In exercising the powers that the trial magistrate should, by operation of law, have done, the overall sentence that I will impose will result in the reduction of the effective sentence imposed on Tobias Huni by one year, a standstill position for Brighton Chinyerere, and an increase to eighteen years for James Simbi and Mike Griya Katandika.

The sentence imposed on Tobias Huni is set aside and substituted by the following:

Count One – 9 years imprisonment.

Count Two – 9 years imprisonment.

The nine years in Count Two shall run concurrently with the period in Count One.

Total effective sentence – 9 years imprisonment.

The sentence imposed on Brighton Chinyerere is set aside and substituted by the following:

Count One – 9 years imprisonment.

Count Two – 9 years imprisonment.

The nine years in Count Two shall run concurrently with the period in Count One.

Total effective sentence – 9 years imprisonment.

The sentence imposed on James Simbi and Mike Griya Katandika is set aside and substituted with the following:

Each accused:

Count One – 9 years imprisonment.

Count Two – 9 years imprisonment.

Count Three – 9 years imprisonment.

The nine years imprisonment in Count Three shall run concurrently with the period in Count Two.

Total effective sentence – 18 years imprisonment.

He was then sentenced to undergo thirteen years imprisonment, of which three years imprisonment was suspended on condition of future good behaviour.

After finding the existence of special circumstances in terms of section 114(2)(e) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], the learned Senior Magistrate sentenced the accused to thirty-six months wholly suspended for five years on conditions of future good behaviour.

The learned magistrate considered the fact that the accused was wobbly on his legs, and partially blind, cumulatively as constituting special circumstances.

What the learned magistrate overlooked is that the accused's wonky legs did not prevent him from slaughtering a cow and skinning it. He had the strength of a normal person to do so. This handicap was, by no means, a serious one. The alleged handicap of sight is equally blown out of proportion. The accused was able to slaughter the cow under the cover of darkness. He skinned it in the dark, and managed to convey it, and sell it in Bulawayo, in the early morning. The accused's skullduggery cannot be attributed to these handicaps. It was not his partial handicaps which caused him to steal the cow.

At most, these factors constitute mitigatory factors.

The accused had the said above-mentioned handicaps all along as he grew up, and are not in any way connected to the offence.

This is one of those rare cases where this court is entitled to confirm the conviction entered by the trial magistrate but send the case back for sentence to be passed afresh, after a proper enquiry is carried out on the question of special circumstances – Criminal Procedure in Zimbabwe by J.R.ROWLAND...,.

He was sentenced to five years imprisonment, both counts having been treated as one for the purposes of sentence.

The sentence was couched as follows -

“Both counts as one for sentence:

5 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition that the accused does not within that period of time (sic) commit any offence of which dishonesty is an element and for which he is (sic) upon conviction sentenced to imprisonment without the option of a fine.”

Upon review, I was at a loss as to the basis of imposing such a seemingly lenient sentence.

I then asked the trial magistrate to justify the imposition of such a sentence. His explanation was that he treated the two counts as one for the purposes of sentence since the offence was committed on the same day. The other reason was that the mitigatory features of the accused amounted to special circumstances, thus justifying the non-imposition of the mandatory sentence.

The mitigatory features which he took into account are namely that the accused is -

1) A first offender;

2) A peasant farmer;

3) A married man with five children;

4) That the cattle which he stole had destroyed his crops;

5) That one of the beasts fled after he had inflicted injury on it; and

6) That he pleaded guilty to the charge.

The learned trial magistrate..., has clearly misdirected himself by completely disregarding clearly laid down legal principles.

The accused was charged with two counts of stock theft. Under normal circumstances, one count would, in the absence of special circumstances, attract a prison term of nine years. The fact that there are two counts, logically means that the sentence should have been higher, and not necessarily double, though possible, depending on the circumstances of the case.

Above all, the Criminal Law (Codification and Reform) Act, 2004 [Chapter 9:23], enjoins the court to impose a mandatory prison term unless there is an existence of special circumstances. His view is that the above mitigatory features amount to special circumstances. With all due respect, not all personal circumstances pertaining to the accused are special circumstances.   

In light of the above, the conviction is confirmed but the sentence is set aside, and the following order is made -

“Order

He has since been convicted of stock theft and sentenced to twenty-five years imprisonment.

He was sentenced on 4 March 2010 as follows -

Counts 1,2,3,7 and 8 were taken as one for purposes of sentence. He was sentenced to undergo twenty-five years imprisonment of which ten years were suspended on the usual conditions of good behaviour. Counts 4, 5 and 6 were taken as one for purposes of sentence. He was sentenced to undergo twenty-five years imprisonment of which ten years were suspended on the usual conditions of future good conduct. For count 9, the appellant was sentenced to undergo fifteen years imprisonment.

