Zimbabwe’s high court urges parliamentary rethink of minimum sentence provisions, including question of ‘special circumstances’

A magistrate’s conviction of a young man accused of stealing a ‘chair plate’ belonging to the National Railways of Zimbabwe (NRZ) from a ‘scrapheap’ and sending him to jail for an effective term of 10 years, has been overturned by the high court in Harare. The court, however, also used the occasion to urge that when an accused faces a mandatory minimum sentence, as happened here, they should be entitled to state-funded legal representation. In its judgment, the court also strongly pushed for reform to a difficult area of the law that prescribes a mandatory minimum sentence, namely the question of the ‘special circumstances’ that should be presented by an accused wanting to avoid a minimum sentence.

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First, the facts about the matter that came before high court judge, Joseph Chilimbe, who wrote the decision, and his colleague, Sylvia Chirawu-Mugomba.

It was a case heard and decided by the magistrates court, involving Blessing Manyengavana, 20. He was picked up by security offers of the National Railways of Zimbabwe (NRZ) and found in possession of what was called a ‘chair plate’. He said he had picked it up from ‘a railways heap’, and, in September 2022, was convicted and sentenced to an effective 10-year prison term.

Judge Chilimbe, before whom the matter came on automatic review, asked the magistrate to explain why the maximum penalty was imposed, and whether the court had considered ‘the question of special circumstances’.


He was referring to the section under which the young man was charged and convicted. It says that anyone unlawfully in possession of ‘any equipment used for the provision of a railway service’, shall be guilty of an offence. Absent any ‘special circumstances peculiar to the case’, the convicted accused is then liable to a jail term of ‘not less than five years or more than ten years’.

Did the magistrate consider imposing a sentence of less than 10 years, the judge asked, particularly given the youth of the accused, plus the fact that he explained he had picked up the chair plate on a scrap heap, and that the section under which he was convicted doesn’t envisage ‘any theft or dishonesty on his part’.

The magistrate replied that she didn’t consider a lesser sentence ‘since no special circumstances were established’. Nor had she considered his age. She would, however, in future think of suspending part of the sentence where an accused was to serve ‘not less than five years’ in such a case.

Gross misdirection

The judge said this response showed a ‘number of misdirections’, including the fact that the magistrate hadn’t taken proper account of relevant mitigatory factors. That amounted to ‘gross misdirection’, he said, since this was a strict liability offence, involving a mandatory minimum penalty and an ‘unrepresented, unsophisticated accused.’

‘This misdirection led to a serious miscarriage of justice which warrants this court’s interference,’ the judge found.

In her sentencing remarks, the magistrate said that the young man’s unlawful conduct ‘hinders the economic development of the country and therefore his moral blameworthiness is so high’. These comments ‘capture the real essence of the offence,’ said the judge, adding, ‘Protection of public infrastructure ranks as an absolute societal priority and obligation’.

‘Invariably heavy’

He stressed that appropriate deterrents had to be imposed by the court when members of the public illegally removed or damaged public infrastructure. But in this case, as it involved a mandatory minimum penalty, ‘greater care ought to have been taken in identifying aggravating factors specific to the circumstances’ of the case.

The magistrate had no evidence before her that would have let her appreciate what was at stake. What was a ‘chair plate’, for example – the judge said he had had to Google the term to find out as this information wasn’t forthcoming from the lower court’s decision. (He said he had found that it is a flat metal plate used to secure the rail to anything forming its bed including the railway sleeper.)

Zimbabwe’s high court had consistently stressed that mandatory minimum sentences were, by their very nature, ‘rigorous and invariably heavy’ and tended to remove the usual sentencing discretion of the court. This meant that a court had a serious responsibility at sentencing in such a case. The presiding officer needed to inquire correctly into whether special circumstances existed that would mitigate the mandatory sentence.

Countless occasions

In this case, among other problems, the chair plate was ‘improperly admitted as evidence’. The court record seemed to lack ‘integrity’: for example, it wasn’t clear what rights were actually explained to the accused. The judge also noted several other serious problems about the conviction.

Next, he dealt with the issue of ‘special circumstances’, given that the law says that where cases involve a mandatory sentence, this sentence can be reduced if there are such circumstances.

The judge said the high court had ‘on countless occasions’ stressed that a trial court had to deal with ‘special circumstances’ with the greatest care, particularly where an unrepresented accused was involved. In fact, one judge had even said it was ‘high time’ that everyone accused in a mandatory sentence case should be entitled to state-funded legal representation, and that the law development commission should consider this suggestion seriously – an argument that Judge Chilimbe fully supported.

He bemoaned the fact that both ‘judicial officers and legal practitioners’ sometimes failed when it came to understanding and dealing with special circumstances. And if trained jurists found it difficult to fully understand the principle of special circumstances, how much more would the concept be beyond an undefended accused person, he asked.

Daunting halls of the law

In this case, ‘a 20-year-old simpleton’, for the first time in his life, was dragged before ‘the daunting halls of the law’ and there was warned, in a complex formula of legal terminology, what constituted special circumstances. Although the accused said he understood, he would have had to be someone ‘of extraordinary intellect to instantaneously grasp the … explanation’. And yet, special circumstances were the only means by which the judiciary could temper the strictures of a mandatory sentence, and so the court had to ensure that these were raised and properly considered.

Though this was a challenging situation, the courts had to rise to the occasion because otherwise, ‘real and substantial justice’ would not be done.

A sentencing court had to be ‘alive to the challenges faced by unrepresented accused persons’ when it came to special circumstances and presiding officers had to make sure that they conducted proceedings in accordance ‘with real and substantial justice’, regardless of the difficulty and complexity of matters before them.

His final conclusion? The question of special circumstances ‘appears ripe for law reform’.

  • A matter of justice, Legalbrief, 11 April 2023