THE High Court has revoked a judgment by Mutoko regional magistrate Chiedza Gatsi who convicted a Chinese mine of stealing more than 4 000 tonnes of gold ore before ordering it to restitute the complainant, a local miner, US$875 667.
The accused, Reajin Mine, was also ordered to pay a US$3 000 fine and to return gold dump to the complainant, gold miner Emmanuel Ndemera.
Ndemera had accused Reajin of encroaching onto his territory and stealing gold ore in the process.
Reajin Mine, through its lawyer Tendai Rusinahama of Rusinahama-Rabvukwa Attorneys, successfully appealed against the conviction and sentence, arguing that the respondent failed to prove in court that the appellant truly stole the alleged quantity of gold ore.
High Court judges Justice Moses Foroma and Pisirayi Kwenda, however, recently overturned the ruling and acquitted the mine.
“Whereupon, after reading document filed of record and hearing counsel, it is ordered that the appeal be and is here by allowed. The conviction is quashed and the sentence is set aside,” the judges ruled.
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In its appeal against conviction and sentence, Reajin Mine argued that the lower court grossly misdirected itself in believing that the appellant benefited from over 15 000 grammes of gold ore.
“The court a quo grossly erred and misdirected itself in concluding that the State proved beyond reasonable doubt that the appellant had stolen 4 174,60 tonnes of gold ore from the complainant solely on the basis of an impugned survey and evaluation report whose samples were taken from the exposed reef that remained in the alleged encroached portion of the mine and not the alleged residue from the alleged encroached area,” part of the appeal read.
“... and assuming without conceding that there was gold ore taken by appellant, the court grossly erred and misdirected itself in finding that the appellant took and benefited from 15 783,48 grammes of gold in circumstances where the respondent (did not) prove beyond reasonable doubt that the alleged 4 174,60 tonnes of gold ore in reality yielded 15 783,48 grammes of pure gold.
“... the court a quo grossly erred and grossly misdirected itself in convicting the appellant on the basis that its witnesses failed to win the faith of the bench in circumstances where it was established in appellant’s defence that no gold ore belonging to the complainant had been unlawfully and intentionally taken, given that the alleged encroached area was still being developed for mining by the time the appellant was made aware of the alleged encroachment.”
The judges of appeal in their ruling held that the State failed dismally to prove the charges of theft against Reajin Mine.