CHEDA J: This is a review judgment.
Accused was charged with contravening section 42 (2)a of the Reserve
Bank of Zimbabwe Act [Chapter 22:10] (wrongly cited as chapter 22:15) (Chapter
22 only ends with 22:13.)
The
accused who is aged 22 years of age and a student at National University of
Science and Technology (NUST) is studying Industrial Engineering. On the 10th day of May 2009, the
Police acting on information proceeded to his residence and searched it and
recovered a scanner, memory stick and 22 x US$1.00 notes. The notes were fake as they were being unlawfully
printed by the accused. In addition,
accused had stored all the American notes in the memory stick, ready for
printing.
Accused
was arrested and was arraigned before the court. He pleaded guilty to the charge, was duly convicted
and was sentenced as follows:
“24 months
imprisonment. 3 months is suspended for
3 years on condition that the accused person does not within that period commit
any offence involving the violation of the Reserve Bank of Zimbabwe Act, upon
conviction will be sentenced to imprisonment without the option of a fine.
(a)
21 months is suspended on condition that the accused
person completes 735 hours of community service at Baines Junior, Northend, Bulawayo. Community service shall begin on 1 June 2009
and shall be performed during weekends and shall be completed within 21 weeks.
(b)
The counterfeit rules are forfeited to the State for
destruction.
(c)
The scanner and the memory stick are also forfeited to
the State.”
There
are two issues in this matter. Firstly,
there is no section 42(2)(a) in the Reserve Bank of Zimbabwe Act as it ends
with section 30. Therefore accused has
been charged with the non-existent section.
The accused should have been charged with contravening section 14 (1)(a)
as read with (i) which reads:-
“14 offences
relating to bank notes.
(1)
Any person who—
(a)
without the authority of the Bank, engraves or makes
upon any material whatsoever any words, figures, letters, marks, lines or
devices, the print of which resembles in whole or in part any words, figures,
letters, marks, lines or devices peculiar to and used in or upon any note; or
(b)
uses for an unlawful purpose or, knowing that it is to
be used for an unlawful purpose, has in his possession any material whatsoever
upon which has been engraved or made any such words, figures, letters, marks,
lines or devices as are mentioned in paragraph (a); or
(c)
willfully defaces, soils or damages any note or writes
or places any drawing thereon or attaches thereto anything in the nature of an
advertisement;
shall be guilty
of an offence and liable—
(i)
in the case of an offence referred to in paragraph (a) or
(b), to imprisonment for a period not exceeding seven years.”
Secondly,
the penalty for the said offence is covered by section 14(1) (i). It is therefore, clear that the accused was
charged under a wrong section and as a result of this error a wrong sentence
was imposed.
Under
the said section, there is no option of a fine.
There is, therefore been a serious miscarriage of justice in this
matter. The following order is therefore
made:-
“It is ordered
that:-
(1)
The conviction and sentence imposed by the Court a
quo on the 28th may 2009, be and is hereby set aside.
(2)
The matter is referred back for a trial de novo
before a different magistrate.”
Cheda
J………………………………………………….
Ndou J concurs…………………………………………..
