Talent Mtunzi and Shelly Ncube v The State

On 26 June 2013 at around 23:00 hours at Mukombe Complex, Tsholotsho business centre, the two appellants were found in unlawful possession of gold without a licence or permit. The 1st appellant was searched and found in physical possession of a gold nugget which he intended to sell. Upon arrest, he implicated the 2nd appellant as the owner of the gold. The 2nd appellant was arrested and admitted ownership of the gold. The gold was assayed and found to contain gold concentrate of 0.0291g valued at $1.11. Both appellants were employed at Hope Fountain in Bulawayo. The 2nd appellant gave the gold to the 1st appellant to sell, claiming they needed money for food as their employer had allegedly not paid their salaries. Both appellants pleaded guilty and were convicted. They were each sentenced to the mandatory five years imprisonment as no special circumstances were found.

• Whether the 2nd appellant could be guilty of possession of gold when he was not in physical possession thereof and whether a claim of ownership amounts to possession
• Whether common purpose applies to the statutory crime of possession under section 3(1) of the Gold Trade Act
• Whether special circumstances existed to warrant imposing a lesser sentence than the mandatory minimum of five years imprisonment
• Whether the negligible value of the gold ($1.11) constituted special circumstances
• Whether the 1st appellant's youthfulness (22 years old) constituted special circumstances
• Whether the defence of necessity applied where appellants claimed they committed the offence due to non-payment of wages and starvation

The appeal against both conviction and sentence was dismissed in its entirety. The convictions under section 3(1) of the Gold Trade Act were upheld for both appellants, as were the sentences of five years imprisonment each.

The binding legal principles established are: (1) Under section 3(1) of the Gold Trade Act, possession of gold "either as principal or agent" means that physical custody is not required for criminal liability - a person who owns gold and gives another person a mandate to possess and sell it on their behalf is guilty as a principal even without physical possession; (2) Both principal and agent can be convicted of unlawful possession where both have knowledge of the gold's presence and neither has the required licence or permit; (3) For purposes of avoiding mandatory minimum sentences under the Gold Trade Act, special circumstances must be factors arising from the commission of the offence or peculiar to the offender which are out of the ordinary in degree or nature; (4) Negligible value of gold alone, youthfulness of an adult offender (22 years), and unsubstantiated claims of necessity due to non-payment of wages do not individually or cumulatively constitute special circumstances where other lawful remedies were available to the accused.

The court made several non-binding observations: (1) The defence of necessity must be confined within the strictest and narrowest limits because of the danger of allowing it to excuse criminal conduct; (2) The court noted that the cases of S v Anand 1988 (2) ZLR 414 (S) and S v Moyo 1988 (2) ZLR 79 (H) cited by counsel were either intended to mislead the court or reflected a thorough misunderstanding of the principles stated therein, as they did not support the appellants' submissions; (3) The court suggested that if the appellants found themselves without food in Tsholotsho, this may have been their own fault given they were employed in Bulawayo and had travelled over 100 kilometers, raising questions about what they were doing in Tsholotsho; (4) The court observed that at common law, it is often a common sense matter of degree to determine whether an accused's conduct amounts to an assumption of custody and control.

This judgment is significant in Zimbabwean criminal law for clarifying the scope of "possession" under the Gold Trade Act Chapter 21:03. It establishes that the statutory phrase "either as principal or agent" in section 3(1) extends criminal liability beyond physical possession to include constructive possession through agency relationships. The case also provides guidance on when special circumstances will not be found to avoid mandatory minimum sentences, particularly rejecting arguments based solely on negligible value, youthfulness of adult offenders, and unsubstantiated claims of necessity. The judgment reinforces strict enforcement of gold possession offences and narrow interpretation of exceptions to mandatory sentencing provisions.