CRIMINAL PROCEDURE (SENTENCE) General Principles https://old.zimlii.org/taxonomy/term/10232/all en S v Moyo (HB 1-21, HCA 168/19 XREF PT 563/19) [2021] ZWBHC 1 (11 March 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/1 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HB 01/21</p> <p>HCA 168/19</p> <p>XREF PT 563/19</p> <p> </p> <p><strong>THANDANANI MOYO</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE STATE </strong></p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAKONESE AND MOYO JJ</p> <p>BULAWAYO 23 NOVEMBER 2020 AND 11 MARCH 2021</p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p><em>Ms A Masawi,</em> for the appellant</p> <p><em>T Muduma,</em> for the respondent</p> <p> </p> <p><strong>MOYO J</strong>:       The appellant was convicted of indecent assault as defined in section 67 (1) of the Criminal Law Codification and Reform Act Chapter 9.23.</p> <p>The facts of the matter are that the appellant indecently assaulted the complainant then a 14 year girl by fondling her breasts and touching her thighs.  The complainant was a Form 1 pupil at the material time and the appellant was her English teacher.  The appellant was sentenced to 36 months imprisonment of which 12 months imprisonment was suspended for 5 years on the usual conditions and the remaining 24 months was suspended on condition the appellant completed 840 hours of community service at Ntenjaneni Police Post.  Dissatisfied with both conviction and sentence the appellant approached this court.</p> <p><strong>The State Case</strong></p> <p>            Ntombizondile Sibanda told the court that she regarded herself as complainant’s mother and that complainant told her when she went to a school visit on 16 June 2017 that a teacher was proposing to her.  Complainant did not tell her about breast fondling and the removal of tights.  The parents then phoned the school head.  She said she heard about the fondling of the breasts and the removal of the tights when the statement was being recorded.  She said complainant seemed shocked and scared when she told her of the proposal and she believed the complainant because she was sincere about it.  She said she did not question complainant about her failure to tell her about the fondling of breasts and the removal of the tights because she thought maybe it happened after she had left the school since she saw the complainant only on visits.</p> <p>            Chantell Masuku told the court that appellant was her English teacher and that he sexually abused her.  She gave a series of encounters with the teacher that made her uncomfortable and that sometimes he told her he loved her but the material aspects of her testimony are where she states that on a Tuesday night during studies appellant called her.  They left the class and went to Beit Hall.  He closed the door with one hand and held her by the left hand and fondled her breast using the right hand.  He then tried to pull her skin tight and the siren rang.  He then said he would see her the following day.  She said she did not consent to the fondling and she tried to push him away whilst crying.  She said she never thought of screaming but she was crying.  The siren then rang and she found that other girls had left the classroom and she went to the dormitory.  She was crying.  She later told Leeanne and Mitchell Pfumo.  They then went to sister Makumbe in the evening.  After 2 weeks her parent came for the visit and she told her mother.  The appellant later apologized and asked the complainant if she had told anyone and she said no.  Complainant denied that she had a crush on the appellant and that most students just liked appellant because he was interesting and she said it is not true that she was bitter because he did not date her, since she did not go to school to date and accused had a wife at the school.  Responding to this question the court noted that complainant’s eyes were tearing up.</p> <p>            She was quizzed under cross-examination on the information she gave to the District Education Officer and she said she may have missed some of the things because she was being called a lot and called over the same thing and that she was traumatized.  Complainant under cross-examination explained that she could not be precise on dates.  She said she did not want to fall in love with the teacher she was at school to learn and she did not want him to destroy her future and she also did report the case for future students who might not have the courage to do so.  She refuted that she ever told Form 3s that she had a crush on the appellant and that if any students come to court to state that they would have been bribed.  She said it is a lie that she had a crush on him and was fabricating the charges because he did not reciprocate.  She denied ever telling other girls that she liked the appellant’s suit.  She even asked why she would lie about a teacher and when she was told that it was because he did not love her back she said she did not see him that way and he was her teacher and she would not wish to date a teacher.  She further denied that she was an attention seeker and that if she really had a crush on the appellant as alleged, he should have cautioned her as a teacher or even told the female teachers to talk to her.    She confirmed to the court that she first told either Mitchell or Leeanne.  She said she was traumatized after making the report as other students said bad things about her and her family and that they even wrote on the walls.  She also told the court she wrote a suicide note because she wanted to commit suicide because of the way people treated her after she made the report.  Those were the material respects of complainant’s testimony.  She was not shaken under cross-examination, in fact she answered many questions relating to her relationship with the teacher so well.</p> <p>            She stated that she could not refuse when he called her because he was a teacher and she was a student.  She stated that it is not true that she had a crush on the teacher, that she had gone to school to learn and would not destroy her future by being in love with a teacher and that the teacher in fact had a wife.  She also refuted that she misbehaved towards the teacher and that she was not happy because of his failure to reciprocate her overtures, she stated that that was not true and that if the teacher felt she misbehaved he could have reigned her in or asked the female teachers to talk to her.  She refuted that she ever told other girls that she liked the teacher and had a crush on him and that if any student came to testify in favour of that they would have been bribed.  She also explained the differences in statements to the Education Officers and the Police saying she had been asked many times about the same issue and that she was traumatized.  In my view the complainant was credible, stood her ground, explained any shortcomings in her testimony well and no holes where poked on her version during cross-examination which was lengthy and touched on many peripheral issues like several encounters between complainant and the appellant which had nothing to do with the incident being complained about.</p> <p>            The incident at the centre of the complaint is the one that complainant alleges occurred at the Beit Hall where the teacher allegedly fondled her breasts and tried to remove her tights.</p> <p>            Buhle Moyo was the next to testify.  She told the court that she is a teacher at complainant’s school and that as she marked Agriculture books she came across a note in Chantell’s book saying she wanted to kill herself because of problems that she had at the school.  The complainant then told this witness and another teacher that the appellant was proposing to her and that at some point he even called her to his office during evening studies and he held her waist tried to undress her by lifting her tunic and also tried to remove her tights then the siren rang. (emphasis mine)  She said she observed complainant’s demeanor as she reported the alleged assault initially she was quiet but towards the end she started crying. (my emphasis)  Nothing much arose during cross-examination as this witness was being asked numerous issues that did not pertain to the report that complainant had made to her about the incident when appellant had tried to remove her tights or tunic and the siren rang.</p> <p>            Catherine Makumbe was the next to testify.  She said that she is a Convent sister and a teacher at Empandeni Mission.  She said sometime in June the complainant came to the convent accompanied by a prefect called Mitchell.  She said the complainant told her that the appellant had called her out during studies and proposed to her.  He held her by the back and her chest.  Then he asked to kiss her.  She said he had also grabbed her tunic and pulled it up.  She said complainant appeared nervous as she narrated her ordeal but her voice was very confident.  She also told the court that the complainant did not give her exact dates and she did not press her about them as complainant was disturbed.   The cross-examination of this witness again centered on peripheral issues, not on the crux of the matter, which is the gist of the report of a sexual assault by the complainant.  This witness was asked about her own reaction to news, what advice she gave to the appellant and whether she once told appellant that complainant had a bad family background as well as whether other teachers threatened to handle the matter if she did not and also about whether she had heard a number of rumours around the school.</p> <p>            Mitchell Pfumo was the next to testify.  She said that she was an upper 6th student at complainant’s school and that complainant came to her and told her that appellant was always proposing and at some point he held her hands from the back.  She then took complainant to sister Makumbe.  She said complainant seemed to be scared and she was shaking.  When asked under cross-examination if she went to report that complainant was held by accused and he had proposed to her, she said she accompanied complainant to go and make a report.  She said she read the note where complainant had written but she only read part of it.  She said she did not have time to read it all up.</p> <p>            After the testimony of Mitchell Pfumo the state closed its case.</p> <p><strong>The Defence Case</strong></p> <p>            The appellant told the court that he is a teacher and Acting Deputy Head Master at complainant’s school and that he used to teach complainant as well.  He confirmed that complainant did borrow an unnumbered book and he called her for it to be numbered.  He also confirmed that he asked the complainant for a book that complainant said she could not find.  He said that on that day it was the 2nd of June.  He said complainant then followed him and asked about the book’s price as the appellant had been angry and told her that it needed to be replaced.  