The State v Tapfuma Moyo

On 21 May 2025, Tapfuma Moyo (the offender) was found in possession of 40.560 kilograms of dagga (cannabis) at Beitbridge Border Post. He appeared before the regional magistrate at Beitbridge on 21 May 2025 and faced a charge of 'Unlawful Dealing in Dangerous Drugs' as defined in section 156(1)(a) and (c) of the Criminal Law (Codification and Reform) Act. He pleaded guilty to the charge and was convicted. The trial magistrate sentenced him to 15 years imprisonment, of which 6 years was suspended for 5 years on condition he not be convicted of any offence involving cultivation, possession or dealing in dangerous drugs. The dagga was forfeited to the State for destruction. The matter came before the High Court on automatic review in terms of section 57 of the Magistrates Court Act.

• Whether the sentence of 15 years imprisonment for unlawful dealing in dagga (cannabis) was appropriate
• Whether the trial magistrate correctly applied section 156 of the Criminal Law (Codification and Reform) Act
• Whether the presumptive penalty for unlawful dealing in cannabis applies
• Whether the order for destruction of the forfeited cannabis was appropriate in light of Zimbabwe's liberalized policy on cannabis for medicinal and research purposes
• Whether the sentencing process followed correct principles regarding maximum sentences and consideration of fines

The conviction was confirmed as being in accordance with real and substantial justice. The sentence of 15 years imprisonment (6 years suspended) was set aside and substituted with 9 years imprisonment (3 years suspended for 5 years on condition the offender does not during that period commit any offence involving possession, manufacture, dealing in, and/or cultivation of any dangerous drug for which upon conviction he is sentenced to imprisonment without the option of a fine). The 40.560 kilograms of dagga was forfeited to the State for destruction. The trial magistrate was ordered to recall the offender to explain the altered sentence.

The binding legal principles established are: (1) Under section 156(2) of the Criminal Law (Codification and Reform) Act, unlawful dealing in cannabis (whether described as cannabis plant, prepared cannabis, cannabis resin, dagga, mbanje, etc.) cannot be committed in aggravating circumstances, as these aggravating factors only apply to dangerous drugs other than cannabis; (2) The maximum penalty of 15 years imprisonment for unlawful dealing in cannabis under section 156(1)(ii) is not a presumptive penalty but an absolute maximum that should be reserved for the worst types of the offence; (3) There is no minimum mandatory sentence or presumptive penalty prescribed in the Sentencing Guidelines for unlawful dealing in cannabis; (4) Where a penal provision allows for the imposition of a fine, a sentencing court must first give serious consideration to imposing a fine before resorting to imprisonment, and failure to do so constitutes a misdirection; (5) A sentence that is arrived at through a flawed process and results in an unconscionably harsh penalty that is out of synch with sentences for similarly placed offenders will be set aside on review.

MUTEVEDZI J made several non-binding observations: (1) The judgment opens with extensive commentary on the polarization in society regarding cannabis/marijuana, noting the debate between those who condemn it as a societal ill and those who laud its medicinal and recreational qualities, including musicians who believe it aids creativity; (2) The court noted that despite documented harmful effects, the movement to liberalize and decriminalize cannabis is gaining traction globally and in Zimbabwe, grounded in medical and socioeconomic considerations; (3) Zimbabwe's laws show "marked acceptance of marijuana" and a "deliberate softening by both the lawmaker and central government in punishing transgressions regarding dagga"; (4) The court observed that Zimbabwean law is "very unsystematic in dealing with mandatory sentences" and identified three distinct categories of minimum mandatory sentences; (5) Regarding the order for destruction of the forfeited cannabis, the court noted this was previously standard practice when possession was "intrinsically unlawful" but suggested that since the 2018 liberalization for medicinal and research purposes, destroying 40.56 kg of cannabis may be "uneconomical" and it should be left to State functionaries to determine how best to deal with it through lawful licensed channels; (6) The court acknowledged it was not questioning the appropriateness of a custodial sentence given the quantity involved, emphasizing that courts must play their role in fighting drug abuse, but took issue with the process and duration.

This case is significant in Zimbabwean criminal law for clarifying the sentencing framework for unlawful dealing in cannabis (dagga/mbanje) under section 156 of the Criminal Law (Codification and Reform) Act. It establishes that: (1) Cannabis has been placed in a special category separate from other dangerous drugs and cannot be the subject of aggravated drug dealing offences; (2) The maximum sentence of 15 years for cannabis offences is not a presumptive penalty and should be reserved for the worst cases; (3) Courts must consider fines before imprisonment where permissible; (4) The case reflects Zimbabwe's evolving policy approach to cannabis following the 2018 liberalization for medicinal and research purposes; (5) It provides detailed guidance on the three distinct categories of mandatory minimum sentences in Zimbabwean law and how they operate differently; (6) The judgment demonstrates the High Court's review powers to correct sentencing irregularities that result in unconscionably harsh penalties. The case also touches on the disposal of exhibits and suggests a more nuanced approach to forfeited cannabis given its lawful uses under license.