State v Lawrence Pemhiwa and Russel Mashongedza and Ignatious Nyamvura

The three accused persons were political and community leaders in Chegutu and members of ZANU PF party, holding positions as chairperson of the main wing, secretary, and chairperson of the youth wing of Umvovo District. They were charged with fraud under s 136 of the Criminal Law Codification and Reform Act for misrepresenting to Grain Marketing Board that persons indicated on a list had received fertilizer under the Presidential input scheme (2017). The accused, who were in charge of distribution, prepared a fictitious list containing non-existent persons and defrauded the scheme of 108 x 50 kg bags of compound D fertilizer and 2 x 10 kg bags of maize seed valued at $3,300.00, which they shared amongst themselves. The first accused pleaded guilty and was a first offender. He claimed the fertilizer had been looted and he created the fictitious list to reconcile records. Nothing was recovered.

• Whether the sentence imposed by the magistrate was appropriate and in accordance with real and substantial justice
• Whether the magistrate properly applied sentencing provisions for fraud offences
• Whether the magistrate's finding that the accused did not benefit from the offence was consistent with the agreed facts
• Whether orders of restitution or compensation should have been imposed in addition to or instead of community service

The conviction was confirmed. The sentence was not confirmed as being in accordance with real and substantial justice. The matter was referred to Justice Foroma who agreed with the judgment.

In fraud cases involving corrupt conduct and misappropriation of public resources, courts must impose sufficiently deterrent sentences that accord with real and substantial justice. Where facts are agreed in plea proceedings and the accused indicates nothing to add or subtract, the court must treat those facts as common cause and cannot make findings inconsistent with them without proper investigation. In sentencing for fraud, theft and kindred offences where there has been loss of property with a determined value, courts should consider imposing orders of restitution or compensation under sections 362 and 365 of the Criminal Procedure & Evidence Act to disgorge the convict of ill-gotten gains and recompense the complainant. Magistrates must adequately apply their minds to statutory sentencing provisions which reflect the legislative intent regarding the seriousness of the offence.

The court observed that it appears to be good practice in sentencing for crimes of fraud, theft and kindred offences where there has been loss of property with a determined value, to disgorge the convict of ill-gotten gains and recompense the complainant by imposing an order of restitution or compensation as circumstances may determine. The court noted that magistrates should always keep in mind the provisions of s 358 of the Criminal Procedure and Evidence Act dealing with suspension of sentences and conditions applicable thereto. The court commented that fraud cases involving corrupt conduct are endemic in Zimbabwe currently and should be adequately punished. The court emphasized that courts have a duty to interpret the law and give effect to legislative intent, particularly regarding the seriousness with which fraud offences should be treated as evidenced by the wide band of available sentences.

This case establishes important principles regarding sentencing in fraud cases, particularly those involving corrupt practices and government schemes intended to benefit communities. It emphasizes the need for magistrates to properly consider statutory sentencing provisions and to impose orders of restitution or compensation where appropriate. The case serves as guidance on the seriousness with which courts should treat fraud offences that involve corruption and misappropriation of public resources, particularly in light of the endemic nature of such crimes in Zimbabwe. It also reinforces the principle that courts must base their findings on agreed facts and not make contradictory findings without proper investigation.