Cephas Mukudu and Fletcher Kalulu v The State

### Preamble
1
HMT 61-20
CA 16/20
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CEPHAS MUKUDU

and

FLETCHER KALULU

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA AND MUZENDA JJ

MUTARE, 9 September 2020 and 17 September 2020

Criminal Appeal

Mr C Mukwena, for the Appellants

Ms T.L Katsiru, for the Respondent

MUZENDA J: This is an appeal against both conviction and sentence that was imposed upon appellants by the Provincial Magistrate on 24 April 2020 where the court convicted the two appellants of contravening s 368 (1) as read with s 368 (4) of the Mines and Minerals Act [Chapter 21:05] for prospecting for minerals without a permit or licence and were both sentenced to 24 months (2 years).

BACKGROUND

First appellant is aged 42 years and resides at Vhumbunu Village Chief Mutasa, Watsomba and is unemployed. Second appellant is also aged 42 years and resides at Village 7 Dombo Rutinhira, Chief Mutasa, Penhalonga, he is also not employed.

On 23 April 2020 at around 11:30 hours police were deployed on an operation to arrest illegal gold panners along Nyakaunga River, Sheba Estates, Penhalonga. They intercepted both appellants prospecting gold each using a hoe and apprehended them. Appellants were asked to produce any permit or licence but failed to produce neither.

On 24 April 2020 both appellants appeared at Mutare Magistrates Court. They were not legally represented. The charge was put to them and they replied that they had understood the charge and admitted to it. A plea of guilty was entered. The court proceeded in terms of s 271 (2) (b) of the Criminal Procedure and Evidence Act [Chapter 9:07] and the following questions were canvassed by the court a quo.

“Essential elements”

Q.	So is it correct that on 23 April 2020 at Nyakanga River Sheba Estate, Penhalonga, you were found whilst searching for gold as alleged?

A.	Accused 1: Yes

Accused 2: Yes

Q. 	Are you a holder of a licence to search for gold?

A. 	Accused 1: No

Accused 2: No

Q. 	You know that your conduct was unlawful?

A. 	Accused 1: Yes

Accused 2: Yes

Q. 	Any defence?

A. 	Accused 1: No

Accused 2: No

The two appellants were convicted after these questions.

On 2 May 2020 an appeal was filed on appellants’ behalf and the grounds of appeal were outlined as follows:

A. 	GROUNDS OF APPEAL

Ad Conviction

The court a quo erred and misdirected itself at law when it failed to fully and exhaustively explain the charge and the essential elements of the offence with the appellants who were not legally represented and the conviction is not proper and in accordance with real and substantial justice.

B. 	Ad Sentence

The court a quo grossly misdirected itself at law by making a finding that there were no special circumstances and imposed the minimum mandatory sentence as provided for by the Act where there were special circumstances.

SUBMISSIONS

Mr Mukwena submitted on behalf of the appellants that the court a quo erred and misdirected itself at law when it failed to fully and exhaustively explain the charge and the essential elements of the offence with applicants who were not legally represented and hence the conviction is not proper and should be quashed. Appellants added that in terms of s 271 (2) (b) of the Criminal Procedure and Evidence Act, the court has a duty to explain the charge and the essential elements of the offence to an accused especially to an unrepresented accused. He contended that the record of proceedings does not have any explanation of the charge that was made by the court. It was further submitted by the appellants’ Counsel that the court should also satisfy itself that indeed the accused has understood and admits the charge as well as the essential elements and the facts on which the charge is based. Appellants further averred that the court a quo did not follow the provision of s 271 (2) (b). As a result appellants’ pleas of guilty were not properly secured. He cited the case of Simbarashe Mayo v The State and also the matter of State v Dube and Another.

On the aspect of sentence, appellants submitted that the court a quo grossly misdirected itself by making a finding that there were no special circumstances when there were special circumstances. Mr Mukwena urged this court to make a finding of special circumstances premised on the current lockdown brought about the Covid 19 pandemic. The lockdown pushed the appellants to commit the offence as they were compelled to do so due to the hardships caused by the lockdown. To the appellants the issue of special circumstances have not yet been dealt with exhaustively by the courts and there is no clear cut guideline regarding what constitute special circumstances. He cited the case of Mutsa Mwayedza v The State  and he submitted that the circumstances raised by the appellants are extra-ordinary circumstances surrounding the commission of the offence and special to the offender. Appellants added that since the court a quo settled for a 24 months imprisonment, it was duty bound to consider other non-custodial sentences like community service. Mr Mukwena referred the court to the matter of Major Mhlanga v The State.  Appellants prayed for a sentence of a fine once special circumstances are adjudged to have been established to exist.

