Supervisory Jurisdiction

S v Bvuto (HH 94-18, CA 156/16 Ref CRB MSH 32-40/16) [2018] ZWHHC 94 (03 August 2017);

The court considered an appeal against a prior criminal conviction. 

The appellants had extracted gold ore from a gold mine and were intercepted and arrested by the police. They were charged under s368(2) of the Mines and Minerals Act for illegally prospecting for minerals. They pleaded guilty, were convicted and sentenced to the mandatory two-year prison sentence. They appealed on the ground that they were convicted on a charge which was not supported by the facts admitted between them and the State.

The court had to consider whether the appellants’ plea of guilty was sufficient to convict them for contravening s368(2) of the Act. The court found that courts have a duty to protect the rights of the accused and to ensure that they fully understand the charge and the essential elements, as well as that they genuinely, and unequivocally admit to the charge, its essential elements, and the facts alleged by the prosecution. 

In this case, the lower court simply accepted the uninformed admission of guilt by the accused as proof and disregarded the fact that the charge was not proved by the facts relied upon by the State. 

Further, the court found that the appellants did not prospect for minerals, they simply stored gold ore from a known mine, thus contravening s379 not s368. 

Accordingly, the appeal was upheld. 

ARNOLD BVUTO                                                                                       

versus                                                                                                 

THE STATE

 

 

HIGH COURT OF ZIMBABWE

HUNGWE & MUSHORE JJ

HARARE, 3 August 2017

 

 

Criminal Appeal

 

J Makiseni, for the appellants

Mrs F Kachidza, for the respondent

 

S v Seughyun (HH 409-17 , CA 656/16) [2017] ZWHHC 409 (29 June 2017);

The court considered an appeal against the decision of the court below. The appellant was found in possession of gold and arrested because he failed to produce a licence. He was charged with contravening s3 of the Gold Trade Act and convicted following his plea of guilty. He was sentenced to the mandatory five years imprisonment. 

The appellant filed a late appeal against his sentence, which the court condoned. In the notice of appeal, the appellant introduced grounds of appeal against the conviction. Thus, the court first had to consider whether the appellants appeal against the conviction was admissible and had merit.

Given that the appellant only filed an appeal against his sentence and not his conviction, and that only the lateness of that appeal was condoned, the court found that the appeal against the conviction was filed out of time and had no merit. 

The court then considered the appeal against the sentence. The appellant argued that he did not know he had to have a permit to carry the gold in Zimbabwe, and that he operated under a bona fide mistake of law, that amounted to a special circumstance. The court found that the appellant would not have expected Zimbabwe to have regulations on the possession of gold and his failure to declare the gold upon entry into Zimbabwe reflected his mala fides.

Accordingly, the appeal was dismissed. 

1

HH 409-17

CA 656/16

 

LEE SEUGHYUN

versus

THE STATE

 

 

 

HIGH COURT OF ZIMBABWE

CHATUKUTA, MUSAKWA JJ

HARARE, 20 March & 29 June 2017                                                                          

 

 

 

CRIMINAL APPEAL

 

 

 

T Mpofu & E Jera, for the appellant

E Mavuto, for the respondent

 

 

S v Chasweka (HH 48-17 CA 1031/13) [2017] ZWHHC 48 (23 January 2017);

This case concerned an appeal against the appellant’s conviction and the decision to sentence him to six months imprisonment, of which 3 months were suspended for a period of 5 years on condition of future good behaviour.

The appellant, a self-admitted illegal gold dealer, approached three men to buy gold. After paying, he discovered that he bought fake gold. To recover his money, he lied to the police, indicating that he was robbed by the three men. The police arrested them and during their interrogation realized that the appellant had lied to them. The appellant was then arrested and admitted that he made a false report.

While the appellant pleaded guilty, he appealed against the sentence imposed arguing that it did not take into account mitigating factors. He also submitted that the court should have considered a fine as an alternative sentence.

The appeal court found that it should not lightly interfere with the lower court’s sentencing discretion. Further, that the lower court did take into account mitigating factors, such as the fact that the appellant pleaded guilty and was a first offender. It further noted that the court had to also consider aggravating factors, especially the fact that the appellant was an illegal gold dealer trying to use the police as debt collector.

The appeal court held that the lower court adequately took into account all relevant factors and imposed a fair sentence. 

Accordingly, the appeal was dismissed.

1

HH 48-17

CA 1031/13

 

LUKE CHASWEKA

versus

THE STATE

 

 

 

HIGH COURT OF ZIMBABWE

CHATUKUTA & MUSAKWA JJ

HARARE, 11 July 2016 & 23 January 2017

 

 

 

Chamber Application

 

 

 

T Manashe, for the appellant

E Makoto, for the respondent

 

 

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