MATHONSI J: In these 3 matters the accused persons were
intercepted at roadblocks mounted by the police in Beatrice on 19 and 20
October 2012 while carrying firewood they had fetched at farms in the area. In
the first case of Juliet Chikandiwa and 2 others, they had loaded 3 codes of
firewood onto a Mazda T35 truck registration number AAP 6474. In the second of
Muranganwa Zinyana and 2 others, they had loaded 7 codes onto an unspecified 8
tonne truck registration number ABY 6641 while in the third case of Brodrick
Tasukwa and another, they were carrying firewood in an unspecified 2,5 tonne
truck registration number ACL 4240.
They were arraigned before a provincial magistrate at Chitungwiza on a charge
of contravening section 78(1)(a) of the Forest Act [Cap 19:05]. They
pleaded guilty to the charge and upon conviction, were each sentenced to 15
months imprisonment of which 5 months imprisonment was suspended for 5 years on
condition of future good behaviour. The remaining 10 months imprisonment was
suspended on condition they complete 350 hours of community service at
Budiriro, Featherstone and Wilkins Police stations.
In addition to those sentences, the firewood and motor vehicles used to ferry
it were forfeited to the state.
The matters came before me for automatic review in terms of section 57(1) of
the Magistrates Court Act [Cap 7:01]. I immediately drew the trial
magistrate's attention to the penal provision of section 78(1)(a) of the Forest
Act [Cap 19:05] under which the accused persons were charged which
provision does not provide for forfeiture of the motor vehicles. That section
provides:-
“Any person who, without
authority, in or on a state forest or private forest cuts, injures, destroys,
collects, takes or removes any tree, timber or other forest produce shall be
guilty of an offence and liable;
(i)where damage has been wilfully
caused, to a fine not exceeding level 8 or to imprisonment for a period not
exceeding two years or to both such fine and such imprisonment;
(ii)in any other case, to a fine
not exceeding level six or to imprisonment for a period not exceeding one year
or to both such fine and such imprisonment.”
The magistrate's response only came 3 months after I had
queried the forfeiture of the vehicles. It reads in relevant part thus:
“It is respectfully conceded that
section 78(1)(a) which the accused persons stand convicted (sic) does not
provide for the forfeiture of the motor vehicles. I was guided by section 62 of
the Criminal Procedure and Evidence Act [Cap 9:07] to forfeit the said
motor vehicle (s). Section 62(1)(a) provides that a court convicting any person
of any offence without notice to any other person, declare forfeit to state any
weapon, instrument or other article by means whereof the offence in question
was committed or which was used in the commission of such offence. On all the 3
records it was established that the said motor vehicles were used in the
commission of an offence hence the vehicles were forfeited to the state.”
On 19 October 2012, Juliet Chikandiwa, Xavier Muwalo and John Kutsira, all of
whom are not employed, drove to Mara farm Beatrice in a Mazda T35 truck
registration number AAP 6474. Whilst there, they harvested firewood which they
loaded onto the vehicle without authority. They were making their back to
Harare at about 0045 hours when they were intercepted at a police road block at
the 20km peg along the Harare-Masvingo road leading to their arrest as they had
no permit to remove the firewood.
The value of the firewood was not ascertained. When they were brought before
the magistrate they pleaded guilty and sentenced aforesaid although the value
of the T35 truck was not established. On the same date, Brodrick Tasukwa,
Lovemore Chimhungwe and 3 others who pleaded not guilty, drove a 2,5 tonne
truck registration number ACL4240 to plot 52 Charter Estate, Featherstone where
they loaded firewood. They were on their way back to Harare along the
Harare-Masvingo road when they were intercepted at a police road block mounted
at the 54km peg. On being found without a permit, they were duly arrested.
Again the value of the firewood was not established neither was the value of
the 2,5 tonne truck but they were convicted on their own pleas of guilty and
sentence as already stated.
On 20 October 2012 Muranganwa Zinyana, Caleb Rupere and Chombe January, who had
earlier driven in an 8 tonne truck registration number ABY6641 to Featherstone
and loaded firewood onto the truck, were also intercepted at 0130 hours at a
police road block mounted at the 20km peg along Harare – Masvingo road. When
they failed to produce a permit to remove firewood, they were arrested.
