The State v Wantmore Masukume and Tinashe Zireba

The two accused persons were convicted on their guilty pleas to two counts of theft contravening section 113(1)(a) of the Criminal Law (Codification and Reform) Act. On two separate occasions (July 2020 and September 2020), the accused persons acting in concert proceeded to Triangle cane reception depot and stole brass bearings from empty railway wagons belonging to the National Railways of Zimbabwe (NRZ). On the first occasion they stole 20 brass bearings and managed to escape to South Africa where they sold them. On the second occasion they stole 88 brass bearings but were apprehended. In both instances, they used the same modus operandi: using two jacks and shifting spanners to remove the brass bearings from the wagons. They were convicted of theft in the Magistrate's Court.

• Whether the accused persons should have been charged under section 38(2) of the Railways Act [Chapter 13:09] rather than theft
• Whether the requisite intent for a contravention of section 38(2) of the Railways Act was present
• Whether the Magistrate properly considered the different forms of criminal intent (direct intent, indirect intent, and legal intent/dolus eventualis)
• Whether the legislative intention to combat vandalism of railway infrastructure through mandatory minimum sentences was circumvented by charging theft instead of a Railways Act offence

The court withheld its certificate and did not confirm the proceedings as being in accordance with justice due to the clear negation of the legislative intention under the Railways Act. However, in view of the sentences already imposed, the court found it unnecessary to quash the proceedings and remit the matter for trial de novo.

When accused persons remove components from railway infrastructure using tools (such as jacks and spanners), thereby causing or risking damage to railway property, they may properly be charged under section 38(2) of the Railways Act rather than simple theft, as the requisite intent can be established through realisation of real risk or possibility (legal intent/dolus eventualis) as codified in sections 15 and 17 of the Criminal Code. The concept of criminal intent extends beyond direct intent (dolus directus) to include indirect intent (dolus indirectus) and legal intent, and courts must consider all forms of intent when determining the appropriateness of charges. The act of removing parts from state infrastructure by means that necessarily cause or risk damage to that infrastructure carries with it the concomitant appreciation of such damage, regardless of whether the primary motive is financial gain through theft.

The court observed that while the State as dominus litis is at liberty to prefer whatever charges it deems fit from a given set of facts, magistrates should query the appropriateness of charges when there are clear statutory provisions that may apply, particularly to ensure prosecutors have not missed applicable legislation. The court noted that perpetrators rarely vandalise state infrastructure solely for sabotage or malicious purposes; almost invariably the motive is financial benefit from the sale of pilfered components, and this was clearly the mischief the legislature sought to address through Acts like Act 1 of 2011 which introduced extensive changes to protect state-owned infrastructure. The court indicated that different considerations would have applied had the accused persons merely appropriated brass bearings from a store room rather than removing them from the wagons themselves. The court's decision not to quash the proceedings despite finding they were not in accordance with justice demonstrates judicial pragmatism in light of the sentences already served.

This case is significant in Zimbabwean criminal law as it clarifies the proper application of infrastructure protection legislation and the interpretation of criminal intent. It emphasizes that courts must consider all forms of criminal intent (direct, indirect, and legal intent/dolus eventualis) when determining appropriate charges, particularly in cases involving vandalism of state infrastructure. The judgment reinforces that the legislative intention behind infrastructure protection statutes like the Railways Act and Electricity Act is to combat vandalism through mandatory minimum sentences, and that charging mere theft may circumvent this intention. The case serves as an important reminder to prosecutors and magistrates to consider specific statutory offences designed to protect state infrastructure rather than defaulting to general theft charges, even when the motive appears to be economic gain. It also confirms that the realisation of real risk or possibility test under section 15 of the Criminal Code supersedes the common law dolus eventualis test in Zimbabwe.