S v Ncube (HB 37 of 2006) [2006] ZWBHC 37 (3 May 2006)

Judgment No. HB 37/06 Case No. CRB 2452/04 THE STATE Versus DAVISON NCUBE IN THE HIGH COURT OF ZIMBABWE BERE J BULAWAYO 4 MAY 2006 Criminal Review Bere J: In this matter the accused was properly convicted of stock theft and sentenced to a straight term of five years imprisonment. Nothing turns on the conviction itself as it was properly made. It is the sentence which has caught my attention. It is clear that when the leaned magistrate sentenced the accused he was acting in terms of the special jurisdiction confered upon him by Section 9 of the Stock Theft Act (as at 1st September, 2004). It is apparent that in sentencing the accused person the Learned Magistrate clearly overlooked the mandatory provision of Section 12 which came into being as a result of the Stock Theft Amendment Act, 2004 (No. 6 of 2004). That amendment makes it mandatory for a Magistrate who has convicted an accused person of stock theft to canvas the existence or otherwise of special circumstances before sentence. For clarity’s sake the section reads as follows; HB 37/06 “12 Special sentences for offences in respect of certain stocks i) Any person who is convicted of the theft or attempted theft of an equine or bovine animal or receiving …….. shall, if there are no special circumstances in the particular case as provided in subsection (2), be liable to imprisonment for a period of not less than nine years or more than 25 years ..” (my emphasis) Section 12(2) makes it mandatory that the special circumstances if any, be recorded by the sentencing court. For further guidance see The State V Innocent Mzanywa and others HB 9/06 and The State Vs Tazvitya Gangarahwe HH 29/05 It is clear that in these proceedings the above­referred section was not complied with. Accordingly, the conviction is confirmed but the sentence imposed is set aside. The matter is referred back to the trial magistrate for full compliance with the cited section. Ndou J ……………………….. I agree