Although the values of both the firewood and vehicle were not ascertained, they
were convicted on their pleas of guilty and sentenced as stated above.
Now the penalty for contravening section 78(1)(a) is set out in the Act. That
penalty does not include the forfeiture of the instruments used in the
commission of the offence be it the machete used to cut the firewood, a
wheelbarrow, scotchcart or indeed motor vehicle used to carry the firewood. If
the legislature intended to provide for the forfeiture of those items, it would
have certainly said so in the penal section. It did not.
In my view, it was not the business of the sentencing court to go beyond the
penal provision and import further penalty provisions from another law when the
law giver had specifically provided for the punishment to be imposed against
the offender. In doing so, the trial court fell into grave error.
The offence committed is a statutory one provided for in the Forest Act. It is
undesirable to go further than the statute criminalising the conduct of the
accused persons in search of further sentencing power when such power is
specifically given in the Act. Doing so leads to imposition of a penalty not
envisaged by the law giver and certainly leads to undue punishment.
The magistrate says he had to go to section 62(1) of the Criminal Procedure and
Evidence Act [Cap 9:07] in order to find jurisdiction and authority to
forfeit the vehicle. He does not explain why he found it necessary to do so.
This was as unnecessary as it was a misdirection.
In any event, care must always be taken in deciding whether to order forfeiture
or not, that such order does not result in the imposition of a penalty which is
disproportionate to the gravity of the offence committed. Factors to be taken
into account in deciding whether to order forfeiture were set out in S v
Ndhlovu (1) 1980 ZLR 90 (GD) and they are;
1) The nature of the article.
2) Its role in the commission
of the offence.
3) Whether there is a
possibility of the article being used again in the commission of similar
offences.
4) The effect of the
forfeiture on the accused person.
5) In view of the value of
the article, whether its forfeiture will give rise to the imposition of a
penalty disproportionate to the gravity of the offence.
6) Where the article is of
considerable value like a motor vehicle, whether it has been used previously to
commit a similar offence.
The point is made in S v Kurimwi 1985 (2) ZLR 63
at 65 D and 67 F that the value of the motor vehicle must be considered viz
a viz the value of the goods smuggled. By parity of reasoning, the value
of the vehicle must be weighed against the value of the firewood in the present
case. Indeed as stated by PITTMAN J in S v Mahomed 1977 (2) ZLR 207 at
211E the decision on a forfeiture order requires first an inquiry whether the
forfeiture would be equitable. See also R v Poswell & anor
1969 (4) SA 194 (RAD) and R v Barclay 1969 (4) SA 195 (RAD).
In casu, the trial court proceeded, virtually headlong without
inquiring into the value of the firewood forming the subject of the offence or
the value of the vehicles ordered forfeit and clearly was not alive to the
importance of the value of the forfeited vehicles as against the offence.
Indeed none of the guidelines set out in Ndhlovu supra was ever
taken into consideration in deciding the forfeiture.
It occurs to me that firewood is generally of negligible value. This, measured
against the considerable value of motor vehicles, means that the unsolicited
order for forfeiture was not only inequitable but clearly led to the imposition
of a disproportionate penalty not matched by the gravity of the offence.
Accordingly, while the conviction of the accused persons
was proper and the sentence imposed fell within the sentencing discretion of
the magistrate, the orders for forfeiture of the 3 motor vehicles cannot stand.
In the result it is ordered that:-
1.
The convictions of the accused persons in CRB B377-9/2012, CRB B 380-2/2012 and
CRB B383-7/2012 are hereby confirmed.
2.
The sentences imposed on the accused persons in CRB B377-9/2012, CRB
B380-2/2012 and CRB B383-7/2012, excluding the forfeiture orders, are hereby
confirmed.
3.
The order for the forfeiture of the Mazda T35 registration number AAP6474, the
8 tonne truck registration number ABY6641 and the 2,5 tonne truck registration
number ACL 4240 are hereby set aside with the result that the said motor
vehicles should forthwith be returned to the accused persons.
4. The order for the
forfeiture of the firewood in all the 3 cases is hereby confirmed.
MATHONSI J:…………………………………….
MAWADZE
J: agrees……………………………..