The total effective sentenced was therefore forty-five (45) years imprisonment.

The appellant was sentenced to eleven (11) years imprisonment of which two (2) years imprisonment was suspended on condition he makes restitution to the complainant in the sum of US$600= on or before 31 March 2010 being the value of the beast that was stolen.

He has appealed against both conviction and sentence and has submitted that in the event that the appeals against conviction and sentence do not find favour with the court, the matter should be referred to the Supreme Court, in terms of section 24(2) of the Constitution of Zimbabwe, on the basis that the mandatory sentence of 9 years for stock theft prescribed by section 114 of the Criminal Law Code [Chapter 9:23], is an inhuman and degrading punishment which is proscribed by section 15(1) of the Constitution of Zimbabwe.

The four of them were sentenced to an effective thirteen (13) years imprisonment after the court found no special circumstances in the matter.

Prior to that, on the 18th May 2009, the second applicant, along with two others namely,

George Masunda and Melusi Shepherd Mukwananzi, had been convicted of another count of stock theft and sentenced to an effective ten (10) years imprisonment. That case came before me as a bail application pending appeal under case no.HCB131/09.

The accused was charged with contravening section 114 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], [stock theft].

The accused pleaded not guilty but was however convicted of the said offence and sentenced as follows:

“9 years imprisonment. In addition, the accused is sentenced to a further 4 years imprisonment. 13 years effective.”

There is no State outline contained in the record and the trial magistrate has now left service after my query of the 28^th November 2012 regarding the propriety of the sentence. I queried the propriety of a further imposition of a sentence of 4 years. There is no explanation to this query as the magistrate has left service.

In as much as the sentence of 9 years imprisonment is mandatory, I have a problem with an additional sentence of 4 years in prison imposed without any explanation. To me, it appears to have been erroneously passed on the accused.

The courts should always work within the four corners of the statute, as they themselves are a creature of such. The empowerment and jurisdiction accorded the courts by the Legislature should be judicially exercised. The exercise should not result in the passing of sentences which may lead a reasonable man of the judicial officer's status into concluding that the sentence was passed without proper and deligent application. In the absence of an explanation by the learned trial magistrate; this apparent misdirection cannot be allowed to stand.

Accordingly, the following order is made:

Order

(1) The conviction is confirmed.

(2) The sentence is set aside and substituted by the sentence of 9 years imprisonment.

The appellant was sentenced to undergo 9 years imprisonment as the trial court believed that the appellant was liable to the minimum mandatory sentence for a period of not less than nine years or more than twenty-five years imprisonment as stipulated by section 114(2)(e) of the Criminal Law (Codification and Reform) Act [Chapter 9:25].

The appellant had initially appealed against both the conviction and sentence but later abandoned the appeal against conviction. In his sole ground of appeal against sentence he complained that the trial court erred by imposing on him a sentence which was meant for theft of a horse or bovine when he was convicted of theft of two donkeys.

What needs to be considered is whether or not a donkey is an equine animal. The Stock Theft Act [Chapter 9:18] defined “stock”, in section 2, as follows:-

““Stock” means –

(a) Any horse, mule, ass, bovine, sheep, goat, pig, poultry, pigeon or chinchilla; or”

The Stock Theft Act was amended by the Stock Theft Amendment Act 6 of 2004 which inserted a new section to the principal Act. That section set out special sentences for offences in respect of certain stock and it reads as follows:-

“12 Special sentences for offences in respect of certain stock

(1) Any person who is convicted of the theft or attempted theft of any equine or bovine animal or receiving knowing it to have been stolen, or inciting or conspiring with any other person to commit any offence shall, if there are no special circumstances on the particular case as provided in subsection (2) be liable to imprisonment for a period of not less than nine years or more than twenty-five years.”

The above section was repealed by section 282 of Act 23 of 2004 which we now know as the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The Criminal Law (Codification and Reform) Act [Chapter 9:23] defines, in section 114(1), “livestock” to mean;

(a) Any sheep, goat, pig, poultry, ostrich, pigeon, rabbit or bovine or equine animal; or

(b) Any domesticated game; or”

Unlike the Stock Theft Protection Act, the above section does not include an ass or donkey as livestock. Could the legislature have regarded a donkey as an equine animal? Is it an equine animal?

