The state v Tapfuma Moyo [2025] ZWBHC 16 (16 July 2025)

3 HB 117/25 HCBCR 2649/25 THE STATE versus TAPFUMA MOYO HIGH COURT OF ZIMBABWE MUTEVEDZI AND NDLOVU JJ BULAWAYO, 16 JULY 2025 Criminal review judgment MUTEVEDZI J: The cultivation, possession and use of dagga, a psychoactive and mood-altering drug, commonly derived from the cannabis plant and known by a variety of names such as mbanje in Zimbabwe, marijuana in Latin America and hemp in India, has polarised society for many decades. Whilst many condemn it as a societal ill, some politicians, businesspeople, artists and medical professionals laud it for various reasons. Those who oppose it argue that it is no different from any other hard drug, but its proponents allege that the drug’s medicinal and other recreational qualities are undisputable. Musicians, particularly those who specialise in a genre called reggae, believe that “marijuana helps them to transcend beyond the ordinary sphere; thus, moving into realms where they receive vibrations that enrich their output, which those ordinarily considered ‘normal’ may not come up with.” 1 Strangely, despite the resistance and documented harmful effects, the movement not only to liberalise the use but also to completely decriminalise most things related to it is fast gaining traction. The push isn’t an idle one. Instead, it appears to be grounded in medical and socioeconomic considerations. After decades of running battles with and relentless prosecution of growers, users and peddlers of mbanje, Zimbabwe is amongst a growing list of jurisdictions which are slowly softening their approach to accommodate the drug. As I will demonstrate, the country’s policies and laws show a marked acceptance of marijuana. I mention the issues not because they have any value in this judgment but simply to put the proceedings which were placed before me on automatic review in terms of section 57 of the Magistrates Court Act [Chapter 7:10] (“the MCA”) into their proper context. Tapfuma Moyo (the offender) appeared before the court of a regional magistrate at Beitbridge on 21 May 2025. He faced a charge of “Unlawful Dealing in Dangerous Drugs’ as defined in section 156(1) (a) and (c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the CODE”). The allegations were that on 21 May 2025 and at Beitbridge Border Post, he unlawfully dealt in a dangerous drug, that is to say, he was found with 40,560 kilograms of dagga. He pleaded guilty to the charge, and he was duly convicted and sentenced as follows: “15 years imprisonment, of which 6 years imprisonment is suspended for 5 years, on condition the offender is not found guilty of any offence, of which cultivating, possession or dealing in dangerous drugs is an element for which, upon conviction is sentenced to imprisonment without the option of a fine. In addition, the 40,56 kg of dagga are forfeited to the State for destruction.” The offender’s conviction is irreproachable. I therefore certify it as being in accordance with real and substantial justice. The same cannot, however, be said about the sentence which was imposed. Section 156 of the CODE is couched in the following terms: 156 Unlawful dealing in dangerous drugs (1) A person who unlawfully— (a) imports, exports, sells, offers or advertises for sale, distributes, delivers, transports or otherwise deals in a dangerous drug; or (b) cultivates, produces or manufactures a dangerous drug for the purpose of dealing in it; or (c) possesses a dangerous drug, or any article or substance used in connection with the production or manufacture of a dangerous drug, for the purpose of dealing in such drug; or (d) incites another person to consume a dangerous drug; or (e) supplies or administers to or procures for any person, or offers to supply or administer to or procure for any person, a dangerous drug; shall be guilty of unlawful dealing in a dangerous drug and liable— if the crime was committed in any of the aggravating circumstances described in subsection (2) and there are no special circumstances peculiar to the case as provided in subsection (3), to imprisonment for a period of not less than fifteen years or more than twenty years and a fine not below level fourteen or, in default of payment, imprisonment for an additional period of not less than five years or more than ten years; or (ii)In any other case, to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding fifteen years or both. (2) For the purpose of subparagraph (i) of subsection (1), the crime of unlawful dealing in a dangerous drug is committed in aggravating circumstances if the dangerous drug in question was a dangerous drug other than any cannabis plant, prepared cannabis, or cannabis resin and the convicted person— (a) was a member of a