With regard to sentence, counsel for the appellant, however, persisted with the argument that the court a quo misdirected itself in finding that there were no extenuating circumstances. 

He submitted that the injuries on the deceased showed that this was a crime committed out of passion.

It is this Court's view that the appellant's attack on the deceased was not motivated by passion but vindictiveness. The manner in which the appellant killed the deceased was vicious and callous. He crushed her head to pulp with stones. The trial court found that the appellant armed himself with a kitchen knife which he used to stab the deceased on the left side of the chest where the heart is located. The court a quo correctly disbelieved the appellant's story that the deceased had fallen on the knife. The manner in which he attacked the deceased showed that he believed that if she did not want to live with him as husband and wife she did not deserve to live. On these facts, the argument by counsel for the appellant that the killing of the deceased was out of passion simplifies the seriousness of the offence. In our view, the effect of his argument was to diminish the gravity of the offence committed by the appellant. 

Counsel for the respondent's submission that the crime was committed out of spite and not passion was appropriate.

In S v Woods & Anor 1993 (2) ZLR 258 (S)…, GUBBAY CJ stated the following:

“In deciding whether or not extenuating circumstances exist which allow for a sentence other than death, the trial court exercises what is essentially a moral judgment. On appeal, this Court cannot substitute its own view. It may only interfere if persuaded that the conclusion of the trial court could not reasonably have been reached; or where that court had regard to wrong factors, or had mistakenly excluded factors proper to be taken into account, or had in some other way, erred in principle.”

The court is unable to find any misdirection on the decision by the court a quo that there were no extenuating circumstances in this case.

SENTENCE

Counsel for the second appellant, correctly conceded, in my view, that there were no extenuating circumstances in the commission of these offences.

Poisoning a victim and leaving him to die, as happened in the case of the first deceased; poisoning a victim and then fatally striking him with a pick when he showed signs of recovery, and as he pleaded to be taken to hospital, are all inherently wicked acts. This was a callous double killing committed in the course of a robbery. In the case of Robert Chingaona v The State SC105-02 it was stated thus:

“Warnings have frequently been given that, in the absence of weighty extenuating circumstances, a murder committed in the course of a robbery will attract the death penalty.”

On the question of sentence, counsel for the appellant was unable to point any misdirection by the court a quo. 

The concession, that the court found no extenuation, is proper.

As submitted by counsel for the respondent, the appellant perpetrated a cold blooded murder of an innocent child merely because his mother had stopped loving him. The evidence established that he was an evil man who killed a young boy in a callous and merciless manner. The deceased was subjected to a brutal attack. The appellant struck the deceased three times on the head with a steel rod crushing the skull and broke one of his legs to pieces. Thereafter, he burnt the body of the deceased beyond recognition in an effort to destroy evidence of his heinous deed.

The murder of the deceased was a premeditated revenge killing and there was nothing that could be said in the appellant's favour. He was undeserving of mercy and a lesser sentence would not have met the justice of the case.

The finding by the court a quo that there were no extenuating circumstances was the only appropriate conclusion.

Counsel for the appellant in the court a quo could find no factors which would amount to extenuating circumstances and the trial court found none.

It was submitted before us that the court a quo ought to have taken into account that the appellant acted in anger and that subjectively his state of mind was one of diminished responsibility which could provide extenuating circumstances.

However, the trial court found the murder of the deceased to be entirely unprovoked. The appellant knew that he was killing the deceased and not Mandla Dube. Having said he was going to kill someone he persisted in his wicked purpose and delivered, with severe force, the blow which killed the deceased almost instantly.

Not only was there a concession that no extenuating circumstances exist but we find no misdirection by the court a quo in arriving at the conclusion that there were no extenuating circumstances.

With regard to extenuation, the court found that the suggestion that the appellant was provoked into the commission by his wife was untenable.

It found that the commission of the offence had been planned and found no extenuating circumstances.

Before us, the appellant in S v Gambanga attacked the finding of the court a quo on the basis that the court should have found that the appellant suffered from diminished responsibility which operated to reduce his moral blameworthiness and urged us to alter the verdict to one of culpable homicide.

The State, on the other hand, submitted that this was a cold blooded murder committed by the appellant who vented his fury against his wife on the deceased and that the court was correct, firstly, in finding the appellant guilty of murder with actual intent, and, secondly, in finding that there were no extenuating circumstances.

The issue before us is whether the appellant was labouring under some form of diminished responsibility at the time of the commission of the offence. It is not in dispute that the Forensic Psychiatrist concluded that there was no evidence of mental illness or disorder and that the appellant appreciated what he was doing at the time.

The evidence on record clearly shows that the appellant conducted himself in a bizarre manner over a period of time. He had, in their quarrels, threatened to cut his wife's pubic hair and armpit hair and to take it to a n'anga in Bulawayo in order to cause her harm. On the day in question, the witness who saw the appellant immediately after the murder remarked he appeared mentally disturbed.

This Court has, on several occasions, pronounced the correct approach in such cases. In Gabanga v S SC32-98, this Court accepted that Diminished Responsibility is a condition falling short of mental disorder but such would require a special verdict into the Mental Health Act. Diminished Responsibility serves not to reduce the offence of murder to culpable homicide simply to reduce his moral responsibility and therefore affects the question of sentence.

In Mushiwa v The State SC198-94, this Court, MUCHECHETERE JA, quoted with approval remarks by McNALLY JA in Sibanda v State SC137-93:

“Now, it is true that the onus of proof of extenuating circumstances is on the defence. But I think, with great respect, that judicial officers not infrequently forget that actions speak louder than words. The very facts of the case can give mute testimony of extenuation, often in spite of the accused person's efforts to lie his way out of trouble, or to explain what he is really unable to explain - even to himself.

In other words, what the accused person actually did will often show, on a balance of probabilities that he was at the time in a state of diminished responsibility, if not a state of certifiable insanity.

The facts of this case are a good example. The learned judge in effect said:

'I do not believe your explanation that you were attacked. I do not believe that you had any reason to be angry. Therefore, I reject your explanation. Therefore, you have not proved extenuating circumstances.'

That approach leaves unanswered the vital question:

'What, then, is the explanation for the appellant's conduct?'

The answer is:

'On a balance of probabilities he was in a state of diminished responsibility.'

That is the most probable explanation for conduct which is otherwise inexplicable.

What normal person is going to wobble his bicycle all over the road and then get so incensed with the people who remonstrate with him for almost running them down that he kills one of them? What normal person is going to imagine that two young men and a woman are attacking him when the court rightly believed them that they were doing no such thing?

The answer must be:

'On the probabilities, such behaviour is not normal or rational. The appellant was therefore probably, whether because of drink or drugs or mental or emotional upset, in a state which can conveniently be called a state of diminished responsibility.'”

On the facts of this case, the court is clear that the actions are explicable.

