The State v Wellington Mahwamure and Prince Dube

On 20 December 2017 at about 0300 hrs, both accused persons proceeded to Timmy Bar in Mushayabvudzi, Mvuma owned by Wellington Tsambayo after the bar was closed. They climbed onto the roof and pulled up an asbestos sheet. Accused 1 entered the bar through the roof while accused 2 stood guard. They stole cash of $36.00, 4 quarts of black label beer, 4 pints of Zambezi beer and 2 x 20 packets of Madison valued at $40.40. Property valued at $30.40 was recovered, leaving actual prejudice of $10.00. Accused 1 (18 years old) had two previous convictions for theft and unlawful entry. Accused 2 (33 years old) was a first offender. Both accused pleaded guilty before the Provincial Magistrate. They were convicted on count 1 (unlawful entry into premises under s 131(1) of the Criminal Law (Codification and Reform) Act) and count 2 (theft under s 113(1)). The Magistrate treated both counts as one and sentenced each accused to 18 months imprisonment with partial suspensions and restitution orders of $5 each. The matter came before the High Court on automatic criminal review.

• Whether the sentence imposed by the Provincial Magistrate was competent given the procedure adopted under s 271(2)(a) of the Criminal Procedure and Evidence Act
• Whether it was proper to treat both counts as one for purposes of sentence when different procedures were adopted for each count
• Whether a sentence of imprisonment without the option of a fine could be imposed when the court proceeded under s 271(2)(a) which prohibits such sentences
• Whether an order for restitution of a mere $5 was necessary and prudent
• What remedy should be ordered where the sentence is incompetent due to wrong procedure

1. The proceedings in respect of both counts were quashed. 2. The convictions and sentences in respect of both accused persons in both counts were set aside. 3. A trial de novo was ordered before the same Provincial Magistrate.

Where a magistrate court proceeds under s 271(2)(a) of the Criminal Procedure and Evidence Act in respect of a guilty plea, it is prohibited from imposing a sentence of imprisonment without the option of a fine or a fine exceeding level three. A sentence imposed in contravention of this provision is incompetent and wrong at law. Where a court adopts different procedures for different counts (s 271(2)(a) for one count and s 271(2)(b) for another), it is improper to then treat both counts as one for purposes of sentence and impose a sentence that violates the limitations applicable to the more restrictive procedure. Where proceedings are incurably defective due to wrong procedure and the reviewing court cannot rectify the sentence without causing injustice, the proper remedy is to quash the entire proceedings and order a trial de novo.

Mawadze J observed that both accused should have been charged with unlawful entry into premises in aggravating circumstances under s 131(1) read with s 131(2) of the Criminal Law (Codification and Reform) Act, rather than separate counts of unlawful entry and theft, to avoid such procedural complications. The court also made obiter comments on the imprudence of ordering restitution for paltry amounts such as $5, noting that the administrative process of receipting, banking and paying out such small amounts is not worthy of judicial resources, regardless of the magistrate's heightened sense of justice. Common sense should dictate otherwise. The court further observed that a sentence of 18 months imprisonment was too harsh given the low value of property involved ($10 actual prejudice). The court also noted that the restitution order was made under s 358(3)(b) as a condition of suspension, not under s 362(1) as the Provincial Magistrate claimed in response to the query.

This case is significant in Zimbabwean criminal procedure law as it demonstrates the importance of strictly adhering to the procedural requirements under s 271(2) of the Criminal Procedure and Evidence Act when dealing with guilty pleas. It illustrates that where a magistrate proceeds under s 271(2)(a), the court is strictly prohibited from imposing imprisonment without the option of a fine or a fine exceeding level three. The case also provides guidance on the appropriateness of restitution orders, emphasizing that courts should apply common sense and not order restitution for de minimis amounts that waste judicial resources. It shows that where procedural errors render a sentence incompetent and the reviewing court cannot rectify it without causing injustice, the proper remedy is to order a trial de novo. The judgment serves as a reminder to experienced magistrates to avoid elementary procedural mistakes and to charge offences appropriately (in this case, using the aggravated form of unlawful entry rather than separate counts).