He said he would give complainant the price the following day since the price would be in United States dollars.  He said at that time the siren rang and a girl called Vacacy came, that is when complainant left.  He denied any personal interactions with the complainant.  He denied staring at the complainant and said that in class he looked at everyone.  He told the court that complainant had a crush on him because she kept on coming to his office and that she once complained that he gave so much attention to the Form 4s.  He said that he ignored her after noticing that she had feelings for him.  He denied sending Chantell and other girls to collect chairs and that he sent any messages to students via the prefects.  He denied telling the complainant that he loved her on that particular day.  He   denied the allegations of lifting complainant’s tunic and touching and asking for a kiss when he heard them from sister Makumbe and he dismissed them as a fabrication.  He said after the allegations complainant and other girls came crying saying he must not stop teaching them.  He said complainant told many people about appellant proposing love to her.  He said that later there was a demonstration at the school in solidarity with complainant.  He also stated that he suspected that a third force was behind the sexual complaint.  He said 2 teachers did not like his strict management style and the fact that he told on them after they were caught drinking beer in the evening hours.  He said he was later called whilst on bail about an issue that complainant had missed her period and he asked the ladies to make her write a report.  The report allegedly stated that she felt something entered her body when appellant touched her and complainant was not sure if it was a finger or what.  Asked why the complainant being a child would go to such lengths in fabricating against him the appellant said she liked him a lot and told the other girls about it and that she was attention seeking towards the appellant and that so she wanted to save face and say bad things about the appellant and that she got angry when she realised he was taking the other classes.  That she was showing her disgruntlement through the report.</p> <p>            Asked under cross-examination he confirmed that complainant fabricated the allegations because she had a crush on him he answered in the affirmative and asked further to explain why he concluded that she had a crush on him he said she would come to his office a lot and she was very possessive of him and was unhappy that he did not give her time.  He said a group of girls told her that complainant had a crush on him.  He confirmed that on a date he refers to as the 2nd of June complainant followed him to his office and he was alone and that that was contrary to standards as the students should have come being 2 but complainant just followed him.  He agreed that when complainant followed him, he was alone with complainant then Vacacy came.  At page 79 of the court record he was asked the following question</p> <p>            Q.        Vacacy came and found you with complainant</p> <p>A.        I called complainant at 8 so all the activities could happen at 8.  The siren rang and Vacacy came.  (my emphasis)</p> <p>Asked if he was allowed to entertain students at 8 pm he said after study time they can move around and about.  He confirmed under cross-examination that as a teacher he did not take any steps about the alleged crush that complainant had on him.  Those were the material respects of appellant’s testimony.</p> <p>Next to testify was the Headmaster Mandla Ndlovu who confirmed receiving the report from 3 teachers.  He called the accused and questioned him and he denied the allegations.  He confirmed that students consult teachers at night but that he tells teachers to be wary of being with the students alone at night.  He confirmed that it is a school rule that they can consult teachers even at night because some lessons are done at night.  Those were the material respects of Mandla Ndlovu’s testimony.</p> <p>Given Moyo was the next to testify.  He said he is a guard at the school.  He told the court about his duties and how they control student movement after 8 pm and that they lock gates and do not allow the students in.  He said early June to about 15th of June he was not at the school.  He said he does not know anything about the incident being mentioned and he knew nothing about the matter before court.  He was told under re-examination that he had been called as a guard and that they wanted to know if in the generality of his duties was it possible for a Form 1 student to be at a teacher’s office at 9 pm.  He then said it has not happened because by 9 they would have knocked off.</p> <p>In assessing this case, I will start with the notice of appeal.  The notice of appeal itself does not have brief and concise grounds of appeal.  It reads like heads of argument and is in fact argumentative rather than simply giving the concise grounds on where the court <em>a quo</em> erred.</p> <p>Ground number 1 talks of fairness and due process lacking in the entire trial.  On this aspect counsel attacks the manner in which proceedings are held in court in Zimbabwe and laments the lack of recording of court proceedings by either machines or independent personnel.  However, it is clear from the appeal record cover that counsel did certify the record of proceedings as correct on 26 November 2019.  One clearly then fails to appreciate the import of the preliminary point raised in the heads of argument in support of the first ground of appeal.  Counsel, further in her heads, seems to have issues with the recording related to the objections that were made by the state and sustained by the court.  However, counsel should have objected to the record of proceedings, decline to sign it and present her own version of notes to challenge the court’s recording.  She should have simply declined to certify the proceedings as a true reflection of the proceedings conducted in the court <em>a quo</em>.  It presents a contradiction that on one hand she certifies the record as correct then on the other, she challenges the contents of the record on appeal.  The very purpose of certifying the record of proceedings by all interested parties is so that a record of proceedings that is correct is referred to the appellate court.  Appellant’s counsel also submits that they failed to cross-examine the complainant on the statements she allegedly wrote at the school, 4 of them.  This aspect is captured at page 31 of the court record.  The complainant said she made one statement to the Police and that at school she wrote a report.  It was put her that she made 4 statements and that they would be read to her.  Complainant agreed that they be read.  Defence counsel then asked her if she made some audios and she answered by saying she made 2 audios.  At that juncture, the prosecutor said “I object” Then the court stated “Question not to be answered”  Defence counsel then proceeded to question the complainant.  It is not clear what the objection was to and what question the court was saying should not be answered.  The objection and the sustenance seem to be about a question that complainant had been asked and the last question she had been asked she had already answered.  If the transcribed record did not capture that event correctly counsel for the defence should have objected to signing it so that a clearer picture of what the objection was about and its sustenance would be clear to the appellate court.  Counsel nonetheless proceeded to cross-examine complainant about what the defence perceived were different statements and reports that she had made and she explained that in writing these reports she may have missed some things because she was being called a lot over the same things and that she was also traumatized.</p> <p>It is this court’s view that the issue of the different statements was canvassed with complainant explaining why that was so.  However, at the end of the lengthy cross-examination complainant maintained that the incident did occur wherein the teacher, handled her, touched her breasts and tried to remove her tights.  In my view, that is the crux of the matter.  The complainant stated that it was on a Tuesday night during studies he came and called her.  They left the classroom and went to Beit Hall.  That is when the indecent assault is alleged to have occurred.  She told Mitchell Pfumo about the incident and they then went to sister Makumbe to report in the company of Mitchell.  The 2 witnesses also testified and confirmed receiving the sexual complaint.  I have already alluded to their testimonies herein.</p> <p>It is trite that issues of credibility obviously lie in the dormain of the trial court and I have to mention that of all the witnesses that gave evidence for the state no one seemed to be bent on telling the court a fabrication and none had their evidence was poked during cross-examination.  The complainant gave a vivid account of what transpired and answered the challenges thrown at her during cross-examination very well.  For instance, she agreed that she left out certain information in some of the statements she had made at school but she gave a valid explanation of having been subjected to questions many times about the same incident and that she was traumatized.  She was traumatized by the incident as she even thought of committing suicide per the note found by the other teacher in her exercise book.  Certainly, this is a valid explanation.  Again, she explained that she never had any crush on the appellant and that appellant was generally liked by most students as well as that she had gone to school to learn and she would not date a teacher.  She further explained that if the teacher really felt that she had a crush on him and was therefore behaving inappropriately he could have reigned her in through the usage of female teachers.  In a nutshell, complainant explained away the issues related to the statements and she also successfully challenged the issue of the crush she is alleged to have had on the appellant.</p> <p>The trial court could not be faulted for accepting her version and it is clear that she did make a report at the earliest possible opportunity.  That she never gave her mother the fuller details, cannot be held against her so as to vitiate the complaint because she did tell sister Makumbe the fuller details.</p> <p>The accused person himself admits to having been alone at some point with the complainant and that he was under the impression that complainant loved him and had a crush on him.  He further states that the allegations were as a result of unreturned love wherein the complainant loved him and he did not reciprocate.  He said complainant had a crush on him because she would frequent his office and she also told other girls.  He further stated that he thought there was a third hand in the allegations presumably by teachers who did not like his strict management style.  