The word equine is defined in the Chambers 21^st Century Dictionary as belonging or relating to, or like, a horse or horses. From equinus; from equus horse. A horse in Latin is known as equus. But the word equus in zoology means the genus of ungulates including, horses, asses and zebra. See the Collins English Dictionary which defines equine as pertaining to a horse when used as an adjective. When used as a noun it also means a horse.

As can be seen from the above definitions, the word equine does not include an ass or donkey. It only relates to a horse or horses. A donkey is not an equine animal.

There is need for the legislature to amend section 114 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] so that it includes an ass like the Stock Theft Protection Act [Chapter 9:18].

In the case of S v Ndlovu & Anor 2006 (2) 19 this court arrived at the same conclusion. It was therefore not proper, in casu, to impose the minimum mandatory sentence of 9 years imprisonment meant for those convicted of theft of a bovine or equine animal.

In the result, the appeal succeeds and the sentence of 9 years imprisonment is hereby set aside. 

The appellant was sentenced to 25 years imprisonment….,.

On the question of sentence, there is no doubt that the appellant's conduct is very serious. He stole a total of nineteen beasts. He sold fifteen to a Mozambican national who obviously took them to his country. Offences of this kind are prevalent in border areas like the one where this offence occurred.  Such international cross border crimes are regarded as very serious. However, the trial magistrate misdirected himself by imposing the maximum term of imprisonment in the enabling statute. The respondent has conceded this error and has suggested that we interfere with the sentence imposed by the trial court. There is merit in this concession.

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= to Oteng Matswagole through the Clerk of Court, Gwanda on or before 2 December 2013.”…,.

Section 29(2) of the High Court Act [Chapter 7:06] 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…,.“…,.

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) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] 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 trial magistrate in this matter has seen it fit to provide early comic relief for 2015.

In response to a query raised as to why he sentenced the two accused persons each to 20 years imprisonment of which one and a half years imprisonment were suspended on conditions upon convicting them of one Count of stock theft involving two (2) beasts, this is what he had to say:

“The above matter refers, and, in particular, to the review minute by his Lordship Justice MATHONSI where he queried why the accused were sentenced to 20 years when the mandatory minimum sentences (sic) of 9 years is, on its own, already stiff. The trial magistrate opted for the 20 years for the following reasons:

(a) The accused's conducts are more reprehensible as they stole cattle on the eve of the rain season. Moreso, they stole oxen which are critical at this stage of the season. They deprived the owner of the beasts which are vital to conduct his farming and usher misery into that household.

(b) The accused executed their criminal enterprise under cover of night and, moreso, entered a kraal to execute their crime.

(c) Accused are rural dweller(s) who should have protected the cattle of their fellow rural dweller.

(d) Accused were motivated by economic gain as they intended to sell, and, indeed, sold the beasts.

So, as a result of these aggravatory factors which are reprehensible, the court found that the minimum mandatory sentence would not meet the justice of the case, that is why it opted for a 20 year jail term.”

Never mind that there was not the slightest of evidence placed before the court in respect of all that the trial magistrate so gratuitously alluded to. The State never led evidence in aggravation of sentence. In fact, the prosecutor did not even address the court on sentence. The court was still able to find those facts clearly because the trial magistrate allowed his mind to wander into the unknown thereby going astray and completely losing focus on the mandatory sentence to be imposed.

The two (2) accused persons, both aged 27 years, were arraigned before a magistrate at Chitungwiza facing one Count of stock theft, it being alleged that on 11 September 2014 (certainly not “the eve of the rain(y) season”) at Farm 74 Muda, Beatrice, they unlawfully took two oxen belonging to the complainant, drove them to a nearby bush where they slaughtered them. They hired a vehicle to ferry the carcasses to Tomson Farm in Beatrice but were spotted by an informer offloading them into the second accused's house. When the police were notified they searched the house and recovered the carcasses leading to the arrest of the accused persons.

The two (2) accused persons pleaded guilty and when the court found no special circumstances as would enable it to impose a sentence other than the mandatory sentence of 9 years, provided for in section 114 (2)(e) of the Criminal Law Code [Chapter 9:23], it sentenced each of them to 20 years imprisonment of which 1 year imprisonment was suspended for 5 years on condition that each accused person does not within that period commit any offence involving dishonesty for which upon conviction he is sentenced to a term of imprisonment without the option of a fine. A further half year imprisonment was suspended on condition that each accused person restitutes the complainant a sum of $800= (the value of each beast) by 16 October 2014.

In arriving at that sentence, the court gave its reasons as:

“Accused pleaded guilty showing contrition and were candid and open with the State, police, the complainant and the court at large in avoiding a protracted trial. A plea of guilty is essential for the effective and efficient contribution to the administration of justice.

