S v Simon (HH 84 of 2004) [2004] ZWHHC 84 (30 March 2004)

HH 84­2004 CRB 735/04 THE STATE Versus NEVER SIMON HIGH COURT OF ZIMBABWE BHUNU J. HARARE, 31 March, 2004 Criminal Review BHUNU J: The accused was convicted on his own plea of guilty to a charge of theft of $800 000.00 of which nothing was recovered. Upon conviction he was sentenced to pay a fine of $150 000.00 or in default of payment 6 months imprisonment. The learned scrutinising regional magistrate has made a number of pertinent criticisms of the sentence. He points out that in the light of the fact that nothing was recovered the sentence is manifestly too lenient. The learned scrutinising magistrate is undoubtedly correct. This court has on numerous occasions expressed the view that the accused and society at large must be shown that crime does not pay yet in this case if the value of the property is converted to cash the accused stood to benefit to the tune of $650 000.00 after paying the fine. The sentence in this case completely ignores the fact that the accused must be disgorged of these ill­gotten gains. The learned scrutinising magistrate is also correct in saying that the amount of fine is disproportionate to the alternative period of imprisonment. This court in a number of cases has set a rough guideline in arriving at the appropriate alternative period of imprisonment. The guideline is that the fine per month must roughly equate to what the accused is capable of earning per month. (see S v Moyo HH 63­84) The accused was employed earning $100 000.00 per month. The equivalent of 6 months imprisonment should therefore have been in the region of $600 000.00. The trial magistrate did not order restitution. In his reasons for sentence he had this to say: “The accused person stole from his employers and lost his job. He will now find it HH 84­2004 CRB 735/04 difficult to fend for his family. As a result there will be no order to restitute since his employers can recover their money from his terminal benefits.” It is plain that the trial magistrate suffers from a serious misapprehension of our Labour Laws such that his reasoning amounts to a serious misdirection. Our labour laws save in specific mentioned exceptions do not allow the employer to exercise self­help by making unauthorised deductions from an employee’s remuneration. Section 12A(6) of the Labour Relations Amendment Act 17 of 2002 provides that: “No deduction or set off of any description shall be made from any remuneration except­ a) b) c) d) e) f) g) Where an employee is absent from work… Amounts which an employer is compelled by law or legal process to pay on behalf of the employee. Where an employee has received an advance of remuneration due, the amount of such advance, up to an amount not exceeding twenty­five percentum of the gross remuneration owed. By written stop order for contributions to insurance policies, pension funds, medical aid societies, building societies, burial societies and registered trade unions. By written consent of an employee, for repayment of money lent by the employer on terms that have been mutually agreed to between the parties concerned. An amount recovered for payments made in error. The aggregate amount of permissible deductions from the remuneration of any employee in any pay interval shall not exceed twenty­five percentum of the employee’s gross remuneration for that interval. Provided that, upon termination of an employee’s service, an employer may deduct from the total remuneration due to the employee an amount equal to any balance which may be due to the employer in terms of paragraph (a), (c), (e) or (f)” It is self evident that the circumstances under which an employer may make deductions from an employee’s salary or effect set off are specific and exhaustive. Money owed on account of theft is not one of them. Thus by suggesting that the employer could recover its stolen money from the accused’s terminal benefits the trial magistrate was directing the employer to act illegally. HH 84­2004 CRB 735/04 It is trite that our law frowns upon and illegalises the exercise of self­help. By refusing to order restitution the trial magistrate was not doing anyone a favour. His refusal to order restitution will now necessitate the institution of legal proceedings which is both costly and time consuming. From the trial magistrate’s response it appears that he suffers from the misapprehension that an order of restitution is dependant upon the accused’s ability to pay. An order of restitution is a criminal sanction which provides a civil remedy. It encourages the offender to make good the harm he has caused on pain of punishment if he fails to do so. It seeks to strike a balance between the interests of the offender and his victim. It thus provides social and equitable justice. Both the offender and the victim stand to benefit from such an order. The order is registrable and enforceable in the civil courts as a civil judgment of the court. It is therefore like any other civil order not dependent upon the accused or defendant’s capacity to pay. The bottom line is that the accused should be encouraged to make good the harm he has caused and be rewarded for doing so if he can by the reduction of the severity of his punishment. The accused’s capacity or ability to pay is an irrelevant consideration. The money need not come from his own personal resources. It can come from anywhere, donors, well wishers, friends and relatives. Thus an accused person cannot be denied the opportunity to ameliorate the severity of punishment simply because he lacks the necessary means to make restitution at the time of sentence. What if he wins a lottery or lotto a day after his sentence? Likewise the complainant cannot be denied the opportunity to be compensated simply because the trial court thinks that the accused lacks the necessary resources to make restitution. In the final analysis I come to the conclusion that gross injustice was done in this case. The trial court’s failure to mete out a deterrent sentence amounted to a failure to protect society against offences of this nature. The court’s failure to order restitution deprived the complainant of an opportunity to be compensated for his loss without expending further unnecessary legal costs. The net result was that the resultant sentence was manifestly too lenient not commensurate with the accused’s moral blameworthiness. In the result I cannot confirm these proceedings as being inaccordance with real and substantial justice. I accordingly withhold my certificate. Uchena J:………………………….. HH 84­2004 CRB 735/04