As the court a quo found, there was a history of acrimony between the appellant and his wife and the deceased. He had previously threatened to harm the deceased. He clearly had an axe to grind with the deceased's mother and the probabilities are that he killed the deceased in order to get even with his wife.

Whilst his conduct may have been strange, it is clear that it was actuated by the bitterness which he harboured towards his wife. The deceased was used as a pawn in the process and was callously murdered.

Accordingly, it is the unanimous view of this Court that there is no basis on which the finding of the court a quo that there are no extenuating circumstances can be impugned.

Regarding the question of extenuation (this was a murder committed during the course of rape), we find no misdirection on the part of the court a quo in its finding that alcohol played no part in the commission of the offence.

The court a quo, in dealing with this issue, said the following;

“In this case, there is no evidence that the accused's vision or conduct was affected by intoxication liquor. His conduct before, during, and after the commission of the offence clearly shows that he was not so drunk as to be affected by alcohol. He was walking normally and was not staggering when he collected the deceased. He lured the deceased and manipulated her to agree to go to his homestead. He told one Hloniphani Nkomo to take a walk. He then told Austin to turn up the volume of his radio. Once he had carefully isolated the deceased and realized that she was vulnerable. He proceeded to rape her. The manner he cut the deceased's panties with a knife shows the determination which accused had to achieve his purpose.

A murder which is committed in the course of a rape is akin to murder committed in the course of robbery.

We find that alcohol played no part at all in the conduct of the accused. He was not intoxicated to such an extent as to be incapable of realizing the consequences of his action.

We are satisfied that on the evidence presented to us there are no extenuating circumstances surrounding the commission.”

We are in agreement with those remarks.

In considering the existence or otherwise of extenuating circumstances, the court a quo proceeded on the basis that the appellant had actual intent and found no extenuating circumstances.

Constructive intent on its own, or together with other factors, can constitute extenuation. 

It therefore follows that the court a quo misdirected itself on the issue of extenuation. In the light of this misdirection, this Court is at large on the issue of extenuation and an appropriate sentence in this matter.

An extenuating circumstance is a fact associated with the crime which serves, in the minds of reasonable persons, to diminish, morally albeit not legally, the degree of the accused's guilt. In considering the existence or otherwise of such a circumstance, no factor, not too remote or too faintly or indirectly related to the commission of the crime, which bears upon the accused's moral blameworthiness in committing it, can be ruled out….,.

The learned trial judge did not give any judgment pertaining to non-existence of extenuating circumstances.

In S v Mlambo 1992 (2) ZLR 156 (SC) this Court exhorted trial judges to always give a proper judgment on the issue of extenuating circumstances, even in the face of a concession by a defence counsel, by considering the whole background of the case, balancing the mitigatory against the aggravatory features, in order to arrive at a reasoned conclusion.

Considering all the material factors connected to the commission of the offence in casu it is common cause that only one stab wound was delivered without the appellant aiming particularly at a specific part of the deceased's body during the scuffle. The deceased was on top of the appellant, having bitten his middle finger. The deceased was having the better of the appellant. No medical evidence was led to establish the degree of force used in wielding the knife. The appellant desisted and ran away as soon as the deceased got off him. Despite the absence of provocation or self-defence, the factors adumbrated above have sufficient probative value to amount to extenuating circumstances.

The court was not addressed on the question of sentence. 

The court a quo, having convicted the appellant of murder with actual intent to kill, found that there were no extenuating circumstances. 

This court finds no extenuation.

The appellant lied to his mother about the reason that he was taking the boys away. He made repeated visits to the police to enquire about a child whom he knew was already dead in an effort to divert suspicion away from himself. The court a quo was correct in finding that he was manipulating everyone, including his own employer, in order to achieve his ends. The child was killed in a most gruesome manner. He made his younger son witness the murder, and, in the view of this court, his callousness was extreme. He is underserving of mercy.

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 section 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 re-distribution 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 un-sophisticated 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.

Minimum mandatory sentences are very heavy and harsh sentences. Judicial officers need to apply their minds fully when sentencing offenders in such cases otherwise a serious miscarriage of justice can result, as what happened in this case.

With minimum mandatory sentences, the sentences are considerably longer than would normally be imposed for the crime in question. To ensure that the mandatory sentence is not imposed in all the cases, the legislature added the rider that the minimum sentence does not have to be imposed if there are special circumstances justifying the non-imposition of the sentence. So, it is a procedural irregularity for a magistrate to simply make a finding that there are no special circumstances without exploring them.

The Magistrates' Court is a court of record: section 5(1) of the Magistrates Court Act [Chapter 7:10]. So, the record must show that special circumstances were canvassed. Failure to record special circumstances amounts to a misdirection rendering the sentence incompetent. See S v Mbewe & Another 1998 (1) ZLR 7 and Attorney-General v Jasi and Nharingo SC02-87.

The critical question is - how does the court canvass special circumstances?

From the matters involving special circumstances that have been placed before me for review, I have noticed that quite a number of magistrates do not really know the procedure in canvassing special circumstances. In S v Mbewe & Another 1998 (1) ZLR 7 it was stated that special circumstances should be canvassed immediately after the court has pronounced the verdict of guilty. This means that this has to be done before mitigation is recorded from the accused.

Cases wherein the accused is legally represented should not pose any problems at all because the defence counsel will address the court on the accused's behalf. The court should simply ask the defence counsel to address it on special circumstances. However, in cases where the accused is not legally represented, the court has a duty to explain, fully and clearly, to the accused, in a language that he understands, that he or she is in jeopardy of having a heavy minimum sentence imposed upon him and that he or she can avoid this by showing special circumstances. S v Makawa and Another SC46-91.

The court has a further duty to explain what is meant by special circumstances. See S v Chaerera 1998 (2) ZLR 226 (S); S v Maharangwe SC05-90; S v Kaja SC129-89.

Thereafter, the court should invite the accused to address it on special circumstances. The court should also record its explanation in the record. The accused's response should also be recorded in full. It should be explained to the accused that in addressing the court on special circumstances it is his right to lead evidence from witnesses if he or she so wishes. In terms of section 70(1)(h) of the Constitution of Zimbabwe Amendment (No.20) Act 2013, an accused has a right to adduce evidence. The right is even greater in circumstances where the accused is at the risk of being sentenced to a minimum mandatory sentence upon failure to satisfy the court that there are special circumstances justifying the non-imposition of the mandatory minimum sentence. According the accused such an opportunity is also in line with section 69 of the Constitution which states that an accused has a right to a fair hearing. If the accused leads evidence from witnesses, the State should be given a chance to cross-examine those witnesses.

After the accused's explanation, the State should be invited to respond - irrespective of whether or not the accused is legally represented. It also has the right to adduce evidence if it so wishes; and, if it does, the accused or his defence counsel should be given the opportunity to cross examine the State witnesses. It is the accused's right to challenge evidence adduced against him: see section 70(1)(h) of the Constitution. Thereafter, the court should make a ruling on the existence or otherwise of special circumstances. After that, the court should proceed to record mitigation and then sentence the accused.