He however, does not go deeper in this theory and conspiracy to show how then the allegations of the sexual assault come about as a result of the third force.  It is not clear whether his defence is that complainant was angry about the unreturned love and the 2 teachers then hijacked that and made her frame him.  It is either complainant had a crush on him and out of lack of reciprocation she fabricated the allegations or the other 2 teachers out of their hatred for his management style called complainant and asked her to join them in their mission to discredit him.  The defence is elusive in that clearly the 2 teachers who testified in court were not shown to be part of any project to discredit him and in fact sister Makumbe seemed not to have wanted the complainant’s allegations to go far.  The other teacher simply found a suicide note by the complainant in her exercise book.  The defence by the appellant in the court <em>a quo</em> has problems in the following respects:</p> <p>1)         Not only is it fanciful, it is elusive in that the so called crush was not based on any factual basis save that accused read into complainant’s frequent visits that she had a crush on him.  He says other students told him as well but they never testified to that effect.  The crush seems to have been in the accused’s own perception as complainant vehemently denied same.</p> <p>2)         The appellant being a Deputy Headmaster alleges that a student had a crush on him and that she frequented his office but surprisingly he did not do anything about it.  He says he just ignored it and he says this was left until a time that she got angry and decided to fabricate allegations of an indecent assault against him.  His position, and his inaction and his allowing the complainant to frequently visit him in the circumstances is not consistent with the conduct of a person in authority and in a <em>loco-parentis</em> position.  His conduct of leaving such an undesirable state of affairs smacks of a person who liked the set up.</p> <p>3)         That complainant may have liked the teacher, or frequented his office, if true, cannot serve as a defence because it then shows that the appellant did have an opportunity to abuse the child as alleged most probably after misreading her intentions.</p> <p>4)         The appellant also comes up with another theory which was seemingly plucked from the air as there is absolutely no fact stated to sustain it.  The theory that the 2 teachers who he caught on a beer drinking spree could be responsible for fabricating the allegations together with the complainant.  This is what appellant terms a third force.  We are not told how this theory came about and how the 2 teachers are linked to the report by the complainant.  It is just a bare statement with no flesh at all that appellant throws in as a defence.</p> <p>The learned Magistrate cannot be faulted for rejecting the defence case as other than appellant’s testimony, the other 2 defence witnesses did not assist the defence case in any way as their evidence had absolutely nothing to do with the allegations appellant was facing they could not vouch for either side of the case, they simply did not know anything about the allegations.  The guard gave a general outlook of what would happen after hours but he did not tell the court that as a matter of fact what complainant alleged happened did not happen.  He in fact also told the court that he was away early June until the 15th of June.</p> <p>The appellant attacks the manner in which the trial court reasoned the judgment, however, the crux of the matter is whether, with the evidence in the court record appellant’s guilt was proven beyond any reasonable doubt?  I have already shown herein that the complainant gave her evidence well and explained away any inconsistencies in her statements as well as standing her ground during cross-examination to deny any crush on the appellant and in fact to challenge the appellant’s conduct as a teacher who thought that a student was behaving inappropriately towards him.  Appellant himself came up with a fanciful defence and in fact admitted that complainant used to come to his office and even admitted that there is a time when he was alone with the complainant, a situation that he said was in fact not allowed.  He allegedly further sat back and did nothing as a teacher faced with a student misbehaving towards him and even if this version could be accepted for arguments sake, one would be inclined to believe that he just waited for an opportunity to pounce.</p> <p>The state in this case had to prove that complainant was physically touched or handled by the appellant in a manner she did not accede to and which was of an indecent nature.  Whether breasts were fondled or not, what comes out clearly is that accused did touch complainant and attempted to remove her tights.  That is consistent in all the accounts she gave.</p> <p>Indecent assault is defined in section 67 of the Criminal Law Codification and Reform Act Chapter 9:23 as:-</p> <p>“1)       A person who</p> <p>(a)        being a male person-</p> <p>(i)         commits upon a female person any act involving physical contact that would be regarded by a reasonable person to be an indecent act, other than sexual intercourse or anal sexual intercourse, or other act involving the penetration of any party of the female person’s body or of his own body.”</p> <p>In this matter the accused is alleged to have handled complainant and tried to remove her tights.  There is also in some instances a mention of fondling of breasts.  Although, the issue of breasts seems to be left out by some witnesses the allegations regarding the handling of thighs and attempt to remove her tights are consistent throughout the testimony of all the witnesses although there is also a mention of a tunic.  The touching of thighs and attempt to remove the tunic or tights, even without the fondling of breasts fit squarely on the definition of the charge in section 67 of the Code.  The defence counsel seemed to concentrate on the issue of the fondling of breasts but with or without the fondling of breasts the state would have managed to prove its case on the inappropriate touching of the thighs and an attempt to remove the tights.   There is also the aspect of complainant having missed her period.  She however explained that under cross-examination where at page 45 of the record of proceedings she was asked whether it was not correct that she said she missed her period because of him and she refuted that saying she was just confused and maybe it had been an issue with the diet.  Counsel for the defence did cross-examination on many issues and had ample time to do so but clearly from the court record she dwelt on rumours that were going around the school, what the witnesses thought or what other people had said or done about the incident she then lost focus on the crux of the matter, which was a simple question whether the offence of indecent assault could have been committed on the complainant and instead of just keeping to that point, defence counsel brought in numerous facts which did not assist the court in any way in resolving the matter at hand.  For instance a lot of questions were asked about what other people did or said which had absolutely nothing to do with what could have happened between complainant and the appellant on the alleged incident.  Defence counsel submits that the court did not use the evidence of the defence witnessed but such evidence tendered by the second defence witness Mandla Ndlovu (the Headmaster) and Given Moyo ( the guard) did not advance the accused’s defence in any manner.  Even defence counsel told the witness Given Moyo that they had called him as they wanted to know in the generality of his duties if it was possible for a Form 1 student to be at a teacher’s office at 9 pm. And he said it has not happened before because by 9 they would have knocked off.  Such an answer would not be used to refute the specific allegations made by the complainant against the appellant for the obvious reasons that the evidence had to zero in on the specifics of the day in question for it to be relevant to the allegations the appellant faced.</p> <p>The defence counsel also seemed to have issues with the information the complainant told her mother, however it is clear from the court record that she expressed her dissatisfaction with appellant’s conduct to her parents who then without asking for further details referred the matter to the school authorities.</p> <p>It is our considered view that the alleged inconsistencies do not go to the root of the complaint so as to vitiate it for the simple reason that any fears of fabrication were dispelled by the complainant herself during cross-examination.  The other 2 witnesses that were called that is sister Makumbe and Mitchell Pfumo corroborated her evidence.  Seemingly, Mitchell Pfumo upon receipt of the complaint did not seek for further details but decided to accompany the complainant to sister Makumbe where she would report the matter.  In fact at page 62-63 of the court record she tells the court that she read only part of the statement that the complainant wrote when she accompanied her to sister Makumbe and she said she did not have time to finish reading the statement.  She however confirmed reading the part about the appellant handling the complainant and trying to pull her tunic.</p> <p>It is trite that where there are contradictions in the state case, it depends on the explanations given for the contradiction and the sum total of the evidence before the court.  In this case there was consistency in the state case about appellant holding complainant and trying to remove her tights or tunic.  There is absolutely no contradiction on this respect and the court <em>a quo</em> would not have a reason to reject the evidence of the state witnesses in that aspect.  Proof beyond reasonable doubt does not entail perfection in the state case.  It entails proof that beyond a reasonable man’s questions and doubts, a set of facts have been proven to have occurred at the behest of an accused.  It means that the crux of the matter as per the charge the accused faces, has indeed been established beyond any reasonable doubt.  Juxtaposing the evidence of the state witness and the fanciful defence given by the appellant in the court <em>a quo</em>, and also considering whether the defence proffered is reasonable and possible in the circumstances, the court <em>a quo</em> cannot be faulted in finding that indeed the guilt of the appellant in this matter was proven beyond a reasonable doubt.</p> <p>Proof beyond a reasonable doubt is explained in Reid Rowland’s Judges handbook for Criminal cases at page 97 as follows:-</p> <p>“In our system, the state has to prove the guilt of an accused beyond reasonable doubt.  Proof beyond reasonable doubt cannot be subject to exact measurement.  For Judges and Magistrates it becomes a matter of experience and intuition rather than analysis.  It is a matter of degree.  