KAMOCHA J: The
three accused were found prospecting for gold without a permit or licence at
Fambai gold claim in Shurugwi on 10 June 2010 in contravention of section 368
of the Mines and Minerals Act [Chapter 21:05].
They were arrested and arraigned in the magistrates' court at Shurugwi. They all pleaded guilty and were found guilty
in accordance with their pleas. The
convictions were proper and nothing turns on them.
The sentence imposed on them is, however,
a cause for concern. They were each
sentenced to undergo 24 months imprisonment of which 12 months imprisonment was
suspended on condition of future good behavior and the remaining 12 months
imprisonment was suspended on condition that each accused performed community
service.
Section 368(4)(a) of the Act
provides that a person who prospects or searches for any mineral without a
licence or special grant shall be guilty of an offence and liable, if there are
no special circumstances in the particular case, to imprisonment for a period
of not less than two years.
When the magistrate sought to
establish whether or not there were special circumstances in this particular
case he invited each accused to address him on that. The first accused stated that he had
committed the offence because of poverty.
He had no other means of survival.
He was HIV positive and was the bread winner for the family.
The second accused told the court that he had committed the
offence as a means of survival and to sustain his family.
The third accused similarly said that he committed the
offence as a means of survival for his family and siblings since he was an
orphan.
The learned trial magistrate concluded that the above
amounted to special circumstances. He
either did not apply his mind to the case before him or did not know what is
meant by special circumstances. What all
the accused told the court were ordinary mitigating features. The majority of people in this country are
very poor and find it very difficult to maintain their families but do not
resort to crime. A family man who
resorts to crime is irresponsible because if arrested he runs the risk of being
sent to prison leaving his family without anyone to fend for it.
Similarly, there are so many people who are HIV positive in
this country but they do not resort to crime.
Special circumstances envisaged by the law are circumstances
that are out of the ordinary. There is
nothing extraordinary about being a poor family man. If all poverty stricken family people were to
resort to crime there would be anarchy in the country.
There was no reason in this case why all the accused did not
serve the minimum mandatory sentence as required by law. The trial magistrate is, therefore, directed
and ordered to recall all the accused and impose the mandatory sentence on each
of them in terms of the law. In doing so
the court should take into account the period served by each accused by way of
community service.
Ndou J
…………………………………………….. I agree
