The State v Amos Zhakata

The accused, Amos Zhakata, was convicted by a provincial magistrate at Guruve of two counts of stock theft under s 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He stole two bovine animals (a grey ox and a black cow) from the same complainant, Joseph Chauruka, on the same night at the same time on 31 March 2021 and sold them. The magistrate sentenced him to the minimum mandatory 9 years imprisonment on each count, to run consecutively, totaling 18 years. The charges and state outlines were identical in every respect except for the description of the two different beasts stolen. The record of proceedings was placed before the High Court for automatic review in terms of s 57 of the Magistrates Court Act [Chapter 7:10].

• Whether the charges were improperly split resulting in the accused facing two counts where only one should have been preferred
• Whether the rule against splitting of charges applies to statutory offences, particularly stock theft
• How to interpret s 114(1) of the Criminal Law (Codification and Reform) Act, particularly the use of the word 'any' in 'any bovine animal'
• Whether the 'single intent test' and 'same evidence test' were satisfied to show improper splitting of charges
• Whether the accused suffered prejudice from the double conviction and consecutive sentencing
• Whether the High Court should depart from its previous decision in S v Kudakwashe Shoko HH 676/19

1. The sentence of 9 years imprisonment in count 2 shall run concurrently with that in count 1. 2. The trial magistrate must recall the accused to explain to him the import of this judgment and ensure that the warrant of committal is appropriately amended.

Where an accused person steals more than one bovine animal in a single transaction with a single intent and where the same evidence is required to prove each alleged count, only one count of stock theft must be preferred regardless of the number of bovine animals stolen. The rule against splitting of charges applies with equal force to statutory offences as it does to common law offences. The word 'any' in s 114(1) of the Criminal Law (Codification and Reform) Act does not denote singularity but refers to an unspecified quantity that can mean one, some, or all, and was intended to connote the indiscriminate nature of bovine animals covered rather than their number. Both the 'single intent test' and 'same evidence test' apply to determine whether there has been improper splitting: where an accused opens a cattle kraal and simultaneously drives out multiple animals and sells them, this constitutes one contrectatio motivated by a single purpose. Where an accused is improperly convicted of multiple counts of an offence carrying a minimum mandatory sentence, and the magistrate fails to order concurrent sentences, the accused suffers prejudice that must be remedied on review.

MUTEVEDZI J made several important observations: (1) On judicial collegiality: When judges of the same court contradict each other, any perceived victory remains pyrrhic as 'reasons and facts get wasted in argument and rancour' and the companionship and cooperation required of judicial officers sharing the same responsibility dictates they must always find each other. (2) Judgments belong to the institution, not individual judges who author them (citing Jacob Bethel Corporation v Emmanuel Chikuya SC 48/19). (3) A judge who wishes to depart from a previous decision of a judge at the same jurisdictional level must show the earlier decision is wrong, that the law has evolved, or that it is unconscionable to abide by the previous decision - it is insufficient to merely declare disagreement (citing The Commissioner-General ZIMRA v Benchman Investments (Private) Limited SC 88/21). (4) Even departing from a decision without acknowledging its existence is as inappropriate as not giving reasons for departing from it. (5) The single intent test is seldom appropriate or decisive in determining improper splitting where an accused commits multiple counts of the same offence, as the intention is the same in both counts making it difficult to extricate one from the other. (6) The same evidence test was designed to mitigate difficulties in determining the existence of separate intentions in multiple counts of one offence. (7) It is unlikely a cattle rustler would proceed to a victim's kraal without knowing what he intended to do beforehand.

This case is significant in Zimbabwean criminal law as it clarifies the application of the rule against splitting of charges in stock theft cases involving multiple animals stolen in a single transaction. The judgment explicitly departs from the previous High Court authority in S v Kudakwashe Shoko HH 676/19, establishing that where an accused steals multiple bovine animals with a single intent and in one transaction, only one count of stock theft should be charged regardless of the number of animals stolen. The case reaffirms that the rule against splitting of charges applies with full force to statutory offences and is not qualified or diminished in such cases. It also addresses the broader issue of conflicting High Court judgments and the proper approach when a judge wishes to depart from a previous decision of the same court. The judgment protects accused persons from the severe prejudice of facing consecutive minimum mandatory sentences (totaling 18 years in this case) where their conduct constituted essentially one offense. The case provides important guidance on statutory interpretation of the Criminal Law (Codification and Reform) Act and the application of both the 'single intent test' and 'same evidence test' in determining improper splitting of charges.