S v Katizamhuka (16 of 2024) [2024] ZWCHHC 16 (23 February 2024)

1 HCC 16/24 HCCR 1490/23 CHN CD 1268/23 THE STATE Versus GIVEMORE KATIZAMHUKA HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 23 February 2024 Review Judgment MUZOFA J: This review matter was placed before me with an accompanying letter from the trial Magistrate for corrective measures in November 2023. I raised a query that took long to address. As a result the anticipated corrective measures have been overtaken by events. The accused was convicted on his plea for possession of a specially protected animal in contravention of s45 (1) (b) as read with s128 (b) of the Parks and Wildlife Act [Chapter 20:14]. The accused was found in possession of a female pangolin. He was sentenced to 24 months imprisonment, 12 months were suspended on the usual conditions of good behavior. The remaining period of 12 months wholly suspended on condition of performance of community service. It escaped the trial Magistrate that for this offence a minimum mandatory sentence is applicable. The sentence was imposed on the 10th of October 2023. Before the matter was referred for review, the trial Magistrate attended a training on the implementation of the Sentencing Guidelines Statutory Instrument 146/23 on the 30th of October 2023. The benefits of the training were immediate, the trial Magistrate realized the misdirection in this case and immediately sent the record with a covering letter. In assessing sentence, the trial Magistrate was misdirected he laboured under the impression that a pangolin is not listed as a specially protected animal as was the case at the time S-v-Mhango and Ors HMA 33/19 was written. In that judgment the review Judges noted that, at the time the responsible Minister had not proclaimed by Statutory Instrument that a pangolin is a HCC 16/24 HCCR 1490/23 CHN CD 1268/23 specially protected animal. The judgment resulted in a number of alterations in sentences for the affected accused persons. The Mhango case (supra) is no longer valid after the promulgation of statutory Instrument 71/20. The legal practitioners before the trial Magistrate were also not the wiser. They addressed the court relying on Statutory Instrument 146/23. None of them relied on s128(b) of the Act that provides for a minimum mandatory sentence. The court subsequently relied on the presumptive sentence and imposed a sentence already referred to. After conviction the legal practitioner was supposed to address the court on special circumstances. A finding on special circumstances was supposed to be made. The sentence was then to be informed by the finding. As conceded the Court feel into error. I considered the options available as a corrective measure in this case. In the covering note the trial Magistrate’s request is for a Judge “to quash the wrong sentence in order for an appropriate sentence to be passed by the court.” The proposed remedy would be prejudicial to the accused. The probabilities are that accused has perhaps completed performing community service. The community service was to begin on 11 October 2023, to be completed within 12 weeks. For the court to summon him again and reopen a completed case flies in the face of finality to litigation. This principle is widely applied in applications for condonation but it is also apposite in this case. See for instance Lunat- v-Patel SC47/22. It is highly undesirable to keep litigation in perpetuity particularly in this case where a different sentence likely to be stiffer than the earlier imposed would result in an injustice. I might add as well that it is not in the interest of justice to have an accused serve a sentence twice. Accordingly, the sentence shall not be interfered with. I withhold my certificate. The proceedings were not in accordance with real and substantial justice.