Makweti v The People (Appeal no. 45 of 1991) [1991] ZMSC 76 (23 July 1991)

IN THE SUPREME COURT OF ZAM3IA Appeal no. 45 of 1991 HOLDEN AT LUSAKA (Civil jurisdiction) COLIN KANYANTA MAKWETI Appellant -v- THE PEOPLE Respondent CORAM: Ngulube, D. C. J., Gardner. AJ. S. and Sakala, J. S. On 23rd July. 1991 For the appellant. In person For the respondent, W. Hant^br, Assistant Principal State Advocate JUDGMENT Ngulube, D. C. J. delivered the judgment of the court The appellant was convicted on tworecounts: The first alleged the obtaining of a pecuniary advantage by false pretences. The particulars were that he dishonestly obtained for himself a pecuniary advantage, namely a deferred charge of revenue through a road transport requisition by which he obtained a UBZ coach ticket valued at K85.70 by falsely pretending that he was travelling to Lusaka on duty when in fact he was on local leave. The second count related to the making of a document without authority the particulars of which where that the appellant raised the road transport requisition referred to in the first count without authority and on the false pretence that he was travelling to Lusaka on duty when in fact he was on local leave. ■ ■ 7 .< We have considered the appellant’s grounds of appeal in which he complained that the court below had not considered all the arguments that had been put forward before it. We have examined the grounds of appeal that were argued in the High Court and we have carefuly considered the evidence which was before the learned trfal magistrate. T \ .... ■: 2/....... There There was no serious dispute on the fact that the appellant had raised the requisition and that he had obtained the ticket when he was not required to travel to Lusaka as he had alleged. This was / confirmed by the fact that when the matter became known the appellant refunded the sum of K<35.70. It was common ground that the appellant's £ superiors had no knowledge of the transaction and indeed they had J < not authorised him to escort a prohibited immigrant to Lusaka which was the reason given to obtain the ticket. The learned trial magistrate pointed out that had it been true that the appellant had undertaken an authorised trip, there would have been no need to refund the money involved. As far as^the offences are concerned, we find that the conviction cannot be faulted. With regard to the sentence we note that the appellant was ordered to serve a total of 41 years imprisonment for this somewhat •technical offence. In view of all the circumstances of the case including the value of the transaction and the fact that the amount involved was refunded, the sentence of 41 years imprisonment with hard labour comes to us with a sense of shock. It seems to us that the fact of the conviction alone was*adequate to drive home the point to the appellant that it is wrong to misuse public offices and public funds in this manner. In the circumstances, we allow the appeal against sentence and in its place we order an absolute discharge. We also direct that the K50D.00 cash bail paid be also refunded. N. M. S. W. Nguiube B. T. Gardner ' DEPUTY CHIEF JUSTICE SUPREME COURT JUDGE E. L. Sakala SUPREME COURT JUDGE