MAWADZE
J: The accused was arraigned
before the Magistrate sitting at Chiredzi facing 4 counts.
In
count 1 the charge is contravention section 114(2)(a) of the Criminal Law
(Codification and Reform Act) [Cap 9:23]
which relates to stock theft, count 2 is contravention section 157(1)(a) of
(Codification and Reform) Act [Cap 9:23]
which relates to possession of dangerous drugs specifically dagga, count 3 is
contravention section 39(3) of the Criminal Law (Codification and Reform) Act,
[Cap 9:23] relating to possession of
prohibited knives and count 4 is contravention section 45(1)(b) as read with s
128 of the Parks and Wild Life, Act [Cap
20:14] relating to possession of a specially protected animal or trophy.
The
accused pleaded guilty to count 2 to 4 and denied the charge of stock theft in
count 1. After a trial the accused was found not guilty and acquitted in
respect of the charge of stock theft in count 1. Since he pleaded guilty to
counts 2 to 4 the accused was duly convicted.
The
brief facts are that on 28 January the accused was arrested in connection with
the offence of stock theft in count 1. Upon his arrest he was searched and
found in possession of a sachet of dagga weighing 0.02g in count 2 and an okapi
knife in count 3. A further search in accused's bedroom led to the recovery of
two python skins in count 4.
Nothing
turns on the conviction in counts 2 to 4 and they are confirmed.
In
both count 2 and 3 the accused was sentenced to 60 days imprisonment in each
count which were both wholly suspended for 5 years on the usual conditions of
good behaviour.
The
only notable omission by the trial Magistrate in count 2 was to order the
forfeiture of the dagga for destruction and in count 3 the forfeiture of the
okapi knife as is provided for in s 39(4) of the Criminal Law (Codification and
Reform) Act, [Cap 9:23].
The
sentences in count 2 and 3 are otherwise confirmed.
What
exercised my mind in these proceedings is the sentence in count 4 in which the
accused was sentenced to the minimum mandatory 9 years imprisonment. The python
skins were properly forfeited to the State.
Before
imposing the mandatory sentence of 9 years imprisonment the trial Magistrate
was enjoined to inquire into the question of special circumstances.
In
my view the issue of special circumstances was not fully and properly
canvassed. In the case of S v Manase 2015 (1) ZLR 160 (H) MUREMBA J in
a review judgment, with my concurrence gave very useful insights on how the
court should inquire into the question of special circumstances especially where
the accused person is not legally represented.
The
accused's right to a fair hearing as is enshrined in s 69 of our Constitution
is paramount.
In
this case the accused explained to the Court that the python skins were given
to him for safekeeping after the death of his father who was the one who possessed
the python skins. According to the accused they were awaiting the traditional
redistribution of his father's assets which is preceded by a traditional beer
ceremony. They were still waiting for the rapoko to brew the traditional beer.
The
accused is a rural unsophisticated peasant who stays in Village Gwachara, Chief
Tshovani in Chiredzi. He is 59 years old. His belief in such traditional
beliefs had not been disputed.
After
recording the accused's explanation, the trial Magistrate did not invite the
State to respond to this explanation. The accused's explanation therefore
remained uncontroverted.
A
further misdirection is that after the accused's explanation the trial
Magistrate did not make a ruling on the existence or otherwise of special
circumstances. It was only in the reasons for sentence that the trial Magistrate
stated that there are no special circumstances in this case. The question which
arises is whether the accused's uncontroverted explanation amounts to special
circumstances. It is not clear from the record how the trial Magistrate arrived
at the conclusion that there are no special circumstances.
In
my view the accused proffered a reasonable explanation which was not
controverted. He explained his possession of the two python skins which he
apparently held in trust pending a traditional ceremony and redistribution of
his late father's assets. In my view that would prima facie constitute a
special circumstances when it is considered with the accused's background and
ignorance of the law.
I
am of the firm view that justice was not done in this case. It is clearly not
the accused's fault. I am not persuaded that it is fair and just to remit this
matter back to the trial Magistrate in order to continue with the botched up
inquiry into special circumstances.
In
view of the procedural irregularities outline above this Court is at large to
interfere with the sentence imposed by the court
aquo in count 4.
The
penalty provision for contravening s 45(1)(b) of the Parks and Wildlife Act is
a fine not exceeding level 8 or imprisonment for a period not exceeding 3 years
or both.
The
conviction in respect of count 4 is confirmed.
The
sentence of 9 years imprisonment in count 4 is set aside and substituted with
the following;
“The
accused is sentenced to pay a fine of US$500 or in default of payment 3 months
imprisonment”.
For
the avoidance of doubt the convictions and sentences in count 2 and 3 are
confirmed. In addition, the dagga in count 2 is forfeited to the State for
destruction and the okapi knife in count
3 is also forfeited to the State.
The
accused should be called and advised of the altered sentence in count 4 and the
forfeiture orders in count 2 and 3.
Mafusire J. agrees
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