In mitigation of sentence, we do accept that this murder was not committed in aggravating circumstances as anticipated by section 48 of the Constitution.

Section 48 of the Constitution of Zimbabwe provides for the right to life to every person. Subsection (2) thereof states:

“(2) A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances; and

the law must permit the court a discretion whether or not to impose the penalty;”

The contemplated law that complies with this Constitutional provision is not yet in place. Part XVIII of the Criminal Procedure and Evidence Act [Chapter 9:07] comprehensively deals with the punishments that may be imposed for all criminal offences in Zimbabwe. Section 336(1)(a) empowers the High Court to impose the death penalty. Section 337 mandated the imposition of the death penalty in the absence of extenuating circumstances.

There was recognisable distinction in our law and practice between extenuating circumstances and aggravating features before the new Constitutional dispensation. The cases of S v Jacob 1981 ZLR 1 (S), S v Mutsunge & Anor 1987 (1) ZLR 53 (S) and S v Tshuma 1991 (1) ZLR 166 (S) underline the distinction and may throw light on the meaning of the present Constitutional provision.

My view is that until a law contemplated by the Constitution is promulgated, the Criminal Procedure and Evidence Act, supra, must be interpreted in conformity with the Constitution. The effect of such an interpretation is that extenuation is no longer a requirement and the death penalty is no longer mandatory. It may only be imposed where the sentencing court finds that the murder was committed in aggravating circumstances. The procedure envisaged may very well be along the lines intimated by EBRAHIM JA in S v Tshuma 1991 (1) ZLR 166 (S)…,. The court is addressed in mitigation by the accused, followed by aggravation by the State, and, thereafter, the court determines, in the normal way, whether aggravating circumstances that warrant death exist.

This appears to have been the approach adopted by HUNGWE J in S v Mutsinze HH645-14.

The first count of murder was committed in the course of a robbery so was the second one. In my view, these murders were committed in aggravated circumstances.

The law, at the time, required and obliged the court to impose the death penalty especially where no extenuating circumstances had been found to exist. See section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07]. However, there has been a change in the legal terrain introduced by the new Constitution. That Constitution, in section 48, recognises everyone's right to life - including a prisoner. Section 48(2) of the Constitution states that a law may permit the death penalty to be imposed on a person convicted of murder committed in aggravated circumstances and that the law must permit the court a "discretion whether or not to impose the penalty.”

In my view, what the Constitution has done is to unfetter the exercise of the discretion which was previously fettered in section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The omission of reference to extenuating circumstances and the introduction of aggravated circumstances, in my view, must be interpreted to mean that what is envisaged is an Act of Parliament which will define the terms on which courts will impose the death penalty. Alternatively, and in any event, the absence of the definition of the term or what amounts to "aggravated circumstances" must mean that these were to be defined in the envisaged law. Before such an Act of Parliament is enacted, I interpret the legal position to be that, in keeping with its international obligations and international best practices, Zimbabwe intends to move away from the death penalty. Therefore, unless the State applies for a finding that aggravated circumstances exist, the court cannot impose this penalty in the spirit of the new law.

In my view, the accused must benefit from the absence of a specific law setting out the exact definition of what constitutes aggravated circumstances.

The existence or otherwise of extenuating circumstances is a matter exclusively within the jurisdiction of the trial court. In S v Mateketa 1985 (2) ZLR 248 (S)…, it was stated thus:

“The principle is well settled that the question as to the existence or otherwise of extenuating circumstances is essentially one for decision by the trial court, and that, in the absence of misdirection or irregularity, this court will not interfere with a finding that no extenuating circumstances are present, unless it is one to which the trial court could not reasonably have come.”

Extenuating circumstances…, basically relates to circumstances or factors surrounding the commission of the offence that lessen the moral blameworthiness of the convicted person. In arriving at such finding a court weighed the mitigating factors against aggravating factors. See, for example, the cases of S v Jacob 1981 ZLR 1 (AD) and S v Phineas 1973 (3) SA 897 (RAD)….,.

There are some crimes within our jurisdiction which provide for minimum mandatory sentences unless a court finds that special circumstances or reasons exist for non-imposition of such mandatory sentences. The particular statutes do not define special circumstances or reasons. Nonetheless, courts have not been hamstrung in determining what constitutes special circumstances or reasons. This is because they have had recourse to the common law.

Examples that immediately come to mind are -

(a) Stock theft, in contravention of section 114(2) as read with subsection (3) of the Criminal Law (Codification and Reform) Act.

(b) Unlawful dealing in or possession of precious stones in contravention of section 3(1) of the Precious Stones Trade Act [Chapter 21: 06].

On the sentence, the applicable law, on 21 March 2011, when the death penalty was imposed, was section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The relevant law obliged a court convicting an accused person of murder to impose a sentence of death unless it was of the opinion that there were extenuating circumstances….,.

The public prosecutor was not sure whether the fact that the appellant was not the one who cut the deceased's throat with a knife could constitute a factor of extenuation of the appellant's moral blameworthiness.

The trial court made it clear that such a factor did not amount to extenuation where an accused, who had been involved in a conspiracy to kill a person, did not dissociate himself from the execution of the agreement but instead took an active part in the murder.

The court a quo said:

“The accused was a conspirator and an accomplice in the murder of one Innocent Mudimba. It is not in dispute that the killing was motivated by ritual killing at the instigation of a businessman, one Daniel Mudimba, who committed suicide soon after the commission of the offence. The defence counsel has properly conceded that he has no meaningful argument to advance in extenuation and therefore he has not sought to raise any factors. The State has raised an aspect which it feels might lead to a finding of extenuating circumstances in that the accused person was hired to be part of the gang that killed for ritual purposes. The State takes the view that since the accused did not actually deliver the crucial blow that led to the demise of the deceased that may be considered to be an extenuating circumstance. We have come to the conclusion that the accused was hired to kill. His role was not defined at the outset but he was an active participant. In his confession he states that he held the deceased person from the back whilst his throat was being slit for the purpose of collecting blood from him. The accused's moral blameworthiness is no different from the person who actually stabbed the deceased. As we have said, the action of one of the conspirators was the action of all the conspirators. Accused person could have chosen to dissociate himself but he was tempted by money. Such killings are abominable to society and to any right thinking person. The accused's conduct, in confessing in a written statement, is not consistent with his action in court on trial where he chose to deny responsibility altogether. His moral blameworthiness is very high. The fact that he did not deliver the blow, in our view, cannot amount to an extenuating circumstance.”

The accused was charged with stock theft as defined in section 114(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was convicted on his own plea.

According to the State Outline, whose facts were not disputed by the accused during the canvassing of the essential elements, the accused was employed by the complainant as a herd-boy. In 2006, the complainant went to South Africa leaving his cattle in the custody of his neighbour, Mr Kahuni. However, the accused continued to herd the cattle as the herd boy whilst staying at Mr Kahuni's homestead. The accused then lied to Mr Kahuni that he was related to the complainant and that the complainant had authorised him to take four beasts for the purposes of paying lobola for his (accused's) wife. Mr Kahuni believed the accused's story and allowed him to take four beasts.

