Ephraim Kanjawala and Taurai Chimbangu v The State

The appellants were employees who allegedly stole irrigation pipes from the complainant's property. They approached the complainant's employee, Clemence, claiming they had been sent to collect irrigation pipes belonging to their employer. Clemence advised them there were no pipes belonging to their employer and asked them to check. The appellants took pipes anyway. A total of 16 pipes were taken (3 from the homestead and 13 from the field), of which 14 were recovered from the appellants. Clemence telephoned the complainant who advised him to make a police report. The theft occurred against a background of a dispute between the appellants' employer and the complainant regarding the complainant's refusal to unlawfully connect their employer to the electricity grid. The appellants were convicted of theft as defined in section 113(1) of the Criminal Law (Codification & Reform) Act [Cap 9:23] and sentenced to 3 months imprisonment wholly suspended on condition of restitution of US$160.00 to the complainant.

• Whether there was consent to the taking of the irrigation pipes which would negate the intention to deprive the complainant
• Whether discrepancies in the number of pipes stolen entitled the appellants to an acquittal
• Whether the suspended sentence was properly formulated with regard to the restitution condition

Appeal against conviction and sentence dismissed. Sentence amended to read: "3 months imprisonment wholly suspended on condition the accused makes restitution in the sum of US$160.00 to the complainant through the Clerk of Court, Goromonzi, on or before 31 March 2015, the one paying, the other to be absolved."

For a conviction of theft under section 113(1) of the Criminal Law (Codification & Reform) Act, there must be absence of consent to the taking and an intention to permanently deprive the owner. Where an employee of the complainant specifically indicates there are no pipes belonging to the accused's employer and subsequently reports the taking to the complainant who instructs a police report, this negates any defence of consent to the taking. Once lack of consent is established, the intention to permanently deprive follows as the natural inference. In sentencing, where imprisonment is suspended on condition of restitution, the court must specify a definite timeframe within which restitution must be made to provide clarity as to when the alternative sentence of imprisonment may be activated.

The court observed that even if the dispute about the exact number of pipes stolen (16 versus 14) had remained unresolved, this would only have affected sentencing rather than conviction, since the taking of at least 14 pipes (the recovered number) was admitted by the appellants. The court also noted that the ground of appeal against sentence was invalid, though it did not elaborate on the reasons for this invalidity. The court emphasized the importance of providing prisoners with clarity about when they can take advantage of restitution conditions, reflecting a broader principle of fairness and certainty in criminal sentencing.

This case clarifies the elements of theft in Zimbabwean criminal law, particularly the requirement of lack of consent and intention to permanently deprive. It demonstrates how courts assess defences based on alleged consent when there is disputed evidence. The case also establishes an important procedural principle regarding the proper formulation of suspended sentences with restitution conditions - such sentences must specify a clear timeframe for compliance to provide certainty about when the alternative imprisonment should be activated. This protects both the accused (who needs to know when to comply) and ensures enforceability of court orders.