S v MUPANDUKI 1985 (2) ZLR 169 (S)

Flynote

Exchange Control Act [Chapter 170] — minimum mandatory fine — special reasons for not imposing such fine — approach of court where amount involved substantial and no prospect of fine being met — temptation to resort to sentences of ever increasing severity to curb increasing lawlessness to be avoided.

Headnote

Appellant was the Secretary-General of the Zimbabwe Red Cross. In collusion with certain businessmen appellant exported foreign currency amounting to $362 565,41. On appeal it was found that although appellant had not personally benefitted from the export of foreign currency he had in all probability benefitted personally in some way in Zimbabwe. The trial court found no special reasons existed and accordingly the minimum mandatory fine imposed in terms of the Exchange Control Act [Chapter 170] had to be imposed. In addition, in light of the failure to repatriate any of the money exported, a further mandatory prison sentence had to be imposed.

The trial court imposed a fine of $375 000 or, in default of payment, 10 years' imprisonment, together with a further six years' imprisonment with labour in respect of the failure to repatriate the foreign currency.

Held, that where the amount of a fine is not left to the discretion of the court and where it is far beyond the ability of the accused to pay the fine, the alternative sentence must not be excessive in relation to the gravity of the offence.

Held, further, that the extent of the accused's culpability is the factor by which to determine the length of the period of imprisonment that should be imposed as an alternative to the fine.

Held, further, following S v Skenjana 1985 (3) SA 51 (AD), that lengthy terms of imprisonment do not necessarily act as deterrent factors nor satisfy the requirements of society as to retribution. It is not in the public interest that potentially valuable human material should be damaged by long incarceration. Resorting to ever increasing severity in sentencing is an insidious temptation to judicial officers to stem the tide of ever increasing lawlessness-a tide that requires many forms of endeavour other than just those that are offered by the powers of sentencing if it is to be contained, let alone reversed.