Smart Kosamu v The State

The appellant, a Zambian national, was arrested by Zimbabwe Revenue Authority officials at Zimbabwe's Kariba border post while driving his Toyota Hilux from Zimbabwe back to Zambia. After completing immigration procedures without declaring any money, his vehicle was searched and Z$3,690,000.00 was found hidden in the door panels. He was arrested and charged with unlawfully exporting Zimbabwean currency out of Zimbabwe. The appellant pleaded guilty at the Kariba Magistrates' Court, was convicted and sentenced to 3 months imprisonment, with the money forfeited to the State. He appealed against sentence only.

• Whether the conviction for exporting currency was proper when the appellant was arrested within Zimbabwe's borders
• Whether the sentence of imprisonment was appropriate where the Exchange Control Act provided for a fine
• Whether the court could exercise review powers despite the appeal being against sentence only
• What the appropriate sentence was for an attempt to export currency

The appeal was allowed. The conviction for exporting Zimbabwean currency was set aside and substituted with a conviction for attempting to export Z$3,690,000.00 out of Zimbabwe. The sentence of 3 months imprisonment was set aside and substituted with a fine of Z$1,000,000.00 in default of 50 days imprisonment, and the Z$3,690,000.00 was forfeited to the State.

The binding legal principles established are: (1) A person arrested within a country's borders who has not yet crossed the border cannot be convicted of the completed offence of exporting currency, but only of attempting to export; (2) Mandatory minimum sentences prescribed for substantive offences under the Exchange Control Act do not apply to attempt offences; (3) Where statute provides for both a fine and imprisonment as alternative penalties, courts must give primary consideration to imposing a fine and reserve imprisonment for serious cases; (4) Where forfeiture of currency is ordered as part of the sentence for attempting to export currency, the fine imposed should be substantially less than the value of the currency involved; (5) The High Court may exercise review powers under section 29(4) of the High Court Act when the Attorney General brings an impropriety to the court's attention, even in the context of an appeal against sentence only.

The court noted that the appellant's legal practitioners were served but failed to attend on two occasions (17th and 19th February 2004). The court observed that had the respondent not made a concession under section 35 of the High Court Act, the appeal would have been struck off the roll, though it would not have been appropriate to dismiss it for want of prosecution given the short notice given to the legal practitioners. The court also noted that as a Zambian national, the appellant should not be allowed to take the currency out of Zimbabwe, justifying the forfeiture order.

This case is significant in Zimbabwean criminal law for several reasons: (1) it clarifies that a person arrested within Zimbabwe's borders before actually exporting currency can only be convicted of attempting to export, not the completed offence; (2) it demonstrates the High Court's power under section 29(4) of the High Court Act to exercise review powers even when hearing an appeal against sentence only, where the Attorney General brings an impropriety to the court's attention; (3) it confirms that mandatory minimum sentences under exchange control legislation do not apply to attempt offences; (4) it reinforces the principle that where legislation provides for both fines and imprisonment, courts must first consider fines and reserve imprisonment for serious cases; and (5) it establishes that where forfeiture forms part of the sentence, the fine imposed should be substantially reduced below the value of the currency involved.