholly suspended on condition the accused were “evicted from the premises with effect from 30 December 2016.”</p> <p>            Dissatisfied, the appellants noted an appeal to this court. In their notice and grounds of appeal, the appellants pointed out that by virtue of the nature of the charge, the court <em>a quo</em> out to have proceeded in terms of s 271 (2) (b) of the Criminal procedure and Evidence Act, [<em>Chapter 9:07</em>] rather than s 271 (2) (a).  By adopting the later procedure, the court precluded itself from the requirement to canvass the essential constituents of the offence, which procedure would have disclosed a possible defence to the charge. Consequently the court committed an irregularity which entitled this court to set aside the conviction.</p> <p>            Faced with this ground of appeal the respondent properly conceded for the reasons put forward by the appellants, the conviction could not be supported. The respondent filed a notice in terms of s 35 of the High Court Act [<em>Chapter 7:06</em>] notifying the Registrar that he did not support the conviction.</p> <p>            This court has on several occasions emphasised that where an accused appears unrepresented on a plea of guilty, it is the duty of the court to safeguard the fair trial rights of the accused by adopting a procedure which was most likely to suggest a defence where there was one, to the accused. See <em>S </em>v<em> Zishumba &amp; Ors</em> 1983 (1) ZLR 10 (HC); <em>S </em>v<em> Choma</em> 1990 (2) ZLR 33 (HC); <em>S </em>v<em> Chidawu</em> 1998 (2) ZLR 76 (HC). This can only be achieved by selecting a trial procedure best suited for the purpose. The summary trial procedures set out in s 271 of the Criminal Procedure and Evidence Act, permit a court to convict an accused on his own admission of guilt. This procedure is fraught with legal hurdles, which, unless meticulously, judiciously and thoroughly adhered to, would vitiate the proceedings.</p> <p>It requires to be emphasised that with unrepresented accused persons, there is the ever-present likelihood that out of ignorance of the law, most unsophisticated rural people will admit to charges of a complex nature out of a desire to draw the sympathy of the police and or the court authorities. In most cases such simple-minded suspects believe that they stand a better chance of being cautioned and discharged if they agree to all the allegations without question. They do not know that it is their right to challenge each and every allegation of fact or conclusion of law upon which the charges are based. They do not know that there is a presumption of innocence operating in their favour till the state has proved their guilt beyond a reasonable doubt. They are blissfully unaware that even where they admit to a factual situation they may have a lawful excuse to their conduct which would render their conduct not unlawful. This the reason why this court has repeatedly stated that the court of the Magistrate is the last bulwark against procedural unfairness which indigent suspects may suffer at the hands of the law.</p> <p>            Faced with the allegations constituting the offence charged and the fact that the accused tendered guilty pleas, the magistrate, at the behest of the public prosecutor, had a choice on the procedure to adopt. The choice as to whether to proceed in terms of s 271 (2) (a) or 271 (2) (b) of the Criminal Procedure and Evidence Act must be guided by the penalty provisions of the offence charged as well as the attitude of the prosecutor regarding what an appropriate sentence in the case ought to be. Where the court is of the opinion that the offence does not merit a punishment of imprisonment without the option of a fine or a fine not exceeding level 3, the court may convict the accused and impose any competent sentence other than imprisonment without the option of a fine of a fine not exceeding level three. (Section 271 (2) (a) of the Criminal Procedure Code).</p> <p>            The penalty provisions of the statutory offence charged in the present case provide for punishment of a fine not exceeding level six or imprisonment for a period not exceeding twelve months. Such a provision in practice fixes the choice for the magistrate since, from the <em>proviso</em>, a punishment in excess of that stipulated in s 271 (2) (a) becomes a possibility by operation of law. Clearly, the magistrate’s choice to proceed in terms of s 271 (2) (a) was ill-advised and in conflict with the provisions of s 271 (2) (a) since s 7 (2) of the Communal Lands Act [<em>Chapter 22:04</em>] permitted punishment beyond what could be imposed in terms of s 271 (2) (a).</p> <p>            However what makes the decision to resort to procedure in 271 (2) (a) appear grossly irrational is the fact that the court was dealing with a statutory offence. In the provisions criminalizing certain conduct, (occupying communal land) it also sets out exceptions that would excuse such conduct.</p> <p>            That section states,</p> <p>            <strong>7. Restrictions on right to occupy or use Communal Land.</strong></p> <ol> <li>Subject to ss ten and eleven, no person shall occupy or use any portion of Communal Land–</li> </ol> <ul> <li>except in the exercise of any previously acquired right subsisting on 1 February 1983, or</li> <li>except in accordance with the terms and conditions of any right, consent, as the case may be, in terms of this Act or any other enactment, or</li> <li>unless he or she is s spouse dependent relative, guest or employee of a person who occupies or uses Communal Land in terms of para (a) or (b).</li> </ul> <p> </p> <p>            Section 8 of the Communal Land Act also provides that a person may, subject to that Act or the Regional Town and Country Planning Act [<em>Chapter</em> <em>29:12</em>], occupy or use communal land with the consent of the rural district council established for the area concerned.</p> <p>            The resort to the procedure in s 271 (2) (a) precluded the magistrate from canvassing the essential elements of the offence. Had she proceeded in terms of s 271 (2) (b) and judiciously approached the matter, it may well be that in canvassing the essential elements, the accused would have given some explanation which might have constituted a defence to the charge.</p> <p>            I may add here that in the view that I take of s 271 (2) (a) of the Criminal Procedure Code, a resort to this section should only be had where the offence charged is beyond doubt trifling. I have in mind such offences as set out in municipal by-laws <em>viz </em>ticket offences such as littering, parking etc. It is not suited where complex legal concept associated with most serious statutory offences are involved. Proceeding in terms of s 271 (2)(a) may arguably constitute an infringement of the fair trial right set out in s 70 of the Constitution. That section provides:</p> <p>           </p> <p><strong>70 Rights of accused persons</strong></p> <p>(1) Any person accused of an offence has the following rights—</p> <p>(<em>a</em>) to be presumed innocent until proved guilty;</p> <p>(<em>b</em>) to be informed promptly of the charge, in sufficient detail to enable them to    answer it;</p> <p>(<em>c</em>) to be given adequate time and facilities to prepare a defence;</p> <p>(<em>d</em>) to choose a legal practitioner and, at their own expense, to be represented by that legal practitioner;</p> <p>(<em>e</em>) to be represented by a legal practitioner assigned by the State and at State expense, if substantial injustice would otherwise result;</p> <p>(<em>f</em>) to be informed promptly of the rights conferred by paragraphs (<em>d</em>) and (<em>e</em>).</p> <p>(<em>g</em>) to be present when being tried;</p> <p>(<em>h</em>) to adduce and challenge evidence;</p> <p>(<em>i</em>) to remain silent and not to testify or be compelled to give self-incriminating    evidence;</p> <p>(<em>j</em>) to have the proceedings of the trial interpreted into a language that they           understand;</p> <p>(<em>k</em>) not to be convicted of an act or omission that was not an offence when it took place;</p> <p>(<em>l</em>) not to be convicted of an act or omission that is no longer an offence;</p> <p>(<em>m</em>) not to be tried for an offence in respect of an act or omission for which they have previously been pardoned or either acquitted or convicted on the merits;</p> <p>(<em>n</em>) to be sentenced to the lesser of the prescribed punishments if the prescribed punishment for the offence has been changed between the time the offence was committed and the time of sentencing.</p> <p> </p> <p>In the present charge the statutes provides various exceptions which in effect are defences. The appellants may have invoked these had the fair trial safeguards provided by s 271 (1) (2) (b) of the Criminal Procedure Code been chosen.</p> <p>            In the end the decision by the Prosecutor-General not to support the conviction is justified. We agree with Mrs <em>Fero</em>, for the respondent, that the conviction be set aside and the matter be remitted to the court <em>a quo </em>for a trial <em>de novo.</em></p> <p>            In the event that the appellants are eventually convicted careful attention must be paid to the provision of s 16 of the Communal Land Act. That section requires that following upon conviction, as order for eviction be granted in favour of the lawful authority of that land. As such, the order of eviction is a separate civil judgment /order which cannot be made a condition for the suspension of a term of imprisonment as had been the case in the present matter.</p> <p>            In the result it is ordered as follows;</p> <ol> <li>The conviction is quashed and the sentence is set aside.</li> <li>The record of proceedings is remitted to the court <em>a quo</em> for a trial <em>de novo </em>before a different magistrate.</li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p> WAMAMBO J agrees ………….</p> <p><em>Nyikadzino Simango &amp; Associates</em>, appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/215/2018-zwhhc-215.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23253">2018-zwhhc-215.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/215/2018-zwhhc-215.pdf" type="application/pdf; length=130075">2018-zwhhc-215.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/el">EL</a></li><li class="vocabulary-links field-item odd"><a href="/tags/land-use">Land use</a></li><li class="vocabulary-links field-item even"><a href="/tags/administrative-action">Administrative Action</a></li><li class="vocabulary-links field-item odd"><a href="/tags/criminal-offences-relating-environment">Criminal offences relating to the environment</a></li></ul></span><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/unrepresented-accused">Unrepresented accused</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/land">Land</a></li></ul></span><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>The court considered a criminal appeal, where the applicants had been charged for contravening s7(1)(a) or (b) of the Communal Land Act, by occupying or using communal land without lawful authority. The applicants pleaded guilty and were convicted and sentenced to pay a fine of $5000 or 30 days in prison. The appellants appealed the conviction on the ground that the court committed an irregularity by failing to proceed in terms of the correct procedure. </p> <p>They contended that by entering a guilty plea, the court had a duty to safeguard the fair trial rights of the accused by adopting a procedure which was most likely to suggest a defence where there was one.</p> <p>The court considered whether the appellant’s conviction was lawful. It observed that with unrepresented accused persons, there was the ever-present likelihood that out of ignorance of the law, a person would admit to charges of a complex nature out of a desire to draw sympathy of the police or the courts and the onus was upon the court to choose a procedure which would have given the appellants a possible defence.</p> <p>The court found that the conviction was wrong and remitted the matter back to the lower court. In addition, the court below would be required to take cognizance of s 16 of the Act which required that following a conviction, an order for eviction be granted. Accordingly, the appeal succeeded.