The accused sold the beasts to three different people and to a beef committee and enjoyed the proceeds. The people who bought the beasts were mentioned by their names in the State Outline. When the complainant returned, in June 2014, he discovered the offence and caused the accused's arrest. I find no issues on the conviction. I thus confirm it.

The court imposed the following sentence on the accused;

“12 years imprisonment wholly suspended on condition accused restitutes complainant four bovines through the village head, Raphel Chikuvarara, by 30/12/14.”

The accused was sentenced pursuant to section 114(2) and section 114(3) which read as follows:

“(2) Any person who -

(a) Takes livestock or its produce -

(i) Knowing that another person is entitled to own, possess or control the livestock or its produce or realising that there is a real risk or possibility that another person may be so entitled; and

(ii) Intending to deprive the other person permanently of his or her ownership, possession or control, or realizing that there is a real risk or possibility that he or she may so deprive the other person of his or her ownership, possession or control; or

(b) Takes possession of stolen livestock or its produce -

(i) Knowing that it has been stolen; or

(ii) Realising that there is a real risk or possibility that it has been stolen; shall be guilty of stock theft and liable -

(c)…,.

(d)…,.

(e) If the stock theft involved any bovine or equine animal stolen in the circumstances described in paragraph (a) or (b), and there are no special circumstances in the particular case as provided in subsection (3), to imprisonment for a period of not less than nine years or more than twenty-five years; or

(f) If the stock theft was committed in the circumstances described in paragraph (a) or (b) but did not involve any bovine or equine animal, or was committed in the circumstances described in paragraph (c) or (d) -

(i) To a fine not exceeding level fourteen or twice the value of the stolen property, whichever is the greater; or

(ii) To imprisonment for a period not exceeding twenty-five years; or both.

(3) If a person convicted of stock theft involving any bovine or equine animal stolen in the circumstances described in paragraph (a) or (b) of subsection (2) satisfies the court that there are special circumstances peculiar to the case, which circumstances shall be recorded by the court, why the penalty provided under paragraph (e) of subsection (2) should not be imposed, the convicted person shall be liable to the penalty provided under paragraph (f) of subsection (2).”

In short, in terms of section 114(2)(e) of the Criminal Law (Codification and Reform) Act there is a mandatory sentence of between nine (9) years and 25 years imprisonment if the stock theft involves cattle. A person can only escape the mandatory sentence if they can satisfy the court that there are special circumstances that are peculiar to the case - which circumstances should be recorded by the court.

I would like to deal with two issues that surround the sentence that was imposed by the learned magistrate. The first relates to the way he canvassed the special circumstances and the second relates to the competence of the sentence that he imposed.

The Canvassing of Special Circumstances

The record shows that after convicting the accused, the learned magistrate clearly explained to the accused the meaning of special circumstances and that he risked going to prison for a period of not less than nine (9) years and not more than 25 years if he failed to advance any special circumstances.

When the accused was asked by the magistrate for special circumstances he advanced the following. He said that he sold about six or more of the complainant's beasts. In other words he was saying that the number of beasts which were mentioned in the State Outline was actually less than the number that he had actually stolen. He said that this was prompted by the following reasons;

(i) Firstly, the cattle had no stock card and time and again the veterinary officer would threaten to impound the cattle.

(ii) Secondly, there was a time he lost a brother and needed money for funeral expenses.

(iii) Thirdly, at another time his wife had a miscarriage and since he needed money to foot the expenses he had to sell yet another beast.

(iv) Fourthly, he averred that for all the years that the complainant was in South Africa he never did anything towards the upkeep of his cattle and payment of his salary. As the herd boy he was solely responsible for the upkeep of the cattle which included buying medicine for the cattle.

The accused said that he had decided to sell the cattle and that upon the complainant's return he was going to compensate him for all his beasts. The accused said that it was unfortunate that when the complainant returned and discovered the offence he rushed to the police without giving him a chance to explain himself.

The accused stated that he had brought with him his father in law to court. He said that the father in law was willing to help him pay back the complainant's four beasts. The father in law gave evidence under oath and confirmed to the court that he was willing to help compensate the complainant's beasts so that his son in law would be spared a prison term. He said that he did not want to be burdened looking after the accused's family while the accused was in prison as he had a large family of his own to look after. The father in law said that he had already spoken to the complainant about the issue of compensation and the complainant was agreeable to it. He said that all he needed was two weeks to compensate the complainant. He said that the complainant, who was also in attendance at court, could confirm the position.

The court invited the complainant to comment on the matter. The complainant, who also took the witness stand, confirmed the arrangement with the accused's father in law. He also confirmed that for the period that he was away in South Africa he did nothing towards the upkeep of his cattle. He also explained that he was not interested in the accused being sentenced to prison. All he wanted was to be compensated for his beasts.

After the accused had made submissions on special circumstances and led evidence from his two witnesses the court went on to record mitigation from him. Thereafter, the court gave its reasons for sentence and then sentenced the accused.

What I find flawed about the trial magistrate's approach in canvassing the special circumstances is that;

(i) Firstly, he did not give the State an opportunity to respond to what the accused had submitted. The audi alteram partem rule was completely ignored as the court went on to make a ruling on special circumstances without hearing the State's response on the issue. It is a procedural irregularity and a serious misdirection for the court not to ask the State to make submissions and act is if the State has no role to play at all on the issue of special circumstances.

(ii) Secondly, while the learned magistrate did the correct thing of allowing the accused to lead evidence from witnesses in line with section 70(1)(h) of the Constitution of Zimbabwe Amendment Act (No.20) which states that any person accused of an offence has the right to adduce and challenge evidence, the procedural irregularity that he made was of not allowing the State to cross-examine those witnesses in order to ascertain the veracity of what they had said and what the accused had said. It is a rule of criminal procedure that if one party leads evidence from witnesses, the other party has a right to cross-examine those witnesses.

What the accused and his witnesses said went unchallenged yet it is contradictory to what is contained in the State Outline - which contents the accused did not dispute when the essential elements were canvassed.

In the State Outline, it is stated that the accused lied to Mr Kahuni that he was related to the complainant and that the complainant had authorised him to take four beasts for the purposes of paying lobola for his (accused's) wife. Mr Kahuni is said to have allowed him to take the four (4) beasts which beasts the accused then sold and squandered the proceeds. It is obvious that what the accused submitted on special circumstances is totally different from and irreconcilable with the contents of the State Outline yet the learned magistrate allowed this to go unchallenged. As the accused was making his submissions, the court should have asked him to reconcile what he was submitting with the contents of the State Outline, but this was not done. The court has a duty to ask the accused to explain any contradictions for it to be able to make an informed decision on the existence or otherwise of special circumstances. The court should not just accept submissions blindly.

