THE State V Proffesor Sigauke

### Preamble
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HB 129/25
HCBCR 2982/25
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THE STATE

Versus

PROFFESOR SIGAUKE

HIGH COURT OF ZIMBAB	WE

MUTEVEDZI & DUBE JJ

BULAWAYO, 23 JULY 2025

Criminal review judgment

MUTEVEDZI J: Professor Sigauke (the offender), appeared before a magistrate at Plumtree Court charged with the crime of ‘Smuggling’ as defined in section 182(1) of the Customs and Excise Act, Chapter 23:02 [“the Act”]. He pleaded guilty and was duly convicted. The brief allegations were that on the 10 June 2025 and at Village 28 Dombodema, Plumtree he smuggled a Honda Fit vehicle chassis NO. GD11236569, engine NO. L13A1264375 from Botswana into Zimbabwe through an unauthorized point of entry.

Upon crossing into Zimbabwe, the offender affixed a Zimbabwean vehicle registration number plate AFT0256 onto the smuggled Honda Fit.  His luck ran out when he was intercepted by police at the 98 km peg along Bulawayo to Plumtree road. They stopped him and discovered that the affixed registration number plate did not belong to the Honda Fit. He was immediately arrested whilst the car was seized by ZIMRA under notice of seizure number 007320L. The value of the smuggled motor vehicle was stated as USD $1100.00 and the prejudice to the Fiscus was pegged at ZIG14 586.69 and USD528.00 in unpaid customs duty. The ZIMRA notice of seizure and duty schedule were produced as exhibits in court.

The record of proceedings was placed before me on automatic review in terms of section 57 of the Magistrate Court Act (“the MCA”).  The conviction poses no challenges and l confirm it as being in accordance with real and substantial justice. It is the sentence that is of concern. The offender was sentenced as follows:

“Accused is sentenced to pay a fine of USD $350/4 months imprisonment. In addition, 2 months’ 	imprisonment is suspended for 5 years on condition the accused does not within that period commit 	any offence of which smuggling is an element for which upon conviction will be sentenced to 	imprisonment without the option of a fine. Time to pay granted 30.09.25. The fine can also be paid 	in the ZIG equivalent.”

Section 182(1) of the Act provides that:

Any person who smuggles any goods shall be guilty of an offence and liable to-

A fine not exceeding level 14 or three times the duty-paid value of the goods, whichever is greater; or

Imprisonment for a period not exceeding 5 years or both such fine and such imprisonment

After noting that the offender had been sentenced to pay a fine of USD$ 350/ 4 months imprisonment, I raised with the trial magistrate, a query regarding the appropriateness of the sentence given the penal provision under section 182(1). In his response, the trial magistrate explained as follows:

“The court interpreted the section to mean that one can pay a fine not exceeding level 14 	or pay a 	fine which is three times the duty paid value of the goods. As such the court in its discretion imposed 	a fine which is not more than level 14 hence a fine of $350.00.”

What comes out of the magistrate’s explanation is not only a misinterpretation of the provision but a flagrant omission of vital words which were deliberately used by the law maker. The penalty is that a convicted person must pay a fine not exceeding level 14 or a fine which is three times the duty-paid value of the goods, whichever is greater. It is the opposite of whichever is lesser. The phrase whichever is greater is not an idle statement. Like I said, it was purposefully used. In plain English, that phrase gives the judicial officer a choice to select the amount with the greater value between three times the duty-paid value and a level 14 fine. For all I am aware, a level 14 fine is currently pegged at USD$5000. In this case, the duty-paid value of the car was stated as ZIG 14 586.69 and USD$528. As such under the provision, the offender could not pay a fine which exceeded USD $5000 or which was below three times the duty-paid value of the goods if that value did not exceed $5000. Put simply, where three times the duty-paid value of the smuggled goods exceeds USD$5000, the court must impose that higher value. If, however three times the duty paid value is below $5000, then the court must impose anything above that three times duty-paid value but below $5000 because the statute stipulates that the fine must not exceed $5000. See the case of S v Masiiwa Gerald and Anor HMA 9-17.

Being the mathematics that the issue is, a practical example using the figures involved in this case may help to drive the point home. If we do not factor in the ZIG component the duty-paid value of the car was USD$528. Three times that value is simply 528 x3 which equals $1584. Logically, the offender was required to pay either a fine of up to $5000 or $1584 whichever is greater. It meant therefore, that the offender must have paid anything more than $1584 but less than $5000. The exact amount obviously became the discretion of the sentencing court. But imagining that the duty-paid value of the car had been $2000 for example, it would have meant that 3 x $2000 = $6000. That scenario would have meant that the offender was required to pay a fine not exceeding $5000 or 3 x $2000, whichever is greater. Needless to state, the greater amount is $6000 and that would be the penalty imposable.

Stripped to its bare bones, the formula under section 182(1) simply means that where three times the duty-paid value exceeds $5000 the offender must pay that value as the fine. Where, however, that does not exceed $5000 the offender must pay anything above the three times value but below $5000.

It must be apparent to any judicial officer, that the sentencing discretion of a court under provisions which circumscribe penalties in the way that most fiscal statutes do, is limited to the mathematical formulae provided. In this case, the fine of USD$350 which was chosen by the court was nothing but a thumb suck. It was not in any way informed by the calculations which the trial magistrate ought to have undertaken.

I am alive to the jurisdictional concerns which may arise from the findings I make in this judgment but that on its own cannot impede the operation of the law. If it means so, then cases of smuggling must be heard by magistrates who have the necessary jurisdiction to impose the penalties stipulated. Smuggling is a vice which directly impacts the fiscus. It is the reason why the law punishes it with severe sentences. In the case of S v Phiri HB 86/17 at p. 4 of the cyclostyled judgment, MATHONSI J (now JA) remarked that:

“There is scarcely any doubt that in criminalizing smuggling the way it did, the law giver intended to protect the fiscus.  For that reason, it gave guidance to the sentencing court by providing for the sentence of a fine or treble the duty-paid value of the goods whichever is greater.”

I have already demonstrated that the sentence in this case was either a result of a complete misinterpretation of section 182(1) or was a thumb suck. That led the trial magistrate to imposing an incompetent sentence. That punishment must therefore be vacated. Once that happens it leaves this court at large to assess the appropriate sentence. That task is in no way onerous given the guidelines already stated under the statute. In the premise, I direct as follows:

The offender’s conviction be and is hereby confirmed as being in in accordance with real and substantial justice.

The sentence imposed by the court aquo be and is hereby set aside

The matter is remitted to the trial court for sentencing afresh following the guidelines given in this judgment

If the trial magistrate lacks the jurisdiction to impose the necessary penalties, he is directed to proceed in terms of section 54(2) of the Magistrates’ Court Act [Chapter 7:10].

MUTEVEDZI J……………………………………..

NDUNA J……………………………………..Agrees