group of persons organised within or outside Zimbabwe for the purpose of committing the crime; or (b) employed weapons or engaged in violence in the course of committing the crime; or (c) held a public office which he or she abused to facilitate the commission of the crime; or (d) being over the age of eighteen years, incited any minor to consume or deal in a dangerous drug; or (e) was previously convicted, whether within or outside Zimbabwe, of a crime constituted by any of the acts specified in paragraphs (a) to (e) of subsection (1). (3) If a person convicted of unlawful dealing in a dangerous drug in aggravating circumstances satisfies the court that there are special circumstances peculiar to the case, which circumstances shall be recorded by the court, why the penalty provided under subparagraph (i) of subsection (1) should not be imposed, the convicted person shall be liable to the penalty provided under subparagraph (ii) of subsection (1). The first thing I note from the above provision is that the unlawful dealing in mbanje by whatever name the drug may be described, can never be committed in aggravating circumstances because by subsection (2) the crime of illegal dealing in a dangerous drug may only be committed in aggravating circumstances if the dangerous drug in question was any other except any cannabis plant, prepared cannabis, or cannabis resin. It is accepted that mbanje is a product of the cannabis plant. The definition part of s 155 of the CODE defines a cannabis plant as “the whole or any portion, whether green or dry, of any plant of the genus cannabis also known as 'Indian hemp', bhang, camba, dagga, mbanje or intsangu”. Mbanje has therefore been separated from all other dangerous drugs and placed in a special category. It is the reason why, in the introductory paragraph to this judgment, I indicated that there has been a deliberate softening by both the lawmaker and central government in punishing transgressions regarding dagga. Although she did not disclose the reason for doing so, during the presentencing inquiry, the trial magistrate appeared to fully appreciate that position because in her explanation to the offender regarding the possible punishment, she remarked as follows: “This court has, however, made a finding that this offence was not committed under aggravating circumstances in terms of section 156 (2) of the code, and you will therefore be liable to up to 15 years’ imprisonment. The court can depart either higher or lower than the presumptive penalty depending on the aggravating or mitigatory factors found. It is therefore essential that you tell the court whatever factors that you consider will assist the court to find in your favour.” The above means that the maximum sentence an offender can receive for unlawful dealing in mbanje is 15 years' imprisonment. The jurisprudence in sentencing of offenders is that the maximum penalties must be reserved for the worst types of a given crime. Further, it is settled that where a penal provision allows for the imposition of a fine, a sentencer must necessarily begin by considering the possibility of fining the offender. Only where that is not possible will imprisonment be resorted to. Mathonsi J (now JA), in S v Mulauzi HB 159/16, drove that point home and remarked that it amounts to a misdirection on the part of the sentencing court to impose imprisonment without giving serious consideration first and foremost to a fine. See also S v Tsaura and Anor HMT 2/20, which cites with approval the authority of S v Ncube 1989 (2) ZLR 232, where it was held that: “Whenever possible and more particularly where the imposition of a fine is a permissible penalty, a fine should be considered before imprisonment. Only when the facts are such that a fine is inappropriate should imprisonment be considered. First offenders in particular should be kept out of prison as much as possible…” The presumptive penalty, as indicated in the Criminal Procedure (Sentencing Guidelines) Regulations, 2023 (the Guidelines), is 15 years' imprisonment for cases of unlawful dealing in dangerous drugs other than cannabis. As stated in the case of S v Blessed Sixpence and Others HH 567/23 at p. 6 of the cyclostyled judgment, a “…presumptive sentence is a punishment that is found midway between a crime committed in what I may describe on one hand as a run of the mill circumstances and the particularly horrendous ones on the other. It is a median. It is a starting point. It is not a mandatory minimum penalty.” I may as well add that a presumptive penalty cannot, therefore, be the maximum punishment permissible for a particular crime. In her sentencing judgment, the trial magistrate repeatedly stated that she would not depart from the presumptive