CHEDA J: This is an application for bail pending
appeal. This application was argued
before me on the 21st December 2009 and I dismissed it.
On the same day I gave my reasons ex tempore, I have,
however, been requested to reduce my reasons into writing and these are my
reasons:
Applicant is a man aged 31 and is currently serving his sentence of 2
years having been convicted of contravening section 368(2) as read with section
368(4) of the mines and minerals Act [Chapter 21:15] commonly referred to as
gold panning.
The facts of the matter as presented by respondent are that applicant
and his co-accused one Israel Chihota reside at Mutandiro and Nharira villages
respectively, Chivhu and they are not employed.
On the 5th November 2009 the Bulawayo City Council rangers
were carrying out patrols along Umzingwane river when they observed the two
accused at a gold ore
sieving
table with applicant pouring water on the sieving table while his co-accused
was sieving the gold ore. They were spotted
by the rangers from a distance of about 15 metres and they ran away. However, the rangers gave chase and caught up
with them resulting in their arrest.
Upon their arrest, police recovered a sample dish and a sieve table. They both pleaded not guilty to the
charge. They were, however, tried and
convicted. They were subsequently
convicted, the court a quo found no special circumstances and
passed the mandatory prison term of 2 years imprisonment.
Applicant has appealed both the conviction and sentence. He now applies for bail pending appeal. His argument through his legal practitioners
is that:
(1) the
court a quo erred by passing a sentence of 24 months imprisonment
and referred me to the case of S v Majaya
HB 15/03.
(2) it
erred by imposing a prison term when appellant is a first offender, S v Zavanyika see HH 41/95 and S v Shariwa HB 37/03.
(3) that
appellant has an arguable case as was held at S v Sibusisiwe Ndlovu HB 155/07 as per NDOU J.
It is trite now that where an accused has been
convicted the approach to bail is different
as
the question of the presumption of innocence would have been eliminated. The question before me is whether appellant's
chances of success on appeal are bright or not.
To determine this question, it is imperative that one should understand
the circumstances surrounding the comission of the offence. Appellant was in the company of his
co-accused when they were
seen
going through the motions of gold panning and they had all the necessary
equipment or tools of the said trade.
They ran away and were apprehended by the rangers. This was the evidence submitted by Tymon
Ncube. It was his further evidence that
there was no fishing facility where he found them. For that reason it is clear that they were
indeed illegally panning gold.
In my view, the trial court accepted
the respondent's case and properly convicted them. The court enquired into the existence or
otherwise of special circumstances and found none. In the absence of the said circumstances, he
had no alternative but to impose a mandatory sentence in terms of the law.
Mr.
Nyoni has urged the court to find that there was a misdirection on the part
of the trial court as it failed to consider community services. Mr.
Nyoni has urged me to find that the trial court erred in finding no special
circumstances on the basis of that they were not gold panning. The authorities referred to relate any other
cases other than those that carry mandatory sentences. Evidence led and accepted by the court is
that they had all the equipment necessary for gold panning. Infact to say they were not, is so untenable
so as to deny that Draccula was not trying to break into a blood bank when he was
found test-opening the blood bank door. Therefore, the magistrates approach was
correct.
Secondly, the case of S v Sibusisiwe Ndlovu (supra) is
not binding as it was a decision by a court of a similar jurisdiction.
In view of the crystal clear
evidence which was led and accepted by the court, I am of
the
view that appellant's chances of success on appeal are bleak.
It is for that reason that I
dismissed the appeal.
Cheda
J............................................................
Messrs Moyo & Nyoni, appellant's legal
practitioners
Criminal Division, Attorney
General's Office, respondent's legal
practitioners
