Tonderai Mahachi v The State

On 11 July 2006, the appellant entered a hardware shop and took a kilogram of trinepon wood glue valued at $1,800 (Zimbabwean dollars), which he hid in his trousers. He walked out of the shop without paying for it. He was arrested soon after leaving the shop and the glue was recovered. The appellant appeared before the Chitungwiza Magistrates Court and was convicted on his own plea of guilty to a charge of making off without payment as defined in s 117(2) of the Criminal Law (Codification and Reform) Act. He was sentenced to 1 month imprisonment by the trial magistrate who proceeded in terms of s 271(2)(a) of the Criminal Procedure and Evidence Act. The appellant was granted bail pending appeal 4 days after sentencing.

• Whether the charge of making off without payment under s 117(2) of the Criminal Law (Codification and Reform) Act was appropriate for the theft of goods as opposed to services
• Whether the trial magistrate erred in imposing a sentence of imprisonment without the option of a fine when he proceeded in terms of s 271(2)(a) of the Criminal Procedure and Evidence Act
• Whether the sentence imposed was competent given the procedural route adopted by the trial magistrate

The appeal against sentence was allowed. The sentence of 1 month imprisonment was set aside and substituted with a fine of US$20.00, or in default of payment, 10 days imprisonment.

When a magistrate proceeds in terms of s 271(2)(a) of the Criminal Procedure and Evidence Act to convict an accused person, the court is statutorily prohibited from imposing: (i) imprisonment without the option of a fine; or (ii) a fine exceeding level three. This provision is only appropriate for petty crimes or trivial cases and cannot be used in cases where imprisonment may be imposed, even if the period of imprisonment is wholly suspended. A sentence of imprisonment without the option of a fine imposed after conviction under s 271(2)(a) is incompetent and must be set aside.

The court observed that s 117 of the Criminal Law (Codification and Reform) Act deals with situations where 'services' rather than 'goods' are stolen, and that the offence of making off without payment applies when a person benefits from a service or consumes goods lawfully provided to him or her and intentionally makes off without paying. The court noted that the appropriate charge for taking goods without paying would be theft as defined in s 113(1) of the Criminal Law (Codification and Reform) Act. The court referenced Commentary on the Criminal Law (Codification and Reform) Act, 2004 by Professor G. Feltoe at pages 158-159 in support of this interpretation. The court also noted that because making off without payment is a competent verdict of theft, amending the charge from making off without payment to theft would not prejudice the appellant.

This case clarifies the proper application of s 271(2)(a) of the Criminal Procedure and Evidence Act in Zimbabwe, establishing clear limitations on sentencing when a magistrate proceeds under this provision. It reinforces that this summary procedure is designed for petty offences and restricts the court's sentencing powers to prevent imprisonment without the option of a fine or fines exceeding the specified level. The case also distinguishes between the offence of making off without payment (which applies to services or lawfully provided goods that are consumed) and theft (which applies to goods that are unlawfully taken), providing important guidance on the proper charging of property-related offences under the Criminal Law (Codification and Reform) Act.