CHEDA J: This is an appeal against sentence
only. The undisputed facts of this case
are that appellant was employed by Small Enterprises Development Corporation
(SEDCO). On the 1st of October 2009, he
assumed the post of acting Branch Manager whilst the Branch Manager was on
leave. Amongst his duties was to
disburse funds to clients. During the
month of October 2009, he received an allocation of funds for a certain number
of individuals and companies one of which was Yonah Transport which had been
allocated Z$5 000.
Instead
of disbursing the said allocation to Yonnah Transport, he allocated it to one
Gugulethu Ndlovu whose loan application had been approved, but, funds were not
yet allocated to her by Head Office Harare.
Appellant, therefore, acted in a manner that was inconsistent or
contrary with his duties as a public officer.
His unlawful actions, resulted in actual prejudice to Yonnah Transport.
Appellant
was charged with contravening Section 174 (1) (b) of the Criminal Law and
Codification and Reform Act [chapter 9:23].
He pleaded not guilty, but, was, however, convicted and sentenced to 18
months imprisonment of which 9 months imprisonment was suspended for 3 years on
condition of good behaviour.
Appellant
in support of his appeal has argued that he should have been sentenced to a
non-custodial sentence. His reasoning is
based on the case of Rutsvava v State
SC 2/90 where it was held that, where an offence provides for an option of a
fine, a judicial officer must first consider a fine.
This,
infact is the correct legal position and infact the learned trial magistrate considered
this option as he stated the following in his reasons for sentence:
''First offenders should be
kept out of prison if there are no compelling circumstances. In casu,
it is this court's considered view that the degree of moral blame worthiness is
high.''
In that regard his approach in my view cannot be
faulted. We were further referred to the
cases of State v Mujaya HB 15/03; State v Shariwa
HB 37/03 and State v Mpofu HB 73/03 where
this court held that failure to consider community service for sentences within
the region of 24 months imprisonment is a misdirection. This approach still obtains in our courts. However, this approach applies to non-serious
cases only, as it will be absurd to lump all such cases in this category. Judicial officers are at large to
distinguish such cases and approach this principle with caution. The decisions in the above cases do not take
away the reasonable approach expected of judicial officers to seriously
consider appropriate sentences in particular circumstances. Infact
going by the number of cases coming before this court of late, it appears that
this otherwise noble principle is now being abused. Time has now come for Magistrates and all
those charged with the delivery of justice not to swallow the said principle
hook, line and sinker.
Corruption
is a very serious offence. In casu Yonnah Transport, a business
concern was legitimately allocated funds presumably after satisfying all the
necessary requirements some of which were paid for, for example project
proposals which are a necessity in the determination of a loan application. It is clear that Yonnah Transport had a
commercial fulfilment to meet which was in the interest of both the national
economy and itself. After all these
preparations, appellant who was placed in a position of trust, had a high
responsibility, was therefore, expected to discharge his duties in a fair and
just manner, but decided to twist the procedure and allocate public funds to a
not-yet-due borrower for his personal reasons. Although, it is not clear what his motive was,
the only irresistible conclusion is that he must have been actuated by illegal
and /or immoral considerations. Whatever,
it was, this conduct is reprehensible and deserves censure which should serve
as a general deterrence to all those who are in the forefront of promoting and
propagating this scourge in our society.
For the above reason, I find
that the sentence imposed by the court a
quo was for all intents and purposes fitting for the said offence in the
circumstances.
The appeal is accordingly
dismissed.
NDOU J ......................................... I agree.
Hwalima, Moyo and Associates, Appellant's Legal Practitioners
Criminal Division, Attorney
General's Office, Respondent's Legal Practitioners
