S v MASHIRI 2016 (2) ZLR 499 (H)

Flynote

Criminal law: " offences under Criminal Law Code " fraud " theft " person taking property by means of misrepresentation " should be charged with fraud, not theft

Criminal procedure (sentence): " offences under Criminal Law Code " theft " fine which may be imposed " provision in Code for level 14 fine or twice value of property stolen, whichever is the higher " mandatory minimum not intended

Headnote

The accused was charged with two counts of theft of trust property. In each case, he had told the owner of a mobile phone that he wanted to borrow the phone to make a call, but made off with the phone and sold it. After conviction, he was fined. A scrutinising regional magistrate was of the view that the fine should have been at least twice the value of the items and that a fine of that level was mandatory in terms of s 113(1) of the Criminal Law Code. On review,

Held, that under s 344(2) of the Criminal Procedure and Evidence Act [Chapter 9:07], when a person is liable to be sentenced to a fine of any amount, he may be sentenced to a fine of any lesser amount. Section 113(1) of the Criminal Law Code provides that a person convicted of theft is liable to a fine not exceeding level fourteen or twice the value of the stolen property, whichever is the greater. This does not entail any minimum mandatory fine or require the imposition of a fine that is equivalent to twice the value of the stolen property.

Held, further, that as this was a case of misrepresentation, the accused should have been charged with fraud. However, the charge could not be amended after conviction and sentence, since an amendment is meant to cure an imperfect charge and not to substitute with a different one. The conviction and sentence would be set aside and a retrial held.