Private prosecutions

Yoramu and Others v PG (CCZ 245/12) [2016] ZWCC 2 (21 January 2016);

The applicants were former employees on a farm that had been expropriated for resettlement and had been allocated to other beneficiaries. They did not vacate the farm when it was expropriated and continued to live and work on it.
The respondent had ordered that they vacate the farm as they were occupying the land unlawfully. They refused to do as they held that as part of their conditions of employment with the previous owner, he gave them accommodation, food and facilities. They maintained that the acquisition of the farm had not meant the automatic termination of their contract of employment, rather that it had resulted in a transfer of the farming undertaking and consequently, the beneficiaries had assumed the position of employer, with the concomitant responsibility of maintaining terms and conditions similar to those they previously enjoyed.

The court first had to decide whether a constitutional issue arose before the Court, if not then there would be no need to hear the matter any further.  Secondly, whether the applicants were guilty of a criminal offence and if so, whether the applicants would remain employees of the new farm owners.
The court held that Section 3 of the Gazetted Lands Act had been scrutinized by the Supreme Court on numerous occasions and was found to be constitutional. Therefore, the court re-affirmed  the provision that criminalized their unlawful occupation and held that there was no constitutional issue to be referred.

The matter was dismissed.

Constitutional law – Constitution of Zimbabwe 1980 – Declaration of Rights – right to protection of the law – prosecution of former farm employees for unlawfully remaining on farm after acquisition – legislation creating an offence to do so constitutional – no constitutional issue arising

Land – acquisition – former employees remaining on farm – no right to do so – employment ceased on acquisition of farm – liable to prosecution for occupying gazetted land without lawful authority

S v Jamari (HH 131/16 CA 560/09 CRB NO. MUT 307/03) [2016] ZWHHC 131 (16 February 2016);

The court considered a criminal appeal against the sentence imposed on the accused. 

The accused was convicted, on his own guilty plea, for contravening s 3(1)(a) of the Gold Trade Act by being in possession of 0.15 grams of gold without authorisation.

The evidence revealed that the accused was asked whether there were any special circumstances, which the court below established did not exist and sentenced him to the mandatory minimum sentence.

The accused argued that the trial judge did not explain in full what special circumstances meant and the inadequate explanation prejudiced him. The respondent agreed and stated that the explanation was “special or extraordinary mitigating factors” where it should have referred to special circumstances. 

The court found that the Act did not define special circumstances, and it was on a case by case basis. However, the court below took all necessary steps to explain the meaning and import of special circumstances, which was given in clear unambiguous terms. 

The court found that the accused was not an illiterate person and appreciated what was taking place and there was nothing preventing him from asking the magistrate for clarity. Further, that the accused’s conduct once arrested, in running away illustrated a guilty state of mind. 

The court found that the accused’s special circumstance of “being the only breadwinner” was clear that he was aware of the offence being committed. As such, the court found no merit in the appeal. 

1

HH 131/16

CA 560/09

CRB NO. MUT 307/03

VHAU JAMARI

versus

THE STATE

 

 

 

HIGH COURT OF ZIMBABWE

CHATUKUTA J & MANGOTA J

HARARE, 18 May 2015 and 16 February 2016

 

 

 

Criminal Appeal

 

 

 

D. Halimani, for the applicant

T. Mapfuwa, for the respondent

 

 

S v Moyo (CRB Mt 144/14) [2015] ZWHHC 452 (11 May 2015);

The court considered a criminal appeal against the sentence imposed on the accused, who was sentenced to a mandatory 2-year imprisonment for contravening s 368 (1), which dealt with the illegal mining of gold, under the Mines and Minerals Act

Before imposing a mandatory sentence, the court asked the accused if there were any special circumstances relating to the commission of the offence which would result in the requisite sentence not being imposed. 

The accused held that his special circumstances were that he did not have enough money for a bus fare. The court found that this did not constitute a special circumstance as poverty desperation could not be excused for the commission of a crime.

The court found that a special circumstance is within the court’s discretion and thus it should be taken to be any extenuating circumstance. Further, that the court should enquire into all circumstances put forward by an accused to validate the aspect of a special circumstance. 

The court held that a trial court had to ensure that economic situations leading to commission of crimes under economic circumstances at the time did not operate differently for the rich and for the poor. The court found that the court below should have performed a proper enquiry and that the accused should be given the benefit of the doubt. Accordingly, the appeal succeeded.

1

HH 452-15

CRB Mt 144/14

Bubye Minerals (Pvt) Ltd v Min. of Mines & Mining Development & Others (350/06) [2011] ZWSC 3 (13 November 2011);

This Supreme Court case revolved around a compromise agreement between the fourth respondent and the appellant. The fourth respondent, a registered mining company, was going bankrupt and its management was entrusted to the liquidator. The liquidator then granted the appellant the right to treat stockpiles of ore at the mine to raise money to pay the creditors. The appellant then attempted to have all mining activities registered under its name. In doing so, the appellant misrepresented the facts to the third respondents without involving the fourth respondent stating that it paid the creditors their dues and as such, it was entitled to have mining activities registered under its name. However, the fourth respondent succeeded in establishing that the appellant was lying. This led the third respondent to cancel the appellant’s falsely obtained mineral rights. The High Court agreed with the respondents that the appellant's mineral rights over the plot in dispute were justifiably cancelled. The appellant felt aggrieved by the court’s judgement and appealed to the Supreme Court.

The issue for determination was whether the appellant was allowed to register mining rights under its name and whether the third respondent erred in cancelling its rights.

The Supreme Court held that agreements cannot be valid if consent was obtained through misrepresentation. Consequently, it found that the appellant was unjustified and supported the third respondent’s decision to cancel the falsely obtained rights.

 

Judgment No. SC 3/11

Civil Appeal No. 350/06

REPORTABLE ZLR(13)

 

 

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