State vs Zimba (HCC3/26) [2026] ZWCHHC 3 (9 February 2026)

4 HCC 3/26 HCCR 66/26 REF CRB KADP 112/25 THE STATE Versus ADMIRE ZIMBA IN THE HIGH COURT OF ZIMBABWE **BACHI MZAWAZI J** CHINHOYI, 27 January 2026 **Review Judgment** **BACHI MZAWAZI J** : The accused a 26-year-old youthful male was convicted on his own guilty plea of theft of a motor car in contravention of s113(theft) of the Criminal law Code, [Chapter 9:23]. The owner of the vehicle had parked the vehicle at a shopping complex, Kadoma, leaving it unattended with keys on the ignition and the doors unlocked. The vehicle, a white Nissan Caravan van, was left in the morning of the 8th of January 2026, at 7am. The vehicle was still at the same position and in the same unsecure state when the complainant returned at 8pm the same day after work. It is not clear why he did then not remove the keys and lock the doors when, again he left the vehicle overnight after discovering that, it had not been tampered with for the whole day. This in my view was a recipe for disaster, as all the essential ingredients were present. It does not come as a surprise that on the following day, on the 9th of January, 2026, upon his return he found the vehicle gone. It had vanished into thin air. A police report was made. The accused was then arrested in Kwekwe, around 1500hrs on the same day. He was arrested for parking in an undesignated area where he was visibly stuck. The vehicle was then linked to the one that had been reported stolen from the complainant. This led to the charges and the subsequent conviction following a guilty plea. He was sentenced to 4 years imprisonment. One year was suspended for 5years on conditions. He is currently serving 3yrs. Whilst the conviction is proper, it is the sentence which in my view, is harsh in light of the circumstances surrounding the commission of the offence. Given the seriousness of the offence and the need to criminalise lack of respect of other people’s properties, on the face of it, the lengthy custodial term seems to make a lot of sense. However, from this perspective, the punishment is somehow, restricted to only the offence and its magnitude. It does not incorporate other crucial factors in penology such as the circumstances surrounding the commission of the and the offender himself. It neglects the legal principle that punishment should not only fit the crime but the offender. The equation is at a disequilibrium _._ See _, S v Nyirenda_ 1988 (1) ZLR 160 (H) and _S v Chirai_ 1992 (1) ZLR 24. The proportionality principle advocated for in s6 of the sentencing guidelines and underpinned by decided cases is distorted and loses punch, once sentence reflects only the need to punish on the basis of the seriousness of the offence. Section 6 is worth duplicating. In particular s6(2) of the sentencing guidelines which reads: S6(2) All sentences must meet the following criteria— 1. Proportionality: meaning the sentence imposed should be the _least onerous sanction_ _appropriate in the circumstances_ and the _maximum penalty prescribed for an offence_ should be imposed only in the most serious of cases; 2. Parity/Equality: meaning that a sentence should be consistent with sentences imposed on other offenders for _similar offences_ committed in _similar circumstances_ ; (c) Totality: meaning that the nature and combined duration of the sentence imposed and any other sentences imposed on the offender should not be excessive. Noteworthy, are the phrases above underscored for emphasis. The cord running through the above principles set out in section 6(2), according to my interpretation, is that, each case must be decided on its merits and that sentence must be individualised. This was amply highlighted in _S v Mahove & Ors _2009 (2) ZLR 19 (H) that; - It is the responsibility of the judicial officer to consider all factors and circumstances placed before him in arriving at a just sentence. The sentence must be individualized to the particular offender. Failure to individualise the sentence is a misdirection. It makes a mockery of the reasons for the sentence that the judicial officer purports to have taken into account in assessing the sentence. In _casu,_ the circumstances of this case are more reflective of an opportunistic, rather than a planned and premeditated offence. Undeniably, the crime was committed more out of mere temptation upon seeing the keys on the ignition for a very long period coupled with the unlocked doors than greedy or an inherent criminal mind. The traits of this case do not depict the usual characteristics of car thieves who use spare keys to unlock and drive the vehicle or who break into vehicles using unorthodox means, that is, screw drivers or other tools, breaking the small rear- view windows and so on. Most of the decided cases where lengthy custodial sentences were imposed, the culprits, were either gangsters of two or more, with the _modus operandi_ of posing as innocent passengers and then hijacking the driver, rob him and his passengers if not alone, of both valuables and the vehicle. Some were habitual offenders, repeat offenders with recidivism tendencies. See, _Mupfiga v the State,_ HH789/16 and _Tembo v the State_ HH146.15, to mention but a few, whose circumstances dictated stiffer penalties. In the above cases the offenders were not only habitual criminals convicted of multiple counts but with a plethora of other related offences at the same time. At one stage in time, offences of car theft, where the victims were left naked and abandoned in remote areas where alarmingly on the increase, as such commendably, lengthy sentences played both a retributive and deterrent role. The correct deterrent messages to would be likeminded offenders and to the society at large were effectively relayed. On point, are the cases of _Mackmate Mupfiga_ v _The State_ HH 789-16, _Herman Phillip Tembo_ v _The State_ HH 146-15 and _Clive Ushe_ v _The State_ HH 435-13. What is distinct in the above cited cases is that the punishment matched both the offenders and the offence. To say the least, it can be observed that courts in the above cases balanced all the objectives of punishment, which are, retribution, deterrence, reformation and restorative justice as captured in several decided cases. This is in accordance with the spirit and the letter of 6(1) of the sentencing guidelines S.I 146/23. For the purposes of re-emphasis, I will replicate s6(1) of S.I. 146/23 on objectives of punishment which states, 6\. (1) The objective of a sentencing court shall be to correct, rehabilitate and punish a