THE STATE v ZACHARIA (85 of 2025) [2025] ZWHHC 85 (14 February 2025)

2 HH 85 - 25 HCHCR 686/25 Ref: NTN 26/25 THE STATE versus CHARLES ZACHARIA HIGH COURT OF ZIMBABWE MAXWELL J HARARE; 14 February 2025 Review MAXWELL J: The record of this matter was placed before me with a note from the Regional Magistrate. The conviction was said to be in accordance with real and substantial justice but the sentence was not. The accused was convicted on his own plea of guilty to a charge of allowing to be at large an unmuzzled ferocious dog in terms of section 48(2)(r) of the Criminal Law (Codification & Reform) Act. He was sentenced to a fine of $250, 00 in default of payment 8 months imprisonment. In terms of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the penalty for the offence is a fine not exceeding level five or imprisonment for a period not exceeding six months. The Regional Magistrate expressed the following view; “It is my considered view that the Trial Magistrate imposed a sentence that exceeded the maximum penalty prescribed by the Act. This is so considering that a fine of level 5 is $200, 00 and the maximum imprisonment is six months. _ _ _ _ _ The sentence must therefore be amended on review for it to be competent. Therefore I propose that the sentence be amended as follows; US$200, 00 or the equivalent in ZIG at the prevailing bank rate on the date of payment in default of payment 30 days imprisonment.” The Regional Magistrate further expressed the view that the charge is not properly cited as there is no section 48(2)(r) in the Act and should be amended to; “Allowing to be at large an unmuzzled ferocious dog as defined in section 46 of as read with paragraph 2(r) of the Third Schedule, to the Criminal Law (Codification and Reform) Act, [Chapter 9:07] (sic)” I agree with the Regional Magistrate. The Trial Magistrate made reference to the wrong section in convicting the offender. Section 48 of the Criminal Law (Codification and Reform) Act is on infanticide. It does not have subsection (2)(r). On the penalty, the Trial Magistrate ought to have had regard to the penalty provision when assessing and imposing sentence. A reference to section 46 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] reveals that the Trial Magistrate exceeded the maximum penalty permissible under the law. The sentence is therefore incompetent and is set aside. The suggested sentence of US$200, 00 or the equivalent in ZIG at the prevailing bank rate on the date of payment in default of payment 30 days imprisonment is appropriate. In the result the charge will be amended as suggested above. The sentence imposed in the court a quo is set aside and in its place the following is imposed; “US$200,00 or the equivalent in ZIG at the prevailing bank rate on the date of payment in default of payment 30 days imprisonment.” Maxwell J: ……………………………………………… Manyangadze J: …………………………………………… Agrees 2 HH 85 - 25 HCHCR 686/25 Ref: NTN 26/25 2 HH 85 - 25 HCHCR 686/25 Ref: NTN 26/25 THE STATE versus CHARLES ZACHARIA HIGH COURT OF ZIMBABWE MAXWELL J HARARE; 14 February 2025 Review MAXWELL J: The record of this matter was placed before me with a note from the Regional Magistrate. The conviction was said to be in accordance with real and substantial justice but the sentence was not. The accused was convicted on his own plea of guilty to a charge of allowing to be at large an unmuzzled ferocious dog in terms of section 48(2)(r) of the Criminal Law (Codification & Reform) Act. He was sentenced to a fine of $250, 00 in default of payment 8 months imprisonment. In terms of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the penalty for the offence is a fine not exceeding level five or imprisonment for a period not exceeding six months. The Regional Magistrate expressed the following view; “It is my considered view that the Trial Magistrate imposed a sentence that exceeded the maximum penalty prescribed by the Act. This is so considering that a fine of level 5 is $200, 00 and the maximum imprisonment is six months. _ _ _ _ _ The sentence must therefore be amended on review for it to be competent. Therefore I propose that the sentence be amended as follows; US$200, 00 or the equivalent in ZIG at the prevailing bank rate on the date of payment in default of payment 30 days imprisonment.” The Regional Magistrate further expressed the view that the charge is not properly cited as there is no section 48(2)(r) in the Act and should be amended to; “Allowing to be at large an unmuzzled ferocious dog as defined in section 46 of as read with paragraph 2(r) of the Third Schedule, to the Criminal Law (Codification and Reform) Act, [Chapter 9:07] (sic)” I agree with the Regional Magistrate. The Trial Magistrate made reference to the wrong section in convicting the offender. Section 48 of the Criminal Law (Codification and Reform) Act is on infanticide. It does not have subsection (2)(r). On the penalty, the Trial Magistrate ought to have had regard to the penalty provision when assessing and imposing sentence. A reference to section 46 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] reveals that the Trial Magistrate exceeded the maximum penalty permissible under the law. The sentence is therefore incompetent and is set aside. The suggested sentence of US$200, 00 or the equivalent in ZIG at the prevailing bank rate on the date of payment in default of payment 30 days imprisonment is appropriate. In the result the charge will be amended as suggested above. The sentence imposed in the court a quo is set aside and in its place the following is imposed; “US$200,00 or the equivalent in ZIG at the prevailing bank rate on the date of payment in default of payment 30 days imprisonment.” Maxwell J: ……………………………………………… Manyangadze J: …………………………………………… Agrees