Judgment No. 15/06

                                                                                    Case No. HC  2190/05

                                                                                    CRB 2332-3/05

THE STATE

Versus

KENNETH MUNOZOGARA

And

TRESSY DUBE

IN THE HIGH COURT OF ZIMBABWE

NDOU J

BULAWAYO 9 MARCH 2006

Criminal Review

            NDOU J:       The accused persons were each convicted by a Bulawayo magistrate of illegal exchanging Botswana Pula 400 for Z$1 030 000,00 in contravention of section 5(1) of the Exchange Control Act [Chapter 22:05].  They were each sentenced to $200 000,00 or in default of payment 3 months imprisonment.  In addition the above mentioned amounts were forfeited to the state.  Nothing turns on the conviction.

            The learned scrutinising Regional Magistrate, Western Division, has queried the propriety of the sentence.  I agree with the Regional Magistrate that the trial magistrate overlooked the minimum mandatory provisions of section 5(4) of the Exchange Control Act, supra.

            Section 5(4) provides:

“… where a person is convicted of an offence in terms of paragraph (a) of subsection (1) which involved gold, currency … the court shall, whether or not it imposes any sentence of imprisonment, impose a fine of not less than the value of the gold, currency… concerned unless the convicted person satisfies the court that there

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are special reasons in the particular case, which shall be recorded by the court why a lessor  fine should be imposed.”

            From her response to the Regional Magistrate’s query it is clear that the trial magistrate was ignorant of the above provisions.

            Unless the court finds that special reasons exist, it cannot impose the sentence below the minimum.  Section 344(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] and S v Manikwa HB-157-04.  The trial magistrate was enjoined to enquire into the existence or otherwise of special reasons.  This enquiry is mandatory on account of the findings that the trial court has to make.

            In addition to the query raised by the learned Regional Magistrate, I would like to highlight that the forfeiture of currency was made without following the provisions of section 7 which also require that the court should give the accused persons the opportunity to make submissions one way or the other on the question of special reasons.  The accused were obviously prejudiced by such failure.  As the accused persons are unrepresented, the trial court has a duty to explain to them what the minimum sentence is and the meaning of special reasons – S v Chaerera 1988(2) ZLR 226(S); S v Dube & Anor 1988(2) 385(S) and S v Rudolph 1990(1) ZLR 45(S).

            Failure to comply with the provisions of section 5(4) and 7 is a usual error by trial magistrates.  This is prejudicial to the accused and the fiscus.

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            Accordingly, the conviction be and is hereby confirmed.  The sentence imposed by the trial magistrate be and is hereby set aside.  The matter is referred to the same magistrate for a fresh sentence with due regard to the provisions of section 5(4) and 7 of the Act, supra.

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