THE State V Maidei Mahwiga THE State V Elizabeth ZHOU

### Preamble
1
HB 228/22
HCAR 1763/21 & 1762/21
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THE STATE

Versus

MAIDEI MAHWIGA				CRB MBE 563/21

THE STATE

Versus

ELIZABETH ZHOU				CRB MBE 564/21

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 29 AUGUST 2022

Review Judgment

TAKUVA J:	The two accused persons appeared before a magistrate at Mberengwa.  They were charged and convicted separately of contravening section 39 of Medicines and Allied Substances Control Act Chapter 15:03: Prohibition of Sale of Medicines which do not comply with prescribed requirements and furnishing of information regarding medicines to authority.

Both pleaded guilty and were sentenced to “4 months imprisonment of which 2 months is suspend for 5 years on condition accused does not within that period commit any offence involving unregistered medicines for which he is sentenced to imprisonment without the option of a fine. 2 months imprisonment.  The medicines are hereby forfeited to the state for destruction by fire”.  They were sentenced on 10 December 2021.

The learned scrutinizing Regional Magistrate referred both records to the Registrar of this court with the following comments:

“…  The 2 accused persons appeared before a Provincial Magistrate sitting at Mberengwa Magistrates’ Court.  They were convicted on their own pleas of guilty and were each sentenced to an effective 2 months imprisonment.  The records were placed before me for scrutiny and I am of the view that the sentence imposed by the trial magistrate is harsh and out of touch with the current sentencing trends.

Imprisonment is a severe form of punishment only to be imposed as a last resort S v Manyevere HB-38-03.  The 2 accused persons are female first offenders who pleaded guilty to the charges.  Their mitigatory aspects ought to have persuaded the trial magistrate to impose a non-custodial sentence.  There is no justification for the sentence of imprisonment that was imposed.

In the case of S v Mutando HB-35-16, the court held that failure to consider non-custodial sentences like a fine or community service is actually a misdirection by the sentencing court.  It was also stressed in the case of S v Silume HB-12-16 that failure by the trial magistrate to inquire to the suitability of community service where he/she settles for an effective imprisonment of 24 months or less is a misdirection.  The inquiry was not done.

I did not give the trial magistrate an opportunity to respond because of the urgency of the matter if corrective action is to be taken.  I felt that sending the record for the magistrate’s response will ultimately delay the relief that the accused persons may be entitled.

The records are referred for corrective action if any.”

This minute was penned on 31st December 2021 and was received by the Registrar of this court on 14 January 2022.

While I totally agree with the learned Regional magistrate’s view, it is unfortunate that despite the Regional Magistrate’s determination and zeal to have this injustice corrected, the two records eventually landed on my desk when the 2 months imprisonment was about to be completed.

I am convinced beyond doubt from a reading of the trial magistrate’s reasons for sentence in both cases that the court relied on the discredited concept of a “short and sharp” custodial sentence.  In S v Zikhali 2017 (1) ZLR 845 (H) it was held that the concept of a short and sharp sentence must be condemned at all times because it does not accord with modern sentencing trends.  It is an archaic phenomenon which has long been discarded in favour of other sentencing options.  It does not accord with the current trend in terms of which if the sentencing court settles for an effective custodial sentence of 24 months or less, it is required to inquire into the suitability of community service as an option.

As pointed out above this approach was never resorted to.  This is a serious irregularity that amounts to a misdirection.  In the circumstances, I am unable to certify these proceedings as being in accordance with real and substantial justice.  I accordingly withhold my certificate.