THE State V Sibonokuhle DUBE

### Preamble
1
HB 113/25
HCBCR 1438-25
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THE STATE

VS

SIBONOKUHLE DUBE

HIGH COURT OF ZIMBABWE

MUTEVEDZI AND NDUNA JJ

BULAWAYO, 15 JULY 2025

Criminal review judgment

MUTEVEDZI J: The record was placed before me on automatic review in terms of Section 57 of the Magistrates Court Act [Chapter 7:10] (“the MCA”).

The offender appeared before a Senior   Magistrate at Bulawayo facing a charge of theft of trust property as defined in Section 113(2)(d) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] (“the CODE”). She pleaded guilty to the charge and was convicted after a truncated trial in terms of Section 271(2) (b) of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the CPEA”)

The facts are that the offender hired a motor vehicle from the complainant, Nkosilathi Nyika. The terms were that the offender was to return the car upon demand by the complainant. When he requested his vehicle back, the offender did not return it giving a number of excuses.  That prompted the complainant to report the matter to the police and the subsequent the arrest of the offender.

After her conviction, the offender was sentenced to 6 years imprisonment, with two years suspended on condition of future good behaviour. Nothing turns on the conviction. It was properly arrived at. I however have issues with the sentence imposed in light of the value of the property involved, the trial court’s failure to consider community service and restitution.

I am mindful to the position of law that the imposition of a sentence is largely the discretion of the trial court.  Such discretion can only be interfered with in very limited circumstances where there is a grave miscarriage of justice or where it is apparent that it was not judiciously exercised. In the case of Eugene Mhlanga vs The State HB10-16, the court had the following to say:-

“It is a well-established principle of our law that sentencing is the discretion of the trial court 		that it is not for the appeal court to interfere with the sentencing court merely on the grounds 		that it could have passed a sentence somewhat different from that imposed by the court aquo. 		See, S v Nhumwa SC40/88”

In Leonard Silume v The State H 12-16 Mathonsi J (now JA) made the following remarks relevant to sentencing: -

“The sentencing court has a discretion in assessing an appropriate sentence. The appeal court 	will not just interfere with that sentencing discretion and will only do so where there is a 	misdirection or the sentence imposed is manifestly excessive. S v Chiweshe 1996 (1) ZLR 425 	(H) 429 D, S v Ramushu S – 25/93, S v Nhumwa S - 40/88. Where it can be shown that the 	sentence imposed is vitiated by a misdirection the appeal court will step in to correct the 	misdirection. Where the sentence imposed falls within the sentencing discretion of the trial court 	and it 	has not been shown that there exists a misdirection, the appeal court will not interfere 	merely to, substitute its own opinion, regarding sentence. S v Mundowa 1998 (2) ZLR 392 (H) 	395B-C, S v De Jager and Anor 1965 (2) SA 616 (A) at 628-9”.

It follows that a reviewing court rarely interferes with the sentencing discretion of a lower court. It can only so interfere where the sentence imposed is manifestly excessive and where there is a gross misdirection. As highlighted, the offender was sentenced to 6 years imprisonment with 2 years suspended on condition of future good behaviour. She was left to serve 4 years imprisonment.

What mitigated the crime in this instance was that this was the offender’s first brush with the law.  She also pleaded guilty to the charge. The victim of the crime, in his victim impact statement indicated that what he mainly wanted was to get his vehicle back. Surprisingly, the trial magistrate did not even consider ordering the offender to restitute despite the complainant’s clear wish to get his car back. In terms of the Criminal Procedure (Sentencing Guidelines) Regulations of 2023, a sentencing court is enjoined to consider the attitude of the complainant. Though not decisive it assists the court in arriving at an appropriate sentence. It would be pointless to hear evidence of the complainant during the presentencing inquiry but then immediately throw it into a dust bin without any reference to it. The proper course would have been to address the submissions by the victim and to consider whether or not an order for restitution was not appropriate. Clearly, the trial magistrate did not do that.

When I requested the trial magistrate to comment on the propriety of the sentence in light of the value involved she stated that she had considered that since the property in question is a motor vehicle then the court ought to have imposed a custodial sentence. There is no doubt that the theft of a motor vehicle is a serious offence which may attract a custodial sentence. In the case of Ronald Ngwerume and Another vs The State HH377-18, the offenders were convicted and sentenced to four and half year’s imprisonment with two years suspended on condition of future good behaviour. On appeal, both appeals on conviction and sentence were dismissed. That demonstrated the gravity with which the courts view the crime of theft of a vehicle. But those severe penalties are resorted to in brazen vehicle thefts which usually involve high jackings and other violent methods and those where the cars are taken from their owners without the owners’ knowledge. The facts of this case are different. The offender had hired the car from the complainant. It was more of a theft by conversion instead of a blatant theft.  Admittedly, the value of the property stolen was significant. But sending the offender to prison for that long time would not help the complainant to get his car back in any way. Equally, consideration ought to have been taken that the offender is female. Generally, female offenders must be treated more leniently than their male counterparts.

In the case of Nyikadzino vs the State HB153-17, the court had this to say:

“A closer look at the sentencing provisions of the offences charged makes it clear that it speaks 		first to a fine not exceeding level fourteen.  This court has stated on times without number that 		where the sentencer settles for such a short period of imprisonment, that sentencer must give 		serious thought to the imposition of either a fine or alternatively community service where the 		sentence falls within such a grid.  See the position taken by MATHONSI J in S v Ndabenkulu 		Mlilo HB131-10 and the position eloquently expressed by NDOU J in the much-celebrated case 		of S v Shariwa HB37-03. It is wrong and it will forever remain a form of misdirection if the 		lower courts continue to ignore or underplay such simple guidelines in sentencing.”

In casu, the trial Magistrate focused more on the aggravatory factors without balancing those with the mitigatory factors in the case. That in my view, amounts to a gross misdirection which justifies this court’s intervention. I therefore order as follows:

The conviction is confirmed as being in accordance with real and substantial justice

The sentence imposed by the court aquo is set aside

The mater is remitted to the court aquo for it to inquire into the appropriateness of the offender making restitution to the complainant and her suitability or otherwise to perform community service

Thereafter to sentence the offender afresh in compliance with the guidelines given herein

MUTEVEDZI J…………………

NDUNA J ……………………… Agrees