MUTEMA
J: The
accused person in casu was properly convicted of two counts of stock
theft in contravention of section 114 (2) (a) of the Criminal Law (Codification
and Reform) Act, [Chapter 9:23] following a contested trial wherein he was
legally represented. The allegations in count 1 are that on 19 September,
2013 the accused, in concert with two suspects who are still at large, stole
twelve head of cattle belonging to Oteng Matswagole from some pasture in
Botswana, brought them into Zimbabwe and superimposed accused's brand on
complainant's and kept them in his kraal until the police anti-stocktheft personnel
were tipped off and arrested him. Eight head valued at $3 600,00 were
recovered while the balance valued at $1 800,00 were not recovered.
Regarding the second count, using the same modus operandi as in count
one, accused stole one bull belonging to Matthew Dube valued at $450,00 and it
was recovered.
The trial magistrate sitting at Gwanda who convicted the accused person found
no special circumstances and sentenced him as follows:
“Both
counts as one: 20 years imprisonment of which 4 years imprisonment is suspended
for 5 years on condition accused is not convicted within that period of any
offence involving dishonesty committed within that period and of which upon
conviction he is sentenced to imprisonment without the option of a fine.
Of the remaining 16 years imprisonment 2 years imprisonment is suspended on
condition accused pays compensation of US$1 800,00 to Oteng Matswagole through
the clerk of court Gwanda on or before 2 December, 2013.”
Since the accused person was legally represented, pursuant to proviso (ii) (a)
of section 57(1) of the Magistrates' Court Act, [Chapter 7:10], the proceedings
did not enjoy the right of automatic review unless his legal practitioner, in
terms of subsection (2) requested for such review. In casu no such
request was filed with the clerk of court. How then did the record of
these proceedings find its way to the review desk? It came via a minute
by the Regional Magistrate Gwanda couched in these words:
“Please
place the above record before a review Judge with the following comments.
The above matter was dealt with by a Provincial Magistrate at Gwanda.
Since the matter was represented (sic) it does not proceed for automatic
review. However, my interest was aroused by the sentence that appeared in
the local press. On reading the report I felt the magistrate could have
fallen into error. In State v Huni and others 2009 (2) 432
ZLR (sic) J Kudya (sic) is on record saying it's not competent to take multiple
counts and treat them as one in offences that attract a mandatory minimum
sentence nor to suspend sentence on good behaviour. If my observation is
correct can the proceedings be rectified in terms of the High Court Act,
section 29.”
Section 29 of the High Court Act, [Chapter 7:06] confers on the High Court
review powers in criminal proceedings. Subsection (4) provides that:
“(4)
Subject to rules of court, the powers conferred by sub-sections (1) and (2) may
be exercised whenever it comes to the notice of the High Court or a judge of
the High Court that any criminal proceedings of any inferior court or tribunal
are not in accordance with real and substantial justice, notwithstanding that
such proceedings are not the subject of an application to the High Court and
have not been submitted to the High Court or the judge for review.”
The import of this provision is that it matters not how the criminal
proceedings attracted the notice of the High Court or a judge thereof but as
long as they are not in accordance with real and substantial justice, such
criminal proceedings are subject to review.
Subsection (2) of section 29 provides inter alia as follows:
“(2)
If on a review of any criminal proceedings of an inferior court or tribunal,
the High Court considers that the proceedings –
(a)
…
(b)
are not in accordance with real and substantial justice, it may, subject to
this section –
(i)
…
(ii)
…
(iii)
set aside or correct the proceedings of the inferior court or tribunal or any
part thereof or generally give such judgment or impose such sentence or
make such order as the inferior court or tribunal ought in terms of any law
to have given, imposed or made on any matter which was, before it in
the proceedings in question; or “ (emphasis supplied)
Now are these criminal proceedings
in accordance with real and substantial justice in terms of the sentence that
was imposed? A reading of the penal provision in section 114 of the
Criminal Law (Codification and Reform) Act [Chapter 9:23] shows beyond any
shadow of doubt that they are not. Section 114 (2) (a) as read with
paragraph (e) provides that any person who steals livestock or its produce
shall be guilty of an offence and liable, if the stock theft involved any
bovine beast and there are no special circumstances as provided in subsection
(3) (i.e. peculiar to the case), to imprisonment for a period of not less
than nine years or more than twenty-five years. Subsection (4) is the
catch which the trial magistrate missed. It provides that a court
sentencing a person to the minimum sentence of imprisonment of nine years
shall not order that the operation of the whole or any part of the sentence be
suspended and if sentenced to imprisonment exceeding the minimum sentence of
imprisonment of nine years the court may order the operation of the whole or
any part of the sentence exceeding the nine years to be suspended.
The simple literal interpretation to
be placed is that in the event that any accused person is either sentenced to
the mandatory minimum of nine years or to any sentence in excess of the nine
years, the bottom line is that that nine year mandatory minimum sentence must
remain intact even where like in the latter scenario the court decides to suspend
any portion in excess of the nine years.
Apart from the clear provision of the statute regulating mandatory minimum
sentences in multiple counts the cited case of S v Huni & Ors
2009 (2) ZLR 432 (H) clearly tackled the issue as well. That case held
that respecting multiple counts, treating them as one for sentence is not
competent for the mandatory minimum sentence remains applicable on each count,
although it is permissible to order the sentence on one count to run
concurrently with the sentence on the other count or counts.
In the instant case it was therefore incompetent for the trial magistrate to
treat both counts as one for sentence and impose the globular sentence he
imposed which he proceeded to truncate by suspending portions on various
conditions with the net effect of resultantly leaving the accused with a
sentence below the mandatory minimum in respect of each count. He ought
to have sentenced the accused to the mandatory minimum nine years per each
count and leave the sentence as is or order one to run concurrently with the
other or to have sentenced the accused separately on each count to anything
between nine years and twenty-five years imprisonment and then suspend the
portion in excess of nine years wholly or partially on whatever condition he
deemed appropriate.
In the result the sentence imposed by the trial magistrate is hereby set aside
and in its place, substituted with the following:
Count
1: 9 years
imprisonment
Count
2: 9 years
imprisonment
The trial magistrate is directed to recall the accused and explain to him the
new sentence.
Moyo J …………………………………………. I agree