</p> </div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1982/20">Communal Land Act [Chapter 20:04]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item even"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Thu, 24 May 2018 12:09:47 +0000 Sandra 8871 at https://old.zimlii.org S v White (HB 07/17 HCA 84/15) [2017] ZWBHC 07 (26 January 2017); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2017/7 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>1</p> <p>        HB 07/17</p> <p>     HCA 84/15</p> <p> </p> <p><strong>TIMOTHY SEAN WHITE</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE STATE</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE &amp; TAKUVA JJ</p> <p>BULAWAYO 11 JULY 2016 &amp; 26 JANUARY 2017</p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p><em>S. Collier</em> for the appellant</p> <p><em>Ms S. Ndlovu</em> for the respondent</p> <p>            <strong>TAKUVA J:   </strong>This is an appeal against the whole judgment and sentence of the Magistrates’ Court sitting at Gwanda. The appellant was charged with contravening section 3(2)(a) as read with section 3(3) of the Gazetted Lands (Consequential Provisions) Act, Chapter 20:28 in that he continued to occupy state land being Lot 2 of Lot 36 Essexvale Estate, Umzingwane District [the farm] without any lawful authority.</p> <p>            Appellant pleaded not guilty to the charge but was convicted following a full trial and sentenced to eviction from the land in question and payment of a US$300,00 fine.  He then filed this appeal on the following grounds:</p> <p>“i.        The learned magistrate erred in finding that the appellant did not have the lawful authority to occupy the farm.</p> <p>ii.         The learned magistrate erred in failing to consider that the High Court of Zimbabwe, a superior court had already made a finding that the appellant had lawful authority to remain on the land in question.</p> <p>iii.       Alternatively, that the learned magistrate misdirected himself in failing to consider that the appellant had been instructed to remain on the farm by representatives of the Ministry of Land and Rural Resettlement, the appellant relied on those representations and therefore occupied the land under the assumption that he had the lawful authority to be there.</p> <p>iv.        The learned magistrate erred in failing to consider that the appellant’s mining rights in respect of the land conferred a right of occupation in respect of those portions covered by mining claims.  The appellant was found guilty of unlawful occupation of the whole extent of Lot 2 of Lot 36 of Essexvale when he had the lawful right to occupy a portion thereof.”</p> <p><strong>Ad sentence</strong></p> <p> </p> <p>            There are two grounds of appeal against sentence namely:</p> <p>“(i)      The sentence imposed by the learned magistrate induces a sense of shock due regard being had to the fact that the appellant occupied the farm in question because he was instructed to remain there by representatives of the Ministry of Lands and Rural Resettlement.</p> <p>(ii)       The sentence imposed by the magistrate whereby the appellant was sentenced to eviction from the farm in question failed to take into account the fact that the appellant had mining rights in respect of the farm and that such a sentence would contravene those mining rights to the appellant’s detriment.”</p> <p> </p> <p>            The following facts are common cause:</p> <ol> <li>The appellant was the former owner of the farm.</li> <li>The farm was gazetted in the year 2003 and the appellant continued to occupy, hold and use the gazetted farm after that date.</li> <li>The District Lands Committee recommended that the appellant be offered that farm in 2003.</li> <li>In the same year, a certain Colonel Nare attempted to take up occupation of the farm and the appellant approached the Chief Lands Officer for the Province of Matabeleland South who advised the appellant to remain on the farm.  The Colonel was then relocated to another farm.</li> <li>The appellant then continued occupation of the farm from the year 2003 to the year 2007 without incident.</li> <li>On 17 May 2007, appellant was given a letter from the Acting Chief Lands Officer.  The letter stated as follows:</li> </ol> <p>“To whom it may concern</p> <p> </p> <p><strong>            Re: Farming operations at Lot 2 of Lot 36 Essexvale Estate by Tim White</strong></p> <p> </p> <p>            The above matter refers.</p> <p> </p> <p>Mr Tim White is currently farming at the above quoted property and has made an application for an offer letter to the Ministry of Lands.</p> <p> </p> <p>            Your assistance is always appreciated.”</p> <p>            The letter was signed by R. Mthimkhulu the then Acting Chief Lands Officer for Matabeleland South Province.</p> <ol> <li>On the basis of what appellant believed to be a verbal permit and with the assistance of the afore mentioned letter, the appellant continued peaceful occupation of the farm in question from the year 2007 to the year 2014.</li> <li>In the year 2014 Mr Zenzo Ntuliki was issued with an offer letter for the farm.  The appellant was then charged with the offence of unlawful occupation of State Land in about February 2015.</li> <li>The appellant is the holder of certain mining claims on the farm and copies of the relevant certificates of Registration are defence exhibits IV and V at pages 81 to 84 of the record.</li> <li>Mr Zenzo Ntuliki, the offer of the farm attempted to assert his rights in the High Court of Zimbabwe by way of urgent chamber application under cover of case number HC 217/15.  The matter was heard in chambers before the Honourable Mrs Justice Moyo on the 17th day of February 2015 and the application was dismissed.</li> </ol> <p>Before dealing with the grounds of appeal, I must point out that the respondent conceded at the hearing of the appeal that the conviction was unsafe.  We however reserved judgment in order to closely consider the legal principles inherent herein.</p> <p>            In dismissing issues raised in grounds (i), (ii) and (iii) the court <em>a quo</em> exclusively relied on the Constitutional Court’s decision in <em>Taylor-Freeme</em> v <em>The Senior Magistrate, Chinhoyi &amp; Anor </em>2014 (2) ZLR 498 (CC).  In that case CHIDYAUSIKU CJ held <em>inter alia</em> that:</p> <p>“the clear and unambiguous meaning of s 2 (1) of the Act was that “lawful authority” meant an offer letter, a permit and a land settlement lease.  The documents produced by the applicant were not offer letters, permits or land settlement leases issued by the acquiring authority.  A letter from the late Vice President, the Presidium or any other member of the Executive did not constitute “lawful authority” in terms of the Act.”</p> <p>            While I accept that the Chief Justice was not specifically dealing with the definition of a permit or what form a permit should take, I do not agree that his comments can be termed <em>abiter dictum</em>.  I refer here to page 511 of the judgment paragraph D-E where he said;</p> <p>“The letters from the late Vice President Msika and those of the Ministry of Lands, Land Reform and Resettlement do not constitute “lawful authority”.  “Lawful authority” in terms of the Act begins and ends with an offer letter, a permit and a land settlement lease.  A telephone call or a letter, even from the Ministry of Lands, Land Reform and Resettlement is not “lawful authority”.  (my emphasis)</p> <p>            <em>In casu</em>, the appellant relied on a letter from the erstwhile Chief Lands Officer in the Ministry of Lands, Land Reform and Resettlement in Matabeleland South Province.  By parity of reasoning, this letter does not constitute “lawful authority”.  For that reason, the court <em>a quo’s</em> finding that the appellant did not have lawful authority to occupy the farm is unassailable.  To be more precise, the letter does not on the authority of the <em>Taylor-Freeme</em> case <em>supra</em> amount to a permit.</p> <p>            The appellant argued in the alternative that the representatives of the Ministry of Lands and Rural Resettlement led him to believe that he was in lawful occupation of the farm.  It is common cause that the appellant remained in occupation of the farm in question for eleven (11) years as a result of the representations made to him by representatives of the Ministry of Lands and Rural Resettlement, specifically certain verbal representations made from 2003 to 2006 and the letter given to him in the year 2007.  In dismissing this defence, the learned magistrate again relied on the reasoning in the <em>Taylor-Freeme</em> case and concluded that; “In the <em>Taylor-Freeme</em> case, CHIDYAUSIKU CJ, dealing with a similar defence of mistake of law, said, “the applicant’s defence of a mistake of law is frivolous and vexatious.  If the applicant was serious about this defence, he would have left the farm when he was charged.  The fact that the applicant is still occupying the farm makes nonsense of this defence.”  This is exactly what befalls the accused in the present case.”  (my emphasis)</p> <p>            In my view in adopting this reasoning hook, line and sinker, the court <em>a quo</em> fell into error in that the <em>Taylor-Freeme</em> case is distinguishable on the facts relating to the defence from the one <em>in casu</em>.  In the former, the applicant had raised two contradictory defences namely that (1) he did not own the farm and was not in occupation thereof and (2) that he had lawful authority to occupy, hold or use the gazetted land from the late Vice President Msika and officials from the Ministry of Lands, Land Reform and Resettlement.</p> <p>            <em>In casu</em>, the learned magistrate failed to take into account that the appellant had always maintained that he had a permit to remain in occupation of the land in question.  The defence of a mistake of law was raised as an alternative defence, not as a sole defence.  In that regard, it would not make sense to expect him to abandon his rights immediately after his arrest.</p> <p><strong>The Law</strong></p> <p>            The full meaning of the legal principle of <em>ignorantia legis nemi nemi excusat</em> is that ordinarily an accused person cannot raise the defence that he made a mistake of law.  However, on the basis of the aforesaid principle, an exception exists where the mistake of laws arose from the incorrect legal advice of a government official.  In <em>S </em>v <em>Davy</em> 1988 (1) ZLR 38 (SC) it was stated that:</p> <p>“It necessarily follows that in my opinion the rule that ignorance or mistake of law is no excuse, which judicial officials have applied for so long in this country in conformity with both English law and the decisions of the South African courts prior to the advent of <em>de Blom’s</em> case <em>supra</em> remains valid.  Its strength has hardly been shaken.  It is, however, subject to the exception that where the appellant acted upon incorrect advice as to the law, given by a government official who is primarily responsible for the administration of the particular statute to which the matter relates, his ensuing mistake of law is a good defence.” (my emphasis)</p> <p>            Similarly, in <em>S</em> v <em>Zemura </em>1974 (1) SA 584 (RA), the court stated that;</p> <p>“When an appellant is given advice on an administrative matter by a responsible public official whose duties include the administration of a particular statute to which the matter relates and where the appellant genuinely believes that the official is sufficiently familiar with the Act his department administers to be competent to give the advice sought, then if the appellant <em>bona fides</em> acts on that advice he should be permitted to set up as an exception to the <em>ignorantia juris</em> rule, the defence of a “claim of right” should that advice prove to be wrong and this notwithstanding the fact that the claim may involve setting up the defence of a mistake of law.” (emphasis added)</p> <p>            The defence has since been codified.  Section 236 of the Criminal Law (Codification and Reform) Act Chapter 9:23 provides as follows;</p> <p>            “236.   