Accused is (sic) a first offender to whom there is an emphatic general policy to the effect that wherever possible first offenders should not be sent to prison for fear of being contaminated by hardened and determined criminals. Imprisonment has various deleterious effects ranging from regulation of one's personal life to personal liberty.

However, this offence is on the increase and there is need for personal and general deterrence. Accused benefitted from their crime when crime must not benefit the offender. So accused's plea of guilty does not show any contrition as they benefited from their crime. Accused were motivated by economic gain as they intended to sell the livestock they stole. Zimbabwe is a cattle country, that is why in our national highways there are sign posts of cattle crossing the roads for motorists to be wary of such cattle. This stresses the importance of cattle. A loss to an ox at this eve of the rain season or ploughing season would bring misery to the complainant's household. They are deprived of their oxen which are their ploughing tractors. Oxen are castrated to devote most of their energies to ploughing. They are a source of draught power. Cattle are a source of meat and cash to the owner. Cattle are used to pay lobola and there is no valid marriage at customary law that can be entered without the payment of cattle.

Accused committed this offence under cover of darkness and offences of this nature are difficult to detect and bring criminals to book. Accused therefore premeditated over their offence and struck at nocturnal hours. Accused could not expect the owners of the cattle to employ security guards to guard their kraals when retired to bed. Accused, as rural dwellers, they know the importance of cattle and had a duty to protect them. An effective term of imprisonment which is prolonged is called for as there are no special circumstances.”

What a mouthful. Just where did the magistrate get all this from? Certainly not from the record before me.

I have said that the magistrate let his mind wander and he lost track. Nothing underscores the importance of giving reasons for sentence more than the above-cited passage of the record. It is imperative that reasons for any decision, including sentence, be given to show that the judicial officer has heard the evidence and arguments for each side and has not taken into account extraneous considerations: S v Mkali & Ors HB23-93. See also the Magistrates Court (Criminal) Rules, 1966.

In this case, the magistrate did not bother to gather necessary pre-sentencing information relating to the particular accused persons but had certain of his views stored in his mind which he ventilated and then drew the conclusion that the accused persons needed to be incarcerated for a “prolonged” period without regard to the penal provisions of the Act.

It should always be borne in mind by all those entrusted with the responsibility of punishing offenders that sentencing is a process which should be approached rationally and objectively. Magistrates should not let their emotions cloud their judgment on what is an appropriate sentence or allow themselves to be carried away by imagination as this may lead to them exaggerating the seriousness of the offence and the imposition of a disproportionate sentence; S v Harington 1988 (2) ZLR 344 (S).

I am also concerned about the gratuitous statements made by the magistrate in sentencing the accused persons; statements so detached from the facts at hand that they could have only been imagined. It has always been said that while it is proper to express disapproval of the criminal misconduct in formulating the sentence, the use of extravagant and overblown language should be avoided: S v Mahati 1988 (1) ZLR 190 (H).

Pruned down to the bare bones of the matter, the accused persons were convicted of one Count of stock theft and the mandatory sentence for that is 9 years imprisonment in the absence of special circumstances.

What appears to have played on the mind of the magistrate is the fact that two (2) beasts were involved. He probably thought that theft of each beast and not the Count should be visited with its own 9 years imprisonment. Otherwise how else can one explain the sentence of 20 years? Whatever the case, it was a misdirection calling for interference with the sentence.

The penal provision for stock theft shows that the legislature wanted to impose a deterrent sentence in respect of a prevalent crime. The penalty is severe enough without the court having to add to it - even though the court has a discretion to impose a sentence of up to 25 years: S v Zulu HB174-11; S v Chitukula & Ors HH155-12.

In my view, nothing would be achieved by suspending a small portion of an otherwise very stiff sentence on conditions. If a court considers suspending part of the sentence on conditions, it must make it possible for the affected person to fulfil the condition: S v Mukura & Ors 2003 (2) ZLR 596…,. If a person is already serving a minimum of 9 years imprisonment, he would have no motivation to restitute and avoid 6 months imprisonment. It's a futile exercise.

In my view, the mandatory 9 year term is deterrent enough and considering that two (2) beasts were involved a further term of imprisonment suspended on condition of future good behaviour is sufficient recognition of the number of animals involved.

In the result, it is ordered that:

1. The conviction of the first and second accused persons is hereby confirmed.

2. The sentences imposed on the 1^st and 2^nd accused persons are hereby set aside and in their place is substituted the following:

“Each accused person is sentenced to 12 years imprisonment of which 3 years imprisonment is suspended for 5 years on condition he does not during that period commit an offence involving dishonesty for which upon conviction he is sentenced to imprisonment without the option of a fine.

