This is an appeal against conviction and sentence.The 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, ...
This is an appeal against conviction and sentence.
The 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 Gold Trade Act.
The facts are that the two appellants were at Mukombe Business Centre when the first appellant was searched and found in possession of a gold nugget which he intended to sell.
The first appellant was arrested and he implicated the second appellant as the owner of the gold.
The second 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, the 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 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.”…,.
Let me deal first with the two grounds of appeal against conviction.
The synthesis of the first ground is that since the second 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 S v Anand 1988 (2) ZLR 414 (S), 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.”…,.
In S v Moyo 1988 (2) ZLR 79 (H) 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 second appellant's argument any further.
Equally untenable is the second 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 Gold Trade 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.”…,.
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 Gold Trade Act would have been substantially different if the legislature had simply said “no person shall possess gold…,.”
In casu, the second appellant admitted not only that the gold belonged to him, but, more significantly, that he had given the first appellant the full mandate to possess and sell it for and on his behalf.
This obviously makes him the first appellant's principal.
The first appellant was the agent.
Both had knowledge of the presence of gold in the first 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 first appellant and let the second 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 second 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 PMA 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 may be 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.”…,.
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.”…,.
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.”…,.
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.
