THE State V Jacob Chibhunhe

### Preamble
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HB 118/22
T 01-14
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THE STATE

Versus

JACOB CHIBHUNHE

IN THE HIGH COURT OF ZIMBABWE

KAMOCHA J (RTD)

BULAWAYO 27 APRIL 2022

Written Reasons for dismissal of application for condonation for late noting of an appeal

KAMOCHA J (RTD): 	The applicant with 2 others appeared before me for sentence after being referred to this court by a Gweru Provincial Magistrate.  The applicant and another were convicted of 17 counts of :

“vandalise, cut, damage, destroy, or interfere with any apparatus for transmitting and distributing or supplying electricity” in contravention of section 60A (3) of the Electricity Act (Chapter 13:19) as read with section 22 (3) (b) of the Electricity Amendment Act published in Statutory Instrument number 12 of 2007.

After reading through the record of proceedings I held the view that the convictions were proper and accordingly confirmed them.  Please refer to case HB 71-15, T 01-14.

Before sentencing them I was of the view that there were special circumstances in the case.  Please refer to page 4 of HB 71-15, T 01-14 for the reason for such conclusion.

The applicant and one of his co-accused were sentenced as follows: each sentenced to 3 years imprisonment for each of the 17 counts.  The sentences on counts one and two shall run concurrently with the sentences on counts 3 to 17.  The total effective sentences of each is 45 years imprisonment.

The judgement was handed down on 21 March 2015.  On 25 March 2015 the applicant appeared in court in person seeking condonation for the noting of an appeal.  After hearing his request the court gave an ex tempore judgment and dismissed the application because I held the view that the applicant was attempting to obtain condonation in order to lodge a frivolous and vexatious appeal when regard is had to the 17 crimes that he was convicted of.

From 11 February 2013 they carefully planned and went on a spree of stealing large amounts of transformer oil from ZETDC substations transformers in the Gweru and Shurugwi areas.  During the period of 11 February 2013 to the 26 June 2013 they did so no less than 17 occasions.  I held that the inhabitants of Gweru and Shurugwi were so badly affected by the persistent behavior of the accused and his co-accused that if they had chance to catch them they would have administered instant jungle justice.  It admits of no doubt that the applicant was a menace to society.  My view was that society does not need such people.

The accused persons had a ready market of transformer oil that is why they could dispose of it within a short space of time.  For instance on 17 June 2013 they stole 330 litres of oil, on 21 June 2013 they stole 450 litres of oil, and went on to steal 400 litres of oil the next day.

The Electricity Act (Chapter 13:19) provides a mandatory sentence of 10 years imprisonment for anyone who commits such a crime if there are no special circumstances but in casu the court mero motu held the view that the severity of sentence amounted to special circumstance.  The applicant would have been sentenced to 170 years imprisonment if the court had concluded otherwise.

In the circumstance he was sentenced to effective sentence of 45 years imprisonment.

The community of Gweru and the surrounding areas had the endless inconvenience of living without electricity during the five months when the applicant and his colleagues unleashed their spree of thefts.

In the result I dismissed the application.