When mistake or ignorance of law a defence</p> <p> </p> <p>(1)Subject to this Part, if a person –</p> <p>(a)does or omits to do anything which is an essential element of a crime in terms of any law; and</p> <p>(b)when he or she did or omitted to do the thing he or she did not know that his or her conduct was unlawful because he or she was genuinely mistaken or ignorant as to the relevant provisions of the law; the person shall not have a complete defence to a charge of committing that crime unless the person’s mistake or ignorance as to the relevant provisions of the law was directly brought about by advice given to him or her by an administrative officer whom he or she had reason to believe was charged with the administration of the law concerned and was familiar with its contents.</p> <p>(2)…” (emphasis added)</p> <p>The synopsis of this section is that;</p> <ol> <li>The <em>actus reas</em> must be an element of a crime.</li> <li>There must be a genuine mistake or ignorance of the relevant provisions of the law.</li> <li>The mistake or ignorance must be brought about by advice given by an administrative officer charged with the administration of the law concerned who was familiar with its contents.</li> </ol> <p><em>In casu</em>, it is undisputed that representatives of the Ministry of Lands and Rural Resettlement, namely the District and Provincial Lands  Committees and the Chief Lands Officer himself made representations to the appellant to remain in occupation of the farm.  The appellant believed and relied on this advice and stayed put for eleven years.  In 2015 these representatives changed their position and decided to bring a criminal charge of unlawful occupation against the appellant.</p> <p>In his evidence, Romeo Mthimkhulu stated that his day to day duties included land acquisition, resettlement and estates management.  It is common cause that this is the same officer who wrote two letters, one in 2007 and another in 2010 recommending the appellant to remain in occupation of the land in question pending the approval of his application for an offer letter by the Ministry of Lands.  According to the Chief Lands Officer, these recommendations had the blessing of the relevant district and provisional land committees as confirmed by the following exchange on page 18 of the record of proceedings;</p> <p>            “Q       -           How else do you know the accused?</p> <p> </p> <p>A         -           He used to come to my office in connection with his recommendation for a piece of land by the District Lands Committee</p> <p> </p> <p>            Q         -           How long was accused recommended to remain on the land in question?</p> <p> </p> <p>A         -           It was open until 2014 when the structures that had recommended him withdrew the recommendation.</p> <p> </p> <p>            Q         -           What does this recommendation really mean?</p> <p> </p> <p>A         -           It means the decision of the acquiring authority is being in favour of the person, then he gets an offer letter.</p> <p> </p> <p>Q         -           Briefly in summation, you say the land was acquired in 2003, and accused was recommended by the District Lands Committee, until 2014?</p> <p> </p> <p>A         -           Yes.  The recommendation ceased in 2014.  Even the provincial land committee had recommended him.”</p> <p>            In his evidence in chief and under cross-examination, the appellant consistently stated that he relied on the officials who told him to remain on the farm and be productive.  When it was put to him by the prosecutor that the letter simply confirmed that he was currently farming at the farm, his answer was;</p> <p>            “A       I believed it to confirm that I was in lawful occupation of the farm.”</p> <p>            Applying the law to these proved facts, I find that the learned magistrate misdirected himself when he dismissed the appellant’s defence of mistake or ignorance of law arising from wrong advice given to him by Mr Mthimkhulu, the District and Provincial Land Committees to remain on the farm after the expiry of the appropriate period.  The defence has merit and the appellant should have been found not guilty and acquitted.</p> <p>            In my view it is totally unfair and not in the interests of justice and public policy for Government officials charged with administration of particular statutes to give incorrect advice for whatever reason and then unashamedly turn around and recommend and vigorously support the prosecution of the innocent recipients of their bad advice.  Such conduct should be frowned upon by the courts, for to tolerate it could very well promote abuse of office and corruption by public officials to the detriment of society in general.</p> <p>            I note also that the appellant argued in the alternative that he was in lawful occupation of a portion of the land by virtue of his rights as a holder of mining claims.  It is common cause that the appellant holds mining claims whose registration certificates were tendered as defence exhibits IV and V at pages 81 – 84 of the record.  Original certificates were produced at the hearing of the appeal.  The land in its entirety is only 142 hectares of which 30 hectares is covered by the mining claims.  In dismissing the issue of the appellant’s mining claims the learned magistrate stated;</p> <p>“The accused raised the issue of mining claims as an alternative defence I will not dwell much on this issue because it is clearly an irrelevant issue.  Mining claims are governed by the Mines and Minerals Act, and holding mining claims has nothing to do with whether or not one has “lawful authority” to occupy gazetted land”. </p> <p>I take the view that the learned magistrate’s error is self-evident in that he failed to appreciate that the appellant’s mining claims gave him a right of occupation entirely distinct from any rights that the appellant may have been granted under the land reform programme.</p> <p>            In terms of section 178 (2) of the Mines and Minerals Act Chapter 21:05, a person who holds a mining claim holds corresponding surface rights in respect of the land.  The section provides;</p> <p>            “178    Surface rights miners</p> <p>                       </p> <p>(1)…</p> <p>(2)Every miner of a registered mining location shall have and possess the following respective surface rights –</p> <p>(a)The right subject to any existing rights, to the use of any surface within the boundaries thereof for all necessary mining purposes of his location; and as against the holder of a prospecting licence or of any other mining location the right, except as in section three hundred and fifty-seven provided, to the use of all surface within such boundaries.”</p> <p>Quite evidently, the holder of a registered mining location has the right to the use of any surface within the boundaries thereof.  In casu, the appellant is at the very least, lawfully authorized to occupy certain portions of Lot 2 of Lot 36 of Essexvale by virtue of his mining rights.  If the state wished to charge the appellant with unlawful occupation of the remaining extent of Lot 2 of Lot 32 of Essexvale then it should have indicated as such in the charge.</p> <p>The net effect of this is that even if the appellant had not been granted any rights of occupation by the Ministry of Lands and Rural Resettlement, the state did not have the lawful authority to deprive him of his mining rights by barring him from the land.  Appellant had a right to occupy a portion of the land in question and therefore could not be found guilty of occupying its entire extent.</p> <p>For these reasons, it is ordered that:</p> <ol> <li>The appeal be and is hereby upheld.</li> <li>The conviction and sentence of the Magistrates’ Court be and are hereby set aside.</li> </ol> <p> </p> <ol> <li>The appellant be and is hereby found not guilty and acquitted.</li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p>Makonese J ……………………………… I agree</p> <p> </p> <p> </p> <p><em>Webb, Low &amp; Barry incorporating Ben Baron &amp; Partners,</em> applicant’s legal practitioners</p> <p><em>Prosecutor General’s Office,</em> respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2017/7/2017-zwbhc-07.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25275">2017-zwbhc-07.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2017/7/2017-zwbhc-07.pdf" type="application/pdf; length=243126">2017-zwbhc-07.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/administrative-action">Administrative Action</a></li><li class="vocabulary-links field-item odd"><a href="/tags/minerals-oil-and-gas">Minerals, oil and gas</a></li><li class="vocabulary-links field-item even"><a href="/tags/el">EL</a></li></ul></span><div class="field field-name-field-search-summary field-type-text-long field-label-above"><div class="field-label">Search Summary:&nbsp;</div><div class="field-items"><div class="field-item even">Criminal law – defences – ignorance or mistake of law – acting in accordance with advice given by official whom the appellant had reason to believe was charged with administration of the law– mistake or ignorance of the law a defence when directly brought about by such advice </div></div></div><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>This was an appeal against the decision of a magistrate to evict the appellant from land which he had occupied for several years. The appellant was convicted of contravening s 3(2) (a) as read with s 3(3) of the Gazetted Lands (Consequential Provisions) Act, for continuing to occupy state land without lawful authority. </p> <p>The appellant contended that the trial magistrate failed to take into account that he had established a lawful right to remain on the property through the authority of the Ministry of Lands and Rural Resettlement and by being in possession of mining rights over the land.</p> <p>The High Court considered whether the magistrate erred by failing to consider the appellant’s arguments. The court applied s 236 of the Criminal Law Code that provides that ignorance of law is a defence but where such ignorance was brought about by the advice of an administrative officer and the advice is acted upon, this was a proper defence. The court noted that that the Chief Lands Officer had instructed the appellant to remain in occupation of the farm and he acted on these representations.</p> <p>The court also found that the appellant’s mining rights gave him a right of occupation of the land and the right to the use of any surface within the boundaries of land. </p> <p>The appellant’s eviction and sentence was therefore held to be unlawful and the court set aside the appellant’s conviction and sentence. </p> </div></div></div> Tue, 28 Feb 2017 12:57:00 +0000 admin 7822 at https://old.zimlii.org ANJIN Inv. (Pvt) Ltd. v Minister, Mines and Mining Development & Others (HH 228-16 HC 2183/16) [2016] ZWHHC 228 (30 March 2016); https://old.zimlii.org/node/7144 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>1</p> <p>HH 228-16</p> <p>HC 2183/16</p> <p>ANJIN INVESTMENTS (PRIVATE) LIMITED</p> <p>versus</p> <p>THE MINISTER OF MINES &amp; MINING DEVELOPMENT</p> <p>and</p> <p>THE MINISTER OF HOME AFFAIRS</p> <p>and</p> <p>THE COMMISSIONER-GENERAL</p> <p>OF THE ZIMBABWE REPUBLIC POLICE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MANGOTA J</p> <p>HARARE, 7 and 30 March 2016</p> <p> </p> <p> </p> <p><strong>Urgent Chamber Application </strong></p> <p> </p> <p> </p> <p><em>P Ranchhod</em>, for the applicant</p> <p><em>L Uriri</em>, for the 1st respondent</p> <p><em>S M Hashiti</em>, for the 2nd respondent</p> <p><em>G R J Sithole</em>, for the 3rd respondent</p> <p> </p> <p>            MANGOTA J: On 22 February 2016, the first respondent summoned and ordered the applicant and others who were mining diamonds in Marange District to cease their operations as at that date. The first respondent’s directive was followed by a letter which his permanent secretary addressed to the applicant’s chief executive officer. The applicant attached the letter to its application. It marked it Annexure B. The annexure is dated 22 February 2016. It reads, in part, as follows:</p> <p>            “RE:  EXPIRATION OF SPECIAL GRANT 4765 AND 5247.</p> <p>           </p> <p>            The above matter refers.