THE State V Reason Chimanja AND Felix Faron Chango

### Preamble
1
HCC49/25
HCCR1168/25
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THE STATE

Versus

REASON CHIMANJA

And

FELIX FARON CHANGO

HIGH COURT OF ZIMBABWE

MUZOFA, MANYANGADZE JJ

CHINHOYI, 15 August 2025

Review Judgment

MUZOFA J:- The two accused persons were convicted on three counts of stock theft as defined in section 114 of the Criminal Law Codification and Reform Act [Chapter 9:23]. They pleaded guilty to the charges. No issues arise from the conviction.

The three counts were treated as one for sentence. After a determination that no special circumstances exist, they were sentenced to 11 years imprisonment of which 3 years was conditionally suspended for 3 years.

The brief facts are as follows, on the 1st count, sometime in July 2025, they stole a cow and a calf from Fordson Sosa at Plot 24, Emily Park grazing lands, Chinhoyi. The stolen stock was valued at US$450.00 and was recovered.

On the 9th of July 2025 they stole two oxen from one Shavayemombe Sijanapi at Plot 32, Muni Farm, Chinhoyi. They sold the oxen to Asan Garatiya for US$800.00. The oxen were recovered from the buyers.

On 4 August, 2025, they stole a white and brown goat from Virginia Mahwanda at Plot 19, Temperly Farm, Chinhoyi. The goat was recovered slaughtered, and its value was US$25.00.

The trial court misdirected itself on two issues. Firstly, it is wrong to bundle together offences that attract a minimum mandatory sentence as one for sentencing. Secondly, it treated a goat as a bovine or equine that attracts a minimum mandatory sentence.

Section 114 of the Criminal Law Codification and Reform Act [Chapter 9:23] provides a mandatory minimum sentence of 9 years imprisonment for stock theft unless there are special circumstances. Each count of stock theft constitutes a separate offence and must therefore attract its own sentence.

In this case, the accused were convicted of three separate counts of stock theft, each with its own complainant. The magistrate should have passed a separate sentence for each count, as the legislature intended for a mandatory penalty of 9 years to apply to each instance of stock theft. In S v Huni and Others 2009 (2) ZLR 432 (H) KUDYA J (as he was then) in a review judgment in similar matters of stock theft held that it is improper to pass a globular sentence in respect of multiple counts of stock theft as this defeats the purpose of s 114 (4) of the Code which provides for a minimum mandatory imprisonment term of nine years in the absence of special circumstances. The learned judge referred to the decisions in S v Tarwirei GS-350-81, S v Elson Mutambu HH262/18 where the Courts came to the same decision.

There were no special circumstances found that would justify a deviation from the mandatory minimum sentence in this case. The trial Court should have imposed the minimum mandatory sentence in Counts 1 and 2 separately.

On the second misdirection a goat is not a bovine or an equine to attract a minimum mandatory sentence or to be bundled together with offences that attract the mandatory sentence.

The sentencing provision under s114(2) of the Criminal Code provides,

‘(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 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.’

The minimum mandatory sentence applies to bovines or equine animals. A goat is neither a bovine nor an equine. A bovine animal refers to cattle, buffalo, bison, and other members of the subfamily Bovinae. They are characterised by their hollow horns and cloven hooves. An equine animal is any member of the horse family, including horses, donkeys, and zebras. See Makuvaza v The State HB 37/11. The trial Court was supposed to be guided by subsection (f) of s114 of the Criminal Code.

When dealing with multiple counts the trial court is at large to make an order to meet the justice of the case based on the circumstances. The sentiments by BEADLE CJ in S v Pearce 1974 (2) SA 37(R) at 38A-B cited in the Huni case (supra) are instructive, where the court noted,

“I draw attention to the fact that sentences on two separate counts each carrying a minimum sentence of imprisonment can, and often are, made to run concurrently with each other, and a portion of the sentence of imprisonment on a minor offence can, and often is, ordered to run concurrently with a minimum sentence of imprisonment imposed on a more serious offence.'

See also s343 (1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

Therefore, the sentence imposed by the trial magistrate is set aside and substituted with the following,

Count 1 - 9 years’ imprisonment.

Count 2 - 9 years’ imprisonment.

Count 3 – 6 months imprisonment wholly suspended for 5 years on condition that he does not, within that period commit any offence that involves dishonesty as an element of which upon conviction accused will be sentenced to a custodial term without the option of a fine.

The sentences in  counts 1 and 2 to run concurrently.

Effective sentence 9 years.

MANYANGAZE J    Agrees