THE State V Tapiwa Bandambira

### Preamble
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HCC07/23
CRBCHNR04/23
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THE STATE

Versus

TAPIWA BANDAMBIRA

HIGH COURT OF ZIMBABWE
BACHI MZAWAZI J
CHINHOYI 16 February 2023 to 28 February 2023

Criminal Review

BACHI MZAWAZI J:  A terminally ill juvenile aged 18 years was arrested and charged for contravening section 89(4)C of the Postal and Telecommunications Act Chapter 12:05, alternatively, section 10 of the Copper Control Act Chapter 14:12, that is found in possession of copper wires without a license. Both statutory offences carry a specified mandatory prison term with the latter a ten- year automatic custodial sentence. He was convicted of the alternative charge and acquitted on the main after tendering a guilty plea. The trial court found no special circumstances and sentence him to an effective ten- year mandatory sentence.

The facts are that the accused was found carrying a sack containing 14.80kg copper wires without a license or permit authorizing the possession. The record is silent on the circumstances of his arrest. The court is not privy as to where he had obtained the same.  All what is clear is that this unsophisticated young offender pleaded guilty to both charges and indicated that he did not know that it was an offence to be in possession of copper wires but he did not steal them. He further indicated that he grew up knowing and using such malleable wires to construct toy cars. It is after this application that the state was persuaded to withdraw the main charge after plea, leading to the acquittal on the main charge and conviction on the alternative as already alluded to herein. It is also important to note that the above explanation was extracted at the special circumstances’ enquiry stage.

It is not in dispute that the offence attracted the mandatory meted out sentence, but looking at the circumstances of this case holistically where there no special circumstances warranting the non-imposition of such a harsh sentence.

What are special circumstances have been defined in several decisions of this court.  These are special reasons or circumstances which are out of the ordinary, either in their nature or extent. See, S v Moyo 1988(2) ZLR 1 (S). In S v Chisiwa 1981 ZLR666(H), it was noted that there is no difference between “reasons’ and ‘circumstances,’. In some cases, the special circumstances or reasons must include those peculiar to the offender and the commission of the offence. However, some enactments like s49 of the Road Traffic Act, [Chapter 13:11] restricts special circumstances to those only peculiar to the commission of the offence.

In other instances, mitigatory features have been considered as special reasons. In the case of

Professor, Geoff Feltoe, in The Magistrates Handbook, August 2021 edition, noted that, not all factors which will be mitigatory in ordinary criminal cases will be ‘special’ in this sense. He further stated that, deciding which factors are special in this sense involves a value judgment and is a matter of degree.

In S v Ndekete1978RLR377 ignorance of the law was regarded as a special reason. So was a a bona fide mistake of the law in the case of S v Chisiiwa above.    Others case following more or less the reasoning are S v Musa HH144-89, S v Mutengwa HH116-90, Sv Smith S 182-90, Nkosana v S Sc143/95 and S v Trinder HB-52-91.

However, without losing sight of the reasons for the reasons behind the legislation of mandatory penalties, this court is not of the view that the circumstances of the accused in this case where one of those envisaged by the legislature. He does not fall within the bracket of those who are on a mission to vandalize steal and destroy the existing electricity infrastructures with a motive of making profit.

A skeptical analysis of the record of proceedings shows that, even in his application for bail the accused exhibited his ignorance that, being in possession of such wires without a license was an offence. Another closer look at the proceedings is that he even gullibly pleaded guilty to the main charge. This is a clear illustration of the fact that this youthful unrepresented offender was lights out as to all what was happening around him. He did not even appreciate the magnitude of the offence, sentence and the address on special circumstances. The state had to quickly withdraw the main charge after plea resulting in acquittal.

This was in my considered opinion the intention of the legislature that the likes of this accused persons be visited with the blunt of such a harsh retributive mandatory sentence.

I am persuaded to conclude that special circumstance peculiar to the accused and the commission of the offence did exist. In application of the law to the facts, he was ignorant of the law. He strongly believed that just as he grew up making wire toys these can be used in artistic expressions.  Since there was no other evidence proving otherwise these were special reasons that should have been considered by the court alongside the age of the offender, his health condition, his foster care status and parent all constituted special circumstances in his situation.

18-year-old young persons maybe be majors in the context of the definition of a child as provided for under s81 of the Constitution but the truth is they are in need of constant guidance. At 18 individuals are at a crossroad of being a mere child soon to become an adult.  This is colloquially referred to as ‘boys to men’ stage or phase. These two worlds will be colliding.  Therefore, the more the need for the courts and the adult world to tread with caution particularly in such serious offences attracting long jail terms. In casu. This was compounded by the lack of legal representation especially in an unfamiliar scary territory of the court room over and above the stint under the law enforcement branch.

Whist this court respects the parameters of the discretion of trial court both in the proceedings and sentencing, it is of the view that the failure of the court in this case to take the factors.  explained above as special circumstances constituted a gross misdirection warranting the intervention of this court. See, S v Mutero & Ors 2014 (2) ZLR 139 (H) and S v Zembe 252/2015.

Accordingly,

It is ordered that;

The mandatory imprisonment sentence of 10 years is set aside and substituted with a wholly suspended imprisonment term of 12 months.

A warrant of liberation to be issued forthwith by the registrar of the High Court.

Honourable Mrs Justice Muzofa  J agrees.