High Court quashes gold conviction

The Bulawayo High Court has quashed the conviction and US$250 fine imposed on a local man who was found guilty of contravening the Gold Trade Act.

Ocean Mpofu, 39, was convicted in June at the Western Commonage Magistrates Court after being found in possession of 8.43 grammes of gold worth US$1,093.

Mpofu had been charged with dealing in gold without the requisite permit and was fined US$250 or, alternatively, sentenced to nine months in prison.

The case arose on June 9 when detectives from the CID Minerals, Flora and Fauna Unit, acting on a tip-off, raided Mpofu's home and recovered the gold.

However, in a criminal review judgment handed down on July 6, 2026, High Court judges Justice Ngoni Nduna and Justice Mphokiseng Dube found that although Mpofu's conviction was proper, the sentence imposed by the magistrates' court was unlawful.

Justice Nduna said the Gold Trade Act provides for a mandatory minimum sentence of five years' imprisonment unless the court finds that special circumstances exist to justify a lesser sentence.

"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," he 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 said Section 3(3) of the Gold Trade Act provides for imprisonment of between five and 10 years where no special circumstances are established.

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 a fine and imprisonment.

Justice Nduna said the trial court had failed to inquire into or make a 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 High Court further clarified that ordinary mitigating factors such as good character, hardship, remorse or cooperation do not, on their own, amount to special circumstances.

Justice Nduna said such circumstances must be "out of the ordinary" either in their extent or nature.

The High Court consequently quashed the proceedings and ordered that Mpofu be brought before a different magistrate for the matter to be heard afresh.

"Accordingly, the proceedings are hereby quashed, and the matter is remitted to the court a quo to be heard afresh before a different magistrate," Justice Nduna ruled.