KAMOCHA J: The two
accused were charged with contravening section 368(2) as read with section 368
(4) of the Mines and Minerals Act [Chapter 21:05]. In that on 20 July 2010 they prospected for
minerals on the Mtshabezi River in Gwanda when they were not holders of
licences or permits.
They appeared before a Provincial
magistrate at Gwanda and tendered pleas of guilty and were accordingly found
guilty as pleaded. The convictions were
proper and nothing turns on them.
The sentences imposed are, however,
a cause for concern and were correctly queried by the learned scrutinizing
Regional Magistrate who wrote to the trial magistrate in the following terms.
“The two accused were convicted on their pleas of guilty to
contravening section 368(2) as read with 368 (4) of the Mines and Minerals Act
[Chapter 21:05] (Prospect for Minerals Without a Licence).
The two were sentenced to 12 months imprisonment of which 8
months imprisonment were suspended for 5 years on condition each accused does
not within that period prospect for minerals in contravention of section 368(2)
as read with section 368(4) of the Mines and Minerals Act without a
licence. The remaining 4 months were
suspended on condition each accused performs 140 hours of community service at
given institutions.”
However, section 368(4) says:-
“Any person who contravenes subsection 1, 2 or 3 shall be guilty
of an offence and liable–
(a)
If
there are no special circumstances in the particular case, to imprisonment for
a period of not less than two years; or
(b)
If
the person convicted of the offence satisfies the court that there are special
circumstances in the particular case why the penalty provided under paragraph
(a) should not be imposed, which circumstances shall be recorded by the court,
to imprisonment for a period not exceeding two years or a fine not exceeding
level ten.”
In this case the learned trial magistrate found the fact that
the persons were widows to constitute special circumstances sic. He said;
“A widow in my view qualifies to be considered as a special
reason for not imposing the mandatory sentence of 2 years.”
I beg to differ. In my
view being a widow is just a mitigatory factor.
I do not think the legislature in its wisdom envisages a situation where
widows are allowed to prospect for minerals without permits and get away with
the lesser sentence. To me this is not a
special circumstance. ….”
The learned Regional Magistrate held the view that the
sentence passed fell foul of the above provisions of the Mines and Minerals Act
and concluded that the accused should have been visited with the minimum
mandatory sentence of 2 years imprisonment.
He was entirely correct.
The learned trial magistrate completely misdirected himself
in holding that because the accused persons were widows with minor children
their status amounted to special circumstances.
There is nothing out of the ordinary about being a widow with minor
children to look after. The learned
trial magistrate found that they committed the crimes in order to fend for
their children. What the learned magistrate
is calling for is that widows and widowers with minor children should be excused
when they break the law so as to fend for the minor children. This line of reasoning is faulty. It is a recipe for anarchy as there are so
many widows and widowers in the country.
The correct approach is that a widow or widower who resorts to criminal
activities when she or he knows that she/he has minor children to fend for is
irresponsible because she/he knows that if caught the law will take its
course. The children will have no one to
fend for them when she/he is sent to prison.
The law mandates that a term of 2 years imprisonment should
be imposed where there are no special circumstances. There are no special circumstances in casu.
The minimum mandatory sentence should be imposed in terms of the law.
In the result the sentence imposed by the trial magistrate
cannot be allowed to stand and is hereby set aside. The matter is hereby remitted to the trial
court to recall the two accused persons and impose the sentence of 2 years
imprisonment as mandated by law.
Since both accused persons have already served 4 months
imprisonment in the form of community service they should serve an effective
term of 20 months imprisonment.
Mathonsi J
…………………………………………….. I agree