penalty. That betrayed her understanding that the median penalty for the crime of unlawful dealing in mbanje is 15 years imprisonment. But apparently, that thinking isn’t correct. Fifteen years is the maximum. For the avoidance of doubt, the sentencing guidelines do not provide a presumptive penalty for unlawful dealing in mbanje as it does with all the other dangerous drugs because dealing in mbanje cannot be committed in any of the aggravating circumstances stated in s 156(2) (a)-(e). Put differently, s156 (2) does not create any minimum mandatory sentence for the crime of unlawful dealing in mbanje. In passing, I may also mention that it is apparent that our laws are very unsystematic in dealing with mandatory sentences. There appear to be three distinct categories in which minimum mandatory sentences come. First, there are crimes for which a court must find special circumstances in order to avoid imposing the prescribed mandatory sentence. Second, there are those where once a court finds the existence of one or more specified aggravating factors, it must impose the mandatory penalty. They leave no room for a finding of special circumstances. The third scenario is what is created by s 156(1), where a court is required first to find the existence of certain stated aggravating circumstances. Where it does, it must then consider whether or not there are any special circumstances warranting it to depart from the minimum mandatory sentence. Such penalties are outlined in sections 47(4) and 65(2) of the Code. For a general discussion of the different forms of minimum mandatory sentences, see the cases of S v TG (Redacted) & Anor HH 51/23; S v Wallace Kufandada and Anor HH 233/24, and S v Confidence Matibeki HB 76/24. In addition to the above, the sentences that are stipulated under s 156(1) (i) make fascinating reading and magistrates ought to pay particular attention to them. In a case, where a court finds that an offender unlawfully dealt in a dangerous drug in aggravating circumstances and there are no special circumstances peculiar to the case as provided in subsection (3) of the same section, it must sentence him/her to imprisonment for a period of not less than 15 years or more than 20 years AND a fine not below level fourteen or, in default of payment, imprisonment for an additional period of not less than 5 years or more than 10 years. The use of the conjunctive ‘and’ in that provision means that the offender must be sentenced to BOTH the imprisonment and the fine. See the case of Olga Carlos Joao Bacar v The State HH 104/15. Any fine levied must not be below level 14. I understand that level 14 is the highest level of a fine that any grade of magistrate may impose. It follows that where the offender is sentenced by a regional magistrate's court, the fine is standard. Only the High Court can then go higher than that. Further, when that fine is imposed, the period which the offender must serve imprisonment in default of its payment is not discretionary. It must be between 5 and 10 years. For purposes of guidance and as an example, any such sentence must, as a requirement, read like: “15 years imprisonment. In addition, the offender shall pay a fine of USD$5000 or, in default of payment, 5 years imprisonment.” Lastly, I observe that in her sentence, the trial magistrate ordered the disposal of the mbanje in the following manner: “The 40.56 kg of mbanje are forfeited to the state for destruction.” (The bolding is my emphasis.) My attention was caught by the order to destroy the mbanje. The question that exercised the mind was whether the marijuana was not a paradox of ‘valuable contraband.’ The disposal of exhibits at the termination of a criminal trial is governed by s 61 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CPEA), which is couched as follows: 61. Disposal of article after commencement of criminal proceedings (1) Subject to this Act and except as otherwise provided in any other enactment under which any matter shall or may be forfeited, the judge or magistrate presiding at criminal proceedings may, at the conclusion of the proceedings, unless the article is further required as an exhibit at a trial, make an order that any article referred to in section sixty or produced in evidence— (a) if the person from whose possession it was obtained may lawfully possess such article, be returned to that person; or (b) if the person from whose possession it was obtained is not entitled to the article or may not lawfully possess the article, be returned to any other person entitled thereto, if such person may lawfully possess the article; or (c) if no person is entitled to the article (whether by reason of its being an article whose possession is intrinsically unlawful, or