The State v Amos Masike

### Preamble
HH 78-2005
CRB 703/2003
THE STATE
versus
AMOS MASIKE
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THE STATE
versus
AMOS MASIKE

HIGH COURT OF ZIMBABWE
BHUNU J
HARARE, 26 October 2004

Criminal Review

BHUNU J: The accused was convicted on his own plea of guilty on a charge of contravening section 3(i) as read with section 30(2) of the Gold Trade Act [Chapter 21:03] in that he was found in unlawful possession of 31.0659 grammes of Reef Gold valued at $1 667 922.00.

On those facts the accused was sentenced to pay a fine of $500 000.00 or in default of payment 10 months imprisonment. In addition 12 months imprisonment was suspended on the usual conditions of good behaviour for a period of 5 years. The reef Gold concerned was forfeited to the State.

Section 24 of the Act prohibits persons convicted of illegal possession or dealing in gold from entering a mining location for a period of 5 years from the date of conviction unless the court for any reason thinks otherwise. The section reads:

"If any person is convicted of an offence in terms of section three, ten, eleven, twelve or twenty-six the conviction, shall have the effect of prohibiting such person from entering or being upon any precious metals mining location during the period of five years from the date of his conviction unless the court for any reason (which it shall record) thinks fit to order otherwise, and any such person who fails to comply with a prohibition under this section shall be guilty of an offence.( my emphasis)

Provided that nothing in this section contained shall be deemed to prohibit any such person from passing through a precious metals mining location upon a road to which the public have a right to access."

In sentencing the accused the trial magistrate did not invite the accused to show cause why the automatic provisions of section 24 may not apply to him.

Justice and fairness require that whenever a person stands to be prejudiced by a court order he must be given a chance to make representations to the court before the order is made.

When I raised the issue with the trial magistrate he responded as follows:

"With all due respect my readings of section 24 of the Gold Trade Act [Chapter 21:03] (The Act) suggests that the prohibition from entering a precious metal mining location on the part of an accused is automatic and consequent upon his conviction unless the court thinks fit to order otherwise. In that event the court now has a duty to record reasons for that decision.

I can confirm on tapes not in the long hand record I asked accused whether he had any reason why the court should not prohibit him from entering a precious metal mining location and he advanced no such reason." With respect the trial magistrate's response betrays a serious misapprehension of his duties as a magistrate. The Magistrate's court is a court of record as provided for by section 5(1) of the Magistrate's Court Act [Chapter 7:10]. The mere fact that section 24 of the Gold Trade Act obliges the magistrate to record his reasons if it thinks that the accused should not be banned from entering a precious metal mining location does not relieve the trial magistrate from the duty of recording the proceedings if he thinks otherwise.

If there was an enquiry as to whether or not the automatic provisions of section 24 should apply then the trial magistrate was under a duty to record the enquiry under section 5(1) of the Magistrate's Court Act. In the absence of such record this court sitting as a reviewing court has no basis for determining whether or not the trial magistrate properly exercised his discretion.

The trial magistrate now states that he can establish that indeed he invited the accused to show cause why he may not be banned from entering a Gold mining location through tapes but not his long hand notes which he submitted for review.

I have waited for a very long time indeed but the trial magistrate has not furnished me with such proof. The net result is that the record before me has no written record of the enquiry which the trial magistrate says he made.

A perusal of the authorities shows that the trial court has discretion as to whether or not a convict should automatically be banned from entering any precious metal mining location. It is trite that whenever a court is called upon to exercise its discretion that discretion must be exercised fairly, judiciously and responsibly. In the absence of a record of how the trial court exercised its discretion the reviewing court is unable to determine the justice of the determination. The cases of *R v Margolis* 1968(2) *RLR* 190 and *R v Docherty* 1968 *RLR* 123 are instructive.


Both cases clearly demonstrate that a convict can successfully avoid the automatic provisions of section 24. An unrepresented accused can only successfully argue his case if the provisions of the section are drawn to his attention and he is invited to make submissions. The review court can only satisfy itself that the trial magistrate properly discharged his duty if a record of the proceedings is kept.

In this case I am unable to say that the trial magistrate property discharged his duty. In the result it is accordingly ordered:

1. That the sentence be and is hereby quashed and set aside.
2. That the matter be and is hereby remitted for sentence before a different magistrate.
3. That in resentencing the accused the trial court should not exceed the sentence imposed by the original trial court.

BHUNU J: .................................

UCHENA J, agrees: ....................
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