Ms T.L Katsiru for the respondent submitted that the court a quo did not misdirect itself when it convicted the appellants as it canvassed the essential elements to the appellants. She argued that s 368 of the Mines and Minerals Act basically prohibits (i) searching for gold, (ii) without a licence to search for gold and (iii) the act was unlawful. According to the state all these essential elements were put to the appellants by the court a quo and the court was referred to p 15 of the record. The state further submitted that the factual findings of the lower court cannot easily be reversed by a superior court unless the lower court’s findings are so outrageous or irrational that no tribunal would act upon it. The state referred the court to a plethora of cases.

The State concluded its submission on this aspect by submitting that the appellants were explained the elements of the charge in a language that they coherently understood and answered the questions that were put to them by the court a quo. The appellants’ pleas were genuine and should be allowed to stand.

On the appeal against sentence, the respondent contended that the court a quo did not err rejecting reasons proffered by both appellants to constitute special circumstances. The state referred the court to the case of State v Rawston  where the court held that a distinction must be drawn between those factors which create special reasons and those that are only mitigatory. A special reason is one which is special to the facts which constitute the offence, as opposed to the offender. The state added that the reason that there was Covid 19 lockdown which had drove them to go and prospect do not amount to special reasons. The respondent further submitted that Covid 19 pandemic which resulted in the lockdown virtually affected everyone economically and thus makes it an ordinary reason. The state recited the case of Mutsa Mwayedza (supra) to advance its argument on special circumstances. The state submitted that the second ground of appeal against sentence be dismissed.

WHETHER THE COURT A QUO EXPLAINED THE ESENTIAL ELEMENTS OF THE CHARGE:

Section 271 (2) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides:

“Where a person arraigned before a magistrate court on any charge pleads guilty to the offence charged or to any other offence of which he might be found guilty on the charge and the prosecutor accepts that plea

(b) 	the court shall, if it is of the opinion that the offence merits any punishment referred to in subparagraph (i) or (ii) of paragraph (a) if requested therein by prosecutor –

(a) 	explain the charge and the essential elements of the offence to the accused and to that end require the prosecutor to state, in so far as the acts or omission on which the charge is based are not apparent from the charge, on what acts or omission the charge is based and;

(ii) 	inquire from the accused whether he understands the charge and the essential elements of the offence and whether his plea of guilty is an admission of the elements of the offence and of the acts or omissions stated or by the prosecutor;

and may if satisfied that the accused understands the charge and the essential elements of the offence and that he admits the elements of the offence and the acts or omissions on which the charge is based as stated in the charge or by the prosecutor, convict the accused of the offence to which he has pleaded guilty on his plea of guilty and impose any competent sentence or deal with the accused otherwise in accordance with the law”

In State v Machokoto  it was held further:

“that the plea of guilty was not properly entered because there was a failure to explain the charge and the essential elements to the accused. The essential elements must be explained in such a way as is calculated to inform the accused, if he is unrepresented of the nature of the charge in sufficient clarity and detail as will suggest to him, in his knowledge of the matter, whether he has a defence to offer. This does not imply that the magistrate should suggest defence to the accused, but it should not be forgotten that, where the accused is unrepresented, the magistrate is the only source of independent assistance towards an understanding of the nature of his predicament. The fact that the accused wishes to plead guilty is not a reason to be cursory in the explanation of the essential elements on the contrary, it is necessary to ensure that the accused has applied his mind to the true import of the charge and is properly aware that anything he may wish to say could not constitute a defence. The question posed to by magistrate should be adapted to the individual circumstances of the case.”

Section 368 of the Mines and Minerals Act provides:

“(1)	Subject to subsections (2) and (3), no person shall prospect or search for any mineral, mineral oil or natural gas except in the exercise of rights granted under a prospecting licence, exclusive prospecting order or special grant or unless he is the duly authorized representative of the holder of such licence, order or special grant and acting in the exercise of such rights.

(2) 	No person shall prospect or search for any mineral, mineral oil or natural gas unless he is an approved prospector.

(3)	No approved prospector registered for Communal Land only in terms of subparagraph (i) of paragraph (a) of subsection (3) of section fifteen shall prospect or search for any mineral, mineral oil or natural gas elsewhere than in Communal Land.

