NDOU J: This matter
was submitted for review of the sentence by the accused's legal practitioner. On my invitation, the Attorney General's
Office also filed written submissions.
The salient facts of the case are the following. The accused was convicted of two counts of theft of copper wire, the
property of Zimbabwe Electricity Supply Authority (ZESA) i.e. two counts of
contravening section 113(1)(a) of the Criminal Law (Codification and Reform)
Act [Chapter 9:23]. The accused pleaded
guilty and was duly convicted and sentenced to 5 years imprisonment in respect
of each count. Of the total sentence, 3
years was suspended on condition of good behaviour. In the review statement, it is submitted that
the effective sentence be reduced to one of two(2) years imprisonment. In count 1, the accused teamed up with
three(3) others and went to B Halum place in Mvuma with the sole intention to
cut and steal ZESA copper wires. They
cut 320 kilograms of copper wire from ZESA, loaded it into a vehicle and took
it to Harare. The accused was paid
ZAR700,00 for his participation in the crime.
The copper wire was recovered from one of the team members. In count 2, the accused person were searched
and he was found in possession of 180 kilograms of copper wire. His explanation for selling this copper wire
was that he found it in a bush at Central Estate Farm. Instead of surrendering it to its owners,
ZESA, he decided to sell it. In count 1,
the accused was fortunate in that he was not charged with the ideal charge of
contravening section 60A of the Electricity Act [Chapter 13:14] (as amended by
the Electricity Amendment Act 12 of 2007).
Section 60A(3) provides:
"Any person who,
without lawful excuse, the proof whereof shall lie on him or her -
(a)
.
(b)
cuts, damages, destroys or
interferes with any apparatus for generating, transmitting, distributing or
supplying electricity;
shall be guilty
of an offence, and if there are no special circumstances peculiar to the case
as provided for in subsection (4), be liable to imprisonment for a period of
not less than ten years."
If the prosecutor had done his/her
research, this would have been the most appropriate charge in count 1. Be that as it may, the accused stands
convicted as outlined above. The learned
Regional Magistrate took into account in accused's favour that he is a first
offender who pleaded guilty showing some measure of contrition. He also took into account that all the stolen
copper was recovered and further, that the accused shoulders family
responsibilities.
He, however, rightly observed that
theft of copper wire from ZESA is prevalent in the country. The accused was phoned by illegal copper
dealers from Harare and informed in advance, of their intended mission to come
to Mvuma to steal copper wire from ZESA.
After this call, accused assembled a team made up of himself, Thomas,
Peter and Rodwell to go and cut ZESA copper wire. After they accomplished this mission, they
waited for the illegal copper dealers from Harare. This team of four illegal copper dealers
eventually arrived and the accused and his team sold them the copper wire. The accused accompanied the illegal copper
dealers to Harare where the copper was to be sold. As alluded to above, he was paid in foreign
currency for his effort. This was a well
planned and executed theft by a gang of offenders. In count 1 the accused's moral blameworthiness
was properly held by the learned Regional Magistrate to be of a high
degree. The sentence of 5 years
imprisonment cannot be faulted. In count
2, however, the accused was convicted of theft by finding, so to speak. His moral blameworthiness was far less than
the one in count 1. The value of stolen
copper wire is less than in count 1.
There was no preplanning and execution by the accused. If anything, the conduct revealed in the
facts is of mere temptation after finding the copper wire in the bush. The learned Regional Magistrate misdirected
himself when he did not distinguish the sentence in count 2 from the one in
count 1. As far as count 2 is concerned,
I am at large on the question of the sentence.
The sentence of 5 years in count 2 is disturbingly inappropriate calling
for interference - S v Ramushu SC 25-93; S v Sidat
1997(1) ZLR 487 (S) and S v Coetzee 1970(4) SA 83 (RA). The sentence in count 2 has to be reduced in
the circumstances.
Accordingly, the convictions are
confirmed but the sentence is set aside and substituted by the following:
"Count 1 - 5 years
imprisonment
Count 2 - 3 years
imprisonment
Total - 8 years imprisonment of which 3 years is suspended for 4
years on condition the accused in that period does not commit any offence
involving theft or dishonesty and for which he is convicted and sentenced to
imprisonment without the option of a fine."
Cheda J
.......... I agree
Jumo, Mashoko & Partners, accused's legal practitioners
Attorney-General, respondent's legal practitioners