convicted offender to the extent and in such a manner that is just and proportionate. All sentences imposed must meet one or more of the following objectives— 1. Reformation/Rehabilitation: aimed at promoting a sense of responsibility on the part of offender and providing for opportunities to assist in his or her rehabilitation as productive and law-abiding member of society; 2. Retribution: aimed at ensuring that the offender should face a sentence that is equal in measure to the harm he or she caused; 3. Deterrence: aimed at preventing or discouraging the offender from reoffending in future and to deterring other persons from engaging in criminal conduct; 4. Protection or prevention: aimed at protecting the public by separating certain offenders, especially dangerous or persistent offenders, from society, where necessary (e) Restitution and Compensation: aimed at ensuring that the victim of the offence is recompensed for the injury which he or she has personally suffered or that any other person who can show some substantial and peculiar interest in the issue of the trial arising out of some injury which he or she individually suffered by the commission of the offence is compensated, and that the offender loses the benefits received from the criminal conduct. This includes restoration which is aimed at providing redress to the victim or the society affected by the crime. Having noted the above, I am of the considered view that the mitigating factors of this case were not taken into account. The accused is a youthful first offender aged 26. He pleaded guilty to the offence. He was arrested without incident. The vehicle was recovered intact without any tampering or change of number plates. The accused’s case is distinguishable from other theft of motor vehicles case highlighted herein. The trial court by ignoring the balance that has to be struck in sentencing, as clearly outlined in s6 of the sentencing guidelines above and the sentencing triad as set out in _S v Zinn_ 1969(2) SA 537, definitely missed the mark. Though the statutory penalty ranges from a fine to imprisonment for up to 25 years or both, decided cases have invariably set a precedent of approximately 4 to 6years with portions suspended on conditions. In comparison, in most of the decided cases, like the one the trial court relied on, S v N _gwerum_ e HH137/18, there was premeditation and preplanning. In the case of _Clive Ushe_ v _the State_ HH435/14, where the appeal court confirmed a sentence of 6 years with 2 years suspended with conditions, the culprits had posed as innocent passengers. The stolen vehicle was then used to commit a spate of robberies. Criminal conduct by any measure should not go unpunished, but with equal measure, punishment must distinguish offenders according to the circumstances of their particular cases amongst other factors. See, _S_ v _Mayberry_ 1985(1) ZLR 192 at 194-5 and S.I. 146/23. In _S v Buka_ 1995(2) ZLR 130(S), it was observed that, “A point is reached after which adding to already long prison sentence produces progressively smaller increases.’’ See also _S v Sidat1997_ (1) ZLR 487 (SC). In _S_ v _Dube and Anor_ 1995 (2) ZLR 321 at p 326 B-C KORSAH JA had this to say: “It has been said time and again in our courts that the punishment should not only fit the crime, it should fit the person as well. If that is to be, there can be no place for a tariff sentence in respect of any crime with regard to which the courts' discretion is not fettered by statute law; for the circumstances of the offender and other factors of mitigation or aggravation may vary infinitely. Be it as serious as murder, the sentencing authority is enjoined to consider all factors, both in aggravation and mitigation of sentence and, in the exercise of its discretion, to impose a just punishment. A sentence based on a tariff is indicative of an abortion of judicial discretion, which is tantamount to a misdirection.” Speaking to the need to differentiate offenders and the importance of individualization in sentencing, EBRAHIM J in _S_ v _Mugwenhe_ _& Anor_ 1991(1) ZLR 66, reaffirmed the observations by BOTHER JA in _S_ v _Reddy_ 1975 (3) SA 757 (A) at 759H, wherein the learned judge of appeal stated that: “Though uniformity of sentences, that is of sentences imposed upon accused persons in respect of the same offence, or in respect of similar offences of a kindred nature, may be desirable, the desire to achieve such uniformity cannot be allowed to interfere with the free exercise of his discretion by a judicial officer in determining the appropriate sentence in a particular case in the light of the relevant facts in that case and the circumstances of the person charged.” I am alive to the legal position, that the sentencing discretion is the forte of the sentencing court, however, is it will be injudicious to fail to take into account individual and peculiar circumstances of each and every case. The failure by the trial court to make that distinction when sentencing the current case is a misdirection and a justifiable cause to interfere with its sentencing discretion in this case. _S v Chiweshe_ 1996 (1) ZLR 425 (H), _S v Ramushu_ SC25-93; _S v Nhumwa_ SC40-88; and _Mkombo v The State_ HB140-10. **Disposition** The trial court relied on the general penalties imposed in similar cases which have been custodial terms with a number of years suspended on conditions whilst disregarding the accused’s own circumstances. A distinction must be made however, in the circumstances surrounding the commission of the offences in those other case references and the current one. In most of the decided cases, there was premeditation and preplanning. Not every case deserves the rigors of a custodial sentence. Resultantly, the sentence is not in accordance with real and substantial justice. Accordingly, it is ordered that; 1. The conviction is confirmed. 2. The sentence is set aside and substituted with the following: The accused person is sentenced to, 24 months’ imprisonment, 6 months is suspended for 5 years on condition accused does not commit any offence involving, dishonest, or theft of which upon conviction the accused will be sentenced to imprisonment without an option of a fine. The remaining 18 months is wholly suspended on condition the accused performs community service. 3. The record is remitted to the trial court for further assessment and placement on community service. 4. A warrant of liberation is forthwith issued. **Bachi-Mzawazi J** **Muzofa J, Agrees** _National Prosecuting Authority, the State’s legal practitioners_