CHEDA J: This
is a review matter.
On
the 7th of March 2008 the then Provincial Magistrate based at
Tsholotsho addressed a minute to the Registrar, Bulawayo wherein he pointed out
the anomaly where the above accused was charged with theft of a donkey under
the Stock Theft Act [Chapter 9:23]. He
was duly convicted and sentenced to 9 years imprisonment being a mandatory sentence
under the Stock theft Act.
The matter was sent for review and
was confirmed by my brother BERE J as a result of an oversight. The Provincial Magistrate has drawn my
attention to the ruling in S v Ndlovu and others HB 74/07. In that matter, I held the view that a donkey
is not covered by the stock theft Act.
In arriving at this conclusion I was guided by the ruling in S v John Ndlovu where GARWE J.P and
KAMOCHA J. clearly laid down the correct legal position that a donkey is not
what the legislature intended to cover in the said enactment.
Upon realizing the error made, I
ordered the immediate release of the accused pending my discussion with my
brother BERE J which I have since done and is in agreement with my view.
In light of this, the conviction is confirmed
but the sentence is set aside and is substituted by the following:
“12
months imprisonment of which 3 months imprisonment is suspended for
5
years on condition accused does not during that period commit any offence of
which theft is an element for which upon conviction, accused is sentenced to
imprisonment without the option of a fine.
Effective-
9 months imprisonment.”
In
view of the fact that accused have already served a year in prison the above
sentence suffices, therefore, the accused should not be sent back to prison.
Cheda
J………………………………………………..
Kamocha J agrees…………………………………………..
