Judgment No. HB 79/13
Case No. HCAR 497/13
X REF CRB SHU 884-5/12
THE STATE
Versus
KUDAKWASHE MHOYA
And
PRIDE MATHE
IN THE HIGH COURT OF ZIMBABWE
CHEDA AJ
BULAWAYO 28 MARCH 2013
Review Judgment
CHEDA AJ: Two accused persons were jointly charged with contravening section 114 of the Criminal Law (Codification and Reform) Act Chapter 9:23 which is stock theft.
They pleaded not guilty. Accused 2 was acquitted at the close of the state case. The indictment does not show that he was acquitted, and as a result his name appears on the review cover saying he was convicted. The magistrate signed the review cover to that effect.
This is a very high degree of negligence on the part of the trial magistrate. By signing the cover he is certifying that it reflects correctly what transpired in his court. Details of each accused’s plea, verdict and sentence should always be recorded and certified by the trial magistrate.
The accused stole 3 herds of cattle in the course of one act of theft. The magistrate seems to have multiplied the mandatory sentence of 9 years by the number of cattle. This is a clear misdirection.
The mandatory sentence for the offence is 9 years or up to 25 years. The magistrate did not explain in her reasons for sentence why she imposed a sentence of 27 years. In addition she suspended part of that sentence.
It cannot be ruled out that she multiplied the mandatory sentence of 9 years by the number of cattle. This would be a mis-direction since the number of cattle is not the number of counts. The offence is still one count. It is necessary to correct these proceedings as follows:
1. The verdict of not guilty is entered against the 2nd accused person.
2. The 2nd accused person’s name is to be deleted from the review cover as he was not convicted.
3. The sentence of 27 years and 3 years suspended is set aside.
4. In its stead a sentence of 9 years imprisonment is substituted.
Mutema J …………………………………………………..I agree
