S v Chisanga (CRB V/F 559 of 2003; HB 40 of 2006) [2006] ZWBHC 40 (10 April 2006)

Judgment No. HB 40/06 Case No. CRB V/F 559/03 THE STATE Versus SHAMENDA CHISANGA IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 11 APRIL 2006 AND APRIL 2006 Criminal Review Ndou J: The accused was convicted by a Victoria Falls magistrate. Nothing turns on the conviction. The learned Scrutinising Regional Magistrate, Hwange is, however, not happy with the sentence imposed and he has addressed a minute in the following terms:­ “Kindly place the record of these proceedings before the Honourable Judge for review. The accused, a Zambian national, was properly convicted of four counts of theft by false pretence involving a total of US$ 17 100.00. By the time he pleaded guilty to the charge accused had spent 7 months in remand custody. On the basis of this pretrial incarceration and that the complainant was a willing horse and a fool with a lot of money to part with, the trial magistrate sentenced the accused to 7 months imprisonment wholly suspended for 5 years on condition of good behaviour. In my scrutiny minute dated 23 April 2004… I took issue within the leniency of this sentence and also with the propriety of suspending it on condition of good behaviour when the accused is a foreign national. From the tone of the magistrate’s reasons for the sentence it was patent that he as swayed by emotion in accused’s favour at the expense of doing justice in view of the amount involved, its total loss as well as the accused’s moral guilt…” I share the Regional Magistrates’ concern. This is very serious criminal conduct. The facts reveal that the complainant is gullible businessman who owns a lodge at the tourist town of Victoria Falls. The accused and his fellow Zambian co­accused person HB 40/06 were not the usual tourists floading Victoria Falls. Their mission was criminal. The two introduced themselves to the complainant under false names. They informed the complainant that their late father who used to be a military man under Jonas Savimbi in Angola had left behind a box of military money amounting to US$2 000 000­00 preserved in chemicals for their benefit. They told the complainant that the box of money was with the Red Cross in Hwange as the latter conveyed it from Angola. They then requested for financial assistance of US$1 000 (loan) from the complainant to pay the Red Cross staff so that they can release the box to them. They promised the complainant 20% of the money in the box. The complainant gave them the US$1 000 and they left. They later returned with a box but told the complainant that the Red Cross officials did not give them the chemicals used for the US$2 000 000­00 out of the box since the notes were preserved in chemicals. They said the Red Cross staff wanted a further US$1 000 so that they release the chemicals that go with the box. They requested the complainant for a further loan of US$1 000 and he obliged and they left. They later returned with some chemicals. They processed one genuine US$5 note and one genuine US$10 note from the box allegedly containing US$2 000 000­00. The chemical then dried up and no further processing could take place. They requested the complainant for US$40 000 so that they could proceed to Harare to obtain more chemicals. The complainant managed to raise US$9 100 and he gave it to them. They went to Harare. While in Harare, the accused telephoned the complainant once more requesting for more money to meet the deadline given by the Harare supplier of HB 40/06 chemicals. The complainant flew to Harare and gave them a further US$6 000. At a later date they returned to Victoria Falls. The complainant opened the box in their absence and discovered there no money but pieces of cut paper sprinkled with some choking powder. All this fairy tale story was designed by the accused persons, who are con­ tricksters from Zambia, in order to steal money by false pretences. This is a premeditated criminal conduct which required thorough preplanning, preparation and execution. In many respects the complainant was naïve and gullible but that does not reduce the accused’s moral blameworthiness. This offence is committed by international criminals making detection very difficult. Difficulty in detection is an aggravating factor­ S v Mayberry 1985 (1) ZLR 192 (HC). A large sum of money, in scarce foreign currency, was involved. This is an aggravating factor – S v de Klerk S 116­86. As alluded to, this is a sophisticated theft by false pretenses involving careful planning, expertise, cunning and continued determination of purpose. There was substantial financial advantage made by the accused. The amount was not recovered. To the accused’s credit is the fact he spent sometime in custody before trial. He pleaded guilty. The unnecessary delay in bringing the accused to trial justified suspension of part, but not all, the prison sentence – S v Pretarius 1969 (3) SA 152 (RA). When balancing all the above mitigating factors against the aggravating features, an effective prison sentence with part thereof suspended would have been the correct balance – See also “A Guide to sentencing in Zimbabwe” – G. Feltoe 140­141. A sentence in the region of three (3) years with part thereof suspended was call for. In the HB 40/06 circumstances, I am unable to certify these proceedings as being in accordance with true and substantial justice. I withhold my certificate.