THE State V Trymore Manaka

### Preamble
HH 77-2005
CRB D438/05
THE STATE
versus
TRYMORE MANAKA
---------


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THE STATE
versus
TRYMORE MANAKA

HIGH COURT OF ZIMBABWE
BHUNU J
HARARE, 21 September 2005

Criminal Review

BHUNU J: Admittedly judicial work is a painstaking laborious job. When one however accepts judicial office he assumes grave responsibilities. He wields enormous frightening power which must be used honourably, conscientiously and above all responsibly. A judicial officer must apply himself to his work with assiduous care and diligence. This is for the simple but good reason that the enormous power which he wields can have catastrophic effects if not used properly.

Regrettably this case demonstrates how not to conduct judicial proceedings. A perusal of the record of proceedings shows that the hearing was conducted in the most perfunctory run of the mill fashion, without any attention to detail and legal requirements. The proceedings appear to have been conducted in great haste as evidenced by the handwriting which is barely legible.

The net result was that the unfortunate unrepresented accused was condemned to unwarranted 18 years imprisonment.

The facts of this case are that the accused stole two stray bulls on the 8th of November 2002. He was however only convicted and sentenced two years later on the 17th of March 2005.

The trial magistrate sentenced the accused in terms of section 12 of the Stock Theft Amendment Act 6 of 2004 which became law on the 27th of August 2004. That section imposes a minimum mandatory sentence of 9 years imprisonment and a maximum of 25 years imprisonment in respect of any one offence.

In sentencing the accused the trial magistrate committed three fundamental errors which severely prejudiced the accused.

As a result the accused was sentenced to an incompetent grossly inflated sentence.

Had the trial magistrate taken the trouble to pay more attention to detail he would undoubtedly have realized that the offence was committed in November 2002, about 2 years before the mandatory sentence became law.

It is trite and a matter of settled law that an accused person is sentenced in terms of the prevailing law as at the time he committed the offence and not as at the time of sentence. If however there is need for authority for that proposition one need not look further than *S v Mutandwa* 1977 (1) RLR 273 in that case it was held that a sentence cannot be antedated or imposed retrospectively.

The trial magistrate proceeded to impose the minimum mandatory sentence without first canvassing the existence or otherwise of special reasons. If he had taken the trouble to look at the relevant provisions of the law it would undoubtedly have dawned on him that it was not competent to impose the minimum mandatory sentence without making a finding that there were no special reasons for not imposing the prescribed penalty.

The third error which the trial magistrate made was to assume jurisdiction which he did not have. This court ruled in the case of *S v Tazvitya Gangarahwe* HH 29-05 that no magistrate has the jurisdiction to impose the minimum mandatory sentence in terms of section 12 of the Act.


Thus the trial magistrate having erred and misdirected himself there is need for interference by this court on review.

It is accordingly ordered:

1) That the sentence imposed on the accused by the trial court be and is hereby quashed and set aside.

2) That the matter be and is hereby remitted to the trial court to enable it to resistence the accused in terms of the prevailing law as at November 2002.

3) That the trial court be and is hereby directed to credit the accused with the period he has already served.

UCHENA J, agrees.
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