(iii) Thirdly, after the accused had finished addressing the court on special circumstances the magistrate went on to ask him to make submissions in mitigation. Thereafter, the learned magistrate gave his reasons for sentence. It is in his reasons for sentence that he made a finding that there were special circumstances in the case justifying the non-imposition of the mandatory sentence.

This is a procedural irregularity.

The correct procedure is to canvass special circumstances just after the verdict - before mitigation. See S v Mbewe & Another 1988 (1) ZLR 7. In canvassing the special circumstances, both the accused and the State should be given a chance to address the court. They can also lead evidence from witnesses if they so wish; and, if they do so, the other party has a right to cross examine the witnesses. Thereafter, the court should give its ruling on the existence or otherwise of special circumstances. In the case of S v Happy Simba Manase HH110-15 I dealt at length with this procedure.

The Finding on Special Circumstances

In view of the procedural irregularities highlighted above I was tempted to remit the case to the trial magistrate for him to canvass special circumstances afresh but I have realized that despite the procedural irregularities I can ascertain from the contents of the record whether or not his findings on special circumstances were correct. So, remitting the matter will not serve any purpose but cause unnecessary delays in the finalization of this case.

As I have already stated above, for theft of a bovine, the accused can only be spared the mandatory sentence if he can show to the court that there are special circumstances peculiar to the case. The phrase 'special circumstances peculiar to the case' should be given a wide or broad interpretation so as to include circumstances that relate to the way the offence was committed and personal circumstances of the offender which should be special in nature. In R v DA Costa Silva 1956 (92) SA 173 (SR) BEADLE J said;

“There is, to my mind, some difference between 'a circumstance of the case' and 'a circumstance of the offence'. The court is here dealing with the quantum of punishment, and in making a decision on this I think that any fact which might legitimately be considered as an aggravating or mitigating feature of the case must be regarded as 'a circumstance of the case', even though it may not be 'a circumstance of the offence'. An example might perhaps best illustrate this point. If a very elderly man who is suffering from some chronic disease which requires special diet and specialised medical treatment were convicted of driving a car whilst not insured against third party risks, and if it were shown that a sentence of imprisonment would be likely to cause his death, it seems to me that this would be a proper factor which the court could take into account in imposing a sentence of a fine instead of a sentence of imprisonment, although it would be a circumstance 'special' to the offender and not 'special to the offence'.”

He went on to say;

“I fail to see why, in assessing punishment, a circumstance which is special to the offender cannot be regarded as 'a circumstance of the case' simply because it is not related to the offence. It may well be that many circumstances of a case which relate only to the offender, and not to the offence, should not be taken into account; but this is because they would rightly be regarded as 'general', as opposed to 'special' circumstances.”

It is also clear from the above case that special circumstances must not be general in character but special and the record must support their existence.

Quite a number of cases have examined what is meant by special circumstances.

In the case of S v Vera 1976 (2) RLR 228…, it was stated that these are circumstances which should be out of the ordinary either in their degree or in their nature. It was further stated that the court should not accept all mitigating factors as constituting 'special circumstances' although every special circumstance will always be a mitigating factor. See also S v Telecel (Pvt) Ltd 2006 (1) ZLR 476 and S v Dumisani Sibanda HB103-09.

It is my conviction that had the legislature used the phrase 'special circumstances peculiar to the offence' instead of 'special circumstances peculiar to the case' a narrow interpretation restricted only to the way the offence was committed would be appropriate.

I will now turn to deal with the circumstances of the present case.

There are contradictions between the contents of the State Outline and the submissions made by the accused as he addressed the court on special circumstances. Since the accused's submissions were not challenged I will take it that he, in a way, disputed the contents of the State Outline. So I will go by what he said. He said that when his brother died and when his wife had a miscarriage, he sold the complainant's beasts in order to raise money to meet the necessary expenses.

In a number of cases it has been mentioned that economic hardships do not constitute special circumstances as these are considered to be ordinary mitigating circumstances. See S v Martin Mugunzva and 2 Others HB99-10.

That the accused offered to compensate the complainant for his beasts and that the complainant accepted the offer and further indicated that he did not want the accused incarcerated does not stop the court from imposing the mandatory sentence. Again, these are ordinary mitigatory circumstances. Even the argument that imprisonment would weigh heavily upon the accused's family, including his father-in-law, who would be burdened by looking after the accused's family, does not constitute a special circumstance. In R v DA Costa Silva 1956 (92) SA 173 (SR) BEADLE J said;

“The magistrate, in my view, correctly, held that in the light of the purpose of the statute, the facts that the appellant had no previous convictions and that imprisonment would bear heavily upon him and his family, were insufficient to justify the suspension of imprisonment if a sentence of such imprisonment was required by law.”

However, in S v Mugangavari 1984 (1) ZLR 80 (S) it was stated that mitigatory factors, if considered cumulatively, they can constitute special circumstances.

In casu, the accused faced financial challenges while he was looking after the complainant's beasts for eight years and he was without a salary for that whole period. Having been convicted he offered to compensate the complainant his beasts. An extraordinary thing about this case is the fact that the complainant was away in South Africa for eight years. He knew very well that he had left the accused whom he had employed as a herd boy looking after his cattle, but for all those eight years he never sent money for the salary of the accused and for the upkeep of the cattle. Eight years is a very long time for anyone to survive without a salary if they are employed. Obviously, the accused had family responsibilities and for him to deal with them he needed money. With his employer having gone away for years, the accused was put in the predicament of having to dispose of the complainant's beasts whenever he faced financial challenges. All these factors, considered cumulatively, do constitute special circumstances….,.

Having made a finding that there were special circumstances in the case the learned magistrate ought not to have sentenced the accused to the mandatory sentence of between 9 years and 25 years imprisonment but to a sentence under section 114(2)(f) of the Criminal Law (Codification and Reform) Act [ Chapter 9:23].

Other than that, the sentence that was passed is not a competent one.

In terms of section 358(2)(b) and section 358(3)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] a court may pass sentence but order the operation of it to be suspended on condition that the accused pays “compensation for the damage or pecuniary loss caused by the offence.” Pecuniary loss means monetary loss. This therefore means that the compensation should be in monetary terms. In R v Kokerayi 1939 SR 237 it was stated that it is not competent to award compensation of cattle.

In casu, the learned magistrate awarded compensation of cattle. He had a prison term of 12 years suspended on condition that the accused delivered four herds of cattle to the complainant by 30 December 2014 through the village head. The most disappointing thing is that the learned magistrate who dealt with this matter is a Provincial Magistrate who, by virtue of his rank, is expected to be well versed with sentencing principles.

Conclusion

There is need to set aside the incompetent sentence that was imposed by the trial magistrate and substitute it with a competent one. I will impose a prison term which I will suspend wholly on condition the accused pays restitution to the complainant in monetary terms. The State Outline states that the value of the four beasts is $2,000=.

