Obvious Mlauzi v The State

### Preamble
1
HB 204/19
HCA 118/17
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OBVIOUS MLAUZI

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE & MABHIKWA JJ

BULAWAYO 8 OCTOBER 2018 & 9 JANUARY 2020

Criminal Appeal

S. Chamunorwa for the appellant

T. Muduma for the respondent

MABHIKWA J:	The appellant in this matter appeared before a magistrate sitting at Filabusi Magistrates Court, charged with the crime of stock theft in contravention of section 114 (2) (i) and (ii) of the Criminal Law (Codification and Reform) Act, chapter 9:03.

It was alleged that on a date unknown to the prosecutor but during the month of June 2017 and at Filabusi grazing lands, Samuel Nsingo and Obvious Mlauzi or one or more of them went to Papama area where they found five (5) herd of cattle grazing freely unattended.  The two then stole and drove the 5 cattle to their home and shared the beasts upon arrival.  The theft was discovered and the two were arrested.

There is no dispute that the two accused were taken to court for plea recording.  They pleaded guilty to the charge.  The facts of the commission of the offence were read and understood by them.  The essential elements of the charge and commission of the offence were also properly canvassed and they confirmed their guilty pleas.  Consequently, they were found guilty as charged and that conviction is not contested herein.  It is not in dispute also that both having failed to satisfy the court of the presence of special circumstances in their case, the two were duly sentenced to the minimum mandatory sentence of nine (9) years imprisonment.

The appellant apparently was dissatisfied with the sentence imposed and filed this appeal against sentence only.  Secondly, the appeal was premised only on the constitutionality of the minimum mandatory sentence. It is pertinent to note that in his prayer, the appellant implored the court to set aside the sentence by the court a quo and replace it with an order declaring as follows:

“(a)	That section 114 (2) and (3) of the Criminal Law (Codification and Reform) Act, Chapter 9:23 be and is hereby declared unconstitutional.

(b)	That this matter is referred to the Constitutional Court in terms of section 175 (1) of the Constitution of Zimbabwe (No. 20), 2013 for its confirmation.

(c )	Pending the Constitutional Court’s decision, the sentence imposed by the court a quo be suspended.”

I wish to state from the onset that we found this appeal to be muddled up in a number of ways.

The appellant contends that his imprisonment to a nine (9) year minimum mandatory sentence is inhuman and degrading punishment because it is disproportionate to the offence and does not take into account the personal circumstances of the offender.  Counsel further argued that it is ultra vires the Constitution in that section 114 (2) (e) takes away the discretion of a sentencing judicial officer.  He argues that this undermines the independence of the judiciary principle.  Appellant further argues that to that extent, the sentence is ultra-vires the Constitution and is an affront to sections 53, 68 (1) and 86 (1) and 86 (3) of the Constitution.  Section 53 of the Constitution relates to freedom from torture or cruel, inhuman or degrading treatment or punishment.  It reads as follows;

“No person may be subjected to physical or psychological torture or to cruel and inhuman or degrading treatment or punishment.”

Section 69 (1) relates to the right to a fair and public trial within a reasonable time before an independent and impartial court.  In casu, the trial process has not been challenged on appeal.  It is not in dispute that the appellant was taken for trial promptly before a magistrate at Filabusi.  He in fact pleaded guilty to the offence and the plea recording process has not been challenged.

Section 86 of the Constitution is the very first section falling under Part 5 of the Constitution.  Part 5 relates to “Limitation of Fundamental Human Rights and Freedoms”. Section 86 (1) itself reads as follows;

“The fundamental rights and freedoms set out in this chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons”

May I state from the onset that this very important section is often and deliberately ignored and omitted as if it does not exist by those who “claim to assert their rights and freedoms enshrined in the Constitution. In his heads of argument, appellant quoted, in support of his assertion, that section 86 (3) subparagraphs (b), (c) and (e) which states;

The right to human dignity;

The right not to be tortured or subjected to cruel, inhuman and or degrading treatment or punishment;

The right to a fair trial.

But as expected and perhaps conveniently for him, appellant omits to quote the equally important section 86 (2) of the same Constitution.  The section reads as follows-

“(2)	The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society base on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including –

the nature of the right or freedom concerned;

the purpose or the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;

the nature and extent of the limitation;

the need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others;

the relationship between the limitation and its purpose, in particular whether it imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose; and

whether there are any less restrictive means of achieving the purpose of the limitation.”

This whole section is self explanatory.  It does not need this judgment to provide a discourse on it.  The purpose of the limitation in casu is clearly punishment for criminal conduct.  There is no doubt or dispute that stock, especially cattle are very valuable in our society and the reasons for the suggestion and imposition of a stiff minimum mandatory sentence of nine (9) years need not be repeated here.  Suffice to state that while the appellant argues that it is an unnecessary sentence which is inhuman and degrading to him, the society may equally see it is a lenient sentence.  Members of the public also have the right to enjoyment of their livestock and not to have them stolen.  They cannot, and do not choose to have their cattle stolen.  At least the criminal has the choice not to commit the crime.  Appellant, with that choice, and with these difficult economic times where society is so dependent on livestock, chose to steal, not one, but five (5) cattle all belonging to one person.