</p> <p>           </p> <p>It has come to our attention that special grants  4765 and 5247 that were issued to you have since expired. … It is trite law that a special grant is issued upon application and its issuance is done in terms  of section 291 of the Mines and Minerals Act [Chapter 21:05] which demands that a period for the subsistence of the Special Grant shall be specified, failure of which renders the Special Grant  void. …..</p> <p> </p> <p>Since you no longer hold any title we do hereby notify you to cease all mining activities with immediate effect and to vacate the areas covered by Special Grants 4765 and 5247 for diamonds. You are given 90 days within which to remove your equipment and other valuables [22 February to 22 May, 2016] and during this period access to the premises will be approved upon request to the Ministry.” [emphasis added].</p> <p> </p> <p>The conduct of the first respondent and his permanent secretary together with that of the other respondents triggered this application. It was the applicant’s contention that the mentioned conduct prejudiced it in a substantial way. It submitted that the conduct jeopardized its operations and resulted in what it termed significant financial harm to it. It stated that the first respondent’s decision adversely affected and infringed upon its rights.</p> <p>The applicant submitted that it invested into the mining project more than $100 million in capital, plant and equipment as well as technology transfer and specialised skills development, infrastructure and social responsibility programs and it created thousands of jobs in its investment in the mining area. It said its expectation was that the special grants would remain valid for as long as mining operations were viable to enable it to recoup its investment. It stated that  the first respondent was using the pretext of the invalidity of the special grants to punish other diamond mining companies and it for their refusal to enter into a merger which the first respondent was compelling them to enter into. It recounted the harm which it said it suffered and continues to suffer at the hands of the respondents in the following words:</p> <p>“Debts are being incurred by the applicant which have to be paid; its employees and creditors have to be paid. A notice from the first respondent, wrongly issued, has resulted in the applicant not being able to carry out the ordinary functions and responsibilities of a company.  Applicant is being prejudiced in its right and is therefore compelled to seek recourse from this Honourable Court to protect its interests and those of the applicant’s employees affected by the actions of the respondents.”</p> <p> </p> <p>            It, therefore, moved the court to grant interim relief to it by way of setting aside the first respondent’s directive and having the parties return to the status <em>quo ante</em> 22 February, 2016.</p> <p>            The respondents opposed the application. The first respondent submitted, among other matters, that:</p> <ol> <li>the mining grant was issued to the Zimbabwe Mining Corporation [“the corporation”] and not to the applicant;</li> <li>the fact that no <em>deed of cession</em> was attached to the application showed that no cession was ever made  in favour of the applicant;</li> <li>the applicant’s right was derived from the title of the corporation which neglected to renew the grant as a result of which it lapsed;</li> <li>the special grant was invalid on the basis that it did not have a termination date as the law required of it;</li> <li>unauthorised <em>lis</em> i.e. annexure A which the applicant attached to the application was defective;</li> <li>the application was not urgent – and</li> <li>the relief which the applicant prayed for sought to establish an illegality.</li> </ol> <p>The second respondent stated that his mandate was to deal with policy matters which related to the operations of the police. He said he did not direct or control the police to act as the applicant alleged. He submitted that he was not involved in the police’s presence at the applicant’s mining site. He moved the court not to make an order against him.</p> <p>The third respondent contended that the Constitution of Zimbabwe conferred authority upon him to preserve law and order. He referred the court to s 219 (1) (c) and (d) of the Constitution in the mentioned regard.</p> <p>The following observed matters are pertinent:</p> <ol> <li>On 6 December 2006, Government issued special grant 4765 [“the grant”] to Zimbabwe Mining development Corporation [“the corporation”]. The grant covered an area of 63548 hectares. It is situated within the Reserved Area No. 1518 in Mutare Mining District.</li> </ol> <p>(ii) The terms and conditions of the grant were spelt out for the corporation’s observance as well as compliance. Those were stated at the time that the grant was issued to the corporation.  </p> <p>(iii) On 2 February, 2010 the corporation addressed a letter to the first respondent’s chief mining commissioner. The letter reads, in part, as follows :</p> <p>“Dear Sir</p> <p> </p> <p>RE: SPECIAL GRANT NO.4765 MARANGE DIAMOND FIELD SEGMENTATION OF SPECIAL GRANT (FIRST LOT)</p> <p>     </p> <p>We wish to apply for the segmentation of SPECIAL GRANT NO.4765 located in the Marange Communal Lands.</p> <p> </p> <p>We wish to transfer title of the Southern Portion of the SG 4765 measuring 3731 hectares as shown in the attached plan. The title of that portion is to be transferred to ANJIN INVESTMENTS (PVT) LTD a joint venture between ZMDC &amp; local companies and Chinese Company.”</p> <p> </p> <p>(iv) The first respondent’s Permanent Secretry replied to the abovementioned application. His letter which was dated 2 February, 2010 made reference to SPECIAL GRANT NO.4765AND Anjin Investments. It reads:</p> <p>“Dear Sirs</p> <p>CESSION OF PART OF SPECIAL GRANT 4765 FROM ZIMBABWE MINING DEVELOPMENT CORPORATION (ZMDC) TO ANJIN INVESTMENS (PVT) LTD.</p> <p> </p> <p>The above mentioned matter refers.</p> <p> </p> <p>We are pleased to confirm that cession of part of SPECIAL GRANT 4765 measuring 3731 hectares from ZMDC to Anjin Investments has been approved by the secretary for Mines and Mining Development.</p> <p> </p> <p>Anjin Investments (Pvt) Ltd is a Joint Venture between Matt Bronze (Pvt) Ltd and Anhui Economic Construction Group Co.”</p> <p>     </p> <p>(v) The above correspondence between the corporation and the first respondent resulted in the endorsement which appears in Special Grant 4765. The endorsement reads:</p> <p>      “3731 hectares of Special Grant 4765 have been ceded to Anjin Investments (Pvt) Ltd w.e.f. 2nd February, 2010.”</p> <p> </p> <p>(iv) The grant as issued to the corporation has a total area of 63 548 hectares. The area was reduced to 59, 817 hectares after the <em>cession</em> to the applicant of 3731 hectares on 2 February, 2010. The applicant made mention of special grant 5247. It, however, stated that its application did not have any bearing on that special grant. It said its application related to the respondents’ conduct <em>vis–a-vis</em> special grant 4765 only. It was for the mentioned reason that the observations which the court made in the foregoing paragraphs centred on special grant 4765 to the total exclusion of special grant 5247.</p> <p>            The applicant did not say the conduct of the respondents infringed its rights in the <em>ceded</em> portion of the grant. It said the conduct in question infringed its rights in special grant 4765. It, in that regard, acknowledged as well as accepted the fact that its rights in the <em>ceded</em> portion of grant did not, and do not exist, independently of the grant itself. It, in other words, portrayed the correct view which was that its rights in the <em>ceded</em> portion of the grant exists in, and were exercised by it through, special grant 4765 which the first respondent issued to the corporation on 6 December, 2006.  The applicant’s reliance on clauses 8 and 10 of Special Grant 4765 fortified the view which the court held and still holds on this aspect of the matter. Those clauses came into existence before the applicant was born. They were incorporated into the grant at the time that the first respondent issued special grant 4765 to the corporation. The applicant cannot, under the stated set of circumstances, be heard to argue, on the one hand, that the <em>ceded </em>portion of the grant existed or exists independently of the grant and, on the other, that the clauses which relate to Special Grant 4765 also relate to it. It cannot, in short, blow both hot and cold.</p> <p>            Clause 8 upon which the applicant rested its case reads:</p> <p>“The holder shall mine this special grant as long as is feasible  provide inspection fees are paid as provided in the Mines and Minerals Act [<em>Chapter 21:05</em>]” [emphasis added].  </p> <p> </p> <p>Whilst the definition of the phrase “The holder” is not available in the grant, the fact that the clause pre-existed the birth of the applicant supports the proposition that the phrase, by way of deductive logic, refers to the corporation as the holder and not the applicant. The applicant, on its part, did not produce any evidence which showed that the “<em>ceded</em>” portion of the grant existed outside that grant itself. All it was able to show was the endorsement which appeared in the grant. The endorsement is not evidence of the existence of the  applicant’s mining rights outside the grant.</p> <p>            The applicant’s assertion which was to the effect that clause 8 of the grant allowed it to work the sites which were <em>ceded</em> to it for an indefinite period of time was misplaced. It ran contrary to s 291 of the Mines and Minerals Act [<em>Chapter 21:05</em>] [“the Act”]. The section is peremptory in form and nature. No special grant nor agreement can supercede it.</p> <p>            The applicant stated, and in the court’s view correctly so, that the permanent secretary for the Ministry of Mines and Mining Development has a discretion to cancel a special grant if the holder thereof fails to comply with any provision of the grant or with the provisions of the Act. Clause 10 of the grant has words to a similar effect. Section 291 of the Act is one provision which the applicant and the corporation failed to comply with. The section reads:</p> <p>                        “ISSUE OF SPECIAL GRANTS</p> <p>            1.         The Secretary may issue to any person –</p> <p>                        (a)        a special grant to carry out prospecting operations; or</p> <p>                        (b)        a special grant to carry out mining operations for mining purposes;</p> <p>upon a defined area situated within an area which has been reserved against prospecting or pegging under section  <em>‘thirty-five’</em> for a period which shall be specified in such special grant and on such terms and conditions….” [emphasis added].</p> <p> </p> <p>            It was on the basis of the section that the Secretary for Mines and Mining Development wrote and advised the applicant, on 22 February 2016, that Special Grant 4 765 had expired. He did not say the <em>ceded</em> portion of the grant had expired. He referred to Special Grant 4765 as a whole as, in his opinion, no real cession had occurred as the applicant continued to submit.</p> <p>            In writing as he did, the Secretary was acknowledging that the holders of the <em>ceded</em> and ‘<em>residual</em>’ portions of the grant were operating outside the law. He advised them that their conduct in continuing to mine on an expired grant was unlawful. He also acknowledged that the holders of the rights which appeared in the grant were, in the  past, compliant with the law in that they had, or at least one of them – the corporation – had, from time – to – time, applied for the renewal of its, or their, title in the grant. Reference is made in this regard to Annexures C and E which the first respondent attached to his opposing papers.</p> <p>            It is recorded that, notwithstanding the existence in the grant of clause 8 which said the holder of the grant would mine in perpetuity, the corporation applied, on its behalf as well as on behalf of the applicant, for the renewal of the grant. Annexure C, for instance, showed that the grant which was issued to the corporation on 6 December, 2006 was given a lifespan of four years. Its initial expiry date was 4 December, 2010. Annexure E showed that Special Grant 4765 which expired on 4 December, 2010 remained unrenewed from that date todate. The appendix to that annexure is pertinent. It showed that the corporation should have renewed the whole grant and not the residual portion of the same as the applicant contended. Column 3 of the appendix is relevant. It makes reference to the area of 63 548, and not to the residual area of 59 817, hectares.