However, in the incompetent sentence the accused had been given until 30 December 2014 to deliver the four (4) beasts to the complainant. In the event that he has delivered the beasts then there will not be any need for him to pay the $2,000= but if he hasn't by now delivered the four (4) beasts then he should not deliver them but pay $2,000= to the complainant.

The accused is sentenced as follows:

“5 years imprisonment wholly suspended on condition he pays restitution to the complainant in the sum of $2,000= through the Clerk of Court at Banket Magistrates Court.”

In this matter, there were two major irregularities by the trial court. I only picked the second one much later.

The first irregularity that drew my attention concerned the sentence meted out on the accused for a conviction of stock theft as defined in section 114(2)(a) of the Criminal Law (Codification and Law Reform) Act [Chapter 9:23] (“the Code”). He stole two cows and a calf in a single act.

In the absence of special circumstances, theft of a bovine attracts a mandatory minimum sentence of nine years imprisonment. But, in S v Chitate HH568-16 we, MAWADZE J and I, said:

“Where the essential elements of the crime have been proved and there are no special circumstances, the courts have no choice but to impose the prescribed minimum. Undoubtedly, the court may go above the prescribed minimum. But, by all accounts, 9 years is already a very long stretch. The court's discretion to impose a sentence other than the prescribed minimum has to be exercised judiciously, not whimsically. The sentence should not be a thumb-suck.”

The cattle the accused stole were valued at $1,150=. All were recovered. He pleaded guilty. He was sentenced to fourteen years imprisonment of which four years imprisonment was suspended for five years on the usual condition of good conduct. Thus, the effective sentence was ten years.

The aggravating circumstances noted by the court were:

(a) Stock theft is a very serious offence;

(b) Stock theft has become prevalent;

(c) There was premeditation;

(d) The accused's intention was to deprive the complainant, permanently, of his property given that it was over a month before he was discovered and the cattle recovered;

(e) It was necessary to deter the accused from committing further similar offences;

(f) Removing the accused from society for a long time will enable him to mend his ways;

The personal and mitigating circumstances were:

(a) The accused was forty-two years old, was a farmer, and was married with ten children;

(b) The accused had two cattle and two calves of his own, and he earned about $300 per season;

(c) The accused pleaded guilty and thereby saved time;

(d) The accused did not benefit from the theft as all the cattle were recovered;

(e) The accused was a first offender;

Frankly, in cases of mandatory jail terms where there are no special circumstances, aggravating and mitigating circumstances have diminished relevancy. However, this is not to suggest that the assessment should not be made. It should always be made. But, judicial officers should be careful not to be distracted from the duty to investigate special circumstances as appears to have happened in this matter.

In this case, the accused was properly convicted. Therefore, the conviction is hereby confirmed.

I queried the sentence. It was above the mandatory minimum.

In the light of S v Chitate HH568-16 the trial court readily conceded that there was no justification for the higher sentence. The concession was well made.

If the irregular sentence was the only misdirection, we would probably have simply reduced it and returned the record with appropriate directions. Sadly, there was another irregularity in relation to the manner the court a quo treated the more crucial aspect of special circumstances.

Section 114(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] requires the court to record the special circumstances peculiar to the case that an accused may mention. Although nothing is said about the recording of the court's own explanation to the accused, it is now trite that this too ought to be done: see S v Manase HH110-15; S v Chembe HH357-15 and Ziyadhuma v S HH303-15.

In the present case, the record of proceedings shows that neither the court's explanation of special circumstances nor the accused's response thereto was taken down. All that the record bears is:

“Special circumstances explained and understood.

Q. Do you have any special circumstances?

A. No.”

That was most perfunctory and somewhat a dereliction of duty by the trial magistrate.

In S v Ziyadhuma v HH303-15, the magistrate had merely recorded that “Special circumstances peculiar to the case explained and understood.” BERE J…, (HUNGWE J concurring) set aside the sentence imposed, and said…,:

“It is imperative, in my view, that where there is need to deal with the issue of special circumstances, the actual explanation given by the magistrate be recorded to avoid the Appeal Court having to speculate on what was explained to the appellant before sentencing…,. The proper approach should be for the magistrate to explain what special circumstances are and also the consequences of a failure by the convicted person to give such special circumstances. Both the explanation given by the magistrate and the responses given by the convicted person must be recorded.”

In S v Chaerera 1988 (2) ZLR 226 (S); and S v Manase HH110-15, it was said that it should be further explained to the accused that in addressing the court on special circumstances, it is his right, should he so wish, to lead evidence from witnesses.

Accurate recording and proper record keeping are key.

A Magistrate Court is a court of record (section 5(1) of the Magistrates Court Act [Chapter 7:10]). A court record that fairly and accurately represents the proceedings and the findings facilitates the review of, or appeal from, such proceedings or findings. Admittedly, current resource limitations mean that judicial officers are condemned to the tedious and mechanical process of recording proceedings in long hand. There are no video or audio facilities. The judicial officer's notes remain the only evidence of the proceedings. The court record is a reflection of what the adjudicating officer believes to have heard. There is, of course, the obvious danger of mistake or mis-hearing. Sometimes there are omissions on the actual questions put to a witness, the answers thereto or the full submissions by the parties.

Generally, the record should contain all the questions and answers. As BERE J noted in S v Ziyadhuma HH303-15, it is difficult, on review or appeal, to appreciate the meaning of responses if the questions asked are not recorded. In cases where only answers to questions are recorded, the context in which a response is given and the intended meaning of the response are not clear on review or appeal.

Whilst, from personal experience, the problem of incomplete or inadequate records from the lower courts is not prevalent, thanks to the dedication and industry of the majority of the presiding officers therein, in spite of notable punishing work schedules combined with demoralising conditions of service, continuous efforts should be made to achieve good results with what is available. It is hoped judicial officers in those lower courts will embrace the above explanation in order to improve record keeping.

Sadly, because of the deficiencies documented above, the sentence of the court a quo has to be set aside and the record remitted. It is ordered as follows:

(i) The conviction is hereby confirmed.

(ii) The sentence is hereby set aside.

(iii) The record is hereby remitted to the court a quo for a proper investigation into special circumstances after which the court may pass an appropriate sentence.

In this matter, the absence of an explanation for the harsher sentence above the prescribed mandatory minimum which the trial court imposed, coupled with the manifest mistreatment of the sentencing principle of suspension of sentence, has led this court to interfere.

The case was tried in the Provincial Magistrate's Court for the province of Mashonaland West sitting at Chinhoyi. The accused was convicted on his own plea of guilty to stock theft as defined by section 114 of the Criminal Law [Codification and Reform] Act [Chapter 9:23] [“the Code”]. He stole an ox valued at $350. Half the carcass was discovered. But nothing was recovered.

The conviction was proper and is thus confirmed.