Effective sentence: 9 years.”

The appellant was sentenced to 18 years imprisonment….,.

As regards sentence, the State conceded that because the learned trial magistrate did not give reasons for imposing 18 years for a single count of stock theft that omission entitled this court to interfere with the sentence.

By statute, the court is obliged to impose a minimum of 9 years imprisonment per Count. It could impose a stiffer sentence if the circumstances set out in section 114(2)(e) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] are proved. The court did not find any special circumstances to have existed. It was obliged to impose the minimum sentence applicable. It settled for a heavier sentence without giving reasons therefor. Such a sentence cannot be allowed to stand. The appellant was convicted for the normal theft of stock or its produce. The normal sentence should follow. In light of the above, therefore, the sentence imposed in the court a quo is set aside and in its place the following is substituted:

“9 years imprisonment.”

The stock theft in question did not involve a bovine or equine animal which would involve the imposition of a mandatory minimum sentence of 9 years if the court found no special circumstances in terms of section 114(2)(e) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The accused should have been sentenced in terms of paragraph (f) of subsection (2) of section 114, that is, to a fine not exceeding level 14 or twice the value of the stolen property whichever is greater or to imprisonment for a period not exceeding 25 years or both.

The applicant was sentenced to an effective term of 9 years imprisonment.

This is the minimum mandatory sentence in terms of the Criminal Law (Codification and Reform) Act [Chapter 9.23].

His chances of success on appeal against sentence are therefore, nil. He is therefore, not a good candidate for bail pending appeal.

In the result, it is ordered that -

The application for bail pending appeal is dismissed.

The appellant was convicted and sentenced to the minimum mandatory sentence of 9 years imprisonment….,.

As regards sentence, the appellant argues that an effective sentence of nine (9) years imprisonment is so excessive as to induce a sense of shock. The appellant contends that the court did not give due weight to the mitigating circumstances of the case and erred in imposing a custodial sentence. It is further argued that the trial magistrate based his sentence on the fact that the appellant was a senior police officer….,.

As regards sentence, the appellant's defence counsel indicated that he had no meaningful submissions to make.

A contravention of section 114 of the Criminal Law (Codification and Reform) Act attracts a minimum mandatory sentence of 9 years imprisonment unless there are special circumstances. The court a quo did not err in imposing the mandatory minimum sentence of nine (9) years.

I would accordingly dismiss the appeal against both conviction and sentence.

In terms of section 114(2)(e) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] there is a mandatory sentence of between nine (9) years and 25 years imprisonment…,. A person can only escape the mandatory sentence if they can satisfy the court that there are special circumstances that are peculiar to the case - which circumstances should be recorded by the court.

In this matter, there were two major irregularities by the trial court. I only picked the second one much later.

The first irregularity that drew my attention concerned the sentence meted out on the accused for a conviction of stock theft as defined in section 114(2)(a) of the Criminal Law (Codification and Law Reform) Act [Chapter 9:23] (“the Code”). He stole two cows and a calf in a single act.

In the absence of special circumstances, theft of a bovine attracts a mandatory minimum sentence of nine years imprisonment. But, in S v Chitate HH568-16 we, MAWADZE J and I, said:

“Where the essential elements of the crime have been proved and there are no special circumstances, the courts have no choice but to impose the prescribed minimum. Undoubtedly, the court may go above the prescribed minimum. But, by all accounts, 9 years is already a very long stretch. The court's discretion to impose a sentence other than the prescribed minimum has to be exercised judiciously, not whimsically. The sentence should not be a thumb-suck.”

The cattle the accused stole were valued at $1,150=. All were recovered. He pleaded guilty. He was sentenced to fourteen years imprisonment of which four years imprisonment was suspended for five years on the usual condition of good conduct. Thus, the effective sentence was ten years.

The aggravating circumstances noted by the court were:

(a) Stock theft is a very serious offence;

(b) Stock theft has become prevalent;

(c) There was premeditation;

(d) The accused's intention was to deprive the complainant, permanently, of his property given that it was over a month before he was discovered and the cattle recovered;

(e) It was necessary to deter the accused from committing further similar offences;

(f) Removing the accused from society for a long time will enable him to mend his ways;

The personal and mitigating circumstances were:

(a) The accused was forty-two years old, was a farmer, and was married with ten children;

(b) The accused had two cattle and two calves of his own, and he earned about $300 per season;

(c) The accused pleaded guilty and thereby saved time;

(d) The accused did not benefit from the theft as all the cattle were recovered;

(e) The accused was a first offender;

Frankly, in cases of mandatory jail terms where there are no special circumstances, aggravating and mitigating circumstances have diminished relevancy. However, this is not to suggest that the assessment should not be made. It should always be made. But, judicial officers should be careful not to be distracted from the duty to investigate special circumstances as appears to have happened in this matter.

