THE State V Farai Ncube

### Preamble
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HB 200/19
HCAR 06/19
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THE STATE

Versus

FARAI NCUBE

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 19 DECEMBER 2019

Review Judgment

TAKUVA J:	This record was placed before me on automatic review.  I raised two queries relating to what I considered a lenient sentence for attempted murder and why the sentences for the two robbery counts were ordered to run concurrently in circumstances where they were committed on different dates and places.

The court a quo’s approach to sentence resulted in an effective 15 year sentence for (1) attempted murder committed in the course of a robbery resulting in the complainant sustaining serious injuries; (2) two counts of robbery wherein the complainants were attacked with iron bars, machetes and an axe.  Indeed the court a quo in its reasons for sentence commented:

“…  This is a serious crime, it attracts custodial sentences lengthy when committed in aggravation.  In all instances accused was in company of accomplices.  You were armed with iron bars, machetes and an axe.  The weapons were used on the survivors.  The crimes were committed at night to avoid detection.  It shows pre-planning and brazen execution.  Women were threatened with death and rape, property was destroyed in the process.  The courts view with abhorrence commission of such crimes.  It affects citizens in their enjoyment of their economic rights as property is lost, health is also affected and also it is an invasion of privacy …”

What worries me most is the fact that the court did not match its words with action in that the sentence does not reflect the revulsion and abhorrence the court felt at the time of sentence.

In my view, at the very least the accused should have been sentenced to an effective term of twenty years imprisonment.  The court a quo fell into error by disregarding the correct approach on principles of sentencing enunciated in S v Chawasarira 1991 (1) ZLR 66 (H); S v Nkosi 1965 (2) SA 414 (c); Sibanda v S 2016 (2) 387 (H).

I do not share the court a quo’s view that it ordered the two sentences to run concurrently “in a bid to avoid an excessive sentence … as I felt that a 24 year sentence would be on the heavier side.”  I take the view that in light of the weighty aggravating circumstances in casu, a 24 year term of imprisonment with a suspended portion ought not to be described as excessive.

Judicial officers should be reminded that while leniency is a hallmark of justice itself, excessive leniency begets contempt of the justice delivery system.

In the circumstances I am unable to certify the proceedings as in accordance with real and substantial justice.  I therefore withhold my certificate.