</p> <p>            It requires little, if any, effort to observe that special grant 4765 had expired for five (5) years running before the first respondent declared it to have been invalid on 22 February, 2016. The special grant had been allowed to operate outside the law for that stated period of time. The corporation and the applicant took no steps at all to keep the grant within the confines of the law. The obligation to renew the grant rested upon them or upon one of them on behalf of the other and not upon the first respondent. The first respondent gave them a very long rope with which they hanged themselves as has occurred <em>in casu</em>.</p> <p>            The applicant stated that its expectation was that the grant would remain valid for as long as the mining operations were viable to enable it to recoup the investment it made in the mining project. Whilst its expectation was noble, the same did not permit it to live and continue to operate its mining of diamonds outside the law.</p> <p>            It is the duty of every person who resides in any country to comply with the laws of the country from which he conducts his business. Where a person whose business interests run in conflict with the laws of the territory from which he conducts his business is adversely affected by his unwholesome conduct <em>vis-à-vis</em> the territory’s laws, the person cannot receive the sympathy of the offended country’s courts which he approaches with dirty hands. He should first purge his quilt before he runs to the courts of the territory to seek relief of whatever form or nature.</p> <p>            The applicant, in the court’s view, is not an exception to the above stated position. It continued to conduct its mining operations with a special grant which had expired. It was aware from as far back as December 2010, that the grant which was issued to the corporation with a portion having been <em>ceded</em> to it, was no longer valid. It made no effort to have it renewed. It, in fact, took pleasure in operating outside the law for five consecutive years. The law cannot support its unwholesome conduct in the mentioned regard.</p> <p>            The sworn duty of any court the world over is to ensure that parties who bring matters to it have, in the first place, complied with the letter and spirit of any law which applies to their cases. It is not the duty of a court to perpetuate an illegality. To do so would run contrary to judicial ethics, the court’s rules, procedures as well as practice and above all, the law itself which every person is bound to observe and obey without exception.</p> <p>            In the instant case, it is evident that the letter, Annexure E, which the corporation addressed to the first respondent’s Permanent Secretary on 30 September, 2015 was an attempt by the corporation to have the grant further renewed. The corporation wrote the letter on behalf of the applicant and on its own behalf, so it would appear. The fact that the letter was written five (5) years after the event goes to show that the corporation and the applicant suffered an inexcusable dereliction of duty towards the first respondent and, through him, the Government of Zimbabwe as a whole. The applicant, through the corporation, was candid enough to acknowledge, in the letter, that Special Grant 4765 had expired. Various reasons were advanced for the non-renewal of the grant. In the letter, the corporation appealed to the Ministry of the first respondent to “reconsider its earlier position not to extend the exemption of its payment of renewal of Special Grant fees and grant ZMDC exemption to update its diamond Special Grant fees for a further period of 3 years up to 2016, to …..”.</p> <p>It is evident that the corporation had, earlier on, requested the first respondent’s Ministry to extend to it an exemption of payment of fees for the renewal of the Special Grant. The first respondent, it is clear, had turned down the corporation’s request. The letter of 30 September, 2015 was, therefore, an appeal to the Ministry to reconsider its earlier position.</p> <p>            The request and the appeal of the corporation and the applicant would, in the court’s view, have made sense if the applicant and the corporation were not conducting mining operations in terms of the expired grant or an expired part of the grant. They advanced as a reason for the non-renewal of the grant that they were financially constrained. They stated that they were not able to raise the necessary fees which related to the renewal of the grant.</p> <p>The attitude which the first respondent took towards them would appear to be understandable. It was, so it would appear, premised on the question as to where they were channeling the money which they were receiving from their operations which they continued to conduct on the strength of an invalid special grant. The Permanent Secretary’s letter of 22 February, 2016 spelt out the attitude of the first respondent’s Ministry to the request and the appeal to a point where no further debate of the same was required. The permanent secretary exercised his discretion against the applicant and the corporation. He acknowledged the fact that both of them had breached the condition upon which the special grant was issued to them as well as s 291 of the Act. The manner in which he used his discretion cannot be faulted.</p> <p>            The conduct of the first respondent could not, under the stated circumstances, be said to have been unlawful, unreasonable or disproportionate as the applicant alleged. He simply pronounced what the law says. He could not cancel the grant which ceased to exist five years ago by operation of the law. What he did was to declare the position as it was and to direct that the corporation and the applicant do cease forthwith their operations which they continued to engage upon a special grant which had expired.</p> <p>The applicant’s statement which was to the effect that the first respondent did not follow due process of law when it directed companies which were in the same boat with it to cease operations did not hold. It would have held if the grant from which it derived its authority to work the site(s) was valid. The grant was unfortunately invalid. The first respondent did not, therefore, have any obligation to the applicant or to anyone who was in the same position as the latter to have directed in any manner other than what he did.</p> <p>            The corporation and the applicant have only themselves to blame for the unfortunate position in which they found themselves. They took solace in continuing to break the law with impugnity. They could not be heard to cry foul when the law descended upon them as it did.</p> <p>            It is important that a comment be made as regards the resolutions which accompanied the applicant’s application. The resolutions purport to confer authority upon one Zhang Shibin to depose to the founding affidavit. The first resolution is dated 2 March, 2016. The one which was attached to the applicant’s answering affidavit was dated 25 February 2016. It is an expanded version of the resolution of 2 March, 2016. The contents of the two resolutions are totally dis-similar although they purported to portray the view that Mr Shibin did have the authority to depose to the applicant’s affidavit. The court was left in an invidious position as to which of the two resolutions was more authentic than the other.</p> <p>The applicant’s attempt to unprocedurally introduce into the record, at the eleventh hour, a document which it never referred to in its papers or during submissions was received with displeasure. The document appeared to have aimed at influencing the court to view the applicant’s case from a perspective which was different from the one it had, earlier on, presented. The court drew the attention of the applicant’s legal practitioner to the matter and the latter tendered an apology after which he withdrew the document onto which was attached another document which resembled Special Grant 4765.</p> <p>            On 11 March, 2016 the applicant filed a chamber application with the court. The application aimed at introducing into the record the document which it attempted to introduce outside the rules of court on 9 March, 2016. Its application was in terms of r 235 of the rules of court. It sought leave of the court to introduce the document into the record. It moved the court to exercise its discretion in terms of r 4 C of the same riles.</p> <p>            The first respondent opposed the application. He filed his opposing papers on 21 March, 2016. The other respondents did not. The first respondent’s opposition to the application notwithstanding, the court granted the application. It did so in the interests of justice.</p> <p>            The applicant marked the document which was the subject of its chamber application Annexure AA4. It said the annexure contained evidence which was critical to the determination of the urgent chamber application. It said the annexure was not available to it when the answering affidavit and submissions were made. It stated that the annexure was the special grant which was issued to the corporation on 6 December, 2016. Its position was that the annexure was different from Annexure E which it attached to its founding affidavit.</p> <p>            The first respondent objected to the admission of the supplementary affidavit and the annexure. He stated that the applicant’s position was that the corporation ceded a portion of the special grant to itself. He submitted that the source of the rights that were <em>ceded</em> to the applicant should have been brought before the court. He stated that the applicant had a duty to prove its claim in the mentioned regard. He argued that the applicant was endeavoring to rebuild its case which, according to him, had crumpled. He observed that the grant was dated 6 December, 2006. His further observation was that para 2 of the annexure stated that the grant would remain valid for only twelve (12) months. He submitted that the annexure’s validity expired on 6 December, 2007. He said the annexure had already expired when <em>cession</em> of rights to the applicant allegedly took place on 2 December, 2010. He stated that the applicant could not have derived any rights from an expired grant.</p> <p>Both Annexures E and AA4 relate to Special Grant 4765. Annexure E has 10 clauses and Annexure AA4 has 8 clauses. It is curious to observe that the permanent secretary of the first respondent issued those two annexures on 6 December, 2006. The Ministry’s date-stamp which appears on the face of Annexure E resonates with the purported cession of 3731 hectares of Special Grant 4765 to the applicant. The applicant did not explain why the date of issue as is stated in Annexure E was allowed to remain reading 6 December, 2006 when the alleged cession occurred on 2 February, 2010.</p> <p>            It may be accepted, for argument’s sake, that the secretary made an error in not correcting the date to read 2 February, 2010. However, the Ministry’s date-stamp which appears underneath the secretary’s signature in Annexure E would not have read 6 December, 2006 which it is reading. It should have read 2 February, 2010 which is the date of the alleged cession. One is, therefore, left to wonder whether or not the two annexures are capable of being reconciled to allow them to tell a story about themselves. It is evident that they cannot tell any meaningful story.</p> <p>Condition 3 of Annexure E is relevant. It reads:</p> <p>“In terms of section 295 of the Act the holder shall beacon the area of the grant to the direction of the Mining Commissioner and shall maintain such beacons until a certificate of quittance has been issued in terms of the Act.” [emphasis added]</p> <p> </p> <p>            The applicant’s statement was that Annexure E was issued to it. It, however, produced no evidence to show that it complied with the above condition which is peremptory in nature and form. All what it was able to show was the endorsement which appears on the face of the annexure.</p> <p>            The first respondent’s observations as regards condition number 2 of Annexure AA4 cannot be glossed over. The annexure, according to the applicant, was issued to the corporation on 6 December, 2006. The Annexure had a lifespan of only one year from its date of issue. It, accordingly, remained valid up to 6 December, 2007. The applicant produced no evidence to show that the annexure was renewed after 6 December, 2007. The first respondent’s assertion which was to the effect that the corporation could not, in February 2010, cede what it did not have therefore holds.</p> <p>            The introduction into the record of Annexure AA4 left the applicant’s case in a more confused state than it had concluded it. The annexure raised material disputes of fact which could not be resolved on the papers. The application cannot succeed under the stated set of circumstances.</p> <p>            The respondents raised a number of in <em>limine </em>matters which the court chose not to consider. It remained of the view that the application should be disposed of on the basis of its substance and not on technical issues which had been placed before the court. The applicant’s case was unsustainable. It could not prove its case on a balance of probabilities. The application is, accordingly dismissed with costs.</p> <p> </p> <p>             </p> <p><em>Hussein Ranchhod and Company</em>, applicant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p>            </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2016/228/2016-zwhhc-228.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=41374">2016-zwhhc-228.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2016/228/2016-zwhhc-228.pdf" type="application/pdf; length=352715">2016-zwhhc-228.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/el">EL</a></li><li class="vocabulary-links field-item odd"><a href="/tags/judicial-review">Judicial Review</a></li><li class="vocabulary-links field-item even"><a href="/tags/minerals-oil-and-gas">Minerals, oil and gas</a></li><li class="vocabulary-links field-item odd"><a href="/tags/administrative-action">Administrative Action</a></li></ul></span><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>This was an application for an interim relief of setting aside the first respondent’s directive that ordered the applicant to cease their diamond mining operations after the applicant’s rights in a ceded portion of a special grant 4765 expired.</p> <p>The applicant argued that clause 8 of the grant allowed it to work the sites which were ceded to it for an indefinite period of time. The first respondent countered this on the basis of s 291 of the Mines and Minerals Act that requires special grants to be issued for a specified period of time.</p> <p>Further, the first respondent argued that no real cession had occurred since the applicant as the holder of the ceded and ‘residual’ portions of the grant were operating outside the law.</p> <p>The court noted that the first respondent gave the applicants a 5-year period to renew the grant when they allowed the grant to operate outside the law before declaring it invalid, and the applicants still failed to renew it. For this reason, the applicant was found to have approached the court with ‘dirty hands’ since it was in breach of the condition of the special grant and s 29 of the act.</p> <p>The applicant failed to prove that the first respondent acted unlawfully, unreasonably or disproportionately for the court to apply its review discretion. The court, therefore, held that the first respondent was right in exercising its administrative discretion and pronouncing what the law said.</p> <p>Accordingly, the application was dismissed with costs.</p> </div></div></div> Sun, 10 Apr 2016 15:20:21 +0000 admin 7144 at https://old.zimlii.org S v Jamari (HH 131/16 CA 560/09 CRB NO. MUT 307/03) [2016] ZWHHC 131 (16 February 2016); https://old.zimlii.org/node/7070 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>1</p> <p>HH 131/16</p> <p>CA 560/09</p> <p>CRB NO. MUT 307/03</p> <p>VHAU JAMARI</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHATUKUTA J &amp; MANGOTA J</p> <p>HARARE, 18 May 2015 and 16 February 2016</p> <p> </p> <p> </p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p> </p> <p> </p> <p><em>D. Halimani, </em>for the applicant</p> <p><em>T. Mapfuwa, </em>for the respondent</p> <p> </p> <p> </p> <p>            MANGOTA J: The appellant, a 24 year old, first offender was convicted, on his own guilty plea, of contravening section 3(1) (a) of the Gold Trade Act [<em>Chapter 21:03</em>] [“the Act”] as read with s 45 of the Finance Act [No. 2] 2006.</p> <p>            After convicting the appellant, the court <em>a quo</em> inquired into the existence or otherwise of special circumstances. It found none. It, therefore, sentenced him to a mandatory minimum sentence of five years imprisonment.</p> <p>            The state allegations were that, on 25 October 2008 and at Dindi Business Centre, Chief Chitsungo’s area, Pfungwe, the appellant was found to have had in his possession 0.15 grams of gold. He had neither a licence nor a permit which authorised him to possess the gold.<br />             The appellant’s appeal was against sentence. He criticised the manner in which the trial magistrate went about to establish the existence or otherwise of special circumstances. He submitted that the magistrate did not explain to him in full what the words “special circumstances” meant. He said the inadequate explanation prejudiced him. He stated that the explanation disabled him from avoiding the mandatory minimum sentence of five years imprisonment. He moved the court to set the sentence aside and remit the case to the court <em>a quo</em> for a proper explanation of “special circumstances”, a recording of the same and passing of a fresh sentence.</p> <p>            The respondent agreed with the appellant. Mr<em> Mapfuwa</em>, for the respondent, submitted that the explanation which the magistrate gave was incorrect and inadequate. He said it was couched in, and confined to, the words “special or extraordinary mitigating factors”. He stated that the explanation should have made reference to special circumstances which related to the commission of the offence or which were peculiar to the offender. He, like the appellant, prayed that the sentence be set aside and the case be remitted to the court <em>a quo</em> for an inquiry into the existence or otherwise of special circumstances.</p> <p>            The Act under which the appellant was convicted does not define the words “special circumstances”. It simply states that such must be in the particular case. They must, once a court is satisfied of their existence, justify the imposition of a lesser penalty.</p> <p>            Special circumstances as provided for in the Act fall within the spectrum of what Ebrahim J (as he then was) made reference to in <em>S</em> v <em>Mbewe &amp; Ors</em>, 1988 (1) ZLR 7 wherein he stated at p12, para H that:</p> <p> </p> <p>            “……………. where the Legislature has not placed a restrictive application on the meaning of             special reasons or circumstances, any extraordinary factor arising out of the commission of the             offence or which is peculiar to the offender may constitute special reasons or circumstances.”</p> <p> </p> <p>            The record showed that, after the appellant’s conviction, the court <em>a quo</em> took down his mitigation. The record showed, further, that after the appellant’s mitigatory matters had been recorded, the trial magistrate proceeded to deal with the appellant’s case in terms of s 3 (3) (b) of the Act. It, in short, instituted an inquiry. The inquiry appears at p 13 of the record. It reads:</p> <p>            “INQUIRY INTO SPECIAL CIRCUMSTANCES:-</p> <p>            Court:  The offence you have been convicted of carries a mandatory minimum penalty of                                        5 years imprisonment. This mandatory minimum can only be avoided if are (<em>sic</em>) able to                               show this court that there are special circumstances in this case. Do you understand?</p> <p>        Accused:  Yes</p> <p>            Court:  Special circumstances are basically special or extra – ordinary mitigatory factors in                           regards their nature and extent. Do you understand?</p> <p>        Accused:  Yes</p> <p>            Court:  Are there any special mitigatory factors you would like this court to know about?</p> <p>        Accused:  Besides the obvious that I am the only breadwinner.</p> <p>          Ruling:   There are no special circumstances in this case”.</p> <p> </p> <p>            It is evident, from the foregoing, that the court <em>a quo</em> took all necessary steps to explain to the appellant the meaning and import of special circumstances. The explanation was given in a clear and unambiguous language. The court <em>a quo</em> advised the appellant of:</p> <p>            (a)        what sentence he was likely to endure;</p> <p>            (b)        how he could avoid the mandatory sentence -  and</p> <p>            (c)        what was constituted by the words special reasons or circumstances</p> <p>            The explanation which the trial magistrate made put the appellant on notice. He knew that the inquiry had a bearing on the sentence which would be imposed. He was asked if he understood what sentence he would receive and how he could avoid that mandatory sentence. He answered in the affirmative. The issue of what special circumstances entailed was explained to him. He was asked if he understood the explanation. He said he did. He was invited to state whether or not there were any special circumstances in his case. The import of his answer was that there were none.</p> <p>            The appellant was not an illiterate person. He was a school teacher at Mutata Secondary School. He, therefore, appreciated what was taking place at each stage of the inquiry. If any matter was not clear to him as he suggested in his appeal, he would most certainly have asked the court a<em> quo</em> to clarify such for his benefit. He did not state, in his appeal, that someone prevented him from seeking clarification. There was nothing, in our view, which prevented him from asking the trial magistrate to clarify any matter(s) which was or were not clear to him during the inquiry.</p> <p>            The explanation which the trial magistrate made was compliant with what Dumbutshena CJ [as he then was] stated in <em>S</em> v <em>Dube &amp; Anor,</em> 1988 (2) ZLR, 385. He remarked at p 386 B – C as follows:</p> <p>            “In cases where the law provides a minimum penalty unless special circumstances exist, the             accused should be told what the penalty is and the meaning of special circumstances”.</p> <p> </p> <p>            The magistrate went out of his way to explain to the appellant the meaning of special reasons or circumstances. The law does not require him to explain the phrase by way of  examples. All he is required to do is to show, as he did, that such circumstances are extraordinary and are separate from ordinary mitigatory factors. The fact that he went into the inquiry after he had recorded the appellant’s mitigation says it all.</p> <p>            Whether or not the explanation which the magistrate gave related to special circumstances which arose out of the appellant’s commission of the offence or to circumstances which were peculiar to him as an offender would have changed nothing.</p> <p>            The conduct of the appellant at the mere sight of the police ruled out of his case the existence of special circumstances. The guilty state of mind which he exhibited to the police was pertinent. That state of mind was captured in para(s) 3 and 4 of the prosecution’s state outline. The para(s) read:</p> <p>           </p> <p>            “3.       On the 25th October, 2008 and around 1200 hours Justice Magodo who is a Police District                Reaction Commander and in (sic) company of some other police details proceeded to                                   Dindi Business Centre, Mutawatawa.</p> <p>            4.         On arrival at Dindi Business Centre (sic) the accused person ran away from the police                                  vehicle. The police were then suspicious to his reaction and they then chased him (<em>sic</em>)                                 and caught him (sic). Justice Magodo caught the accused person and searched him in the                              company of Constable Chimuta (sic). The accused was found in possession of 0.15 grams               of gold ore”.</p> <p> </p> <p>            What special circumstances, we ask, could the appellant have advanced to the court <em>a quo’s</em> satisfaction in the face of the guilty state of mind which he exhibited to the police. It is our view that, when he uttered the words “besides the obvious that I am the only breadwinner” to the last question which the trial magistrate raised with him during the inquiry, that was an honest answer which he gave. The answer was not accidental. It did not arise out of the fact that the words “special circumstances” had not been adequately explained to him. It did not, in our view,  arise out of the fact that he did not understand what was taking place when the inquiry was in progress. He gave that answer with a clear appreciation of what the magistrate’s question called upon him to address his mind to. He realised that no special circumstances arising out of his commission of the offence or were peculiar to him as an offender existed in his case. He, with full understanding of the meaning and import of the explanation, responded as he did. The answer which he proffered was an honest response to an honest question which the court <em>a quo</em> raised with him. The appeal which he mounted was, in our view, an afterthought. His criticism of the inquiry which the court <em>a quo</em> instituted was unwarranted. Case authorities which the appellant cited in support of his argument either supported what the magistrate did during the inquiry or were distinguishable from the facts of this case. He cited the case of <em>S</em> v  <em>Nziradzepatsva,</em> 1999 (1) ZLR 568 the headnote of which spells out the duties of a magistrate towards an unrepresented accused. Paragraph D of the headnote reads:</p> <p>            “The magistrate has a duty to ensure that the accused’s case is put fairly, to assist the accused in      his defense, where necessary, and to see that the prosecutor does not take advantage of the        accused. To ensure that the accused has the necessary knowledge to conduct his defence, the      magistrate himself (not the court interpreter) should give careful and detailed explanations of   what is             expected of him. Such explanations should be recorded. In particular the court should       ensure that technical or specialized expressions are carefully explained in simple and           understandable terms”.</p> <p> </p> <p>            The trial magistrate remained alive to the fact that the appellant was not legally represented. He separated the appellant’s mitigatory factors from the inquiry. He conducted the inquiry in clearly defined stages making sure that the appellant understood the subject matter of the stage he was dealing with before he proceeded to the next stage. He, in our view, discharged his duties towards the appellant satisfactorily as was stated in <em>S</em> v <em>Nzaradzepatsva.</em></p> <p>            The case of <em>S</em> v <em>Zaranyika,</em> 1997(1) ZLR 539 to which the appellant referred us enunciated the same principle as was stated in <em>S</em> v <em>Nzaradzepatsva</em> (<em>supra</em>).</p> <p>            <em>S</em> v <em>Chaerera</em> 1988(2) ZLR 226(S) was the other case authority which the appellant cited. We had the occasion to read that case. We noted that the circumstances of <em>S</em> v <em>Chaerera</em> were distinguishable from those of the present case. In <em>S</em> v <em>Chaerera</em> the court <em>a quo</em> lumped together the appellant’s mitigating factors and the inquiry which pertained to the existence or otherwise of special circumstances. In the case before us, a clear distinction was made between those two important aspects of a criminal trial.</p> <p>            We were, on the basis of the foregoing, satisfied that the appeal had no merit. We held and still hold the view that the explanation which the trial magistrate gave during the inquiry was not only adequate but was also proper.</p> <p>            The appeal is, in the result, dismissed.</p> <p> </p> <p> </p> <p>CHATUKUTA J: agrees………………………………………….</p> <p> </p> <p> </p> <p><em>Wintertons,</em> appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2016/131/2016-zwhhc-131.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26488">2016-zwhhc-131.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2016/131/2016-zwhhc-131.pdf" type="application/pdf; length=319163">2016-zwhhc-131.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/el">EL</a></li><li class="vocabulary-links field-item odd"><a href="/tags/private-prosecutions">Private prosecutions</a></li><li class="vocabulary-links field-item even"><a href="/tags/minerals-oil-and-gas">Minerals, oil and gas</a></li><li class="vocabulary-links field-item odd"><a href="/tags/administrative-action">Administrative Action</a></li></ul></span><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>The court considered a criminal appeal against the sentence imposed on the accused. </p> <p>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.</p> <p>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.</p> <p>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. </p> <p>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. </p> <p>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. </p> <p>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. </p> </div></div></div> Mon, 28 Mar 2016 07:13:01 +0000 admin 7070 at https://old.zimlii.org S v Moyo (CRB Mt 144/14) [2015] ZWHHC 452 (11 May 2015); https://old.zimlii.org/node/4109 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p class="rteright">1</p> <p class="rteright">HH 452-15</p> <p class="rteright"><a name="OLE_LINK67"></a><a name="OLE_LINK66"></a><a name="OLE_LINK65">CRB Mt 144/14</a></p> <p>&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;</p> <p>STATE</p> <p>versus &nbsp;</p> <p>NAISON MOYO</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>HIGH COURT OF ZIMBABWE<br /> TSANGA J<br /> HARARE, 12 May 2015</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>Criminal Review</strong></p> <p>&nbsp;</p> <p>TSANGA J: The 56 year old accused was sentenced to a mandatory two year imprisonment term for contravening s 368 (1) I of the Mines and Minerals Act [<em>Chapter 20:05</em>] which deals with illegal mining of gold. The offence occurred in Mudzi.</p> <p>As required by the law, before the imposition of mandatory sentence for the&nbsp;&nbsp; offence, the accused was asked if there were any special circumstances relating to his commission of the offence which would result in the requisite sentence not being imposed. His explanation of what he regarded as the special circumstances of his case are captured in the record as follows:</p> <p>&ldquo;My sister&rsquo;s husband died and I was asked by her relatives to take her back to Masvingo where I stay. When I came here I did not have enough bus fare. My nephew then told me that we could pan for gold to raise the $10.00 I needed.&rdquo;</p> <p>&nbsp;</p> <p>The court&rsquo;s response was that these were not special circumstances because poverty desperation could never be used as an excuse for any crime.</p> <p>In discussing special circumstances in <em>R</em> v <em>Da Silva</em> 156 (2) 173 (SR) at p 185 Beadle J (as he then was) explained as follows:</p> <p>&ldquo;The court here is dealing with quantum of punishment, and in making a decision on this I think that any fact which might legitimately be considered as an aggravating or mitigating feature of the case must be regarded as a circumstance of the case. Even though it might not be a circumstance of the offence&hellip;&hellip;&hellip;.. The legislature seems to have wished to draw a distinction between general and opposed to &ldquo;special &ldquo;circumstances, and not between circumstances special to the offence and those special to the offender. If therefore there is a relevant circumstances which is special only to the offender, I can see no logical reason why it should be excluded from consideration&rdquo;</p> <p>At p 188 E-F he went further to add as follows:</p> <p>&ldquo;To my mind ,the only consideration which should weigh with the Court in deciding whether a particular circumstance should be taken into account is whether the circumstance is a special one or not . I do not think the court&rsquo;s discretion should be fettered by any rule compelling it to disregard any circumstance simply because it is not related to the offence&rdquo;.</p> <p>In light of the above reasoning, I cannot see how the accused&rsquo;s explanation of the circumstances leading to the offence could have been simply brushed aside. In <em>S </em>v<em> Hennings </em>1976(1) SA 814 (R) at p 815<em> H i</em>t was also explained that &ldquo;the nature of circumstances which would constitute a special circumstance are not capable of any hard and fast definition or guidance&rdquo;. It was again emphasised that the court should not be fettered by any rule regarding whether circumstances in any case constitute a special reason relating to the offence or offender or both. In <em>S </em>v<em> Bain </em>1977 (3) SA 494 (R) special circumstances were also taken to mean any extenuating circumstance in the commission of the offence or any special factor relating to the accused personally. Granted in <em>S </em>v<em> Vera </em>1976 (2) ZLR (A) at 232 it was emphasised that not every mitigating circumstance amounts to a special circumstance.</p> <p>In <em>S </em>v<em> Telecel (Pvt (Ltd) </em>2006 (1) ZLR 467 (H) the operating economic environment which had led the accused to purchase foreign currency on the black market was said to show the existence of abnormal , unusual , peculiar and extraordinary circumstances which drove the appellant to break the law.</p> <p>The courts have to ensure that economic situations leading to commission of crimes under the current desperate economic circumstances do not operate differently for the rich as compared to the poor. It is the duty of the court to enquire rigorously into any facts that have been put forth as special circumstances before arriving at a conclusion that what has been stated does not constitute such. For instance in this case, a thorough examination of the accused&lsquo;s version of special circumstances would have necessitated an enquiry into the truthfulness of his claim that he had indeed come to Mudzi to pick up his sister after her husband died. In the interests of doing justice to the case, this may have necessitated bringing in his sister to verify his claim. The state outline indicates that the accused indeed ordinarily resides in Masvingo in Sandidza Village under Chief Maranda. It appears to at least confirm his claim that he was in Mudzi where he committed the offence for some reason. The quest for justice should be meticulously allowed to take its course as opposed to the all too frequently hurried endeavours to bring a case to its conclusion without delving fully into the circumstances surrounding the offence and the offender.</p> <p>I do not think that in the absence of such a thorough enquiry, the magistrate&rsquo;s conclusion that what was said by the accused did not amount to special circumstances, has any justification in the facts. The accused can be given the benefit of the doubt. Accordingly, the imposition of a mandatory minimum sentence is set aside and substituted with the following sentence:</p> <p>&ldquo;12 months imprisonment of which 8 months is set aside for five years on condition that the accused does not during that time commit any crime involving illegal mining of gold for which he is sentenced to imprisonment without the option of a fine.</p> <p>The gold ore is forfeited to the State&rdquo;</p> <p>The altered sentence is to be brought to the attention of the relevant authorities and the accused.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>TSANGA J____________________</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>MAWADZE J agrees _________________</p> <p>&nbsp;</p> <p class="rteright">&nbsp;</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2015/452/2015-zwhhc-452.doc" type="application/msword; length=37376">2015-zwhhc-452.doc</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2015/452/2015-zwhhc-452.pdf" type="application/pdf; length=195873">2015-zwhhc-452.