Proof beyond a reasonable doubt does not mean proof to an absolute degree of certainty.  It means that there should be such proof as leaves no reasonable doubt in the mind of an ordinary man capable of sound judgment and of appreciating human motivations.  It means a high degree of probability not proof beyond a shadow of doubt.  The state does not have to close every avenue of escape, and fanciful or remote possibilities can be discounted as these do not lead to reasonable doubt.”  (my emphasis)</p> <p>The author therein then refers to the case of <em>Isolano v the State</em> 1985 (1) ZLR 62 (SC).  In the matter at hand, the fanciful theories that complainant was bitter about unreturned love and that a third force had a hand in the form of disgruntled teachers, are remote theories that indeed have to be discounted.  Whilst the accused person bears no onus to prove the truthfulness of his defence, he however still has to come up with a defence that is reasonably possibly true in the circumstances.  In other words accused must come up with a version sufficient to raise a defence and all that is required is that there be sufficient material evidence to make the defence a realistic issue.  It is not realistic that complainant fabricated allegations because of unreturned love, neither is it realistic that because there are some teachers that the appellant once told of their wrongdoing then they could be the third force in the case.  The defence proffered is a matter of surmise and conjecture, it cannot be held to be reasonably, possibly true in the circumstances.  This is juxtaposed with appellant’s own evidence that complainant did frequent his office.</p> <p>Reid Rowland further states at page 97 of the Judges handbook in criminal cases that:-</p> <p>‘To be a reasonable doubt, the doubt must not be based on pure speculation but must be based upon a reasonable and solid foundation created either from the positive evidence or gathered from reasonable inferences not in conflict or without weighed by proven facts.  (It is sometimes said that accused should not be convicted unless there is moral certainty as to his guilt).  However, it is not necessary for the state to prove every single individual fact in a criminal case beyond a reasonable doubt although the state must prove beyond a reasonable doubt a fact which is particularly vital upon which the whole state case hinges.  The question which needs to be asked is: do all facts taken together prove guilt beyond a reasonable doubt?”     </p> <p>On the other hand Reid Rowland further states that accused must be acquitted if there is a reasonable possibility that his story is substantially true and that his explanation might be reasonably true.  We have already found that appellant’s defence is fanciful and more of a theory than the established facts.  The appellant’s counsel in the heads of argument and the grounds of appeal attacks the learned Magistrate’s reasoning and it is clear from the learned Magistrate’s reasoning that she just chose to believe complainant’s story without assessing if the accused’s defence is reasonably, possibly true, which in itself is a misdirection however, at the end of it all, the appellate court should consider the sum total of the evidence before the court <em>a quo</em> and satisfy itself either that the accused’s guilt was proven or was not proven looking at the evidence in the court record.  It does not necessarily follow that every misdirection vitiates a conviction.  Regard should be had to section 38 (2) of the High Court Act which provides thus:</p> <p>“Notwithstanding that the High Court is of the opinion that any point might be decided in favor of the appellant, no conviction or sentence shall be set aside or altered unless the High Court considers that a substantial miscarriage of justice actually occurred.” (emphasis mine)</p> <p>The Act further provides in section 38 (3) that:-</p> <p>“If any point raised is decided in favour of the appellant and it consists of a misdirection by the trial court or tribunal of itself on a question of law or a question of fact or a question of mixed law and fact, the High Court shall dismiss the appeal if it is satisfied that the evidence which has to be considered has not been substantially affected by the misdirection and that the conviction is justified having regard to the evidence.” (my emphasis)</p> <p>It therefore follows that even if the learned Magistrate’s reasoning fell short of the required standard <em>vis a vis</em> eliminating accused’s defence, this court will not, where evidence led proves the state’s case beyond a reasonable, doubt simply allow the appeal on that sole basis.  The appellate court can still in terms of the aforestated sections of the High Court Act, make its own findings on the reasonableness, possibility or otherwise of the defence proffered as shown herein</p> <p>On the other hand, the totality of the facts, that is considering the following issues:-</p> <p>1)         Complainant’s vivid explanation of what transpired.</p> <p>2)         Complainant’s explanation on pertinent issues during cross-examination which I have already alluded herein.</p> <p>3)         The consistency of the report relating to the touching of thighs and the attempt to remove tights or the tunic.</p> <p>4)         The appellant’s perception that complainant loved him and therefore wanted a sexual relationship with him when there is no specific conduct or mention of complaining communicating as such to the appellant.  This is coupled with the fact that he failed to tell the court where this theory emanated from as clearly complainant never told him as such and he says he read from her conduct of being always at his office which in itself is mere conjecture.  He also says some other students told him.</p> <p>5)         His conduct of not acting like a teacher who is in <em>loco parentis</em> and reporting or dealing with complainant’s alleged inappropriate conduct.</p> <p>6)         The fact that clearly form the totality of the evidence, complainant would sometimes be alone with accused a situation that was not permitted in the school.</p> <p>7)         Appellant using mainly unproven rumours to rely on in his defence.  Rumours are just that, they are not facts neither can they be material to a determination that has to be made in a court of law.</p> <p>8)         The theory of the third force is inconsistent with complaint’s anger over unreturned love, we are not even told if the 2 teachers appellant alleges had issues with his strict management, even got involved with the complainant’s cause at any stage.  This clearly is a desperate attempt by the appellant to throw in everything with the hope that something somehow might hold.  It is thus our finding that the conviction of the appellant by the court <em>a quo</em> as charged is satisfactory as the state did prove its case beyond a reasonable doubt in the circumstances.</p> <p><strong>Ad Sentence</strong></p> <p>            On the sentence, sentencing is the province and dormain of the trial court and this court will only interfere if there is a misdirection.  The penalty provision provides for a fine not exceeding level 7 or imprisonment not exceeding 2 years or to both such fine and imprisonment.  The learned Magistrate erred and misdirected herself when she sentenced the appellant to 36 months imprisonment of which 12 months imprisonment was suspended on the usual conditions with the remaining 24 months suspended on condition accused performed 840 hours of community service at Ntenjaneni Police Station.</p> <p>            The sentence will accordingly be altered so as to remain within the permitted penalty provision.  Accordingly it is ordered as follows:-</p> <p>            1)         The conviction is confirmed.</p> <p>            2)         The sentence by the court <em>a quo</em> set aside and substituted with the following:-</p> <p>The accused is sentenced to 24 months imprisonment of which 6 months imprisonment is suspended for 5 years on condition the accused does not during that period, commit any offence involving indecency whereupon conviction he shall be sentenced to imprisonment without the option of a fine.  The remaining 18 months imprisonment is suspended on condition accused completes 630 hours of community service at Ntenjaneni Police Post on the following conditions;</p> <p>            a)         Community service starts on 15th March 2021</p> <p>b)         It shall be performed on weekdays between 8 am – 4 pm on conditions set out by a probation officer.</p> <p> </p> <p>Makonese J………………………I agree</p> <p><em>Abigail Masawi Law Chambers</em>, appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p>             </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/1/2021-zwbhc-1.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=34179">2021-zwbhc-1.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/1/2021-zwbhc-1.pdf" type="application/pdf; length=362832">2021-zwbhc-1.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-high-court-0">appeal to High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/indecent-assault">Indecent assault</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/alteration-sentence">Alteration of sentence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-sentence">Appeal of sentence</a></li></ul></span> Fri, 18 Jun 2021 07:26:52 +0000 Sandra 10064 at https://old.zimlii.org S v Mashangwe (HB 99-21, HCAR 807/21 Ref Case CRB LPN 319/20) [2021] ZWBHC 99 (03 June 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/99 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HB 99/21</p> <p>HCAR 807/21</p> <p>CRB LPN 319/20</p> <p><strong>  THE STATE</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>TENDAYI SOLOMON MASHANGWE</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 3 JUNE 2021</p> <p> </p> <p><strong>Criminal Review</strong></p> <p> </p> <p>            <strong>MAKONESE J:        </strong>It is an established principle of sentencing that once a court convicts an accused person and elects to impose a term of imprisonment whether such imprisonment is an effective term or is wholly or partially suspended, a court may not impose another separate distinct and stand-alone prison term for the same single count.  Imposing an additional prison term for the same count amounts to sentencing an accused person twice for the same offence.</p> <p>            The accused appeared  before a magistrate at Lupane on 20th November 2020 facing one count of driving a motor vehicle without a valid drivers’ licence in contravention of section 6 (1) (a) as read with section 6 (5) of the Road Traffic Act (Chapter 13:11).  The accused pleaded guilty to the charge and was duly convicted.  At the time of the commission of the offence accused was driving a Toyota Haice commuter omnibus with four passengers on board.  Accused was driving a public service vehicle without a valid licence.  