There were no special circumstances. The accused was 62 years old. He was employed and earning $400 per annum. He was a first offender and a widower with three children. Their ages were not given. The accused offered to compensate the complainant. The reason the accused gave for slaughtering the ox was rather strange. He said he did not slaughter it for the meat - but just to look at it!

In its assessment of sentence, the trial court said stock theft was on the increase in the district of Chinhoyi; that there was a need to impose a deterrent sentence; that the crime was premeditated; that the reason why the accused slaughtered the ox was to destroy the evidence and that he did not steal out of need or economic hardship.

The accused was sentenced to 12 years imprisonment of which 2 years imprisonment was suspended on condition he paid restitution in the sum of $350.

None of the factors the trial court took into account in assessing sentence was borne out by the record.

For stock theft, the Criminal Law (Codification and Reform) Act (the Code) prescribes a mandatory prison term of not less than nine (9) years. Where the essential elements of the crime have been proved and there are no special circumstances, the courts have no choice but to impose the prescribed minimum. Undoubtedly, the court may go above the prescribed minimum. But, by all accounts, nine (9) years is already a very long stretch. The court's discretion to impose a sentence other than the prescribed minimum has to be exercised judiciously, not whimsically. The sentence should not be a thumb-suck.

In casu, even accepting that there was evidence of the factors the magistrate took into account in assessing sentence, they still did not explain the reason for the departure from 9 years. The factors merely explained aggravating circumstances. So, without an explanation why it went above 9 years, which it could do, I am not satisfied that the exercise of discretion by the trial court was proper.

The trial court suspended 2 years imprisonment on condition the accused paid restitution.

As a sentencing principle, a court can suspend the operation of a sentence, or a portion of it, on conditions that it must specify: see section 358 of the Criminal Procedure and Evidence Act [Chapter 9:07]. But, where there is a prescribed minimum sentence for any given offence, the remaining effective sentence should not be less than the prescribed minimum.

In terms of section 114[4] of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code), where a person has been convicted of stock theft, and there are no special circumstances, the court is prohibited from suspending the sentence, whether as a whole or in part, where it has imposed the minimum sentence of 9 years.

Where there is a prescribed minimum sentence for an offence, it is improper for the court to impose a harsher penalty above the prescribed minimum in circumstances where such a sentence is not warranted, simply to create some room to suspend a portion, for whatever purpose; for example, restitution.

If, in its discretion, the appropriate sentence is the prescribed minimum, the court should stick to it.

That it cannot suspend the operation of a portion on condition of restitution does not necessarily leave the complainant without a remedy. Through the prosecutor, the injured person can always apply for restitution or compensation in terms of Part XIX of the Criminal Procedure and Evidence Act. Unlike the award of restitution or compensation under section 358[2] of the Criminal Procedure and Evidence Act, the award of compensation or restitution under Part XIX is not part of the sentencing formula: see S v Mutetwa HH374-15.

In casu, and as said already, there was no justification for the trial court to impose a sentence above the prescribed minimum. In the circumstances, the sentence was not in accordance with real and substantial justice. It is hereby set aside and substituted with the following:

“The accused is sentenced to 9 years imprisonment.”

This is an application for bail pending appeal in a matter in which the applicant, Esau Chembe, was convicted of contravening section 45(1)(b) of the Parks and Wildlife Act [Chapter 20:14] which relates to possession of ivory.

He was however sentenced under section 128(1)(b) of this Act, which, in the absence of special circumstances, imposes a mandatory sentence of nine years for a first offence where the possession involves the unlawful possession of trading in ivory or any trophy of a specially protected species.

He has appealed against both conviction and sentence, and, accordingly, seeks bail pending the hearing of the matter.

In his papers, the applicant addressed the key essentials of bail pending appeal which hinge on prospects of success; likelihood of abscondment; potential lengthy delay in hearing the appeal; and the right to freedom in tandem with the offence.

It was on prospects of success on appeal that the applicant laid most emphasis on at the hearing largely on the ground that the issue of special circumstances was canvassed inadequately by the court and that in any event the fact that the accused would be sentenced under this provision was only brought out at the sentencing stage.

Whilst the accused was represented during the presentation of the State case in the Magistrate's Court, his lawyer had renounced agency when the defence case was heard. He was thus a self-actor at the time of his defence.

Suffice it to note that the impugned portion of the record dealing with special circumstances reads as follows:

“SPECIAL CIRCUMSTANCES

Purpose explained to accused and understood.

Q. Did you understand my explanation?

A. Yes.

Q. Do you have special circumstances?

A. Yes.

Q. Go ahead.

A. I was trying to fend for my family that is why I committed the offence. Life is difficult nowadays. I could not pay for the bills, school fees, and to buy fertilisers.

N.F.S

STATE;

This does not amount to special circumstances. There are other means in which accused could have resorted to.”

It is indeed apparent from the above that what special circumstances are, as explained by the magistrate, was not captured in the record.

The State opposed bail on the grounds that there were no prospects of success against both conviction and sentence since the evidence led clearly shows that he was in possession of the ivory in question. The State also fears that he will abscond if he is granted bail since where there are no special circumstances, the mandatory sentence is nine years. It was the State's position that no special circumstances were shown, and that, in any event, even if the details of what was put forward by the magistrate as constituting such was not captured in the record, the inference is that they were explained and deemed understood.

Much, therefore, depends on the prospects of success against conviction and sentence in light of the objections raised to the manner in which special circumstances are captured on record.

The accused relied on the case of S v Chaerera 1988 (2) 226 (S) in which the court was of the view that the magistrate should have gone into detail in explaining special circumstances and where the matter was sent back to the Magistrate's Court for these to be properly explained.

Without the record capturing what it is exactly that was explained as constituting special circumstances, it would appear to me that the accused has a point, at least regarding prospects of success on the sentence, since there is a likelihood that the case may in fact be remitted back to the Magistrate's Court for the explanation of special circumstances to be fully captured or the court may decide that the mandatory sentence was unwarranted.

Also, purely as obiter dicta, whether poverty can repeatedly be said to not constitute a special circumstance in this country where more than 80% of the population, for over a decade and counting, continue to lack formal employment, is arguable. Such an approach would seem to be a blinkered approach to the reality encountered by ordinary citizens in their quest for survival since a state of economic collapse in itself fuels illegality on a massive scale as people try to cope by all means possible. Whilst criminality can never be excused, the context that has fuelled it, such as that which currently characterises the local economic situation, cannot, in my view, be entirely overlooked as a special circumstance.

The amount of ivory involved was 4.35kgs said to be valued at $739= according to the State Outline – perhaps an indicator “survival-induced criminality.”

In essence, my view is that the appeal, at least on sentence, is arguable. However, there would appear to be less prospects of success on the conviction itself.

One of the primary considerations in determining bail pending appeal is whether the accused will serve his sentence if released on bail in the event of the appeal not succeeding.

