S v Nkala (HB 34 of 2006) [2006] ZWBHC 34 (2 April 2006)

Judgment No. HB 34/06 Case No. HBA 93/05 COSMAS NKALA Versus THE STATE IN THE HIGH COURT OF BULAWAYO CHEDA J AND NDOU J BULAWAYO 3 APRIL 2006 Mr G Nyoni for appellant Mr AV Mabande for respondent Appeal Cheda J: This is an appeal against sentence only. The facts as agreed to by appellant are that appellant who was 27 years at the time of the commission of the offence transported seven people from the Republic of South Africa to Zimbabwe. All the seven passengers had no passports or any valid travel documents. On arrival at the boarder, they did not report to the Immigration officials but he assisted them to cross the boarder illegally into Zimbabwe. He was charged with 2 counts, the first count was for the Contravening Section 36 (1) (c) of the Immigration Act Chapter 4:02 in connection with having assisted the said (7) seven passengers to cross the boarder illegally. The second count was the Contravening Section 36 (1) (F) of the said Act in that he used someone else’s passport. He pleaded guilty and was duly convicted. During the hearing the trial court split the charges into (7) seven, thereby convicting him for 7 counts in relation to Contravening Section 36 (1) (c) and sentenced him to 12 months imprisonment. It is this aspect of the proceedings in count 1 that appellant is taking issue with. Splitting of charges is part of our criminal procedure but should only be HB 34/06 done under certain circumstances only. It should not be done where:- The split will result in the overall excess of punishment which “1. will result in exceeding the magistrates jurisdiction, see R v Marimus (1887) 5 SC 349. 2) Accused’s conduct in real terms constitutes one transaction motivated by a single purpose. The imposition of several punishments for one and the same conduct is unjust. One punishment may unfairly be treated as a previous conviction in the assessment of the punishment, see, S V Simon 1980 ZLR 162 (G) and; The split will result in prejudice to the accused 3) 4) 5) Mr Tshakalisa, for appellant argued that the court a quo misdirected itself by splitting charges which has resulted in its arrival of an improper sentence. The test of splitting of charges is clearly laid down in R v Sabuyi, 1905 TS 170 at 171 where Innes CJ. Stated “Where a man commits two counts of which each, standing alone, would be criminal, but does so with a single intent, and both acts are necessary to carry out that intent then it seems to me that he ought only to be indicted for one offence; because the two acts constitute one criminal transaction.” In my view, therefore, the question is that of intent first. In casu appellant committed a single act of unlawfulness though involving seven people. The leaned magistrate seems to have been aware of this during the proceedings as evidenced by the fact that he initially imposed a fine of $1 500 000-00 or 6 months imprisonment. She, however, had a second thought (albeit a wrong one) and altered the sentence to a 12 months imprisonment term. HB 34/06 The unlawful splitting of charges in this case resulted in serious prejudice to the appellant and cannot be allowed. In addition, there was no reason for the imposition of a prison term on both counts as appellant is a first offender. Both convictions are confirmed but sentences are set aside and substituted by the following: Each count: $2000-00 (revalued) or 1 month imprisonment. In addition 6 months imprisonment wholly suspended for 5 years on condition accused does not contravene any section of the Immigration Act [Chapter 4:02] which upon conviction accused is sentenced to imprisonment without the option of a fine. Ndou J ……………………………………. I agree Majoko and Majoko, appellant’s legal practitioners Attorney General’s Office, respondent’s legal practitioners