otherwise) or if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the State. (2) The court may, for the purpose of making any order in terms of subsection (1), hear such additional evidence, whether by affidavit or orally, as it may think fit. In this case, the mbanje could not be returned to the offender because he could not possibly lawfully possess it. No other person claimed entitlement to it. I am sure it is the reason why the trial magistrate then forfeited the dagga to the state in terms of subparagraph (c) of subsection (1) of s 60. That order of forfeiture was correct. What was anomalous in my view was to order that the dagga be destroyed. I admit that the trend previously has been to order the destruction of mbanje because in Zimbabwe, its possession whether by the state or anyone else was intrinsically unlawful. But things have since changed. In 2018, the Government liberalized the growing of mbanje for medicinal and research purposes.2 What remains banned is the growing or use of dagga for recreational purposes. There are therefore businesses, institutions and possibly individuals who are licensed to grow and process mbanje for those specified purposes. Throwing 40 kgs of mbanje down an incinerator simply because it is tradition may be uneconomical. My view is that the trial magistrate ought to have just forfeited the dagga to the state and stopped there. Because there are lawful avenues of dealing with the drug, it would then have been left to the responsible State functionaries to determine how best to deal with it. In justifying the sentence of 15 years imprisonment that it imposed, the court a quo referred to several authorities such as S v Munyengeri ZWHHC 545/22, where the accused was sentenced to 4 years imprisonment for possession of 271 kg of dagga. On appeal, this court stated that the sentence was well within the range imposed for the crime. What it criticised was the effective 3 years imprisonment after a portion of the original penalty was suspended. I do not seek to play down the chaos that the scourge of drugs has brought upon society in this country. There is no gainsaying that the courts must play their role in the fight against the abuse of drugs and other substances. The sentiments of the courts have always shown their steadfastness in that fight. In the case of S v Sixpence HH-77-03 HUNGWE J (now JA) was emphatic that dagga: ‘is a mind-bending and habit-forming drug which the court has to be seen to be discouraging its use with all its dangerous consequences to youth and community at large. The punishment should not trivialise such a serious crime.” It must be clear that I am not questioning the decision to effectively imprison the offender. Because of the foregoing, and that the offender was convicted of dealing in 40.560 kilograms of dagga, there was no escaping a custodial sentence. What was irregular was the way the trial magistrate arrived at the sentence and the duration of the period of imprisonment, which indeed induces a sense of shock and is out of synch with sentences imposed for similarly placed offenders. See the cases of S v Paidamoyo Chitaka HB37-07; S v Mashonga 1998 (2) ZLR 377 (HC) and S v Nyambo 1997 (2) ZLR 333 (H). I notice that having been sentenced on 21 May 2025, in conformity with the magistrate’s order, the mbanje must have been destroyed by now. There is no purpose that may then be served by interfering with the order for destruction. But I have demonstrated the gross irregularities which afflicted the process by which the sentence in this case was arrived at. That flawed process resulted in the imposition of an unconscionably harsh penalty. I therefore order as follows: The conviction of the offender be and is hereby confirmed as being in accordance with real and substantial justice The sentence imposed on the offender is set aside and in its place is substituted the following: “9 years imprisonment of which 3 years imprisonment is suspended for 5 years on condition the offender does not during that period commit any offence involving possession, manufacture, dealing in, and/or cultivation of any dangerous drug for which upon conviction he is sentenced to imprisonment without the option of a fine. The 40. 