On abscondment, it was argued that he is unlikely to do so as he is of fixed abode and has lived in Zimbabwe all his life. As the accused has already been convicted, there is of course a heightened risk of abscondment in light of the fact that imprisonment still looms as a possibility. Abscondment is real rather than imagined under the circumstances since the accused already has a fair idea of what he can expect to serve should the appeal go against him.

The amount of bail suggested of $100= pending appeal, is, in my view, unsatisfactory to allay the real fear of abscondment. Moreover, it treats the accused as if he still has the presumption of innocence when he does not. It has to be an amount that will induce him to return to serve whatever sentence rather than risk the forfeiture of such sum of money should the court find that the appeal lacks merit.

1. Accordingly, the applicant is hereby admitted to bail on the following conditions:-

1.1 That he pays the sum of US$400= (four hundred United States Dollars) to the Registrar of the High Court in Harare.

1.2 That he resides at 5875 Dzivarasekwa Extension Harare, until the finalisation of the matter.

1.3 That he reports once every week on Fridays between 06:00am and 06:00pm at Dzivarasekwa Police Station.

1.4 That he shall not interfere with State witnesses until the matter is finalised.

The appellant was convicted for contravening section 114 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], on 14 February 2013, and sentenced to the minimum mandatory sentence of nine (9) years after the learned presiding magistrate found no special circumstances to warrant a lesser sentence.

This appeal is against both conviction and sentence.

In his notice of appeal the appellant has laid basically three grounds of appeal, viz;

(i) That the learned magistrate failed to appreciate the existence of the defence of mistake or ignorance of 'facts', whatever was intended.

(ii) The second ground of appeal is given as that the learned magistrate misdirected himself when he convicted the accused person when such conviction was not supported by evidence.

(iii) Finally, it was contended that the court a quo misdirected itself by failing to give reasons for the conviction of the appellant.

As regards sentence, the point taken is that the learned magistrate grossly misdirected himself in that he failed to adequately and properly explain the issue of special circumstances before the appellant was sentenced.

The learned magistrate was also attacked on his sentence for allegedly paying lip service to the appellant's issues in mitigation, and, in particular, in failing to properly explain the issue of special circumstances before sentence.

The respondent's position is that the conviction cannot be faulted and that it need not be interfered with.

It is on sentence that the respondent felt constrained to support it. Counsel for the respondent felt that there was merit in the argument that no special circumstances were explained to the appellant. The respondent suggested that this court considers the remittal of the case back to the court a quo for purposes of having the issue of special circumstances further canvassed.

It might well be true that at the time the appellant's counsel perused the court record the written reasons were not there but I find it inconceivable that the appellant's counsel would have come to the conclusion that when the magistrate convicted the appellant he just did that with no reasons at all.

In any event, the proper procedure to have adopted if indeed there were no reasons for judgment would have been for the appellants counsel to file an application for review for such a procedural irregularity. An appeal could only have been an attack on the reasons for judgement, which, incidentally, the appellant's counsel did which pre-supposes that there must have been reasons somewhere which led to the framing of the grounds of appeal.

The irony is that the reasons for judgement given by the learned magistrate properly fit into the evidence that was led at trial making it highly improbable for one to imagine that those reasons were manufactured or created after the conviction of the appellant.

The judgment, as crafted by the learned magistrate, clearly shows that the appellant crucified himself by projecting himself as the owner of the complainant's beast to whoever he interacted with.

According to the evidence of Evson Chakamba, it was the appellant who personally approached him to hire his motor vehicle to ferry the beast forming the subject matter of these proceedings.

The appellant disclosed to the witness that he wanted to sell the beast to T.M. Supermarket, but, somehow, the slaughtered animal ended up being taken to Dzonzai Butchery. No meaningful challenge was given to the evidence of this witness, meaning the appellant was substantially in agreement with the evidence of this witness.

The evidence of Blessing Chakamba corroborated that of his father Evson Chakamba in all material respects in further cementing the guilt of the appellant.

The young man's uncontroverted evidence was that the appellant claimed ownership of the beats which was subsequently slaughtered at the abattoir before the carcass was taken to Dzonzai Butchery in Chipinge. The witness confirmed that, throughout, the appellant was firmly in charge of the beast.

The witness further disclosed to the presiding magistrate that throughout his interaction with the appellant, the appellant disclosed that the beast was his. Not only that but that the appellant personally exhibited fake clearance papers for the animal.

The learned magistrate made a very careful analysis of the evidence that was presented including the rejection of the evidence by the appellant where he attempted to paint the picture that the animal belonged to his accomplice.

In my view, the learned magistrate's finding on the guilt of the appellant was beyond reproach. It cannot be faulted and need not be interfered with by this court.

The guilt of the appellant did not even need one to invoke the provisions of sections 205 and 206 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. This is so because all indications are that the attempted disowning of the beasts, which only assumed prominence during the defence case, must have been an after-thought. This explains why this was not suggested to witnesses who actually dealt directly with the appellant. If indeed the beast belonged to his brother, as he stated in his Defence Outline, he would have disclosed this to all the witnesses he dealt with.

On sentence, the respondent has conceded that the issue of special circumstances was not properly explained to the appellant hence the court should be at large in respect of the sentence imposed by the court a quo.

The court a quo was attacked for failing to adequately and properly explain the issue of special circumstances to the appellant before slapping him with the mandatory nine (9) year gaol sentence.

Counsel for the appellant's criticism of the court a quo in this regard was informed by the inscription by the learned magistrate that;

“Special circumstances peculiar to the case explained and understood.”…,.

It was argued by counsel for the appellant that the explanation inscribed in the record of proceedings was evidently inadequate and the learned magistrate ought to have given a more elaborate and meaningful explanation.

I agree.

It is imperative, in my view, that where there is need to deal with the issue of special circumstances, the actual explanation given by the magistrate be recorded to avoid the Appeal Court having to speculate on what was explained to the appellant before sentencing. This is particularly so where the issue is raised on appeal. The proper approach should be for the magistrate to explain what special circumstances are and also the consequences of a failure by the convicted person to give such special circumstances. Both the explanation given by the magistrate and the responses given by the convicted person must be recorded.

This same issue came up for consideration in the Supreme Court of this country in the case of S v Chaeruka 1998 (2) ZLR 226 (S) where McNALLY JA, with the concurrence of others, made the following remarks;

“I am satisfied that in the circumstances of this case the magistrate should have gone much further than he did in advising the appellant why the case had been remitted, what the minimum penalty was, and how that penalty could only be avoided by proof of special circumstances. He should have gone on to explain what special circumstances were….,.”

The following cases are also of relevance on the issue of special circumstances;

Tracking and Construction (Pvt) (Ltd) and Anor v S HH195-86; Telecel Zimbabwe v The State HH155-06; and S v Dube and Another 1988 (2) 385 (SC).

The State has made a concession that there is merit in the appeal against sentence and I am more than satisfied that that concession was well made.

Accordingly, the conviction is confirmed but the sentence is set aside and the matter is remitted for a proper hearing on the question of special circumstances, after which the magistrate will impose sentence afresh.