In the civil case of Chinamora vs Angwa Furnishers (Pvt) ltd & Ors 1996 (2) ZLR 665 (3) the appellant owed a debt and refused or neglected when he was clearly well able to pay.  The matter went up to summons for civil imprisonment.  He was, as required by law, personally served with the summons but defaulted attending court.  He was civilly imprisoned in terms of the Magistrates’ Court Act for the maximum permissibly period of ninety (90) days.  The court held per GUBBAY CJ, (as he then was), that had the Magistrates’ Court allowed the imprisonment not only of persons who were willfully refusing to pay but also those who were unable to pay their debts, it could perhaps have been argued that the provisions were unfair and over board.    The Act does not even cast an onus on the debtor to prove that he is unable to pay and be spared imprisonment.  It is the creditor who has to show that the debtor is able to pay but refuses or neglects to pay.

In the case of stock theft as in casu, apart from the fact that the offender would have chosen to steal, he or she is granted a reprieve in section 114 (2) (e) to show the existence of any special circumstances, whether peculiar to the commission of the offence or to him as an offender, that may have led him to commit the offence.  Once he provides the court with such special reasons or circumstances, he escapes the 9 year minimum mandatory sentence and the court is at liberty to impose any lesser sentence including a non-custodial one.  In casu, appellant and his friend chose to commit the most serious of the offences under section 114 of the Code.  Apparently planned, they went and drove another man’s five herd of cattle, took them to their homes and shared the cattle between them.  It should be remembered also that only section 114 (1) and perhaps a small portion of section 114 (2) of the Criminal law (Codification and Reform) Act Chapter 9:23 (Stock Theft) attracts the minimum mandatory sentence of 9 years in the absence of special circumstances.

It is important to note as the court also held in Chinamora (supra), that degrading treatment in the then s15 (1) (now section 53) of the Constitution meant interference of a serious nature with the dignity of a person.  The court pointed out that in order to determine if the treatment has reached the requisite degree of severity to fall within section 15 (1), the facts of each individual case need to be examined.  Much would depend on such circumstances, as the duration of the treatment, its physical effects and perhaps, the sex, age and state of health of the alleged victim of the treatment.

The court went on to reiterate that as for imprisonment for a crime, every offender will obviously and may well suffer humiliation and degradation.  Imprisonment only amounts to unconstitutionally degrading treatment if it is blatantly shown to be disproportionate to the nature and quality of the offence.  This was not shown in appellant’s case.

The court, even in the circumstances of a debt, held that imprisonment for up to three (3) months, of a recalcitrant lodger who defiantly refused to pay his debt does, not subject him to a level of severity of treatment such as to constitute degrading treatment as envisaged by the Constitution.

After all, to use GUBBAY CJ’s words, the choice to undergo or to avoid the indignity and humiliation of incarceration rests squarely with him.  It is his decision.  He has the very noble and viable option not to steal other people’s cattle.

In Chihera v Attorney General 2005 (1) ZLR (S) the applicant was found with over 1 000 Mandrax tablets.  In a case almost at all fours with the current one, she was charged with contravening section 44 (1) of the then Drugs and Allied Substances Control Act (Chapter 320 of 1874).  Acting in terms of s44 (2) of the Act, the court sentenced her to 20 years imprisonment, this being the minimum mandatory sentence in the absence of a finding of special circumstances.  The court held that;

“The question is whether a sentence can be regarded as so inhuman or degrading in its disproportionality to the seriousness of the offence in that no one could possibly have thought that the particular offence would have attracted such a penalty, the punishment being so excessive as to shock or outrage contemporary standards of decency.  This question must be determined having regard to current norms and expectations of the society in which the sentence is imposed, and at the time it was imposed.”

The application was dismissed as being unmerited.

Having regard to the above position by the court in Chihera’s case, one would dare make an analogy of the current electricity situation in the country, with intermittent power cuts and shortages most of which are caused by theft of electricity copper cables and ZESA transformers.  Society, having to endure at times up to eighteen (18) hours with no electricity is so restless and would be indignant to anyone who steals those important items.  The Electricity Act,(Chapter 13:19) already has a ten (10) year minimum mandatory sentence of imprisonment and offenders are serving those sentences.  In fact, it is not surprising that the current Minister of Energy and Power, himself a senior legal practitioner has been warning would be offenders on radio and television that a minimum mandatory sentence of 30 years imprisonment may have to be considered for theft and/or possession of a ZESA transformer or transformer oil.

In S v Nyambo 2005 ZLR 443 (S) SANDURA JA, CHEDA JA and GWAUNZA JA  dealt with a similar challenge of the then section 15 (1) of the Constitution.  They, per CHEDA JA (as he then was) dismissed the appeal against sentence and held that there was no basis for referring the appeal to the Constitutional Court.

It is the finding of this court that the appellant has not shown that sections 114 (2) and (3) of the Criminal Law (Codification and Reform) Act, chapter 9:23 is ultra vires the Constitution of Zimbabwe Amendment (No. 20 Act of 2013.  Further, that it leads to a sentence that is so disproportionate to the offence as to be considered inhuman and degrading as envisaged by the Zimbabwean Constitution.

Accordingly, and there being no special reasons not to impose the minimum mandatory sentence, the court a quo’s sentence was justified.

The application to have the matter referred to the Constitutional Court is dismissed.  The appeal against sentence is also dismissed.

Makonese J ……………………………… I agree

Calderwood, Bryce Hendrie & Partners, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners