Judgment No. HB 129/2002

                                                                                    Case No. HC 4384/2002

 

THE STATE

 

Versus

 

MECKTAI YAKOBE GONDWE

 

IN THE HIGH COURT OF ZIMBABWE

NDOU J

BULAWAYO 28 NOVEMBER 2002

 

Criminal Review

 

            NDOU J:        The accused was charged with theft by conversion at Western

 

Commonage Magistrates Court.  She was convicted and sentenced to 15 months

 

imprisonment with 8 months suspended on condition the accused pays restitution of

 

$32 000.

 

            I am not satisfied that the accused was properly convicted of theft of $43 000

 

cash.  From the facts and what she admitted during the trial one can safely accept that

 

she had converted $32 000 for her own use.  She still had $11 000 on her person.  The

 

learned trial magistrate did not adequately canvass with her whether she also intended

 

to convert that amount into her own use.  This was necessary as the accused was

 

unrepresented during the plea proceedings.

 

            In the circumstances I alter the findings of theft by conversion from one of   

 

$43 000 cash to one of theft by conversion of $32 000 cash only.  As far as sentence is

 

concerned I hold the view that even on the original finding this is a case where

 

community service should have been seriously considered.  The accused was in

 

gainful employment at a creche earning $17 200 per month.  She is a female first

 

offender aged 43.  She is married with three children.  The salient facts of the case are

 

that the complainant and accused are known to each other.

                                                                       

 

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They actually resided together in Pumula East,Bulawayo.  On 23 June 2002 the

 

complainant gave the accused cash amounting to $43 000 for the latter to purchase a

 

bed and wardrobe on her behalf.  The complainant left Bulawayo and went to Lupane

 

were she worked as a teacher.  The complainant returned on 1 August 2002 and

 

discovered that the accused had not bought the bed and the wardrobe but instead had

 

used part of the money i.e. the $32 000 for her own use.  The accused offered to

 

reimburse the complainant by the end of September 2002.  The pre-sentence

 

information at the disposal of the learned trial magistrate was scant.  Our courts have

 

on a number of occasions emphasised the need for the trial magistrates to equip

 

themselves with sufficient pre-sentencing information in any particular case to enable

 

them to assess sentence humanely and meaningfully and to reach a decision based on

 

fairness and proportion.  The needs of the individual and the interests of society

 

should be balanced with meticulous care and understanding – see S v Moyo HH-63-

 

84, Maponga v S HH-276-84, S v Sparks and Ano 1972(3) SA 396 (A), Zindonda v S

 

AD 15-79, S v Manwere 1972(2) RLR 139, S v Zinn 1969(2) SA 537, S v Rabie

 

1975(4) SA 855 and S v Ngulube HH-48-02.

 

            Such pre-sentencing information is even crucial in instances where the

 

magistrate is contemplating sending a first offender to prison.  It is trite that our courts

 

view imprisonment as a severe and rigorous form of punishment which should be

 

imposed only as a last resort and where no other form of punishment will do.  See S v

 

KashiriHH-174-94, S v Gumbo 1995(1) ZLR 163, S v Sithole HH-50-95, S v

 

ChinyamaHH-199-98, S v Mangena HH-28-99, S v Tarume HH-146-99, S v Mugauri

 

HH-154-99 and S vSikhunyane 1994(1) SACR (TL)

 

 

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            This is the guiding principle for sentencing tribunals.  It is the starting point. 

 

In the circumstances, at time of the imposition of the custodial very little was known

 

of the accused and why she committed the offence.  The relationship between the

 

accused and complainant was not established.  From the meagre information on

 

record it seems to me that this was an appropriate case for community service.  There

 

is no indication in the record on whether this option was considered at all.  The

 

accused did not address the court on community service.  The magistrate should have

 

made a brief inquiry on the suitability of community service – S v Nyamadzawo HH-

 

13-94, S v Mugebe 2000(1) ZLR 376(H) and S v Tigere HH-225-93.  If the learned

 

trial magistrate considered community service as being inappropriate this should have

 

been explained in the reasons for sentence – See S v Chinzenze and Ors 1998(1) ZLR

 

470 (H) and S v Gumbo 1995(1) ZLR 163(H).

 

            Regrettably, the learned trial magistrate did not do all this.  I think it is no

 

longer appropriate to consider community service as the accused has already served

 

around two months before the matter was submitted for review.  This is another sad

 

example of injustice occasion by the failure to comply with the provisions of section

 

57 of the Magistrates’ Court Act [Chapter 7:10].  The accused was convicted and

 

sentenced on 10 September 2002 after a truncated trial conducted under the provisions

 

of 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].

 

            The trial magistrate only signed the review case cover on 30 October 2002. 

 

There is no explanation given for the delay.  These delays are disturbingly becoming a

 

common feature of our criminal justice system at this level.  Magistrates are once

 

more reminded of the need to submit automatic review matters timeously for scrutiny

 

or review.

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            As far as sentence is concerned, I hold the view that although the conviction

 

has been altered justifying tempering with sentence, substantial justice will be done

 

by reducing the sentence imposed.

 

            In the circumstances the conviction of theft by conversion of $32 000 is

 

confirmed.  The sentence imposed by the trial court is set aside.  The accused is

 

sentence as follows:

 

“10 months imprisonment of which 8 months is suspended on condition accused restitutes Sinikiwe Sibanda $32 000 through the Clerk of Court Western Commonage Magistrates’ Court by 29 November 2002”.

 

 

 

 

 

                                                Cheda J ………………….. I agree