THE State V Elvis Musimbe AND Naison Paradzai

### Preamble
HH 69-2005
CRB 3353-4/05
THE STATE
versus
ELVIS MUSIMBE
---------


==============================

THE STATE
versus
ELVIS MUSIMBE
and
NAISON PARADZAI

HIGH CURT OF ZIMBABWE
KUDYA J
HARARE, 14 September 2005

Criminal Review

KUDYA J: On 21 March 2005, at the Parkade flea market situated at the corner of Rezende Street and Jason Moyo Avenue, Harare, the two accused persons exchanged 900 South African Rand for $2 360 000.00 Zimbabwe dollars in contravention of section 4(1)(a) (i) of the Exchange Control Regulations, SI 109/96 as read with section 5(1)(a)(ii) of the Exchange Control Act, [Chapter 22:05]. They were both arrested and arraigned before a magistrate at Harare on 23 March 2005.

They were both convicted on their pleas of guilty. The convictions are confirmed. Both were vendors making out a living through the buying and selling of a variety of commodities. In mitigation, on 29 March, 2005 both revealed that they were family men who both had cash amounting to less than $1 million dollars on them. Both indicated, however, that poverty induced them to commit the offence.

They were each sentenced to as follows:

“$500 000/2 months imprisonment. In addition 2 months imprisonment are wholly suspended for 5 years on condition accused does not within that period commit an offence involving contravention of section of the Exchange Control Act for which upon conviction is sentenced to imprisonment without the option of a fine. Currency is forfeited to the State.”


The trial magistrate misdirected herself in the manner in which she applied her mind to the question of sentence. In the main she failed to follow the peremptory provisions of section 5(4)(a), on the mandatory minimum sentence, and section 7(1), on forfeiture, of the Exchange Control Act, supra. In addition she imposed a disproportionate alternative term of imprisonment to the financial penalty and inelegantly worded the conditions of suspension of the suspended sentence.

**The minimum mandatory sentence**

Section 5(4)(a) of the Exchange Control Act, supra, is framed in peremptory language. See S v Naran (2) 1984 (2) ZLR 110 and S v Ndou HH 35/93.

It enjoins the judicial officer to search for special reasons. If she finds any, these are recorded. The purpose for seeking and recording them is to provide the judicial officer with a leeway to exercise her sentencing discretion outside the restricted mandatory minimum circle often referred to, in case law, as the dollar for dollar fine. In order to set the process in motion, the exchange rate value of the local currency as against the foreign currency on the date the transaction is carried out must be supplied. It is the official value set by the Reserve Bank of Zimbabwe which is established by evidence led by the State or through a statement of agreed facts, in plea proceedings.

In those cases in which the accused person is a foreigner, the Diaspora rate will be used to determine the exchange rate value of the local currency against the foreign currency if that rate is not the same as the auction rate. In the same vein, where the accused is a local resident the value will be based on the auction rate. In cases which involve a foreign and a local resident, the higher of the two rates where they are not in alignment, ought to apply. This view is based on the need to punish the two offenders involved in the same offence in the same way as their moral blameworthiness is uniform. In any event, the local resident cannot be heard to complain as invariably in most cases that appear before the courts, because of the shortage of foreign currency on the official market, the rate of exchange used on the grey markets is often lower than those found on the official market. In the present matter no distinction arises on the basis of residence as both were locals. The value of the local currency would be determined by the auction rate unless it is shown that the proceeds arose from some export venture, in which case the Diaspora rate would apply.

In the present case the official rate of exchange was not provided. The trial magistrate could not therefore determine what the mandatory minimum dollar for dollar penalty would be for each of these accused persons. She therefore blindly sentenced each of them.

**Forfeiture**

Section 7(1) of the Exchange Control Act, *supra* provides for a separate and distinct second enquiry on forfeiture. The sentencer must enquire of the accused person on the existence of special reasons which would militate against the surrendering of both the local and or foreign currency involved in the transaction to the State. If special reasons are found, these are also recorded and the sentencer cannot in that event surrender the currency to the State. In the present matter, while forfeiture was ordered, no such enquiry to establish the presence or absence of special reasons was ever embarked upon.

**The Result**


The effect of these fundamental failures by the trial magistrate to follow these mandatory provisions of the Exchange Control Act is to vitiate the sentences which she imposed.

In the premises, the sentence is set aside and the matter is remitted to the trial magistrate for her to recall the accused persons for purposes of sentencing them afresh.

In the new sentence that she will impose she must bear in mind the wise words of McNALLY J (as he then was) in *S v Jackson* HH 262/82 at page 3, which were quoted with approval by GREENLAND J, with the concurrence of SANDURA JP, as he then was, in *S v Nyirenda* 1988 (1) ZLR 160 (H) at 162C:

“If an accused person is to be given the option of a fine, that fine must, it is axiomatic, bear a distinct relationship to his means. And if the fine must be related to his means I think the alternative period of imprisonment should equally be related to the fine, otherwise if he cannot pay the fine he will suffer disproportionate punishment. Accordingly, if the fine is assessed as one month’s earnings, then the alternative imprisonment should generally be roughly the period he takes to earn the fine.”

Finally, in the event that she sees it fit to impose an additional suspended prison term, it is suggested that it be worded in terms similar to the ones employed in *S v Synman* HB 180/86 at page 3 to incorporate the words “on condition that the accused is not convicted of any offence in terms of section 5(1) of the Exchange Control Act, [Chapter 22:05] committed within that period for which he is sentenced to imprisonment without the option of a fine”.

MAKARAU J, agrees.
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