The State v Tinashe Mashungo

On 22 April 2019, the accused Tinashe Mashungo and his co-accused Lloyd Maviza were arrested at Debma 3 Area ZCDC Portal A Diamond Plant, Chiadzwa, Mutare by a security guard, Benjamin Gandanhamo. The security guard alleged they were prospecting for diamonds from a stockpile of ore. Upon search, 11 pieces of suspected diamonds were allegedly found in the accused's pocket. The stones were sent to MMCZ for assaying and were found to be of no economic value. The accused was charged with contravening s 3(1) of the Precious Stones Act [Chapter 21:06] for unlawful dealing in or possession of precious stones. The accused pleaded not guilty, claiming he did not have any diamonds and that the security guards had searched him while he was lying face down. The co-accused was acquitted after trial. The accused was convicted of an attempt to contravene s 3(1) and sentenced to 3 years imprisonment with 1 year suspended for 5 years. The matter came on automatic review.

• Whether the accused could be convicted of contravening s 3(1) of the Precious Stones Act when the stones were established to be of no economic value and therefore not precious stones
• Whether the accused had the necessary mens rea to accompany the actus reus for a conviction under s 3(1) of the Act
• Whether the conviction for an attempt to contravene s 3(1) was sustainable in the absence of evidence that the accused believed he possessed precious stones or attempted to deal in them
• Whether impossibility of attainment prevents an attempt to contravene the statute from being an offence

The conviction of the accused for an attempt to contravene s 3(1) of the Precious Stones Act [Chapter 21:06] and the sentence of 3 years imprisonment with 1 year suspended were quashed and substituted with a verdict of Not Guilty. The accused was entitled to be immediately released.

To sustain a conviction for an attempt to contravene s 3(1) of the Precious Stones Act, the prosecution must prove that the accused possessed the necessary mens rea - that is, the accused believed he was in possession of precious stones or was attempting to deal in stones he believed to be precious. Section 3(1) of the Precious Stones Act deals exclusively with actual precious stones, not worthless stones. While impossibility of attainment does not necessarily prevent an attempt from being an offence, there must be evidence that the accused believed the stones to be precious and either possessed them or attempted to deal in them with that belief. Mere possession of worthless stones, without evidence of such belief or intent to deal, cannot constitute an attempt to contravene s 3(1).

The court noted that the State outline was unclear as to who recovered the stones and what happened leading to their recovery. The court observed that there were no independent witnesses as to what happened on the day in question, and there was a dispute as to whether the accused volunteered the eleven stones or whether they were planted on him. The court also made reference to the principle stated in S v Nkomo that cases are quite common where an accused believes apatite (a worthless mineral) to be an emerald and sells it in bona fide belief that it is an emerald, noting that in such cases the accused would be convicted of an attempt.

This case is significant in Zimbabwean criminal law as it clarifies the requirements for conviction under s 3(1) of the Precious Stones Act. It establishes that for a conviction of attempted possession or dealing in precious stones, the prosecution must prove not only that the accused possessed stones, but that the accused had the requisite mens rea - the belief that the stones were actually precious stones. The case demonstrates the importance of proving both actus reus and mens rea in statutory offences involving precious stones, and that mere possession of worthless stones, without evidence of belief in their value or intent to deal in them, cannot sustain a conviction for attempt. It also reinforces the principle that benefit of doubt must be given to an accused when evidence is unclear or contradictory.