The offence attracts a minimum mandatory sentence of 6 months imprisonment unless there are special circumstances warranting the imposition of a lessor sentence. The trial magistrate in the court <em>a quo</em> determined that no such special circumstances existed. In sentencing the accused, the learned magistrate imposed a sentence of 6 months imprisonment. In addition, a further 6 months was suspended for 5 years on the usual conditions of future good conduct.</p> <p>The scrutinising Regional Magistrate queried the sentence, pointing out that the accused had been sentenced to two stand-alone sentenced for the same offence.  The learned trial magistrate commented as follows:</p> <p>“…  I though in the absence of special circumstances as in this case, having fulfilled the lower limit of 6 months imprisonment, I could suspend the other 6 months on condition of good behaviour”.</p> <p> </p> <p>The learned magistrate clearly erred in his approach to sentence.  It was not competent to impose a separate and distinct sentence of 6 months, though suspended, once he chose to impose the minimum mandatory sentence prescribed by the Act.  The sentence of the court <em>a quo</em> is irregular as the accused was sentenced twice for the same and single count.</p> <p>In the circumstances the additional suspended sentence of 6 months cannot be allowed to stand.  It is ordered as follows:</p> <ol> <li>The conviction be and is hereby confirmed.</li> <li>The effective sentence of 6 months imprisonment shall stand.</li> <li>The additional sentence of 6 months suspended on the usual conditions is hereby set aside.</li> </ol> <p> </p> <p>Mabhikwa J ………………….. I agree</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/99/2021-zwbhc-99.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=17007">2021-zwbhc-99.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/99/2021-zwbhc-99.pdf" type="application/pdf; length=310533">2021-zwbhc-99.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-statutory-offences-other-offences-under-criminal-law-code">CRIMINAL LAW STATUTORY OFFENCES (Other than offences under Criminal Law Code)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/motoring-offence">Motoring offence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/road-traffic-act-chapter1311">Road Traffic Act [Chapter13:11]</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/alteration-sentence">Alteration of sentence</a></li></ul></span> Thu, 10 Jun 2021 10:52:58 +0000 Sandra 10047 at https://old.zimlii.org S v Handson (HH 217/21, CRB CHNP 139/20) [2021] ZWHHC 217 (23 April 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/217 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>1</p> <p>HH 217/21</p> <p>CRB CHNP 139/20</p> <p>JOEL HANDSON</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 23 April 2021</p> <p> </p> <p><strong>Review Judgment </strong></p> <p> </p> <p> </p> <p> </p> <p>            CHITAPI J:  The proceedings in this matter were first placed before me on review in July, 2020 whereupon I gave a direction that the record be transcribed as I could not make out the magistrates handwriting, much as I tried to. It took nearly 5 months for the transcribed record to be forwarded back to the Registrar. The accused had already served the sentence imposed on him. This is one of the unsatisfactory consequences of the late compliance with the transcription directions. In regard to ineligible handwritings, we are all gifted differently in the art of handwriting. What is important is to consider the plight of the reader since the writer is expected to read his or her handwriting although there have been rare cases where the writer fails to make out their handwriting.</p> <p>In the proceedings, the accused was, after a separation of trial with his co-accused Kukunda Mhungu convicted on 4 counts of unlawful entry committed within Chinhoyi city environs. He was convicted and sentenced on 28 February 2020. In count 1, the accused unlawfully entered into a dwelling house at 3 Schonland Mzari by breaking the toilet to gain entry on 3 December 2019. The accused stole house hold goods worth $23 435. Goods valued at $14 000.00 were recovered. He was sentenced to 3 months imprisonment.</p> <p>In count 2 the accused unlawfully gained entry into a dwelling house number 10893 Mapako Phase one on 15 December 2019. The accused gained entry through the roof after removing a roof vent and using an opening in the ceiling to access the inside of the house. The accused then stole household property valued at$18 100. Property worth $16 750 was recovered. The accused was sentenced to 3 months imprisonment.</p> <p>            In count 3, the accused unlawfully entered a dwelling house number 5806 Gold Course Mzari on 21 December 2021. The accused broke the back door of the house using an unknown object. He entered the house and stole a laptop and power pack valued at $8 000. It was recovered. He was sentenced to 3 months imprisonment. In count 4, the accused proceeded to unlawfully enter the cottage at the same premises from which he stole another laptop and power pack valued at $5170. It was recovered. He was sentenced to 3 months imprisonment.</p> <p>            The accused was therefore sentenced to a total of 12 months imprisonment in respect of all 4 counts. Of the total 12 months imprisonment, 3 months was suspended on the usual conditions of good behaviour leaving an effective sentence of 9 months imprisonment to run concurrently with a sentence which the accused was serving in CRB 1470/19. The level of sentence required that the proceeding be submitted for scrutiny by the regional magistrate. The regional magistrate was of the view that the sentence imposed was too lenient. The regional magistrate addressed a query to the trial magistrate on 19 March 2020 in the following terms</p> <p>            “<em>STATE</em> v <em>JOEL HANDSON</em> CHNP 39/20 – SC 83/20</p> <ol> <li>The record was placed before me for scrutiny and after going through the proceedings. I remained with a query on the appropriateness of the sentence. My observation is that the sentences are shockingly lenient especially considering the circumstances of the offences also values involved.</li> <li>May the magistrate comment.”</li> </ol> <p> </p> <p>The trial magistrate responded as follows by letter dated 29 May 2020. The delay of 2 months in responding to the query is not explained. Such delays should be avoided as they potentially prejudice the accused person especially in cases where a lesser penalty is imposed on review consequential to scrutiny and the accused has already served the sentence</p> <p>“<em>STATE</em> v <em>JOEL HANDSON</em> CHNP 39/20 – SC 83/20</p> <p>The court notes the queries raised by the regional magistrate and responds as follows:</p> <p>“The court attached too much weight on the accused’s age. The court admits it erred and I    imposed a lenient sentence and stands guided.”</p> <p> </p> <p>By letter addressed to the Registrar dated 12 June 2020, the regional magistrate referred the record for review by a judge of the court as <em>per</em> procedure. He wrote as follows:</p> <p>“<em>STATE</em> v <em>JOEL HANDSON</em> CRB CHN 39/20 – SC 83/20</p> <p>May you kindly place this record before the honourable judge with the following comments</p> <ol> <li>The record was placed before me for scrutiny and after noting the manner in which the offences were committed, the value involved and the rate at which the accused was committing offences, I am of the view that the overall sentence was too lenient regardless of the accused person’s youthful ages.</li> <li>I Raised the query with the trial magistrate who also conceded that the sentence was too lenient.</li> <li>May the honourable judge provide guidance?”</li> </ol> <p> </p> <p>There is an unsatisfactory feature of this scrutiny reference for review to this court</p> <p>which requires comment. The regional magistrate requested for guidance.  There is no guidance which is required. Both the trial and regional magistrate were <em>ad idem</em> on scrutiny that the sentence imposed was too lenient. What they both did not do was to research on what should have been the appropriate sentence. The trial magistrate in handsight agreed that the sentence which he imposed was too lenient. The question he should have asked himself was, “what should then have been the appropriate sentence”. He ought to have sought guidance from decided cases or other sources like the provisions of the Act that created the offence of unlawful entry on what the appropriate sentence should have been. Equally the regional magistrate in querying the adequacy of the sentence ought to have provided proper references and precedent for the trial magistrate’s guidance. It is important that debate or discourse in relation to short comings observed on scrutiny is initiated at local level, If for example the query raised by the regional magistrate relates to sentence, the regional magistrate should ask the trial magistrate whether the magistrate considered case law or statutory provisions which the regional magistrate should set out. The trial magistrate will then be properly guided.</p> <p>In my view, where proceedings otherwise subject of scrutiny are referred for review by the regional magistrate, the regional magistrate and the trial magistrate must have meaningfully engaged on the issue of concern on scrutiny. For example, in this reference, I expected to find discourse on what the suggested sentence which ought to have been imposed was. It is not proper to view the review judge as a research engine for magistrates and to expect that the judge will research on what an appropriate sentence in the circumstances of each case should have been. The same must apply where the regional magistrate considers that the sentence imposed by the trial magistrate is grossly excessive as to be unconscionable. Some research should be carried out and an opinion on what the appropriate sentence ought to be also given.</p> <p>Reverting to the substance of the review, I do agree with both the regional and trial magistrates that the sentence which was imposed by the trial magistrate was too lenient. It induces a sense of shock and public outrage. The accused committed very serious offences which contravene a persons right to privacy. Subsection (a) of s 57 of the Constitution provides for the right to privacy of every person, “which includes the right not to have their home, premises or property entered without their permission.” In cases of unlawful; entry as defined in s 131 of the Criminal Law (Codification and Reform) Act, Chapter 9:23, a distinction is made for sentence purposes between unlawful entry simpliciter and unlawful entry committed in any of the aggravating circumstances set out in subsection(2) of s 131 aforesaid. For avoidance of the doubt, the whole of s 131 provides as follows:</p> <p>“131 <strong>Unlawful entry into premises</strong></p> <p>(1)  Any person who, intentionally and without permission or authority from the lawful occupier of the premises concerned, or without other lawful authority, enters the premises shall be guilty of unlawful entry into premises and liable –</p> <p>(a)  to a fine not exceeding level thirteen or not exceeding twice the value of any property stolen, destroyed or damaged by the person as a result of the crime, whichever is the greater or imprisonment for a period not exceeding fifteen years, or both, if the crime was committed in any one or more of the aggravating circumstances set out in subsection (2); or</p> <p>(b) in any other case, to a fine not exceeding level ten or not exceeding twice the value         of any property destroyed or damaged by the person as a result of the crime,      whichever is the greater, or imprisonment for a period not exceeding ten years, or      both.