Criminal
Appeal
TAKUVA
J: This
is an appeal against conviction and sentence.
Appellants
were charged with contravening section 3(1) of the Gold Trade Act
[Chapter 21:03] (the Act) “Possession of gold without a licence or
permit.”
It
was alleged that on the 26th
day of June 2013 at around 23:00 hours and at Mukombe Complex,
Tsholotsho Business Centre the two were unlawfully found in
possession of gold without a licence or permit contrary to the Act.
The
facts are that the two appellants were at Mukombe Business Centre
when the 1st
appellant was searched and found in possession of a gold nugget which
he intended to sell.
The
1st
appellant was arrested and he implicated the second appellant as the
owner of the gold.
The
2nd
appellant was arrested and admitted ownership of the gold.
The
gold was assayed and found with gold concentrate of 0.0291g valued at
$1,11.
Both
appellants pleaded guilty and were found guilty as charged.
No
special circumstances were found and they were sentenced to the
mandatory five years imprisonment.
Aggrieved,
appellants appealed against both conviction and sentence. In their
notice of appeal they indicated the following to be grounds of
appeal.
“Ad
conviction: 2nd
appellant
(1)The
learned magistrate erred in finding the 2nd
appellant guilty of the crime of possession of gold when 2nd
appellant was in
fact not in possession thereof
and when a claim of ownership thereof did not and does not amount to
possession.
(2)The
learned magistrate erred in holding that there was common
purpose
in a crime of possession stricto.
Ad
sentence 1st
and 2nd
appellant
(sic)
(3)
The learned magistrate erred in holding that there were no special
circumstances to warrant imposing (sic)
a
lesser sentence than the statutory 5 years in that:
3.1
The value involved being that of US$1.00 ought to have been
considered as a special circumstance.
3.2
The 1st
appellant was clearly a youthful offender and this element of
youthfulness being a special circumstance.
3.3
The appellants stated that they were looking for money for food a
clear sign that albeit working they were
not being paid and, if they were paid, they were not being paid
enough to sustain themselves.
The appellants committed the crime out
of starvation
and necessity
to sustain their lives and produced it to buy food with it.
3.4
The cumulative effect of the mitigating factors amounts to a special
circumstance sufficient to influence the court not to impose the
mandatory minimum penalty.
(4)
The learned magistrate erred, further in failing to ask the
appellants why they committed the offence and the circumstances
surrounding the commission of the offence as this would have armed
the court with enough knowledge to whether special circumstances did
exist or not or alternatively understood whether or not there were
compelling reasons not to impose a minimum mandatory sentence.
(5)
The learned magistrate erred in failing to enquire after he summoned
the appellant's employer to court specifically to find out if there
were any special reasons or not, if the employer was paying the
appellants their salaries or not.
Wherefore
the appellants pray that:
(a)
The conviction in respect of 2nd
appellant be set aside. In the event that it is sustained;
(b)
That the court finds that there were special circumstances in this
case sufficient to warrant the setting aside of the sentence of 5
years and substituting it with that of a wholly suspended 5 year
sentence or alternatively community service or the payment of a
fine.” (my emphasis)
Let
me deal first with the two grounds of appeal against conviction.
The
synthesis of the 1st
ground is that since the 2nd
appellant was not in physical possession of the gold he cannot be
guilty of the crime.
Counsel
relied on two cases on his proposition that section 3(1) of the Gold
Trade Act penalizes only an individual who is found in possession of
the gold and that “common purpose on a statutory crime of
possession stricto
does not arise.”
The
two cases relied on are:
(i)
S
v Anand
1988 (2) ZLR 414 (S).
(ii)
S
v Moyo
1988
(2) ZLR 79 (H).
I
must hasten to point out that both cases do not support the
submissions by counsel.
I
am of the view that they were cited for purposes of either misleading
the court or as a result of thorough misunderstanding of the
principles stated therein.
In
Anand's
case the issue was whether a mandatory minimum sentence for
possession of uncut emeralds unless special circumstances exist could
be imposed on a wife who had taken blame for offence of a husband.
It
was held that the fact that the appellant probably possessed the
emeralds on behalf of her husband and that his moral blameworthiness
was far higher than hers constituted special reasons for not imposing
the mandatory minimum sentence.
In
fact on page 417B-C it was stated that:
“What
it all means is this. The appellant and her husband had knowledge
of the presence of the gold and the emeralds in the doll with a sewn
button. They had physical control and possession of the gold and the
emeralds. See R
v He
Kawter
[1986] LRC (Crim) 552 at 607; (1985) 157 CLR 523 at 589 per BRENNAN
J. With the aid of the envelope the state proved beyond reasonable
doubt the necessary
element of possession.
