The State v Jephius Fumise

The accused, a 59-year-old rural peasant from Village Gwachara, Chief Tshovani in Chiredzi, was arrested on 28 January in connection with stock theft (Count 1). Upon arrest and search, he was found in possession of: a sachet of dagga weighing 0.02g (Count 2); an okapi knife (Count 3); and two python skins found in his bedroom (Count 4). The accused pleaded not guilty to stock theft and was acquitted after trial. He pleaded guilty to Counts 2-4 (possession of dagga, possession of a prohibited knife, and possession of specially protected animal trophy). The accused explained that the python skins belonged to his deceased father and were given to him for safekeeping pending a traditional beer ceremony and redistribution of his father's assets according to traditional customs.

• Whether the trial magistrate properly inquired into special circumstances before imposing the mandatory minimum sentence of 9 years imprisonment for possession of python skins under s 45(1)(b) of the Parks and Wildlife Act
• Whether the accused's explanation regarding possession of the python skins constituted special circumstances
• Whether procedural irregularities in the special circumstances inquiry vitiated the sentence imposed
• Whether the accused's right to a fair hearing under s 69 of the Constitution was violated

Convictions in Counts 2, 3, and 4 confirmed. Sentences in Counts 2 and 3 (60 days imprisonment each, wholly suspended for 5 years on good behavior) confirmed. The sentence of 9 years imprisonment in Count 4 was set aside and substituted with a fine of US$500 or in default 3 months imprisonment. Additional forfeiture orders made: dagga in Count 2 forfeited to the State for destruction; okapi knife in Count 3 forfeited to the State; python skins in Count 4 forfeited to the State.

Before imposing a mandatory minimum sentence, a trial court must conduct a full and proper inquiry into special circumstances, which includes: (1) recording the accused's explanation; (2) inviting the State to respond to that explanation; and (3) making a clear ruling on whether special circumstances exist before proceeding to sentence. An uncontroverted explanation from an accused, particularly one involving traditional beliefs and practices, considered together with the accused's rural background and ignorance of the law, can constitute special circumstances justifying departure from mandatory minimum sentences. Failure to conduct this inquiry properly constitutes a procedural irregularity that violates the accused's constitutional right to a fair hearing under s 69 of the Constitution and entitles a review court to interfere with the sentence imposed.

The court observed that it would not be fair and just to remit the matter back to the trial magistrate to continue with what it characterized as a "botched up inquiry" into special circumstances. The court noted that the accused is "a rural unsophisticated peasant" whose belief in traditional customs "had not been disputed." Mawadze J referenced S v Manase 2015 (1) ZLR 160 (H) as providing "very useful insights" on how courts should inquire into special circumstances, especially where the accused is not legally represented. The court emphasized that "the accused's right to a fair hearing as is enshrined in s 69 of our Constitution is paramount."

This case provides important guidance on the proper procedure for inquiring into special circumstances before imposing mandatory minimum sentences in Zimbabwe. It reinforces the constitutional right to a fair hearing under s 69 of the Constitution, particularly for unrepresented accused persons. The judgment emphasizes that courts must: (1) fully canvass the issue of special circumstances; (2) invite the State to respond to the accused's explanation; (3) make a formal ruling on the existence of special circumstances; and (4) properly consider an accused's background, traditional beliefs, and ignorance of the law. The case applies the principles established in S v Manase 2015 (1) ZLR 160 (H) regarding special circumstances inquiries for unrepresented accused persons.