</p> <p>(2)  For the purposes of paragraph (a) of subsection (1), the crime of unlawful entry ito</p> <p>premises is committed in aggravating circumstances if, on the occasion on which the crime was committed, the convicted person-</p> <p>a)  entered a dwelling –house; or</p> <p>(b) knew there were people present in the premises; or</p> <p>(c) carried a weapon; or</p> <p>(d) used violence against any person or damaged or destroyed any property, in         effecting the    </p> <p>      entry; or</p> <p>(e) committed or intended to commit some other crime.”</p> <p>In every case of unlawful entry, the trial magistrate must consider whether or not the unlawful entry was committed in aggravating circumstances. Needless to state that an unlawful entry committed in aggravating circumstance attracts a more severe sentence than where there are no aggravating circumstances. In <em>casu</em>, the offences were committed in aggravating circumstances. The trial magistrate ought to have been properly guided by the sentencing provision of s 131 aforesaid. The trial magistrate must in future be guided accordingly.</p> <p>In terms of the provisions of 29(2) of the High Court Act, [<em>Chapter 7:06</em>], the review judges is given extensive powers to correct proceedings including quashing then. It is competent to substitute a different sentence from the one imposed by the magistrate or to refer the proceedings back to the trial magistrate to take into account all relevant factors and sentence the accused afresh. The accused has however served the effective sentence of 9 months which was the effective sentence. If the accused was still serving the sentence it would have made sense to recall him. In the circumstances, as there is no prejudice to the accused since his convictions were proper, the sentence will be left as it is.  I however determine that the proceedings against the accused are not in accordance with real and substantial justice. I accordingly withhold my certificate of confirmation of the proceedings.</p> <p>            I have considered that the directions I have made on the need for the regional and trial magistrate to debate and research on matters arising on scrutiny which necessitate a review reference to this court to be of such importance that I should bounce off this judgment off another judge. MUSITHU J has gone through this judgment and agrees with the directives I have given herein.</p> <p>            The Registrar shall bring a copy of this judgment to the attention of the Chief Magistrate.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/217/2021-zwhhc-217.doc" type="application/msword; length=50688">2021-zwhhc-217.doc</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/217/2021-zwhhc-217.pdf" type="application/pdf; length=323622">2021-zwhhc-217.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review-criminal-procedure">Review (CRIMINAL PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/suspended-sentence">Suspended sentence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/conditions-suspended-sentence">conditions of suspended sentence</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item even"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Mon, 17 May 2021 10:21:18 +0000 Sandra 10004 at https://old.zimlii.org S v Kapondoro & Anor (HH 693-20, CRB BKT 66/20) [2020] ZWHHC 693 (28 October 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/693 <span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/unlawful-entry-premises-followed-theft-property-therefrom">Unlawful entry into premises followed by theft of property therefrom</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-common-law-offences">CRIMINAL PROCEDURE (SENTENCE) Common Law Offences</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/alteration-sentence">Alteration of sentence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/imprisonment-sentence">Imprisonment (Sentence)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/theories-purpose-punishment">Theories of purpose of punishment</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/166">S v Maparura (HH 166-17 CRB R1050/15) [2017] ZWHHC 166 (28 February 2017);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Mon, 23 Nov 2020 12:36:37 +0000 Sandra 9938 at https://old.zimlii.org S v Mungareka & 3 Ors (HMA 55-20, CRB 42-44/20) [2020] ZWMSVHC 55 (06 October 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/55 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>THE STATE</p> <p>versus</p> <p>EPHRAIM TINASHE MUNGAREKA</p> <p>and</p> <p>FAITH GUMBO</p> <p>and</p> <p>MAKAZVEI ZVIHARI</p> <p>and</p> <p>EUDIBORN MUNGAREKA</p> <p>and</p> <p>TELLMORE MUNGAREKA</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAWADZE J</p> <p>MASVINGO 6 OCTOBER, 2020</p> <p> </p> <p>                                                                </p> <p> </p> <p><strong>Assessors</strong></p> <p> </p> <ol> <li>Mr Gweru</li> <li>Mr Mutomba</li> </ol> <p> </p> <p> </p> <p> </p> <p><strong>Criminal Trial – Sentence</strong></p> <p> </p> <p><em>Ms M. Mutumhe,</em> for the State</p> <p><em>Ms E.Y. Zvanaka,</em> for accused 1</p> <p><em>M. Vengesai</em>, for accused 2</p> <p><em>Ms P. Chimwanda</em>, for accused 4</p> <p><em>L. Muvengeranwa</em>, for accused 5</p> <p><em>Ms M. Moffat</em>, for accused 6</p> <p> </p> <p> </p> <p> </p> <p>MAWADZE J:           At the commencement of the hearing of this matter which had 8 accused persons the State withdrew charges before plea in respect of accused 3 Ratidzo Ndambakuwa, accused 7 Robert Mungareka  a juvenile aged 17 years and accused 8 Garikai Mungareka also a juvenile aged 15 years who was being assisted by his mother Agnes Mungareka. These proceedings are therefore in respect of the remaining 5 accused persons 2 of which are adult women, 2 are adult men and one juvenile Tellmore Mungareka aged 17 years.</p> <p>Initially the accused were arraigned for murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [<em>Cap 9:23</em>]. However the State counsel and the respective counsel for all the accused managed to find each other. All the 5 accused persons pleaded guilty to the lesser charge of culpable homicide as defined in s 49 of the Criminal Law (Codification and Reform) Act [<em>Cap 9:23</em>]. The matter therefore proceeded on the basis of a statement of agreed facts and all the 5 accused were dully convicted on their own pleas of guilty.</p> <p>Accused 1 Ephraim Tinashe Mungareka is aged 24 years, accused 2 Faith Gumbo is aged 44 years, accused 4 Makazvei Zvihari is aged 42 years, accused 5 Eudiborn Mungareka is aged 22 years and accused 6 Tellmore Mungareka is aged 17 years and is in Form 3.</p> <p>The now deceased Ephraim Hlazo Mungareka was 77 years old. He was a grandfather to accused 1, 5 and 6 and a father in law to accused 2 and 4.</p> <p>The agreed facts giving rise to this charge are as follows;</p> <p>Sometime in 2017 the now deceased is said to have been arraigned before Chief Ziki in Bikita for practising witchcraft which allegation it is said he admitted. He was ordered to pay a beast. Thereafter son of accused 2 Faith Gumbo and a sibling of accused Ephraim Tinashe Mungareka one Clive Mungareka died. The accused persons and other relatives smelt a rat as it were. They consulted 4 different traditional healers. The now deceased was implicated as the culprit who had bewitched Clive Mungareka resulting in his death. The family members who strongly believe in witchcraft including the accused persons were incensed.</p> <p>The now deceased who was implicated in the death of Clive Mungareka was approached by the accused persons on 21 June, 2019. He was labelled a witch and accused of having caused the death of Clive Mungareka. The accused persons decided to take matters into their hands by assaulting the now deceased. They used an assortment of weapons which included leather whip, electric cables, sjambok, mulberry tree switches and whips. This assault was prolonged and sustained. It was done in the full glare of fellow villagers from morning until noon when the accused persons indicated that they were tired. They left the now deceased severely injured and helpless but they nonetheless promised to return in the evening to resume the assault. The now deceased was ferried to his homestead in a wheelbarrow by his daughter Sipiwe Mungareka who vainly tried to nurse him. The now deceased passed on at his homestead on 23 June, 2019, just 2 days after this assault.</p> <p>The doctor who examined the remains of the now deceased as per Exhibit 2 the post mortem report observed the following;</p> <p>“<em>1.       Multiple whip lashes on trunk, abdomen and chest </em></p> <p><em>  2.       Distended abdomen</em></p> <p><em>  3.       Bruising of intestines, raptured spleen with intra-abdominal bleeding</em>”</p> <p>The cause of the now deceased’s death is said to be;</p> <p>“<em>1.       Haemorrhagic shock</em></p> <p><em>  2.       Abdominal bleeding</em></p> <p><em>  3.       Abdominal trauma</em>”</p> <p>There is no doubt that the accused persons are facing a very serious offence which entails loss of life through their negligent conduct. The degree of negligence is very high and this elevates their moral blameworthiness.</p> <p>The assault on the now deceased was both prolonged and sustained by a group of visibly fit and younger persons compared to the now deceased. The assault itself was indiscriminate with an assortment of weapons. The now deceased was injured all over the body. It is without doubt that severe force was used as the now deceased’s internal organs being the intestines and the spleen were damaged.</p> <p>At 77 years of age the now deceased was at the sunset of his life. There was no reason why the accused persons literally pushed him into his grave as it were. The conduct of the accused persons shows total disrespect of their elderly relative. It is taboo in our African custom for the accused persons to administer corporal punishment to their grandfather and father in law even if they believed he was wrong. There are proper lawful traditional ways of resolving such disputes rather than taking the law into their own hands.