State v Tafadzwa Gwata and Tapiwa Tsamba

### Preamble
1
HH 847-18
CRB MV 357-8/18
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STATE

versus

TAFADZWA GWATA

and

TAPIWA TSAMBA

HIGH COURT OF ZIMBABWE

MUZENDA J

HARARE, 18 December 2018

Criminal Review

MUZENDA J: On 24 May 2018 Tafadzwa Gwata and Tapiwa Tsamba (the accused) appeared before Guruve resident magistrate charged with the crime of contravening s 189 as read with s 114 (2) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was alleged that on 1 May 2018 and at Omeath 2 C Extension, Mvurwi the two unlawfully and intentionally attempted to take one bull the property of an unknown person knowing that the State is entitled to own possess or control the property intending to deprive the State of its ownership, possession or control of the property.

On 1 May 2018 the State alleged that the two connived and decided to steal a stray bull, black with horns curving towards the front and sell it to Shingirai Gatsi who happens to own a butchery at Mvurwi.

Accused knew that the subject bull was stray and has been roaming the village for the past five years and the two wanted to sell it to the butchery owner secretly. Shingirai Gatsi “agreed” and invited the two to go and see him at Mvurwi. Unbeknown to the two accused Shingirai Gatsi tipped the police. The two claimed ownership of the bull and they were subsequently arrested by the police after being paid $100 by the butchery owner. The value of the beast bull is $500.00. The two pleaded guilty and were convicted. They were sentenced to 12 months wholly suspended for 3 years on condition accused do not within that period commit any offence involving dishonesty/attempted stock theft for which they are sentenced to a term of imprisonment without the option of a fine.

The record was referred to the regional magistrate who noted the absurdity of the proceedings and raised a red flag. She wrote to the trial magistrate and the regional magistrate’s letter of 1 August 2018’s pertinent contents were as follows:

“The two accused were convicted and sentenced for attempted stock theft of a bull.

Section 192 of the Criminal Law Codification and Reform) Act reads:

‘Subject to this code and any other enactment, a person who is convicted of incitement conspiracy or attempting to commit a crime shall be liable to the same punishment to which he or she would have been liable had he or she actually committed the crime concerned’

This meant that the two accused were supposed to be sentenced to a period of not less than nine (9) years or more than twenty five (25) years unless there are special circumstances in the particular case as provided for in s 114 (3) of the Criminal Law Code.

Did the court ask if the two accused had any special circumstances peculiar to the case, record the special circumstances, why the penalty under para (e) of subsection 2 should not be imposed.”

On 27 September 2018 the trial magistrate responded to the regional magistrate as follows:

“I confirm the 2 accused appeared before me facing a charge of attempted stock theft. They both pleaded guilty and duly convicted them.

My understanding was that the accused did not achieve the intended crime which is why I did not consider the provisions under s 114 (3) of the Criminal Law Codification and Reform Act, [Chapter 9:23]. This genuine error on my part, I stand guided.”

The learned regional magistrate is entirely correct. The trial court ought to have

addressed the aspect of special circumstances and record the explanation by the two accused relating to that. It might have concluded that there were or were no special circumstances. This enquiry is peremptory and the failure to do that is obviously a misdirection by the trial court.

On this basis we agree with the position of the regional magistrate and withhold our certificate.

MUZENDA J ………………….

MUZOFA J agrees ……………………..