(4)	Any person who contravenes subsection (1), (2) or (3) shall be guilty of an offence and liable—

(a)	if there are no special circumstances in the particular case, to imprisonment for a period of not less than two years; or

(b) 	if the person convicted of the offence satisfies the court that there are special circumstances in the particular case why the penalty provided under paragraph (a) should not be imposed, which circumstances shall be recorded by the court, to imprisonment for a period not exceeding two years or a fine not exceeding level ten.”

The gravamen of the offence under s 368 of the Mines and Minerals Act is the unlawful searching for gold without a licence nor a permit nor the authority of a licence or permit holder. The record of proceedings on p 15 of the record clearly shows that the charge for contravening s 368 of the Act was put to the appellants in a language they clearly perceived and they understood that charge and admitted it. Having satisfied itself that both have understood the pith of the charge and pleaded guilty the next step was to have the facts read to the appellant in the language they were familiar with. The record shows that both appellants indicated to the court a quo that they have understood the underlying facts and admitted them. The court below following the principles and approach specified proceeded to explain the essential elements of the charge to the appellants and looking at the nature of questions put to each appellant the essential elements of contravening s 368 of the Act were comprehensively and exhaustively encapsulated as already covered herein under the background of this matter. The explanation of the essential elements was done in compliance with s 271 (2) (b) of the Criminal Procedure and Evidence Act as well as in the court a quo ably assisting the unrepresented accused. I am more satisfied on this finding when I examine the submissions by both appellants whilst addressing the court a quo on special circumstances. If there was any doubt whether the two appellants had understood the nature of the charge the two were facing, their address on special circumstances clearly reflects that they were fully aware that they had embarked on prospecting or searching for gold without a licence and that their conduct was unlawful, but because of pressure at home they had no choice. I am satisfied that the pleas of guilty by the appellants was genuinely tendered to the court and all essential elements were exhaustively covered by the court a quo. I agree with the state that there is no basis to interfere with the conviction of the appellants by the court a quo. The appeal against conviction has no merit, it is therefore dismissed.

WHETHER THERE WERE SPECIAL CIRCUMSTANCES IN THIS MATTER

In the matter of S v Chisiiwa this court held that:

“… the court may have regard to factors arising either out of the circumstances of the offence or peculiar to the offender as long as they are out of the ordinary. This will involve the making of a value judgment since the question whether such reasons exist will often be a matter of degree. And furthermore, by use of the plural “reasons”, it should be borne in mind that the legislature clearly allowed for the cumulative effect of a number of reasons to be taken into account by the court in arriving at its decision.”

It has been judiciously recognised that there is no difference in substance between the words “reasons” and “circumstances”. In Whittal v Kirby it was held that:

“A special reason within the exceptions is one which is special to the facts of that particular case that is special to the facts constituting the offence. It is, in other words a mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected to the commission of the offence and one which the court ought properly to take into consideration when imposing punishment. A circumstance peculiar to the offender as distinguished from the offence is not a special reason within the exception.

However the circumstance must be of a “special” character. The nature of the evidence must be in some way completely remove the case from the normal case of its type. The circumstance must be so unusual from the normal case of its type. They should be unusual that the court finds itself in a position where it can decide beyond any doubt that such circumstances could not have been in the contemplation of the legislature when it decreed that all offenders should be punished with a mandatory minimum sentence.”

In R v de Costa Silva it was held per Beadle j (as he then was):

“The legislature seems to have wished to draw distinction between “general” as opposed to “special” circumstances and not between circumstances special to the offence and those special to the offender. If therefor, there is relevant excuse which is only to the offender, I can see no logical reason why it should be excluded from consideration.”

The recent legislative practice in Zimbabwe has created a distinction, “special circumstances” appear to have been used where the words have been statutorily defined, in most cases after the mould suggested in Whittal v Kirby (supra) in contradistinction the legislature appear consistently to have used the term “special reasons” when it has not supplied a definition.

Having looked at the foregoing I do not agree with Mr Mukwena’s submission that appellants managed to advance facts which constituted special circumstances. I am unable to discern any misdirection on the part of the court a quo. The second ground of appeal against sentence equally fails.

Accordingly the following order is returned.

The appeal is dismissed in its entirety.

MWAYERA J agrees _____________________

Chibaya & Partners, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners