Court name
Harare High Court
Case number
47 of 2022

S v Makoni (47 of 2022) [2022] ZWHHC 47 (24 January 2022);

Media neutral citation
[2022] ZWHHC 47
Coram
Chitapi J

HH 47-2022

CRB NO. NTN 614/21

THE STATE

versus

ASHLEY KUDZAI MAKONI

 

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 24 January, 2022

 

Review Judgment

 

            CHITAPI J:   The accused was on 9 October 2021 charged with and convicted of unlawfully possession of two plastic satchets of dagga which weighed a combined 95 grammes.  It was alleged that on 8 October 2021, at a home in Nharira, Norton, the accused was arrested while in unlawful possession of the two satchets of dagga.

            The accused pleaded guilty and was properly convicted.  The accused had a relevant previous conviction for a similar offence and had a suspended twelve months imprisonment term hanging over his head.  The accused was sentenced as follows:

“The accused to pay a fine of RTGS5 000.00 in default 2 months imprisonment.  In addition 4 months imprisonment is effective.  Further the 12 months imprisonment suspended on NTN 541/20 dated 16/10/20 is hereby brought into effect. Total 16 months imprisonment.”

 

The trial magistrate has referred the record to a judge of the court to correct what she believes is an irregular sentence which the imposed.  She commented as follows:

            State v Ashley Kudzai Makoni CRB NTN 614/2021.

 

The above matter refers.                                                                                 

 

May you please place the record of proceedings before any Honourable Judge. 

 

The trial magistrate acknowledges her fault in giving a double sentence and humbly asks the Honourable Judge to rectify the sentence as he or she deems fit.”

 

            The accused was charged with contravening s 157 (1) (a) of the Criminal Law (Codification & Reform) Act, [Chapter 9:23.]  The provisions of the section read as follows –

            157 Unlawful possession or use of dangerous drugs

  1. Any person who unlawfully –
  1. acquires or possess a dangerous; or
  2.  ingests,  smokes or otherwise consumes a dangerous drug; or
  3. cultivates, produces or manufactures a dangerous drug for his or her own consumption;

shall be guilty of unlawfully possessing or using a dangerous drug and, subject to subsection (2), liable to a fine not exceeding level ten or imprisonment for a period not exceeding five years or both.”

 

            The above sentencing provision provides for the imposition of a fine of up to level ten or the imposition of a prison term not exceeding five years or to both.  (own underlining)   The word both refers to the propriety of the imposition of one or both alternatives of a fine or imprisonment.  The trial Magistrate had a discretion to impose a fine or both a fine and a term of imprisonment.   She imposed a fine of 5 000RTGS and in addition imprisonment of four months.  The sentence was therefore regular and does not require rectification. See S v Mereki HH 90-15.

            The sentence however requires recasting in terms of grammar.   It is accordingly corrected in its wording and not substance as follows:

“The accused is sentenced to pay a fine of RTGS 5000.00, in default two months imprisonment.  In addition the accused is sentenced to 4 months imprisonment.  Further the suspended sentence of 12 months imprisonment imposed on the accused on 16 October 2020 under case number NTN 541/20 is brought into effect.”

 

            Save for the grammar correction as set out above, the proceedings are confirmed.

           

 

 

CHITAPI J……………………….