560 kilograms of dagga is forfeited to the State for destruction.” The trial magistrate must recall the offender to explain to him the altered sentence. MUTEVEDZI J……………………………….. NDLOVU J ………………………………….. Agrees 1 https://www.ashdin.com/articles/the-reggae-artistes-and-the-marijuana-legalization-struggle-the-bob-marley-example-100928.html 2 https://en.wikipedia.org/wiki/Cannabis_in_Zimbabwe#cite_note-4; accessed on 16 July 2025 3 HB 117/25 HCBCR 2649/25 3 HB 117/25 HCBCR 2649/25 THE STATE versus TAPFUMA MOYO HIGH COURT OF ZIMBABWE MUTEVEDZI AND NDLOVU JJ BULAWAYO, 16 JULY 2025 Criminal review judgment MUTEVEDZI J: The cultivation, possession and use of dagga, a psychoactive and mood-altering drug, commonly derived from the cannabis plant and known by a variety of names such as mbanje in Zimbabwe, marijuana in Latin America and hemp in India, has polarised society for many decades. Whilst many condemn it as a societal ill, some politicians, businesspeople, artists and medical professionals laud it for various reasons. Those who oppose it argue that it is no different from any other hard drug, but its proponents allege that the drug’s medicinal and other recreational qualities are undisputable. Musicians, particularly those who specialise in a genre called reggae, believe that “marijuana helps them to transcend beyond the ordinary sphere; thus, moving into realms where they receive vibrations that enrich their output, which those ordinarily considered ‘normal’ may not come up with.” 1 Strangely, despite the resistance and documented harmful effects, the movement not only to liberalise the use but also to completely decriminalise most things related to it is fast gaining traction. The push isn’t an idle one. Instead, it appears to be grounded in medical and socioeconomic considerations. After decades of running battles with and relentless prosecution of growers, users and peddlers of mbanje, Zimbabwe is amongst a growing list of jurisdictions which are slowly softening their approach to accommodate the drug. As I will demonstrate, the country’s policies and laws show a marked acceptance of marijuana. I mention the issues not because they have any value in this judgment but simply to put the proceedings which were placed before me on automatic review in terms of section 57 of the Magistrates Court Act [Chapter 7:10] (“the MCA”) into their proper context. Tapfuma Moyo (the offender) appeared before the court of a regional magistrate at Beitbridge on 21 May 2025. He faced a charge of “Unlawful Dealing in Dangerous Drugs’ as defined in section 156(1) (a) and (c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the CODE”). The allegations were that on 21 May 2025 and at Beitbridge Border Post, he unlawfully dealt in a dangerous drug, that is to say, he was found with 40,560 kilograms of dagga. He pleaded guilty to the charge, and he was duly convicted and sentenced as follows: “15 years imprisonment, of which 6 years imprisonment is suspended for 5 years, on condition the offender is not found guilty of any offence, of which cultivating, possession or dealing in dangerous drugs is an element for which, upon conviction is sentenced to imprisonment without the option of a fine. In addition, the 40,56 kg of dagga are forfeited to the State for destruction.” The offender’s conviction is irreproachable. I therefore certify it as being in accordance with real and substantial justice. The same cannot, however, be said about the sentence which was imposed. Section 156 of the CODE is couched in the following terms: 156 Unlawful dealing in dangerous drugs (1) A person who unlawfully— (a) imports, exports, sells, offers or advertises for sale, distributes, delivers, transports or otherwise deals in a dangerous drug; or (b) cultivates, produces or manufactures a dangerous drug for the purpose of dealing in it; or (c) possesses a dangerous drug, or any article or substance used in connection with the production or manufacture of a dangerous drug, for the purpose of dealing in such drug; or (d) incites another person to consume a dangerous drug; or (e) supplies or administers to or procures for any person, or offers to supply or administer to or procure for any person, a dangerous drug; shall be guilty of unlawful dealing in a dangerous drug and liable— if the crime was committed in any of the aggravating circumstances described in subsection (2) and there are no special circumstances peculiar to the case as provided in subsection (3), to imprisonment for a period of not less than fifteen years or more than twenty years and a fine not below level fourteen or, in default of payment, imprisonment for an additional period of not less than five years or more than ten years; or (ii)In any other case, to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding fifteen years or both. (2) For the purpose of subparagraph (i) of subsection (1), the crime of unlawful dealing in a dangerous drug is committed in aggravating circumstances if the dangerous drug in question was a dangerous drug other than any cannabis plant, prepared cannabis, or cannabis resin and the convicted person— (a) was a member of a group of persons organised within or outside Zimbabwe for the purpose of committing the crime; or (b) employed weapons or