The husband's reluctance to have the doll opened in the absence of
his wife established that he knew
what was hidden in it.”
(my emphasis)
In
S
v Moyo
supra
the accused was convicted of an offence under the Precious Stones
Trade Act 1978, the section under which he was convicted being one
which carried a mandatory minimum sentence of three years
imprisonment unless special reasons were found to exist. There was a
four year delay in finalizing the appellant's matter.
On
appeal it was held that “special reasons” under the Precious
Stones Trade Act, are factors arising either out of the commission of
the offence or peculiar to the offender, which are out of the
ordinary either in their degree or their nature.
The
excessive delay in bringing the accused to trial was a factor
peculiar to him which was out of the ordinary in its degree. Had he
been tried within a reasonable time as is required by the
Constitution, it was likely that the total punishment would have been
reduced because a court will always have regard to the cumulative
effect of punishment.
I
have deliberately gone to some length in outlining the facts and
legal principles in these two cases in order to demonstrate their
apparent irrelevancy in the matter before the court.
These
two cases therefore do not take the 2nd
appellant's argument any further.
Equally
untenable is 2nd
appellant's argument that “possession should only attach to the
holder not the owner.”
The
clear answer to this rather surprising submission is to be gleaned
from section 3(1) of the Act which states:
“No
person shall, either
as principle or agent,
deal in or possess gold unless –
(a)
he is the holder of a licence or permit; or
(b)
he is a holder or tributor; or
(c)
he is the holder of an authority, grant or permit issued under the
Mines and Minerals Act [Chapter 21:05] authorizing him to work an
alluvial gold deposit; or
(d)
he is the employee or agent of any of the persons mentioned in
paragraphs (a), (b) and (c) and is authorized by his employer or
principal to deal in or possess gold in the lawful possession of such
employer or principal; and deals in or possess gold in accordance
with this Act and the licence, permit, authority or grant, if any
held by him.” (my emphasis)
By
employing the phrase “either as principal or agent” the
legislature intended to exclude the requirement that the possessor
must have physical
custody
of the gold.
The
meaning of the word “possess” in the Act would have been
substantially different if the legislature had simply said “no
person shall possess gold…”
In
casu,
the 2nd
appellant admitted not only that the gold belonged to him but more
significantly that he had given the 1st
appellant the full mandate to possess and sell it for and on his
behalf.
This
obviously makes him 1st
appellant's principal.
The
1st
appellant was the agent.
Both
had knowledge of the presence of gold in 1st
appellant's custody. Both knew that neither of them had a licence
or permit to possess gold.
In
these circumstances, it would be absurd and illogical to punish the
1st
appellant and let the 2nd
appellant go scot free.
The
legislature plugged this loophole by encompasing 'principals' or
'agents' in the essentials of the crime.
Assuming
that this is insufficient a reason to dismiss these grounds, I now
turn to common law principles.
This
will also cover the 2nd
appellant's ground of appeal against conviction relating to absence
of common purpose.
The
concept of possession is discussed in Volume II Common
Law Crimes: South African Criminal Law and Procedure
by
P.M.A. Hunt.
It
is said at 733 that –
“1.
Physical
Aspect
X
does not need to handle the property physically in order to assume
custody and control. If on his orders it is locked in his cellar or
car or in his minnows cellar or car it makes no difference that he
has not even seen it, let alone touched it. Moreover, control maybe
assumed by one of the modes of constructive delivery, and it may also
be exercised mediately.
It
is often largely a common sense matter of degree to determine whether
X's actus
amounts to an assumption of custody and control when the thief (Z)
retains control to a greater or lesser extent or hands over control
for a limited period.” (my emphasis)
In
casu,
the following is what transpired when essential elements were put:
“Q.
Correct that on 26 June 2013 and at around 23:00 hours and at Mukombe
Complex Tsholotsho Business Centre you had 0.0298 grammes of gold?
A.
Accused 1 – Yes.
Accused
2 – Yes.
Q.
Did you know
that you had such gold in your possession?
A.
Accused 1 – Yes.
Accused
2 - Yes. I knew
that accused 1 had gold because
it was mine.”
(my emphasis)
Later,
during the inquiry into whether or not special circumstances exist,
the following exchange occurred:
“Q.
Accused 2 any special circumstances in your case?
A.
