This case is an appeal against a criminal conviction of a group of eight accused of illegal gold mining.

A police station received a tip-off about the group of accused who had illegally entered the Lennox Gold Mine in Mashava. The police dispatched officers to the location who were able to intercept the hired motor vehicle of the accused at a tollgate on the Mashava-Zvishavane road as they were moving away from the mine. The police searched the vehicle and persons and found three sacks of gold ore and mining equipment, including chisel and hammer. The accused were not able to produce a legal permission to mine or possess gold and were consequently arrested.

In an initial trial, the accused were charged with contravening section 368 (2) as read with s 368 (4) of the Mines and Minerals Act [Chapter 21:05], which criminalizes “prospecting prohibited save in certain circumstances”. They pleaded guilty and were sentenced with imprisonment of 2 years each.

Nevertheless, the accused were not able to count on legal representation neither during their arrest nor during the trial.  The High Court dealing with the appeal found that the magistrate did not comply with the duty of providing for a fair trial when sentencing the accused who were not legally represented. Furthermore, the court found that the initial indictment was based on the assumption that the accused had illegally mined (“prospected”) for gold. Yet, the judge dealing with the appeal concluded that from the fact that the accused possessed gold without a license, it could not be concluded that they had mined for that gold, as it was as likely that the accused had simply stolen gold from an existing extraction. Hence, the charge “prospecting prohibited save in certain circumstances” was substituted with s 379 (1) of the same act, criminalizing “theft of ore”. Consequently, the conviction and sentence were altered to a fine of USD 200 or 3 months imprisonment in default for each of the accused.