THE State V Tedius Gwafa

### Preamble
1
HH 134-13
CRB 1220/12
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THE STATE

versus

TEDIUS GWAFA

HIGH COURT OF ZIMBABWE

HUNGWE J

HARARE, 10 April 2013

CRIMINAL REVIEW

HUNGWE J:	  The accused pleaded guilty to receiving stolen stock as defined in s 114 (2) (d) of the Criminal Law (Codification and Reform) Act, [Cap 9:23].  He was sentenced on 15 February 2012 as follows;

“US$300 fine or in default of payment 10 months imprisonment.  Fine should be paid through the clerk of court on or before 19 March 2012.  In addition you are sentenced to 12 months imprisonment which is wholly suspended for five years on condition you do not within that period commit any offence of which receiving stolen livestock which is reasonably suspected to be stolen is an element and for which upon conviction you are sentenced to imprisonment without the option of a fine.”

Upon perusal of the record of proceedings I queried why the penalty provisions in s 114 (2) (e) of the Criminal Code were not adhered to.  In his response the Magistrate state the following:

“The trial Magistrate interpreted section 114 (2) (f) to be the one applicable to an accused convicted under section 114 (2) (d) of the Criminal Law (Codification and Reform) Act and where the subject matter is a bovine or equine animal.

To this end I thought that section 114 (2) (e) do not apply to a person convicted under section 114 (2) (c) and (d) even if the subject matter is a bovine or equine animal.  I thought the minimum mandatory sentence was not applicable to the accused person since the accused person was charged and convicted under section 114 (2) (d).

Consequently, I did not conduct any enquiry into special circumstances since I was of the view that the appropriate applicable sentencing provision was section 114 (2) (f).

The trial Magistrate concedes that he might have interpreted the relevant provisions of the law wrongly and in that regard, seeks to be corrected.”

Clearly the magistrate misconceived the penalty provisions regarding this type of offence.  The law regards the recover of a stolen livestock in the same light with the actual thief.  Unless there are special circumstances the mandatory minimum sentence provisions apply.  In the present case, the misdirection by the magistrate constitutes an irregularity which vitiates the sentence as it is not clear whether or not special circumstance were found to exist.

The magistrate was enjoined to enquire into the existence of special circumstances.  He did not do so; nor is there any obvious reason why he failed to do so.  The facts place the accused squarely in the same boat as the thief and therefore s 114 (2) (e) applies.

In light of the above the sentence imposed by the court a quo is set aside and the following order is made.

The sentence in CRB 1220/12 be and is hereby set aside.

The record of proceedings is remitted to the trial court for the presiding magistrate to inquire into the issue of special circumstances as required by law.

The presiding magistrate is to record the inquiry and his findings and, based on those findings, proceed to sentence the accused in terms of s 114 (2) (e).

MAVANGIRA J agree ........................