I am the
one
who gave accused 1 the
gold to sell.
I was once employed and my employer left without giving me my salary.
I then went on to sell the gold so that I could raise money for
food.” (my emphasis)
Quite
clearly this exchange shows that the gold was on accused 2's orders
placed on accused 1's person.
It
makes no difference that it was not in accused 2's pockets.
The
two were together at the time of arrest. They admitted possession of
the gold and that the purpose was to sell it.
Physical
handling of the gold is not necessary before criminal liability is
ascribed. At law, accused 2 had custody and control of the gold.
Consequently
this ground of appeal is dismissed.
Both
appellants appealed against sentence.
The
first criticism is that the value of the gold being $1,00 is
negligible and should have amounted to special circumstances.
In
S
v
Gumbo
HB48-89 the accused was in possession of an uncut emerald worth
$3,00. He was an hotelier who had been given the stone as a keepsake
by a guest many years ago. The cumulative effect of the following
factors constituted special circumstances:
(i)
the negligible value of the stone;
(ii)
that it was acquired as a gift before the Act provided for the
minimum penalty;
(iii)
that it had been kept for ten years; and
(iv)
that there was no question of financial gain for the accused.
In
casu,
while it is accepted that the value is negligible, this factor
standing alone cannot amount to special reasons.
The
appellants were looking for a buyer and they were ignorant of the
value of the gold. Obviously they were not going to sell it for less
than US$1,00. The gold had been stolen from their employer in
Bulawayo and they believed it was valuable.
For
these reasons this ground is dismissed.
Secondly,
it was argued that 1st
appellant is a youthful offender aged 22 years at the time of the
offence.
It
is our law that the age of an accused is a relevant factor when
assessing an appropriate sentence.
However,
for purposes of a finding of special circumstances, youthfulness on
its own, especially where the accused is above the age of 18 years
cannot amount to special reasons. See S
v Mutowo
HH458-88 where an 18 year old in form one who found an automatic
pistol while visiting Mozambique and intended using it for shooting
birds escaped the mandatory penalty after the court found that his
age coupled
with the purpose of possession of the gun amount to special reasons.
In
casu
although accused was 22 years old at the time the offence was
committed, he is married with two children and employed at Hope
Fountain. He also admitted that he had been a gold panner for many
years and that was “his way of life.” He was fully aware of the
consequences of possessing gold without a licence.
I
do not find any evidence of immaturity in his conduct.
Consequently
this ground is also dismissed.
Thirdly,
it was contended that applicants acted out of necessity in that they
were not being paid their salaries by their employer or that if they
were ever paid it was insufficient to sustain themselves. Therefore,
so that argument went, they acted out of starvation and necessity.
In
my view, the defence of necessity must be confined within the
strictest and narrowest limits because of the danger attendant upon
allowing a plea of necessity to excuse criminal conduct.
In
S
v
Beaule
1984
(2) ZLR 146 (S) it was held that for an act to be justified on the
ground of necessity;
(a)
a legal interest of the accused must have been endangered;
(b)
by a threat which had commenced or was imminent but which was -
(c)
not caused by the accused's fault; and in addition it must have
been -
(d)
necessary for the accused to avert the danger; and
(e)
the means used for this purpose must have been reasonable in the
circumstances.
In
the present case, the appellants had other means open to them which
they should have pursued before resorting to the final drastic step
of stealing from their employer and possessing gold without a licence
or permit.
They
should have sued the employer for non-payment of wages.
I
should point out that necessity has not been established on the facts
of this case in that it has not been explained by the appellants why
and how they travelled a distance in excess of one hundred kilometers
i.e. Bulawayo to Tsholotsho. If they found themselves without food in
Tsholotsho was this not their fault? What were they doing in
Tsholotsho when they were employed in Bulawayo?
The
magistrate was also criticized for not asking the reason why they
committed the offence.
However,
this criticism is unwarranted and unjustified in that the record
shows that they gave a full explanation namely that they wanted to
buy food.
There
is therefore no merit in this argument.
The
final ground of appeal is that the magistrate should have asked the
appellants employer whether or not he had paid their salaries.
As
I pointed out above assuming the question had been put and the answer
was in the negative this would not have amounted to special
circumstances in this case. The reason is simply that other lawful
options exist for remedying such non-payment of wages.
In
any case the appellants failed to put this question to their employer
when he was in the witness stand despite earlier on having raised
that issue.
For
these reasons, I would dismiss the appeal in its entirety.
KAMOCHA
J………………………………I agree
