NDOU J: The
appellant was convicted on her own plea of guilty by a Plumtree magistrate and
sentenced to 12 months imprisonment of which 4 months were suspended on the
usual conditions of future good behaviour.
The appellant is appealing against sentence only. The brief facts are the following. On 10 May 2007, in the town of Plumtree, the
appellant exchanged 100 Botswana Pula for Z$400 000. She was not authorized to buy and sell
foreign currency hence the charge against her for contravening section
5(1)(a)(ii) of the Exchange Control Act [Chapter 22:05] (“the Act”) as read
with section 4(1)(a)(ii) of the Exchange Control Regulations as published under
Statutory Instrument 109/1996. She had a
relevant previous conviction, having been convicted of a similar offence on 28
February 2007 i.e. two and half months before the conviction subject matter of
this appeal. The decision to impose a
prison term, according to the trial magistrate 's reasons, is the prevalence of
the offence in Plumtree, the fact that appellant was a repeat offender and the
impact this kind of offence had on the fiscus during the period when foreign
currency was hard to come by. In his
reasons the trial magistrate did not refer to section 5(b) of the Act which, Mr
Moyo for the respondent, relies upon
in his heads of argument. He, however,
referred to it in his response to the application for bail pending appeal. Section 5(b) provides –
“Where an individual is convicted of an offence … and s(he)
has previously been convicted of an offence, whether similar in nature or not …
the court shall in addition to any fine which it might be required by
subsection (4) impose or which it otherwise deems fit, impose a sentence of
imprisonment for such a period as it deems fit.”
The state's case is that this
provision demands that the repeat offender has to be sentenced to an effective
term of imprisonment. To use the words
of Mr Moyo:
“The Exchange Control
Act demands that repeat offenders be sent to goal. That is the long and short of it.”
Also the trial magistrate put it bluntly as
follows:
“In terms of the Exchange
Control Act … a prison term for a second offence is mandatory. The Act is very clear … Appellant is a second offender and as such
had to be incarcerated.”
It is clear that the learned trial
magistrate laboured under the impression that he could not suspend the whole of
the sentence imposed. This is a
mis-direction. The trial court could
have imposed a fine plus a wholly suspended prison term. This is the import of the provisions of
section 5(b), supra. On account of the misdirection we are at
liberty to interfere with the sentence.
It is trite that where the legislature has decreed a mandatory prison
sentence, a court will not lightly order the whole of that sentence to be
suspended, and will do so only when the mitigating circumstances clearly make
such a course desirable – S v Mtembu 1970(1) SA 435 (N); S v Horowitz
1976 (1) RLR 238 (AD); S v Patel SC-63-87 and S v Muzambe HH-121-90.
In
casu, bearing in mind the personal circumstances of the appellant and lack
of actual prejudice to the state and the fact that the appellant could be
adequately punished by a fine coupled with an additional wholly suspended
sentence, the sentence imposed was manifestly excessive and should be
altered. In this case the appellant is
aged 32. She is a female offender who is
married to a husband who is unemployed.
She has three children. As is the
norm these days, she is the bread-winner in her family who earns her income by
selling vegetables (and of course activities for which she stands convicted), S v Gorogo
S-192-88 and S v Ndlovu S-84-84. She pleaded guilty to the charge and was
remorseful – S v Dhliwayo 1999(1) ZLR 229.
The offending amount of foreign currency is not that much i.e
BP100. Certainly she was not the major
author of the scarcity of foreign currency.
She played a trivial role in that regard.
Accordingly, the sentence imposed by court a quo is set aside
and substituted by the following:
6 months imprisonment of which -
(1)
3
months is suspended for five years on condition that the appellant is not
convicted of any contravention of the Exchange Control Act or the Exchange
Control Regulations committed during that period.
(2) The
remaining 3 months imprisonment is suspended on condition the appellant
completes 210 hours of community service at Plumtree Police Station on the
following terms:
(i) The
community starts within ten (10) days of the handing down of this judgment and
must be completed within twelve (12) weeks of that date;
(ii) The
community service must be performed between the hours of 8a.m to 1p.m and 2p.m
to 4p.m each Monday to Friday which is not a public holiday to the satisfaction
of the person in charge at the said institution who may, for good cause grant
the accused leave to be absent on a particular day or days or during certain hours. Any such leave of absence shall not count as
part of the community service to be completed.
CHEDA J: I agree
Dube-Banda, Nzarayapenga & Partners, appellant's legal practitioners
Criminal Division, Attorney General's Office,
respondent's legal practitioners
