This is
a review wherein my brother NDOU J raised a query with regards to sentence.
The
accused were charged with one count of assault with intent to cause bodily harm
and also of kidnapping.
The
background of this matter is that all the three accused live in Gweru while the
complainant lives in Shurugwi. On the ...
This is
a review wherein my brother NDOU J raised a query with regards to sentence.
The
accused were charged with one count of assault with intent to cause bodily harm
and also of kidnapping.
The
background of this matter is that all the three accused live in Gweru while the
complainant lives in Shurugwi. On the 27th August 2012, at
around 1340 hours, all the three accused proceeded by car to Wallcose A2 Mine
at Tongogara Farm, Shurugwi which is owned by the complainant's
mother. Upon arrival, they found the complainant's brother, one Norest
Javangwe, who was in a shaft underground. They enquired about the
whereabouts of her mother and she advised them that she was not around. The
accused then called her into their car whereupon they started assaulting her
with an assortment of weapons demanding money which they alleged was owed to
them by her mother. She suffered injuries in the process and was medically
attended to. During that process, the accused grabbed her and forcibly took her
into their car and drove to a place called Ascot Shopping Centre, Mambo Shopping
Centre and later to Irvine Shops - all these places are in
Gweru. Throughout this period, they continued assaulting her. They further
proceeded to Mkoba 9 and 6 in Gweru, where they locked her in their car as they
began drinking beer.
A
report was made to the police and the accused were subsequently
arrested. During the complainant's ordeal, they were using one of the
accused's vehicle being a green Isuzu Ballet Registration Number AAT 1637.
They
were convicted on both counts and were sentenced as follows:
“5
years imprisonment. In addition, the vehicle, Isuzu Bellet AAT 1637 is
hereby forfeited to the State.”
The
conviction on both counts is proper, but, it is the sentence which needs a
thorough examination. The motor vehicle which they were using was forfeited to
the State.
When
the learned trial magistrate was asked by my brother NDOU J why the motor
vehicle was forfeited to the State, his response was:
“Ad para 2
The
vehicle was forfeited because it was used for the commission of the
crime. It was driven to the mine where they kidnapped the complainant and
drove it to all places where they assaulted the complainant. They kept the
complainant in the vehicle for 8 hours until she was rescued by the
police. She messed up herself in the vehicle. It facilitated the
commission of the crime.
If they
had no vehicle the commission of the crime was going to be difficult or
impossible.
I
acknowledge the observations and have since rectified the anomaly. I
sincerely apologise for the errors noted by the judge and undertake not, in
future, to make the same errors.
MATURA
E (MRS)
PROVINCIAL
MAGISTRATE- SHURUGWI”
The
question of forfeiture is dealt with under Part VI of the Criminal Procedure
and Evidence Act [Chapter 9:07] in particular section 62 of the Criminal Procedure and Evidence Act [Chapter 9:07] which reads thus:
“Forfeiture of article to State
(1)
A court convicting any person of any offence may, without notice to any other person,
declare forfeited to the State -
(a)
Any weapon, instrument or other article by means whereof the offence in
question was committed or which was used in the commission of such offence; or
(b)
If the conviction is in respect of an offence specified in the Second Schedule,
any vehicle, container or other article which was used for the purpose of or in
connection with the commission of the offence in question or, in the case of a
conviction relating to the theft of any goods, for the conveyance or removal of
the stolen property;
And
which was seized in terms of this Part:
Provided
that such forfeiture shall not affect any right referred to in paragraph (a) or
(b) of subsection (4) if it is proved that the person who claims such right did
not know that the weapon, instrument, vehicle, container or other article was
being used or would be used for the purpose of or in connection with the
commission of the offence in question or, as the case may be, for the
conveyance or removal of the stolen property in question, or that he could not
prevent such use, and that he may lawfully possess such weapon, instrument,
vehicle, container or other article, as the case may be.
(2)
A court convicting any person or which finds an accused not guilty of any
offence shall declare forfeited to the State any article seized under this Part
which is forged or counterfeit or which cannot lawfullfully be possessed by any
person.”
The
order of forfeiture is purely discretionary, which discretion, of course,
should be judicially exercised. In that determination, the courts should
be guided by the following factors:
(1) The
nature of the article;
(2)
The role played by it in the commission of the offence and whether there is a
necessary connection between it and the offence;
(3) The
possibility that it will be used again in the commission of the offence;
(4) The
effect of forfeiture on the person(s) affected thereby;
(5)
Whether by virtue of the value the forfeiture of the article would be
disproportionate to the gravity of the offence;
(6)
In the case of an article of considerable value, such as a motor vehicle,
whether or not it has been used on other occasions for a similar criminal
purpose.
See
Criminal Procedure in Zimbabwe JOHN REID ROWLAND, Legal Resources
Foundation 1997 and also R v Ndlovu 1980
ZLR 96…,.
The
provisions of Part VI of the Criminal Procedure and Evidence Act [Chapter 9:07],
in my view, do not cover the vehicle used in the commission of this
offence. I hold this view in light of the factors listed supra, that is, whether the article, that is, the motor
vehicle, may be used again in the commission of the offence and whether it has
been used in the commission of other offences.
The
motor vehicle was indeed used in the commission of the offence and it was a
necessary connection between it and the offence. However, in my opinion,
that factor must be taken together with other factors such as the effect of the
forfeiture on the owner of the motor vehicle. The vehicle is, in my
opinion, of great considerable value especially when heed is taken that the
accused is already serving a five (5) year imprisonment term.
The
guidelines, with regards to the factors to be taken into account, were also
clearly stated in S v Mohamed 1977 (2) RLR 207
(GD)…., where PITMAN J said:
“It
is therefore clear that decision of a forfeiture order requires first an
inquiry whether a forfeiture order would be equitable. Relevant matters
would include:
(1)
The real value of the goods to the accused (S v Elms (GS-66-76)
and S v Smith 1974 (1) SA 607 (R));
(2) The
purpose for which they were being imported (S v Lennon 1972 (2)
RLR 259 (AD));
(3) The
importance to the accused of being allowed to retain them:
(4)
Whether it would be difficult for him to replace them;
(5)
Whether it will benefit or harm the community if he is allowed to retain them (Coetzee v S AD-185-76); and
(6)
Whether the accused will be able to pay an adequate monetary penalty for his
offence if imprisonment is not regarded as a suitable punishment.”
It
is trite law, therefore, that judicial officers should at all times approach
the question of forfeiture with a serious view in light of the serious
consequences which may flow from the said order. In light of that, the value of
the motor vehicle is disappropriate to the gravity of the offence to an extent
that forfeiture of the motor vehicle will be against public policy and an
acceptable sense of justice.
The
learned magistrate had a discretion to order forfeiture, but, however, as the
courts have always stated such a discretion should be exercised judicially. See
R v Ndlovu 1980 ZLR 96. The learned magistrate's
reason that she ordered forfeiture because without the vehicle the offence
would not have been committed, is, indeed, in order, but, however, it is a
factor to be taken into account but not the only determining factor as shown
above. I am therefore not favourably persuaded that forfeiture was justified.
In
conclusion, I confirm the conviction and sentence, but, the forfeiture order is
set aside.