engaged in violence in the course of committing the crime; or (c) held a public office which he or she abused to facilitate the commission of the crime; or (d) being over the age of eighteen years, incited any minor to consume or deal in a dangerous drug; or (e) was previously convicted, whether within or outside Zimbabwe, of a crime constituted by any of the acts specified in paragraphs (a) to (e) of subsection (1). (3) If a person convicted of unlawful dealing in a dangerous drug in aggravating circumstances satisfies the court that there are special circumstances peculiar to the case, which circumstances shall be recorded by the court, why the penalty provided under subparagraph (i) of subsection (1) should not be imposed, the convicted person shall be liable to the penalty provided under subparagraph (ii) of subsection (1). The first thing I note from the above provision is that the unlawful dealing in mbanje by whatever name the drug may be described, can never be committed in aggravating circumstances because by subsection (2) the crime of illegal dealing in a dangerous drug may only be committed in aggravating circumstances if the dangerous drug in question was any other except any cannabis plant, prepared cannabis, or cannabis resin. It is accepted that mbanje is a product of the cannabis plant. The definition part of s 155 of the CODE defines a cannabis plant as “the whole or any portion, whether green or dry, of any plant of the genus cannabis also known as 'Indian hemp', bhang, camba, dagga, mbanje or intsangu”. Mbanje has therefore been separated from all other dangerous drugs and placed in a special category. It is the reason why, in the introductory paragraph to this judgment, I indicated that there has been a deliberate softening by both the lawmaker and central government in punishing transgressions regarding dagga. Although she did not disclose the reason for doing so, during the presentencing inquiry, the trial magistrate appeared to fully appreciate that position because in her explanation to the offender regarding the possible punishment, she remarked as follows: “This court has, however, made a finding that this offence was not committed under aggravating circumstances in terms of section 156 (2) of the code, and you will therefore be liable to up to 15 years’ imprisonment. The court can depart either higher or lower than the presumptive penalty depending on the aggravating or mitigatory factors found. It is therefore essential that you tell the court whatever factors that you consider will assist the court to find in your favour.” The above means that the maximum sentence an offender can receive for unlawful dealing in mbanje is 15 years' imprisonment. The jurisprudence in sentencing of offenders is that the maximum penalties must be reserved for the worst types of a given crime. Further, it is settled that where a penal provision allows for the imposition of a fine, a sentencer must necessarily begin by considering the possibility of fining the offender. Only where that is not possible will imprisonment be resorted to. Mathonsi J (now JA), in S v Mulauzi HB 159/16, drove that point home and remarked that it amounts to a misdirection on the part of the sentencing court to impose imprisonment without giving serious consideration first and foremost to a fine. See also S v Tsaura and Anor HMT 2/20, which cites with approval the authority of S v Ncube 1989 (2) ZLR 232, where it was held that: “Whenever possible and more particularly where the imposition of a fine is a permissible penalty, a fine should be considered before imprisonment. Only when the facts are such that a fine is inappropriate should imprisonment be considered. First offenders in particular should be kept out of prison as much as possible…” The presumptive penalty, as indicated in the Criminal Procedure (Sentencing Guidelines) Regulations, 2023 (the Guidelines), is 15 years' imprisonment for cases of unlawful dealing in dangerous drugs other than cannabis. As stated in the case of S v Blessed Sixpence and Others HH 567/23 at p. 6 of the cyclostyled judgment, a “…presumptive sentence is a punishment that is found midway between a crime committed in what I may describe on one hand as a run of the mill circumstances and the particularly horrendous ones on the other. It is a median. It is a starting point. It is not a mandatory minimum penalty.” I may as well add that a presumptive penalty cannot, therefore, be the maximum punishment permissible for a particular crime. In her sentencing judgment, the trial magistrate repeatedly stated that she would not depart from the presumptive penalty. That betrayed her understanding that the median penalty for the crime of unlawful dealing in mbanje is 15 years