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/el">EL</a></li><li class="vocabulary-links field-item odd"><a href="/tags/private-prosecutions">Private prosecutions</a></li><li class="vocabulary-links field-item even"><a href="/tags/minerals-oil-and-gas">Minerals, oil and gas</a></li><li class="vocabulary-links field-item odd"><a href="/tags/administrative-action">Administrative Action</a></li></ul></span><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>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</p> <p>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. </p> <p>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.</p> <p>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. </p> <p>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.</p> </div></div></div> Sat, 08 Aug 2015 12:08:44 +0000 Anonymous 4109 at https://old.zimlii.org S v Macmillan (B 595/07) [2007] ZWHHC 11 (23 May 2007); https://old.zimlii.org/zw/judgment/harare-high-court/2007/11 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><u>EWAN ALEXANDER MACMILLAN </u></p> <p><u>versus</u></p> <p><u>THE STATE</u></p> <p>&nbsp;</p> <p>HIGH COURT OF ZIMBABWE</p> <p>PATEL J</p> <p>HARARE,&nbsp; 21, 22, 23 &amp; 24 May 2007</p> <p>&nbsp;</p> <p><strong>Bail Appeal</strong></p> <p>&nbsp;</p> <p>Mr <em>Chikumbirike</em>, for the appellant</p> <p>Ms <em>Dube</em>, for the respondent</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>PATEL J:&nbsp;&nbsp;&nbsp;&nbsp; This is an appeal against the decision of the Magistrates Court, sitting at Harare on the 11<sup>th</sup> of May 2007, dismissing the appellant&rsquo;s application for bail. The appellant was arrested two days before on a charge of contravening section 3 of the Gold Trade Act [<em>Chapter 21:03</em>], viz. for unlawfully possessing gold without a licence or permit. The penalty prescribed for the offence, as recently amended, is a mandatory prison term of 5 to 10 years in the absence of special circumstances.</p> <p>It is alleged by the State that police detectives searched the appellant&rsquo;s residence and recovered two smelted buttons of gold, hidden in one of the appellant&rsquo;s shoes in a built-in wardrobe in his main bedroom. The gold weighs 1.2 kilograms and is officially valued at <em>circa</em> $356 million. The appellant&rsquo;s defence is that the gold was planted in his home either by the police or by some other person unknown to him.</p> <p>In his ruling on the bail application before him, the learned Provincial Magistrate confined himself to the question of abscondment and held that the appellant was unlikely to stand trial for various reasons. Firstly, he found that the appellant was &ldquo;a man of means&rdquo; who owned &ldquo;property of considerable value&rdquo; in Zimbabwe and suggested that the appellant &ldquo;can use that status to abscond&rdquo;. The magistrate further held that the offence was a serious one and that the stipulated mandatory penalty &ldquo;can certainly ignite motives of abscondment&rdquo;. He then held that in view of the &ldquo;credible allegations&rdquo; made by the police against the appellant &ldquo;the onus is now on the accused to show on a balance of probabilities that his admission to bail would not prejudice the interests of justice&rdquo;. The magistrate concluded that &ldquo;the evidence against the accused is strong &hellip;. and this is enough to cause panic&rdquo;.</p> <p>It was argued by <em>Mr. Chikumburike</em> for the appellant that the magistrate&rsquo;s approach as to onus was erroneous inasmuch as he relied upon the evidence placed before him at the remand proceedings which preceded the bail application. <em>Ms. Dube</em>, for the respondent, appeared to capitulate on this point and conceded the possibility of the magistrate having misdirected himself in that regard.</p> <p>It is trite that the onus in a bail application lies on the applicant to justify the granting of bail. As was stated by GUBBAY CJ in <em>Aitken &amp; Anor v Attorney-General 1992 (1) ZLR</em> 249 (S) at 253:</p> <p style="margin-left: 36pt;">&ldquo;The onus is upon the accused to show on a balance of probabilities why it is in the interests of justice that he should be freed on bail&rdquo;.</p> <p style="margin-left: 36pt;">&nbsp;</p> <p>See also: <em>S v Chiadzwa</em> 1988 (2) ZLR 19 (S) at 21; <em>S v Hussey</em> 1991 (2) ZLR 187 (SC) at 189; <em>S v Ncube</em> 2001 (2) ZLR 556 (S) at 559-560. The correct approach to be adopted as to the onus in bail applications is expounded by NDOU J in <em>State v Ndhlovu</em> 2001 (2) ZLR 261 (H) at 264 as follows:</p> <p style="margin-left: 36pt;">&ldquo;Once the police have made credible allegations against the accused which could provide grounds for refusing bail, the onus is upon the applicant to prove on a balance of probability that the court should exercise its discretion in favour of granting him bail&rdquo;.</p> <p>&nbsp;</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Turning to the matter at hand, it seems to me that the magistrate <em>a quo</em> did not misdirect himself as to the proper approach to be followed. Rather, he failed to apply himself with requisite diligence to the dictates of that approach. Firstly, there was nothing in the evidence before him to enable him to determine whether or not the appellant was indeed a &ldquo;man of means&rdquo;. In any event, having made that finding, he did not conclusively indicate whether the appellant was or was not likely to abscond for that reason and left his own question on the point unanswered. Secondly, in similar vein, he properly canvassed the seriousness of the offence charged and the severity of the penalty prescribed therefor, but then left these aspects open-ended by not specifically addressing the appellant&rsquo;s disposition in that regard. Thirdly, he raised the issue of passports and again left his determination on this point to the vagaries of speculation and conjecture. Lastly and very significantly, although he found that &ldquo;the evidence against the accused is strong&rdquo;, he failed to assess the strength of that evidence as against the relatively consistent defence proffered by the appellant. Ultimately, having done little more than pose a series of indeterminate issues, the learned magistrate failed to identify any cognisable indication that the appellant would abscond and not stand for trial if released from custody. As was enunciated in <em>S v Fourie</em> 1973 (1) SA 100 at 101 by MILLER J:</p> <p style="margin-left: 36pt;">&ldquo;It is a fundamental requirement of the proper administration of justice that an accused person stand trial and if there is any cognizable indication that he will not stand trial if released from custody, the Court will serve the needs of justice by refusing to grant bail, even at the expense of the liberty of the accused and despite the presumption of innocence. &hellip;&hellip;&hellip; But if there are no indications that the accused will not stand trial if released on bail or that he will interfere with witnesses or otherwise hamper or hinder the proper course of justice, he is <em>prima facie</em> entitled to and will normally be granted bail.&rdquo;</p> <p>&nbsp;</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In this context, EBRAHIM JA in <em>Hussey&rsquo;s</em> case (<em>supra</em>) at 192, observed that:</p> <p style="margin-left: 36pt;">&ldquo;&hellip;&hellip;.. the State, by its failure to place cogent reasons supported by information before the judge <em>a quo</em>, put itself at a disadvantage which should have precluded the decision to refuse the granting of bail in this matter. The learned judge <em>a quo</em> misdirected himself in refusing to grant bail in this case&rdquo;.</p> <p>&nbsp;</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In the instant case, I am satisfied that the magistrate <em>a quo</em> misdirected himself in several material respects in his evaluation of the likelihood of abscondment by the appellant. I am further satisfied that the evidence before him did not disclose any cognisable indication that the appellant would abscond, nor did it afford any other cogent reason for refusing bail. Accordingly, his decision to decline bail in this matter cannot stand and must be set aside.</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The entitlement of an accused person to bail is now regulated in some detail by the recently enacted section 117 of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] &ndash; inserted by section 9 of Act 9 of 2006. Section 117(2) sets out the broad grounds for refusing bail, including the likelihood that the accused, if released on bail, will not stand his or her trial or appear to receive sentence. In turn, section 117(3)(b) elaborates the specific factors to be taken into account in evaluating the likelihood of abscondment, including &ldquo;the efficacy of the amount or nature of the bail and enforceability of any bail conditions&rdquo;.</p> <p>At the outset of this appeal, the State was opposed to the granting of bail and remained faithful to that position during the hearing of this matter. The State has since relented from its opposition and both counsel, with appropriate guidance from the Court, have been able to agree on a number of fairly stringent but practicable conditions of bail. These include the deposit of an appreciable amount of money and the tender of substantial security in the form of immovable property and an aircraft. They also cover specific reporting requirements and travel restrictions designed to obviate the possibility of abscondment pending trial.</p> <p>In the result, the appeal against the ruling of the court <em>a quo</em> is upheld and the appellant is admitted to bail by consent in terms of the draft order filed today.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><em>Chikumbirike &amp; Associates</em>, appellant&rsquo;s legal practitioners</p> <p><em>Attorney-General&rsquo;s Office</em>, respondent&rsquo;s legal practitioners</p></div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2007/11/2007-zwhhc-11.doc" type="application/msword; length=36864">2007-zwhhc-11.doc</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/administrative-action">Administrative Action</a></li><li class="vocabulary-links field-item odd"><a href="/tags/minerals-oil-and-gas">Minerals, oil and gas</a></li><li class="vocabulary-links field-item even"><a href="/tags/el">EL</a></li></ul></span><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>This was an appeal against the decision of the Magistrates Court, dismissing the appellant’s application for bail. The appellant was arrested for possessing gold without a licence.<br /> At the initial bail hearing, the Magistrate questioned the issue of abscondment and held that the appellant was unlikely to stand trial for various reasons such as him being a “a man of means” who “could use that status to abscond”. The magistrate further held that the stipulated mandatory penalty “could certainly ignite motives of abscondment” and that “the onus was now on the accused to show on a balance of probabilities that his admission to bail would not prejudice the interests of justice”.<br /> The court, therefore, had to decide whether the magistrate’s approach to onus was erroneous in light of the evidence placed before him.<br /> The court held that the magistrate a quo did not misdirect himself as to the approach to follow but had failed to exercise due diligence. He made unfounded allegations which did not indicate whether the appellant was likely to abscond for those reasons. He had also left a lot of issues open ended such as the severity of the penalty, the issue of passports and had ultimately failed to assess the strength of the evidence forwarded by the appellant.<br /> Therefore, the magistrate a quo misdirected himself his evaluation of the likelihood of abscondment by the appellant and the evidence did not indicate that the appellant would abscond. Accordingly, his decision to decline bail was set aside.</p> </div></div></div> Sat, 08 Aug 2015 11:50:23 +0000 Anonymous 2977 at https://old.zimlii.org