Spencer Tshuma v The State

### Preamble
1
HH 251-21
CA 89/20
---------


SPENCER TSHUMA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MUZOFA, CHIKOWERO JJ

HARARE, 29 March & 20 May 2021

Criminal Appeal

S. Ushewokunze,for the appellant

T Mapfuwa, for the respondent

MUZOFA J: The appellant was tried by a regional magistrate sitting at Kadoma Magistrates court on four counts of contravening s 379 of the Mines and Minerals Act [Chapter 21:05] for theft of gold ore. He was acquitted on the first count and convicted on counts two to four. He was sentenced to pay a fine of $9000 in default of payment 1 year imprisonment on each count. An additional 3 years imprisonment was wholly suspended on condition of good behaviour.

The appellant was arrested after he unlawfully took 10 tonnes of gold ore from site 418 Etina Mine on 23 July 2019. Thereafter between 24 July and 2 July 2019 he unlawfully took 70 tonnes of gold ore from the same site situate at Etina 16014 Mine on three occasions.

The appellant denied the charges. His defence before the court a quo was that in count one he had an existing agreement with the owner thus he took the gold ore. The court will not address the first count since the appellant was acquitted on the count. I just highlight what the trial court overlooked in coming to its decision. In acquitting the appellant, it relied on a certificate appointing the appellant as the complainant’s accredited agent. The court failed to realize that the certificate of appointment was issued on 19 September 2018.There was undisputed evidence before the court that the complainant acquired rights or bought the mine in April 2019. There is no way therefore the appellant could have become the complainant’s accredited agent before the complainant bought the mine. The State did not take issue with the acquittal. That rests the issue.

In respect of counts 2-4 the appellant denied the offences. He did not deny taking the gold ore. His defence is of claim of right. He said he had a Joint Venture Agreement with one Sebastian Magodo (Sebastian) the owner of the mine who authorized him to mine and remove the gold ore. In the alternative he relied on a court order GCK 718/19 a provisional order issued at Kadoma Magistrates Court in terms of which he was granted the rights to collect the gold ore.

To prove its case the State led evidence from five witnesses. The evidence established that the appellant indeed removed the gold ore on the dates as alleged. It also established that the mine was sold to the complainant Kevin Magwaza (Kevin) by its former owner Sebastian sometime in March/April 2019. It seems thereafter litigation ensued between the parties which has not conclusively determined the issue of ownership. It also established the value of the gold ore.

The court a quo in finding the appellant guilty in respect of counts 2-4 reasoned that the order relied upon by the appellant was obtained based on a misrepresentation. The appellant cited Sebastian and not Kevin who had purchased the rights. The court found as a matter of law that the appellant cannot successfully rely on an ill gotten order to escape a conviction. He should have waited for the return day.

Dissatisfied by the outcome in the court a quo the appellant noted this appeal against conviction. The three grounds of appeal centre on the perceived misdirection by the court a quo in disregarding the court order under GCK 718/19 ‘ the court order’. They raise the following issues for determination by this court, whether the court a quo misdirected itself by disregarding a valid court order, whether the court a quo erred in finding that the appellant misled the court when such an issue was not before it and lastly that the court a quo misdirected itself in holding that the appellant should have waited for the confirmation of the provisional order before exercising his rights.

The respondent did not initially oppose the granting of the appeal and a   concession in terms of section 35 of the High Court Act (Chapter 7:06) was filed .The wording in s35 of the Act is not peremptory, a judge is not bound by the concession. In this case we did not agree with the reasons set out by the respondent, we therefore directed that the matter proceed to be heard in argument.

What is apparent is that from the time the mine was sold to Kevin numerous applications ensued. One such case is that which resulted in the granting of the court order the appellant relies on in this appeal. I had sight of another case Kevin Magwaza v Spencer Tshuma and 3 others HH 815/19 in which the court order was set aside.

The facts of the case which are not in dispute are as follows; Sebastian sold his rights in the mine to Kevin. The responsible authority subsequently issued a certificate of registration to Kevin. Prior to the disposal of the mine, Sebastian had entered into a Joint Venture Agreement with the appellant. Sebastian gave evidence that when he sold the mine to Kevin, he had two meetings with Kevin and the appellant. He said the appellant was aware of the developments. His evidence on this aspect was not controverted. There is therefore no doubt that the appellant knew that Kevin was the new owner of the mining location. Despite that knowledge the appellant filed an exparte application for an interdict against Sebastian which was granted on 22 July 2019. It is on the strength of this order that the appellant collected the gold ore.

The first issue for determination is whether the court a quo misdirected itself in considering the court order in its judgment.

It was within the court a quo’s jurisdiction to consider the order issued under GCK 718/19. It is trite that a court hearing a matter is required to make its determination based on the issues placed before it. The proper approach in the assessment of an accused person’s guilt or otherwise is to consider the evidence placed before the court by the state and the evidence from the accused person. The defence outline forms part of the accused’s evidence and it should be considered.

The appellant’s defence outline was that he collected the gold ore on the strength of the court order. It was part of his defence case. The court order was produced in evidence. The court was therefore entitled to scrutinise the court order and make appropriate findings.

The next issue for determination is whether the findings by the court a quo in respect of the court order were misdirected. It is not in dispute that the appellant did not cite Kevin who he was well aware was the holder of rights in the mine. Sebastian had no rights in the mine. The appellant clandestinely sought to access the gold ore through Sebastian who had no rights in the mine. He had relinquished them to Kevin. I note that it is recorded in Kevin Magwaza v Spencer Tshuma and 3 others (supra) that the Ministry of Mines issued a certificate of registration in respect of the mining location on 5 April 2019 to Kevin. By not citing Kevin the appellant was not candid with the court on the facts of the case. In civil matters a judgment obtained by way of a misrepresentation or a material non-disclosure   with intent to mislead the court is susceptible to rescission at the instance of the unsuccessful litigant or any party that is affected by the judgment. The facts must be such that, had the court had the true facts placed before it, it would not have granted the judgment. See Herbert Munongowarwa v Madimbira HH 223/17.

In this case, had the court granting the order known that Sebastian no longer held rights in the mine, having passed same to Kevin, it would certainly not have granted the order.

In essence by nicodemously seeking an order to access the gold ore by citing Sebastian only the appellant sought to negate a lawful process. The lawful authority had passed rights to Kevin. A court   cannot interdict a lawful process. Kevin was the lawful holder of rights at the time the order was granted. His rights could therefore not be trampled upon through an order he was not party to. This is regardless of the fact that the appellant disputed the facts. The sale agreement between Sebastian and Kevin remains valid until set aside by a lawful court. Similarly, the certificate of registration in favour of Kevin remains valid until it is lawfully set aside.

There is no misdirection in the court a quo’s approach to scrutinise the court order that constituted the appellant’s defence case. It was an issue before it. By pronouncing that the order was improperly obtained, the court a quo did not set aside the order but the effect is that the appellant could not rely on it as a shield in the criminal charges preferred against him.

We find no misdirection.

Accordingly, the appeal is dismissed.

CHIKOWERO J AGREES……………………………….

Mavhunga and Associates, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners

.