imprisonment. But apparently, that thinking isn’t correct. Fifteen years is the maximum. For the avoidance of doubt, the sentencing guidelines do not provide a presumptive penalty for unlawful dealing in mbanje as it does with all the other dangerous drugs because dealing in mbanje cannot be committed in any of the aggravating circumstances stated in s 156(2) (a)-(e). Put differently, s156 (2) does not create any minimum mandatory sentence for the crime of unlawful dealing in mbanje. In passing, I may also mention that it is apparent that our laws are very unsystematic in dealing with mandatory sentences. There appear to be three distinct categories in which minimum mandatory sentences come. First, there are crimes for which a court must find special circumstances in order to avoid imposing the prescribed mandatory sentence. Second, there are those where once a court finds the existence of one or more specified aggravating factors, it must impose the mandatory penalty. They leave no room for a finding of special circumstances. The third scenario is what is created by s 156(1), where a court is required first to find the existence of certain stated aggravating circumstances. Where it does, it must then consider whether or not there are any special circumstances warranting it to depart from the minimum mandatory sentence. Such penalties are outlined in sections 47(4) and 65(2) of the Code. For a general discussion of the different forms of minimum mandatory sentences, see the cases of S v TG (Redacted) & Anor HH 51/23; S v Wallace Kufandada and Anor HH 233/24, and S v Confidence Matibeki HB 76/24. In addition to the above, the sentences that are stipulated under s 156(1) (i) make fascinating reading and magistrates ought to pay particular attention to them. In a case, where a court finds that an offender unlawfully dealt in a dangerous drug in aggravating circumstances and there are no special circumstances peculiar to the case as provided in subsection (3) of the same section, it must sentence him/her to imprisonment for a period of not less than 15 years or more than 20 years AND a fine not below level fourteen or, in default of payment, imprisonment for an additional period of not less than 5 years or more than 10 years. The use of the conjunctive ‘and’ in that provision means that the offender must be sentenced to BOTH the imprisonment and the fine. See the case of Olga Carlos Joao Bacar v The State HH 104/15. Any fine levied must not be below level 14. I understand that level 14 is the highest level of a fine that any grade of magistrate may impose. It follows that where the offender is sentenced by a regional magistrate's court, the fine is standard. Only the High Court can then go higher than that. Further, when that fine is imposed, the period which the offender must serve imprisonment in default of its payment is not discretionary. It must be between 5 and 10 years. For purposes of guidance and as an example, any such sentence must, as a requirement, read like: “15 years imprisonment. In addition, the offender shall pay a fine of USD$5000 or, in default of payment, 5 years imprisonment.” Lastly, I observe that in her sentence, the trial magistrate ordered the disposal of the mbanje in the following manner: “The 40.56 kg of mbanje are forfeited to the state for destruction.” (The bolding is my emphasis.) My attention was caught by the order to destroy the mbanje. The question that exercised the mind was whether the marijuana was not a paradox of ‘valuable contraband.’ The disposal of exhibits at the termination of a criminal trial is governed by s 61 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CPEA), which is couched as follows: 61. Disposal of article after commencement of criminal proceedings (1) Subject to this Act and except as otherwise provided in any other enactment under which any matter shall or may be forfeited, the judge or magistrate presiding at criminal proceedings may, at the conclusion of the proceedings, unless the article is further required as an exhibit at a trial, make an order that any article referred to in section sixty or produced in evidence— (a) if the person from whose possession it was obtained may lawfully possess such article, be returned to that person; or (b) if the person from whose possession it was obtained is not entitled to the article or may not lawfully possess the article, be returned to any other person entitled thereto, if such person may lawfully possess the article; or (c) if no person is entitled to the article (whether by reason of its being an article whose possession is intrinsically unlawful, or otherwise) or if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the State. (2) The court may, for the purpose of making