In this case, the accused was properly convicted. Therefore, the conviction is hereby confirmed.

I queried the sentence. It was above the mandatory minimum.

In the light of S v Chitate HH568-16 the trial court readily conceded that there was no justification for the higher sentence. The concession was well made.

If the irregular sentence was the only misdirection, we would probably have simply reduced it and returned the record with appropriate directions. Sadly, there was another irregularity in relation to the manner the court a quo treated the more crucial aspect of special circumstances.

Section 114(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] requires the court to record the special circumstances peculiar to the case that an accused may mention. Although nothing is said about the recording of the court's own explanation to the accused, it is now trite that this too ought to be done: see S v Manase HH110-15; S v Chembe HH357-15 and Ziyadhuma v S HH303-15.

In the present case, the record of proceedings shows that neither the court's explanation of special circumstances nor the accused's response thereto was taken down. All that the record bears is:

“Special circumstances explained and understood.

Q. Do you have any special circumstances?

A. No.”

That was most perfunctory and somewhat a dereliction of duty by the trial magistrate.

In S v Ziyadhuma v HH303-15, the magistrate had merely recorded that “Special circumstances peculiar to the case explained and understood.” BERE J…, (HUNGWE J concurring) set aside the sentence imposed, and said…,:

“It is imperative, in my view, that where there is need to deal with the issue of special circumstances, the actual explanation given by the magistrate be recorded to avoid the Appeal Court having to speculate on what was explained to the appellant before sentencing…,. The proper approach should be for the magistrate to explain what special circumstances are and also the consequences of a failure by the convicted person to give such special circumstances. Both the explanation given by the magistrate and the responses given by the convicted person must be recorded.”

In S v Chaerera 1988 (2) ZLR 226 (S); and S v Manase HH110-15, it was said that it should be further explained to the accused that in addressing the court on special circumstances, it is his right, should he so wish, to lead evidence from witnesses.

Accurate recording and proper record keeping are key.

A Magistrate Court is a court of record (section 5(1) of the Magistrates Court Act [Chapter 7:10]). A court record that fairly and accurately represents the proceedings and the findings facilitates the review of, or appeal from, such proceedings or findings. Admittedly, current resource limitations mean that judicial officers are condemned to the tedious and mechanical process of recording proceedings in long hand. There are no video or audio facilities. The judicial officer's notes remain the only evidence of the proceedings. The court record is a reflection of what the adjudicating officer believes to have heard. There is, of course, the obvious danger of mistake or mis-hearing. Sometimes there are omissions on the actual questions put to a witness, the answers thereto or the full submissions by the parties.

Generally, the record should contain all the questions and answers. As BERE J noted in S v Ziyadhuma HH303-15, it is difficult, on review or appeal, to appreciate the meaning of responses if the questions asked are not recorded. In cases where only answers to questions are recorded, the context in which a response is given and the intended meaning of the response are not clear on review or appeal.

Whilst, from personal experience, the problem of incomplete or inadequate records from the lower courts is not prevalent, thanks to the dedication and industry of the majority of the presiding officers therein, in spite of notable punishing work schedules combined with demoralising conditions of service, continuous efforts should be made to achieve good results with what is available. It is hoped judicial officers in those lower courts will embrace the above explanation in order to improve record keeping.

Sadly, because of the deficiencies documented above, the sentence of the court a quo has to be set aside and the record remitted. It is ordered as follows:

(i) The conviction is hereby confirmed.

(ii) The sentence is hereby set aside.

(iii) The record is hereby remitted to the court a quo for a proper investigation into special circumstances after which the court may pass an appropriate sentence.

In this matter, the absence of an explanation for the harsher sentence above the prescribed mandatory minimum which the trial court imposed, coupled with the manifest mistreatment of the sentencing principle of suspension of sentence, has led this court to interfere.

The case was tried in the Provincial Magistrate's Court for the province of Mashonaland West sitting at Chinhoyi. The accused was convicted on his own plea of guilty to stock theft as defined by section 114 of the Criminal Law [Codification and Reform] Act [Chapter 9:23] [“the Code”]. He stole an ox valued at $350. Half the carcass was discovered. But nothing was recovered.

The conviction was proper and is thus confirmed.

