Review
Judgment
MUREMBA
J: The accused prospected for gold without a prospecting licence or a permit in
contravention of s 368 (1) as read with s 368 (4) of the Mines and Minerals Act
[Chapter 21:05].
Although
the accused denied the charge he was convicted after a full trial. I find the
conviction unassailable and I thus confirm it.
Following
his conviction, the accused was sentenced to the minimum mandatory sentence of 2
years imprisonment.
The relevant
provisions with which the accused was charged with read as follows:
“368 Prospecting
prohibited save in certain circumstances
(1) Subject to subsections (2) and (3), no
person shall prospect or search for any mineral, mineral oil or
natural gas except
in the exercise of rights granted under a prospecting licence, exclusive
prospecting order or special grant or unless he is the duly authorized
representative of the holder of such licence, order or special grant and acting
in the exercise of such rights.
(2)……………
.
(3) ……………..
(4) Any person who contravenes subsections
(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.”
Put
simply, in terms of s 368 (4) (a) the court is only entitled to sentence an
accused to the minimum mandatory sentence if there are no special circumstances
in the particular case. In cases where there are special circumstances the
court can, in terms of s 368 (4) (b), impose a sentence of a fine not exceeding
level ten or imprisonment not exceeding 2 years.
According
to s 368 (4) (a) and (b) it is a requirement that the court sentencing the
accused should record special circumstances from the accused. The section makes
it clear that it is the duty of the accused to satisfy the court that there are
special circumstances in the case which warrant the non-imposition of the
mandatory sentence. If he or she fails to satisfy the court of their existence
the court should impose the mandatory sentence. So the essence of this section
is that the court should call upon the accused to address it on special
circumstances.
In casu
what is notable is that the court did not canvass special circumstances. The
record shows that after convicting the accused, the court went on to record
mitigation. Thereafter the accused was sentenced. In his reasons for sentence the
trial magistrate said that the offence of prospecting for minerals without a
licence is a serious offence which the legislature viewed so gravely that it
prescribed a minimum sentence of two years imprisonment for it. The magistrate
went on to say that he had made a finding that there were no special
circumstances in the case. Consequently he sentenced the accused to the minimum
mandatory sentence of two years imprisonment.
Thinking
that the magistrate had omitted to attach to the record the pages relating to
special circumstances I raised a query with him. In his response he said that
he had omitted to canvass special circumstances before deciding whether or not
to impose the mandatory minimum sentence. He said it was an oversight that he
made.
I
must say such an oversight is a serious misdirection and dereliction of duty.
Minimum mandatory sentences are very heavy and harsh sentences. Judicial officers
need to apply their minds fully when sentencing offenders in such cases
otherwise a serious miscarriage of justice can result, as what happened in this
case.
With
minimum mandatory sentences, the sentences are considerably longer than would
normally be imposed for the crime in question. To ensure that the mandatory
sentence is not imposed in all the cases, the legislature added the rider that
the minimum sentence does not have to be imposed if there are special
circumstances justifying the non-imposition of the sentence. So it is a
procedural irregularity for a magistrate to simply make a finding that there
are no special circumstances without exploring them.
The
magistrates' court is a court of record: s 5 (1) of the Magistrates court Act [Chapter 7:10]. So the record must show that special circumstances were
canvassed. Failure to record special circumstances amounts to a misdirection
rendering the sentence incompetent. See S
v Mbewe & Another 1998 (1)
ZLR 7 and Attorney-General v Jasi and Nharingo S-2-87.
The
critical question is how does the court canvass special circumstances? From the
matters involving special circumstances that have been placed before me for
review, I have noticed that quite a number of magistrates do not really know
the procedure in canvassing special circumstances. In S v Mbewe & Another 1998
(1) ZLR 7 it was stated that special circumstances should be canvassed
immediately after the court has pronounced the verdict of guilty. This means
that this has to be done before mitigation is recorded from the accused.
Cases
wherein the accused is legally represented should not pose any problems at all
because the defence counsel will address the court on the accused's behalf. The
court should simply ask the defence counsel to address it on special
circumstances. However, in cases where the accused is not legally represented
the court has a duty to explain fully and clearly to the accused in a language
that he understands that he or she is in jeopardy of having a heavy minimum
sentence imposed upon him and that he or she can avoid this by showing special
circumstances. S v Makawa and Another S-46-91.
The
court has a further duty to explain what is meant by special circumstances. See
S v Chaerera 1998 (2) ZLR 226 (S), S
v Maharangwe S-5-90; S v Kaja
S-129-89.Thereafter the court should invite the accused to address it on
special circumstances. The court should also record its explanation in the
record. The accused's response should also be recorded in full. It should be
explained to the accused that in addressing the court on special circumstances
it is his right to lead evidence from witnesses if he or she so wishes. In
terms of s 70 (1) (h) of the Constitution of Zimbabwe Amendment (No.20) Act
2013, an accused has a right to adduce evidence. The right is even greater in
circumstances where the accused is at the risk of being sentenced to a minimum
mandatory sentence upon failure to satisfy the court that there are special circumstances
justifying the non-imposition of the mandatory minimum sentence. According the
accused such an opportunity is also in line with section 69 of the Constitution
which states that an accused has a right to a fair hearing. If the accused
leads evidence from witnesses, the State should be given a chance to
cross-examine those witnesses.
After
the accused's explanation the State should be invited to respond irrespective
of whether or not the accused is legally represented. It also has the right to
adduce evidence if it so wishes and if it does, the accused or his defence
counsel should be given the opportunity to cross examine the State witnesses. It
is the accused's right to challenge evidence adduced against him: see s 70 (1)
(h) of the Constitution. Thereafter the
court should make a ruling on the existence or otherwise of special
circumstances. After that the court should proceed to record mitigation and
then sentence the accused.
The
accused was sentenced on 10 June 2014. Because of the procedural irregularity I
will set aside the sentence that was imposed by the trial magistrate and remit
the matter back to the trial magistrate for sentencing afresh. The magistrate
should canvass special circumstances in the manner prescribed above. If he
makes a finding that there are no special circumstances in the case, he should
not sentence the accused to a period of more than two years and the period that
the accused has already served should be taken into account so that the accused
does not serve for more than two years in prison.
MAWADZE
J agrees __________________