any order in terms of subsection (1), hear such additional evidence, whether by affidavit or orally, as it may think fit. In this case, the mbanje could not be returned to the offender because he could not possibly lawfully possess it. No other person claimed entitlement to it. I am sure it is the reason why the trial magistrate then forfeited the dagga to the state in terms of subparagraph (c) of subsection (1) of s 60. That order of forfeiture was correct. What was anomalous in my view was to order that the dagga be destroyed. I admit that the trend previously has been to order the destruction of mbanje because in Zimbabwe, its possession whether by the state or anyone else was intrinsically unlawful. But things have since changed. In 2018, the Government liberalized the growing of mbanje for medicinal and research purposes.2 What remains banned is the growing or use of dagga for recreational purposes. There are therefore businesses, institutions and possibly individuals who are licensed to grow and process mbanje for those specified purposes. Throwing 40 kgs of mbanje down an incinerator simply because it is tradition may be uneconomical. My view is that the trial magistrate ought to have just forfeited the dagga to the state and stopped there. Because there are lawful avenues of dealing with the drug, it would then have been left to the responsible State functionaries to determine how best to deal with it. In justifying the sentence of 15 years imprisonment that it imposed, the court a quo referred to several authorities such as S v Munyengeri ZWHHC 545/22, where the accused was sentenced to 4 years imprisonment for possession of 271 kg of dagga. On appeal, this court stated that the sentence was well within the range imposed for the crime. What it criticised was the effective 3 years imprisonment after a portion of the original penalty was suspended. I do not seek to play down the chaos that the scourge of drugs has brought upon society in this country. There is no gainsaying that the courts must play their role in the fight against the abuse of drugs and other substances. The sentiments of the courts have always shown their steadfastness in that fight. In the case of S v Sixpence HH-77-03 HUNGWE J (now JA) was emphatic that dagga: ‘is a mind-bending and habit-forming drug which the court has to be seen to be discouraging its use with all its dangerous consequences to youth and community at large. The punishment should not trivialise such a serious crime.” It must be clear that I am not questioning the decision to effectively imprison the offender. Because of the foregoing, and that the offender was convicted of dealing in 40.560 kilograms of dagga, there was no escaping a custodial sentence. What was irregular was the way the trial magistrate arrived at the sentence and the duration of the period of imprisonment, which indeed induces a sense of shock and is out of synch with sentences imposed for similarly placed offenders. See the cases of S v Paidamoyo Chitaka HB37-07; S v Mashonga 1998 (2) ZLR 377 (HC) and S v Nyambo 1997 (2) ZLR 333 (H). I notice that having been sentenced on 21 May 2025, in conformity with the magistrate’s order, the mbanje must have been destroyed by now. There is no purpose that may then be served by interfering with the order for destruction. But I have demonstrated the gross irregularities which afflicted the process by which the sentence in this case was arrived at. That flawed process resulted in the imposition of an unconscionably harsh penalty. I therefore order as follows: The conviction of the offender be and is hereby confirmed as being in accordance with real and substantial justice The sentence imposed on the offender is set aside and in its place is substituted the following: “9 years imprisonment of which 3 years imprisonment is suspended for 5 years on condition the offender does not during that period commit any offence involving possession, manufacture, dealing in, and/or cultivation of any dangerous drug for which upon conviction he is sentenced to imprisonment without the option of a fine. The 40. 560 kilograms of dagga is forfeited to the State for destruction.” The trial magistrate must recall the offender to explain to him the altered sentence. MUTEVEDZI J……………………………….. NDLOVU J ………………………………….. Agrees 1 https://www.ashdin.com/articles/the-reggae-artistes-and-the-marijuana-legalization-struggle-the-bob-marley-example-100928.html 1 https://www.ashdin.com/articles/the-reggae-artistes-and-the-marijuana-legalization-struggle-the-bob-marley-example-100928.html 2 https://en.wikipedia.org/wiki/Cannabis_in_Zimbabwe#cite_note-4; accessed on 16 July 2025 2 https://en.wikipedia.org/wiki/Cannabis_in_Zimbabwe#cite_note-4; accessed on 16 July 2025