There were no special circumstances. The accused was 62 years old. He was employed and earning $400 per annum. He was a first offender and a widower with three children. Their ages were not given. The accused offered to compensate the complainant. The reason the accused gave for slaughtering the ox was rather strange. He said he did not slaughter it for the meat - but just to look at it!

In its assessment of sentence, the trial court said stock theft was on the increase in the district of Chinhoyi; that there was a need to impose a deterrent sentence; that the crime was premeditated; that the reason why the accused slaughtered the ox was to destroy the evidence and that he did not steal out of need or economic hardship.

The accused was sentenced to 12 years imprisonment of which 2 years imprisonment was suspended on condition he paid restitution in the sum of $350.

None of the factors the trial court took into account in assessing sentence was borne out by the record.

For stock theft, the Criminal Law (Codification and Reform) Act (the Code) prescribes a mandatory prison term of not less than nine (9) years. Where the essential elements of the crime have been proved and there are no special circumstances, the courts have no choice but to impose the prescribed minimum. Undoubtedly, the court may go above the prescribed minimum. But, by all accounts, nine (9) years is already a very long stretch. The court's discretion to impose a sentence other than the prescribed minimum has to be exercised judiciously, not whimsically. The sentence should not be a thumb-suck.

In casu, even accepting that there was evidence of the factors the magistrate took into account in assessing sentence, they still did not explain the reason for the departure from 9 years. The factors merely explained aggravating circumstances. So, without an explanation why it went above 9 years, which it could do, I am not satisfied that the exercise of discretion by the trial court was proper.

The trial court suspended 2 years imprisonment on condition the accused paid restitution.

As a sentencing principle, a court can suspend the operation of a sentence, or a portion of it, on conditions that it must specify: see section 358 of the Criminal Procedure and Evidence Act [Chapter 9:07]. But, where there is a prescribed minimum sentence for any given offence, the remaining effective sentence should not be less than the prescribed minimum.

In terms of section 114[4] of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code), where a person has been convicted of stock theft, and there are no special circumstances, the court is prohibited from suspending the sentence, whether as a whole or in part, where it has imposed the minimum sentence of 9 years.

Where there is a prescribed minimum sentence for an offence, it is improper for the court to impose a harsher penalty above the prescribed minimum in circumstances where such a sentence is not warranted, simply to create some room to suspend a portion, for whatever purpose; for example, restitution.

If, in its discretion, the appropriate sentence is the prescribed minimum, the court should stick to it.

That it cannot suspend the operation of a portion on condition of restitution does not necessarily leave the complainant without a remedy. Through the prosecutor, the injured person can always apply for restitution or compensation in terms of Part XIX of the Criminal Procedure and Evidence Act. Unlike the award of restitution or compensation under section 358[2] of the Criminal Procedure and Evidence Act, the award of compensation or restitution under Part XIX is not part of the sentencing formula: see S v Mutetwa HH374-15.

In casu, and as said already, there was no justification for the trial court to impose a sentence above the prescribed minimum. In the circumstances, the sentence was not in accordance with real and substantial justice. It is hereby set aside and substituted with the following:

“The accused is sentenced to 9 years imprisonment.”

The appellant was convicted for contravening section 114 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], on 14 February 2013, and sentenced to the minimum mandatory sentence of nine (9) years after the learned presiding magistrate found no special circumstances to warrant a lesser sentence.

This appeal is against both conviction and sentence.

In his notice of appeal the appellant has laid basically three grounds of appeal, viz;

(i) That the learned magistrate failed to appreciate the existence of the defence of mistake or ignorance of 'facts', whatever was intended.

(ii) The second ground of appeal is given as that the learned magistrate misdirected himself when he convicted the accused person when such conviction was not supported by evidence.

(iii) Finally, it was contended that the court a quo misdirected itself by failing to give reasons for the conviction of the appellant.

As regards sentence, the point taken is that the learned magistrate grossly misdirected himself in that he failed to adequately and properly explain the issue of special circumstances before the appellant was sentenced.

The learned magistrate was also attacked on his sentence for allegedly paying lip service to the appellant's issues in mitigation, and, in particular, in failing to properly explain the issue of special circumstances before sentence.

The respondent's position is that the conviction cannot be faulted and that it need not be interfered with.

It is on sentence that the respondent felt constrained to support it. Counsel for the respondent felt that there was merit in the argument that no special circumstances were explained to the appellant. The respondent suggested that this court considers the remittal of the case back to the court a quo for purposes of having the issue of special circumstances further canvassed.

