MATHONSI J: The 2
accused persons appeared before the Magistrates' Court in Zvishavane facing one
count of contravening section 10 of the Copper Control Act [Chapter 14:06] the
allegations being that they both unlawfully possessed 250 kilograms of copper
cables.
They both pleaded guilty and were
duly convicted and each sentenced to 10 years imprisonment of which 2 years imprisonment
was suspended for 5 years on condition of future good behavior.
The facts are that on the day in
question the 2 loaded 5 packed cardboard boxes and 4 packed sacks of copper
conductors into a taxi from Madiro compound in Zvishavane and headed for
Mhandamabwe. Acting on a tip off the
police intercepted them at Zvishavane Town Centre and directed the taxi to the
police station where the booty was uncovered.
The accused could not give a
satisfactory account of their possession of the copper cables leading to their
arrest. It turned out that the cables
had been stolen from the ZESA power line underground cables which supply power
to Shabani Mine. The value of the copper
cables was not given and the trial court did not inquire into it.
In mitigation the first accused
stated as follows:
“I am 54 years old. I
am not married, I am a divorcee. I have
got 5 children. My eldest child is 34
years, my youngest child is 11 years old.
I was surviving on buying and selling clothing. I have got $200 at home. I have got 2 beasts. I had been asked to look for a buyer by the
owner of the cables and I was arrested.
The owner was Munyaradzi Gava.
May the court be lenient with me.
I look after my 2 grand children.
I am diabetic. I am prepared to
do community service or to pay a fine.”
The second accused stated the
following in mitigation:
“I am 31 years old. I
am not married, have one child aged 10 years.
The mother stays with the child.
I stay in Chivi area. Accused 1
is my grandmother. I was surviving on
…. Accused 1 stays in Harare. I have got no money in savings. I have got no assets of value. I was assisting my grandmother. May the court be lenient with me. I would prefer community service or an option
to pay a fine.”
Nothing turns on the conviction of
the accused persons which was proper. It
is the sentence imposed which presents some difficulty. In assessing an appropriate sentence, the
trial court reasoned as follows:
“The accused persons' conduct was unlawful and deserves
punishment. The accused persons teamed
up to commit an offence. The unlawful
possession of copper cables is a very serious offence which calls for a
deterrent sentence. The accused persons
wanted to assist a colleague to look for a buyer. No one knows where the copper cables had been
taken from and there is a possibility that they had been stolen from ZESA
lines. There is need for the court to
pass a deterrent sentence that would also go a long way in discouraging theft
of copper cables from ZESA lines. The
accused persons had in their possession a substantial quantity of copper
cables.
Imprisonment is the most appropriate sentence and the
recovered copper will be forfeited to the state.”
In my view the trial magistrate did
not apply his mind fully to the facts before him. According to the facts placed before him, the
copper cables had been stolen from the ZESA power line supplying Shabani
Mine. They clearly belong to ZESA and
having been recovered, they should have been returned to ZESA instead of having
them forfeited to the state. The order
of forfeiture was therefore inappropriate and cannot be allowed to stand.
More importantly, the sentence
imposed also cannot be supported at all.
Section 10 of the Copper Control Act [Chapter 14:06], under which the accused
persons were convicted, provides:
“A person who is found in possession of copper in regard to
which there is a reasonable suspicion that it has been stolen and is unable to
give a satisfactory account of such possession shall be guilty of an offence and
liable to a fine not exceeding level eight or to imprisonment for a period not
exceeding 2 years or to both such fine and such imprisonment.”
It is therefore not easy to
comprehend how the trial court came up with a sentence of 10 years imprisonment
when the penal section provided, first and foremost, for a level 8 fine or 2
years imprisonment. A level eight fine
is only $500,00.
The trial court therefore fell into
grave error by coming up with the sentence that it imposed which was way in
excess of that provided for in the Act.
The sentence cannot stand and has to be set aside.
In the result I make the following
order, that-
- The conviction of the 2 accused
persons is confirmed.
- The sentence is set aside.
- The order for forfeiture of the
copper cables is set aside.
- The matter is remitted to the
trial court for assessment of an appropriate sentence in accordance with
the provisions of section 10 of the Copper Control Act [Chapter 14:06].
Ndou
J ……………………………………………. I agree
