Judgment No. HB 18/2003
Case No. HC 1863/2002
CRB MBE 141/02
THE STATE
Versus
MANDLENKOSI MSIPHA
IN THE HIGH OURT OF ZIMBABWE
CHEDA J
BULAWAYO 13 FEBRUARY 2003
Review Judgment
CHEDA J: The above record was placed before me for review. The
accused was charged with stock theft, in that he stole a calf valued at $8 000. And
$200 worth of meat was recovered. He pleaded guilty and was sentenced to 4 years
imprisonment with labour of which 2 years imprisonment with labour was suspended
on the usual conditions. I queried the severity of the sentence with the trial magistrate
who responded thus:
“My comments are that – Stock theft is very prevalent and causes alarm and despondence in Fort Rixon and Mbembesi.
The court resorted in stiffer penalties in an attempt to save farmers from cattle rustlers.”
In as much as stock theft is prevalent I am failing to see how it can cause
alarm and despondence. This type of sentence in view of the value of the beast stolen
induces a sense of shock and it can not be allowed to stand. This sentence is out of
step with decided cases. In S v Mpofu & another HB-30-94 where the accused 25 and
39 years old respectively stole a Friesland cow from a commercial farmer and sold its
meat. They were sentenced to 8 months imprisonment with labour of which 4 months
was suspended. On review, it was held per CHEDAJ (as he then was) that a sentence
of at least 1 year would have been appropriate.
HB18/03
-2-
In S v Zvidzai SC-136-94 a 43 year old communal farmer stole a cow that was
awaiting sale, and sold it for $600. The offence was prevalent in the area and, in the
wake of the drought, and in cattle country. It was held that the offence calls for both
general as well as personal deterrence. As a farmer, the appellant knew of the need to
protect stock. The sentence of 2 years imprisonment with labour of which 1 year was
suspended was held to be appropriate.
In these cases, the beasts involved were mature animals obviously of more
value than the calf in the present case. While the prevalence of stock theft in
Matabeleland provinces is well known, that factor alone should not cloud the trial
Court’s judgement to an extent of losing mitigatory factors such as the value of the
animal involved and all other mitigatory factors which are generally taken into
account in favour of the accused person.
The conviction is confirmed but the sentence imposed by the trial magistrate is
set aside and substituted by the following:
“12 months imprisonment with labour of which 6 months is suspended for 5 years on condition accused does not during that period commit any offence of which dishonesty is an element for which upon conviction accused is sentenced to imprisonment without the option of a fine. Effective 12 months.”
Ndou J …………………….. I agree