It might well be true that at the time the appellant's counsel perused the court record the written reasons were not there but I find it inconceivable that the appellant's counsel would have come to the conclusion that when the magistrate convicted the appellant he just did that with no reasons at all.

In any event, the proper procedure to have adopted if indeed there were no reasons for judgment would have been for the appellants counsel to file an application for review for such a procedural irregularity. An appeal could only have been an attack on the reasons for judgement, which, incidentally, the appellant's counsel did which pre-supposes that there must have been reasons somewhere which led to the framing of the grounds of appeal.

The irony is that the reasons for judgement given by the learned magistrate properly fit into the evidence that was led at trial making it highly improbable for one to imagine that those reasons were manufactured or created after the conviction of the appellant.

The judgment, as crafted by the learned magistrate, clearly shows that the appellant crucified himself by projecting himself as the owner of the complainant's beast to whoever he interacted with.

According to the evidence of Evson Chakamba, it was the appellant who personally approached him to hire his motor vehicle to ferry the beast forming the subject matter of these proceedings.

The appellant disclosed to the witness that he wanted to sell the beast to T.M. Supermarket, but, somehow, the slaughtered animal ended up being taken to Dzonzai Butchery. No meaningful challenge was given to the evidence of this witness, meaning the appellant was substantially in agreement with the evidence of this witness.

The evidence of Blessing Chakamba corroborated that of his father Evson Chakamba in all material respects in further cementing the guilt of the appellant.

The young man's uncontroverted evidence was that the appellant claimed ownership of the beats which was subsequently slaughtered at the abattoir before the carcass was taken to Dzonzai Butchery in Chipinge. The witness confirmed that, throughout, the appellant was firmly in charge of the beast.

The witness further disclosed to the presiding magistrate that throughout his interaction with the appellant, the appellant disclosed that the beast was his. Not only that but that the appellant personally exhibited fake clearance papers for the animal.

The learned magistrate made a very careful analysis of the evidence that was presented including the rejection of the evidence by the appellant where he attempted to paint the picture that the animal belonged to his accomplice.

In my view, the learned magistrate's finding on the guilt of the appellant was beyond reproach. It cannot be faulted and need not be interfered with by this court.

The guilt of the appellant did not even need one to invoke the provisions of sections 205 and 206 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. This is so because all indications are that the attempted disowning of the beasts, which only assumed prominence during the defence case, must have been an after-thought. This explains why this was not suggested to witnesses who actually dealt directly with the appellant. If indeed the beast belonged to his brother, as he stated in his Defence Outline, he would have disclosed this to all the witnesses he dealt with.

On sentence, the respondent has conceded that the issue of special circumstances was not properly explained to the appellant hence the court should be at large in respect of the sentence imposed by the court a quo.

The court a quo was attacked for failing to adequately and properly explain the issue of special circumstances to the appellant before slapping him with the mandatory nine (9) year gaol sentence.

Counsel for the appellant's criticism of the court a quo in this regard was informed by the inscription by the learned magistrate that;

“Special circumstances peculiar to the case explained and understood.”…,.

It was argued by counsel for the appellant that the explanation inscribed in the record of proceedings was evidently inadequate and the learned magistrate ought to have given a more elaborate and meaningful explanation.

I agree.

It is imperative, in my view, that where there is need to deal with the issue of special circumstances, the actual explanation given by the magistrate be recorded to avoid the Appeal Court having to speculate on what was explained to the appellant before sentencing. This is particularly so where the issue is raised on appeal. The proper approach should be for the magistrate to explain what special circumstances are and also the consequences of a failure by the convicted person to give such special circumstances. Both the explanation given by the magistrate and the responses given by the convicted person must be recorded.

This same issue came up for consideration in the Supreme Court of this country in the case of S v Chaeruka 1998 (2) ZLR 226 (S) where McNALLY JA, with the concurrence of others, made the following remarks;

“I am satisfied that in the circumstances of this case the magistrate should have gone much further than he did in advising the appellant why the case had been remitted, what the minimum penalty was, and how that penalty could only be avoided by proof of special circumstances. He should have gone on to explain what special circumstances were….,.”

The following cases are also of relevance on the issue of special circumstances;

Tracking and Construction (Pvt) (Ltd) and Anor v S HH195-86; Telecel Zimbabwe v The State HH155-06; and S v Dube and Another 1988 (2) 385 (SC).

The State has made a concession that there is merit in the appeal against sentence and I am more than satisfied that that concession was well made.

Accordingly, the conviction is confirmed but the sentence is set aside and the matter is remitted for a proper hearing on the question of special circumstances, after which the magistrate will impose sentence afresh.