The State v Anopaishe Mashiri

The accused was charged with two counts of contravening s 113(2)(d) of the Criminal Law (Codification and Reform) Act (theft of trust property). On 30 April 2016 at Ultimate Bar in Kadoma, the accused asked the first complainant for his Nokia 2700 cell phone valued at $30 to conduct a financial transaction, but instead sold it without consent. On 18 May 2016, the accused asked the second complainant for his ZTE cell phone valued at $50 to make a call, but sold it (later recovered). The accused pleaded guilty and was sentenced to a fine of $100 or 30 days' imprisonment. The scrutinising magistrate queried whether the sentence was adequate, sparking a review concerning interpretation of the penalty provision in s 113 and the appropriateness of the charges.

• Whether s 113(1)(i) of the Criminal Law (Codification and Reform) Act imposes a minimum mandatory fine equivalent to twice the value of stolen property
• The proper interpretation of the phrase 'a fine not exceeding level fourteen or twice the value of the stolen property, whichever is the greater'
• Whether the charges of theft of trust property under s 113(2)(d) were appropriate given the facts disclosed
• Whether the competent charge should have been fraud under s 136 rather than theft

The convictions and sentences were set aside. The accused was ordered to be tried afresh on a charge of fraud.

Section 113(1)(i) of the Criminal Law (Codification and Reform) Act does not impose a minimum mandatory fine. The phrase 'a fine not exceeding level fourteen or twice the value of the stolen property, whichever is the greater' sets a maximum fine limit, not a minimum. The use of the word 'liable' in penalty provisions does not create mandatory sentences, and s 344(2) of the Criminal Procedure and Evidence Act permits courts to impose fines lesser than the statutory maximum. Where property is obtained through misrepresentation, the competent charge is fraud under s 136, not theft under s 113, as declared by s 113(4) of the Code.

The court observed that the phraseology of s 113(1)(i) is unfortunate and creates confusion, noting it should have been phrased more clearly like s 136(i) (fraud provision) which uses the phrase 'not exceeding twice the value'. The court noted that maximum punishment is reserved for the worst crimes or repeat offenders. The court emphasized that judicial officers should nonetheless take into account that s 113(1) is a serious penalty provision that may in deserving cases entail imposition of fines exceeding $5,000, but this does not make it a minimum mandatory provision.

This case provides important guidance on the interpretation of penalty provisions in Zimbabwe's Criminal Law (Codification and Reform) Act, particularly s 113(1)(i) relating to theft. It clarifies that the provision sets a maximum fine, not a minimum mandatory fine, resolving a conflict in judicial interpretation. The case also demonstrates the important distinction between theft and fraud where property is obtained through misrepresentation, applying s 113(4) which declares fraud to be the competent charge where misrepresentation is used to obtain property. It reinforces the principle that charges cannot be amended to substitute entirely different offences, and emphasizes the importance of charging the correct offence from the outset.