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Chief Court Reporter

THE High Court has quashed a five-year sentence imposed on a man convicted of possession of 0,229 grammes of gold without a licence and ordered the trial magistrate to review the penalty.

The High Court said the magistrate exceeded the sentencing limit of her jurisdiction when she applied the minimum laid down sentence.

Praise Ncube will now be sentenced afresh after the court found the sentence was not in accordance with the law.

Ncube was on January 9 last year convicted of possession of 0,229 g of gold at Filabusi magistrates’ courts and then slapped with a five-year jail term.

When the matter was brought before Bulawayo High Court on review, Justice Christopher Dube-Banda upheld the conviction but quashed the sentence.

“Nothing turns on the conviction as it is in accordance with real and substantial justice,” he said.

“It is the sentence that is irregular and not in accordance with the law.”

Ncube appeared before a magistrate whose sentencing jurisdiction in terms of the Magistrate Court Act, is two years’ imprisonment or a fine up to level seven.

However, on remittal by the Prosecutor General, she can impose a sentence of four years or a fine up to level nine.

Noting that the magistrate sentenced the accused to a five-year prison term, Justice Dube-Banda queried whether the magistrate had the jurisdiction to impose a sentence of five years in the present case.

According to the magistrate, she has special jurisdiction by virtue of the Gold Trade Act that provides for a mandatory minimum sentence.

But Justice Dube-Banda ruled that neither in the Magistrates Court Act nor the Gold Trade Act is an ordinary magistrate given special or increased sentencing jurisdiction in relation to contravening of the Act, finding that there are other statutory enactments that give ordinary magistrates special sentencing jurisdiction, but the Gold Trade Act was not one of them.

“The fact that section 3(3) of the Act prescribes a minimum mandatory sentence of five years does not automatically give an ordinary magistrate sentencing jurisdiction that she does not possess,” said the judge.

“Her sentencing jurisdiction can only be increased or extended by legislation. It is so because the magistrates court is a creature of statute and therefore special or increased sentencing jurisdiction is given by the legislature.”

So, the sentence imposed on Ncube could not stand because it is not in accordance with real and substantial justice as required by the law.

The trial magistrate should have stopped the matter in terms of the provisions of the Magistrates Court Act and sought the directions of the Prosecutor General in terms of the provisions of the Criminal Procedure and Evidence Act rather than assume jurisdiction that she did not have.

Accordingly, the judge confirmed the conviction and set aside the sentence and referred the matter back to the magistrate to revise the sentence.