</p> <p>None of the accused persons offered any help, medical or otherwise to the now deceased. They simply left him to die. The sacred nature of human blood and the sanctity of human life cannot be over emphasised. It is therefore the duty of the courts to protect human life and to punish those who fail to value human life. In that vein therefore deterrent sentences are called for due to the alarming prevalence of offenses of a violent nature leading to loss of life.</p> <p>There is no objective basis to treat the accused persons differently except for accused 6 Tellmore Mungareka who is a 17 year old juvenile and is in Form 3. It is very possible that he acted under the influence of the other 4 adult accused persons. Further, there is need to give him a chance to continue with his education and allow him to mend his ways. A wholly suspended prison term would be proper for him.</p> <p>It would be remiss for me to treat the other 4 accused persons differently on the basis of gender alone. They all took active roles in assaulting the now deceased.</p> <p>The common mitigatory factor in respect of all the accused are that they are all first offenders. They therefore deserve some measure of leniency.</p> <p>All the accused persons pleaded guilty to the charge of culpable homicide. They all co-operated with the police. They all admitted to have assaulted the now deceased. In court they did not waster time raising flimsy defences. Less resources were used in prosecuting them. The State witnesses were saved the time and trauma of testifying in this matter. This matter was expeditiously completed thus contributing to the smooth administration of justice. The accused are therefore contrite and should be rewarded by being treated with some degree of leniency.</p> <p>All the accused are related to the now deceased. They will forever live with the stigma that they caused the now deceased’s death, moreso as society generally does not distinguish murder from culpable homicide. They will just be viewed by their relatives and other people as murders.</p> <p>The accused persons who are unsophisticated rural people from Bikita, Masvingo clearly share strong belief in witchcraft. This explains why they consulted traditional healers after the death of their relative. To them death may not visit anyone naturally. After the now deceased was implicated they rightly felt provoked. They believed it was probably their duty to lynch the witch and revenge the loss of their beloved relative. To our minds this explains the accused persons’ conduct as they are not inherently wicked persons.</p> <p>We have taken on board the personal circumstances of each of the accused persons. These include inter alia their ages, marital status, family responsibilities and that they are generally rural people of no means. Their incarceration would no doubt negatively impact upon their families and dependants as they survive on manual labour.</p> <p>Be that as it may a fine is inappropriate in such a serious matter. In the same vein a sentence of community service would send wrong and harmful signals to the society who. may harbour the view that those accused of witchcraft should be violently dealt with. It is only fair and just that each of the accused save for accused 6 Tellmore Mungareka should be visited with a minimal custodial sentence.</p> <p>In the result, we believe the following sentence will meet the justice of this case;</p> <p>SENTENCE</p> <p>Accused Ephraim Tinashe Mungareka; accused 2 Faith Gumbo, accused 4 Makazvei Zvihari and accused 5 Eudiborn Mungareka: - Each accused is sentenced to 3 years imprisonment of which 1 ½ years imprisonment is suspended for 5 years on condition each accused does not commit within that period any offence involving the use of violence upon the person of another for which each accused is sentenced to a term of imprisonment without the option of a fine.</p> <p>Effective for each accused is 1 ½ years imprisonment.</p> <p>Accused 6 Tellmore Mungareka is sentenced to 2 years imprisonment wholly suspended for 5 years on condition accused does not within that period commit an offence involving the use of violence upon the person of another for which accused is sentenced to a term of imprisonment without the option of a fine.</p> <p> </p> <p><em>National Prosecuting Authority</em>, counsel for the State</p> <p><em>Saratoga Makausi Law Chambers, pro deo</em> counsel for accused 1</p> <p><em>Mugiya and Macharaga, pro deo</em> counsel for accused 2</p> <p><em>Nyawo Ruzive Legal Practitioners, pro deo</em> counsel for accused 4</p> <p><em>Legal Aid Directorate, pro deo</em> counsel for accused 5</p> <p><em>Legal Resources Foundation, Masvingo, pro deo</em> counsel for accused 6</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/55/2020-zwmsvhc-55.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23478">2020-zwmsvhc-55.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/55/2020-zwmsvhc-55.pdf" type="application/pdf; length=147554">2020-zwmsvhc-55.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/culpable-homicide">Culpable homicide</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/factors-affecting-sentence">Factors affecting (Sentence)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/youthful-offenders">Youthful offenders</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Wed, 21 Oct 2020 12:31:06 +0000 Sandra 9885 at https://old.zimlii.org S v Bukuta (HMA 30-20, CA 75/19 Ref Case CRB MSVP 17/19) [2020] ZWMSVHC 30 (03 July 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/30 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>MUNASHE ROBI BUKUTA</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAWADZE J &amp; ZISENGWE J</p> <p>MASVINGO, 10 June 2020 &amp; 3 July, 2020</p> <p> </p> <p>                                                                </p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>Mr O. Mafa, for the State</strong></p> <p><strong>Ms M. Mutumhe, for the accused </strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p>MAWADZE J:           On 10 June 2020 we dismissed the appellant’s appeal in respect of sentence after hearing arguments from counsel. We gave our detailed reasons <em>ex tempore</em>.</p> <p>On 15 June 2020 I received a letter from appellants counsel dated 12 June, 2020 in which a request for written reasons for dismissing the appeal was made. I now provide the reasons hereunder;</p> <p>The appellant was convicted after trial by the Regional Magistrate sitting at Masvingo for attempted murder as defined in s 189 as read with s 47(1) of the Criminal Law (Codification and Reform) Act  [<em>Chapter 9:23</em>]. The appellant on 31 July, 2019 was sentenced to 18 months imprisonment of which 6 months imprisonment were suspended for 5 years on the usual conditions of good behaviour thus leaving an effective prison term of 12 months.</p> <p>Aggrieved by both the conviction and the sentence the appellant who was represented during the trial filed a Notice of Appeal on 7 August 2019.</p> <p>At the commencement of the hearing of the appeal on 10 June, 2020 <em>Mr Mafa</em> for the appellant withdrew the appeal in respect of the conviction after realising the futility of challenging the conviction of the appellant. The appellant therefore only pursued the appeal in respect of sentence. As a result it is not necessary to now regurgitate the grounds of appeal against the conviction but I shall only restrict myself to the grounds of appeal against sentence.</p> <p>The charge against the appellant is that on 16 September, 2018 and Stop Over Night Club, Masvingo the appellant attempted to cause the death of Francis Chinyeruse by stabbing with a flick knife once on the left side of the back.</p> <p>The facts which are now common cause are as follows;</p> <p>The then 23 year old appellant is a member of the Zimbabwe National Army based at 4.3 Infantry Battalion, Masvingo. He resides at No. 25250, Mbizi Street, Rujeko “C” in Masvingo.</p> <p>The then 21 year old complainant resides at No. 7243, Mhungu Close, Rujeko “B” in Masvingo. The appellant and the complainant were not known to each other.</p> <p>On 16 September, 2018 at about 0200 hrs both the appellant and the complainant were amongst merry makers at Stop Over Night Club in Masvingo. The appellant was seated in his motor vehicle outside the night club. The complainant decided to go home.</p> <p>The complainant then approached the appellant requesting to hire appellant’s motor vehicle to the complainant’s residence. For some strange reason the appellant took offence. Apparently the complainant had hitherto denied appellant entrance into the night club with beer bought outside the night club. Thus the appellant reminded the complainant of this earlier on incident. The appellant then got out of his motor vehicle. He had a flick knife which the complainant had not seen which weighs 0.159 kg and is 21 cm long. The appellant proceeded to stab the complainant on the left side of the back with the flick knife. Appellant was then disarmed by one Tinashe Zihove who witnessed all what the appellant did.</p> <p>Thereafter, the appellant, in a bid to confuse matters rushed to Rujeko police station and filed a false report that he had been attacked by the complainant.</p> <p>Meanwhile the complainant was ferried to Masvingo Central Police Station where he made a report resulting in the appellant’s arrest.</p> <p>The appellant was treated and examined by a doctor at Masvingo General Hospital. As per the medical report dated 18 September 2018 the doctor observed the following;</p> <p>“<em>a stab wound left loin of abdomen 5 cm deep and 2 cm wide</em>”</p> <p>The doctor stated that the stab wound was inflicted by a sharp instrument. The injury is described is serious and inflicted with severe force. The doctor said as a result the complainant would require constant medical care.</p> <p>These are the facts which inform the appellant’s conviction and sentence.</p> <p>The grounds of appeal in respect of sentence are couched as follows;</p> <p>“<em>AGAINST SENTENCE</em></p> <p><em>3.         The court misdirected itself by failing to consider the suitability of community service despite the court having settled for an imprisonment term which was less than 24 months.  </em></p> <p> </p> <p><em>4.         The sentence imposed by the court a quo induces a sense of shock particularly on an unemployed first offender</em>”(sic)</p> <p> </p> <p>The appellant prayed that the sentence by the court <em>a quo</em> be set aside and that the same be substituted with the following;</p> <p><em>“$400 or in default of payment 6 months imprisonment</em>”</p> <p>To be fair to the appellant it is clear that the appellant as per the said grounds of appeal is simply clutching on to straws. The grounds of appeal are rather confusing. One really wonders whether the appellant bothered to read the learned Regional Magistrate’s reasons for sentence! Worse still the appellant clamours for community service in the grounds of appeal but in his prayer he now advocated for a fine!! This is really testing the waters as it were.