BULAWAYO, SEPT 11, (SOUTHERN EYE LIVE): The Bulawayo High Court has quashed the conviction and US$250 fine imposed on local a man found guilty of contravening the Gold Trade Act.
The matter involved Ocean Mpofu, who in June this year appeared before provincial magistrate Jeconia Prince Ncube at Bulawayo’s Western Commonage Magistrates Court facing a charge of dealing in gold without the requisite permit.
Mpofu (39) was slapped with a US$250 fine for illegal possession of 8.43 grams of gold worth US$1 093.
Prosecutor Catherine khuzu said on June 9, detectives from the CID Minerals, Flora and Fauna Unit were conducting patrols when they received a tip-off that Mpofu was carrying gold.
Following the tip-off, detectives raided Mpofu's home and recovered the precious mineral leading to his arrest.
For the offence, Mpofu was fined US$250 or alternatively nine months' imprisonment.
However, in a criminal review judgment handed down on July 6, 2026, High Court judge Justice Ngoni Nduna, sitting with Justice Mphokiseng Dube, found that although the conviction was proper, the sentence was not in accordance with the law.
Justice Nduna said the offence carried a mandatory minimum sentence of five years’ imprisonment unless the court found that there were special circumstances warranting a lesser penalty.
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“It follows that both the conviction and, more particularly, the sentencing of the accused were required to be in accordance with the provisions of that Act,” Justice Nduna said.
“While the conviction was proper, the sentence imposed was not in accordance with the statutory framework and, consequently, did not accord with the requirements of real justice.”
The judge noted that Section 3(3) of the Gold Trade Act provides for imprisonment of between five and 10 years where there are no special circumstances.
Where special circumstances exist, the court may impose a sentence of up to five years’ imprisonment, a fine not exceeding level nine or twice the value of the gold involved, whichever is greater, or both fine and imprisonment.
Justice Nduna said the trial court had not made any inquiry or finding on whether special circumstances existed before imposing the lesser sentence.
“The trial court made no effort to inquire into or determine the existence of special circumstances,” he said.
“Instead, the accused was simply sentenced to a term of imprisonment that could only have been lawfully imposed upon a positive finding of special circumstances.”
The court held that ordinary mitigating factors such as good character, hardship, contrition or cooperation do not, by themselves, constitute special circumstances.
Justice Nduna also held that special circumstances or reasons must be “out of the ordinary” either in their extent or nature.
“It is therefore clear that the court erred in proceeding in the manner that it did,” Justice Nduna said.
The High Court consequently quashed the proceedings and ordered that Mpofu be recalled for the matter to be heard afresh before a different magistrate.
“Accordingly, the proceedings are hereby quashed, and the matter is remitted to the court a quo to be heard afresh before a different magistrate,” the judge ruled.