</p> <p>In the heads of argument appellant submitted that as a first offender he was entitled to a non-custodial sentence. Reliance was placed on the case of <em>S</em> v <em>Mpofu</em> (2) 1985 (1) ZLR 285 (H) and the views I expressed in <em>S</em> v <em>Usavi </em>HH 182/10. Clearly the appellant misses the reasoning in those cases. There is no strict rule that first offenders cannot be imprisoned in deserving cases.</p> <p>The appellant’s argument is that since the overall sentence of 18 months imprisonment was imposed [with 12 months being the effective term of imprisonment] the court a quo was obliged not only to consider the option of community service. The appellant alleges that, for this proposition, he finds comfort in the case of <em>S</em> v <em>Antonio &amp; Ors.</em> 1998 (2) ZLR 67 (H). Again that proposition is misleading.</p> <p>It is the appellant’s contention that it was improper for the court <em>a quo</em> to characterise the sentence of 18 months imprisonment as “<em>a short and sharp sentence</em>”. Again its no use for appellant to dwell on semantics. What matters at the end of the day is the substance, that is, whether the sentence imposed amounts to an improper exercise of discretion warranting interference by this court.</p> <p>Apparently no effort is made by the appellant in the heads of argument to propose what the appellants deems as an appropriate sentence in the circumstances. Worse still no case law is cited at all in order to persuade this court in that regard.</p> <p>The respondent on the other hand pointed out that appellant committed a serious offence and that the court <em>a quo</em> properly assessed the appropriate sentence. According to the respondent the court <em>a quo</em> took on board the mitigating factors as part of the sentence was conditionally suspended. Further the respondent submitted that the court <em>a quo</em> rightly took as an aggravating factor that the appellant used a knife to stab the complainant on the abdomen causing a deep cut of 5 cm and 2 cm in width. Thus severe force was used inflicted injuries deemed to be serious to the extent that the complainant would require regular medical review.</p> <p>I have no doubt in my mind that <em>Mr Mafa</em> for the appellant misunderstood the very well-meaning sentiments I expressed in the case of <em>S</em> v <em>Zava</em> HMA 15/17 and the cases I cited therein. Similarly he seemed to misinterpret the views expressed by MATHONSI J (<em>as he then was</em>) in the case of <em>S</em> v <em>Sibanda </em>HB 89/16 which he takes out of context.</p> <p>I find no misdirection in the manner the court <em>a quo</em> approached the question of sentence in this matter. The mitigatory factors were fully considered (<em>see page 18 of the record</em>). The court <em>a quo</em> dealt with the appellant’s personal circumstances. It did consider that the appellant was voluntarily intoxicated. Thereafter these mitigating factors were weighed against the aggravating factors which include <em>inter alia</em> that the appellant committed a serious offence, the weapon used and that the single blow was directed at the vulnerable part of the complainant’s body. As a result serious injury was inflicted as a knife was thrust 5 cm deep into the complainant’s abdomen which could have been fatal if he was not hospitalised.</p> <p>It should be borne in mind that the appellant is a member of the displined force. His behaviour is expected to be above board and exemplary. He is not expected to attack civilians with dangerous weapons for such minor infractions and should not move around night clubs with knives.</p> <p>I find no fault in how the court a quo reasoned that to impose a fine or community service in this matter would indeed send wrong and harmful signals to the public especially where a dangerous weapon was used to inflict serious and life threatening injury.</p> <p>It is wrong for the appellant to believe that first offenders cannot be sent to prison for effective prison terms of 24 months or less [<em>which is the threshold for which community service</em> <em>should be considered</em>]. There are appropriate cases where an accused person would justifiably be sent to prison for an effective term of imprisonment of 24 months or below. It is also incorrect that the court <em>a quo</em> did not explain why community service was inappropriate in this case.</p> <p>The appellant stand convicted of a serious offence which invariably attracts a custodial term. <em>In casu</em> there are no mitigating factors suggesting that a different approach should be adopted.</p> <p>The appellant’s moral blameworthiness is very high. He was not provoked in any manner. All what complainant did was to ask to hire appellant’s motor vehicle. Surely can that be a reason for one to then pull out a knife and thrust it 5 cm deep in one’s body unless one is simply a saddist? If alcohol purchased outside the nite club was not allowed into the nite club why would the appellant take offence of that?</p> <p>As already said the nature of the injury inflicted cannot be over emphasised. A dangerous weapon, a knife was used. Severe force was applied and the complainant had to be hospitalised.</p> <p>The appellant is not remorseful at all. He did not offer the complainant any help. Instead he had the temerity to rush to the police station to file a false report claiming to be the victim instead. This was meant to simply muddle the waters. Throughout the trial he was not contrite at all. Society expects much better from members of the disciplined force.</p> <p>In conclusion therefore I find no misdirection at all on the part of the court <em>a quo</em> in the manner it exercised its discretion in assessing sentence. If it indeed erred it could only have done so on the side of leniency.</p> <p>The appeal against sentence clearly lacks merit and should be dismissed.</p> <p>These are the reasons why we ordered that the appeal against be dismissed.</p> <p> </p> <p> </p> <p><em>Mutendi, Mudisi &amp; Shumba</em>, appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/30/2020-zwmsvhc-30.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23042">2020-zwmsvhc-30.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/30/2020-zwmsvhc-30.pdf" type="application/pdf; length=430490">2020-zwmsvhc-30.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/assault-intent-do-grievous-bodily-harm">Assault with intent to do grievous bodily harm</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-common-law-offences">CRIMINAL PROCEDURE (SENTENCE) Common Law Offences</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/assault-sentence">Assault (Sentence)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review-sentence">Review (Sentence)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2010/182">S v Usavi (REVIEW NO 2063/10) [2010] ZWHHC 182 (15 August 2010);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Wed, 29 Jul 2020 08:25:40 +0000 Sandra 9807 at https://old.zimlii.org S v Nguvo (HMA 35-20, CRB MSVR 22-20) [2020] MSVHC 35 (16 June 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/35 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p>THE</p> <p> </p> <p>versus</p> <p> </p> <p>FORGET NGUVO</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZISENGWE J</p> <p>MASVINGO 16 JUNE, 2020</p> <p> </p> <p>                                                                </p> <p> </p> <p><strong>Criminal Review</strong></p> <p> </p> <p> </p> <p> </p> <p>ZISENGWE J:            The whole point of this review judgement is to once again stress the importance, in a contested criminal trial, of observing the peremptory provisions of section 200 of the Criminal Procedure and Evidence Act, <em>[Chapter 9:07].</em></p> <p>This section provides as follows:</p> <p><em>"200 summing up</em></p> <p> </p> <p><em>After all the evidence has been adduced, the prosecutor shall be entitled to address the court, summing up the whole case, and the accused, or each of the accused if more than one, shall be entitled by himself or his legal representative to address the court and if, in his address, the accused or his legal representative raises any matter of law, the prosecutor shall be entitled to reply, but only on the matter of law so raised."</em></p> <p> </p> <p> From a perusal of cases submitted on review there appears to be a tendency to completely disregard this important provision. It is often treated as an unnecessary and time wasting inconvenience, yet it is evidently not, particularly where the accused is unpresented.</p> <p>            The section presents an opportunity to tie up all the often discrete pieces of evidence, to comment on the credibility or otherwise of the various witnesses that may have testified. It affords the competing parties a chance to make concessions, if any, and to highlight the strengths and weaknesses of the respective cases. It also gives an opportunity to the parties to persuade the court to accept or reject the versions presented during the trial in light of the nature of the offence and the applicable principles related to onus and burden of proof.</p> <p>            In this case the accused was charged with the crime of rape (i.e. contravening section 65(1) Criminal Law (Codification and Reform) Act, <em>[Chapter 9:23]</em>). The allegations were that he had forcible non-consensual sexual intercourse with the complainant, a girl aged 13 years at the time.</p> <p>            The accused pleaded not guilty and denied throughout the trial ever having engaged in any sexual activity with the complainant. However, at the conclusion of the trial in which 3 witnesses testified for the state and the accused was the sole witness for the defence, he was found guilty as charged and sentenced to 13 years imprisonment of which 2 years imprisonment was conditionally suspended.</p> <p>            Upon a perusal of the record of proceedings when same was referred to this court for review in the ordinary course, I observed that the accused who was unrepresented had not been made aware of the provisions of section 200 let alone afforded the opportunity by the court to address it.  I accordingly directed a query to the Magistrate for an explanation and in response the Magistrate conceded her error in failing to do so.</p> <p>As alluded earlier, the provisions of section 200 are peremptory and there are several implications that flow from this a few of which will be highlighted below.</p> <p> Firstly, the trial court is enjoined not only to bring to the unrepresented accused the provision in question but also to provide a succinct explanation of the same. Failure to explain to the unrepresented accused this right may amount to an irregularity vitiating the proceedings (<em>S v</em> <em>Parmand</em> 1954 (3) SA 833(A<em>), S v Mabote and Another</em> 1983 (1) SA 745 OPD, <em>R v Cooke</em> 1959 (3) SA 449).</p> <p>Some decisions have labelled this right as a fundamental one in a criminal trial and that failure to observe it constitutes a gross irregularity.</p> <p>In the <em>S v Mabote and Another</em> (<em>supra</em>) the headnote reads:</p> <p><em>"They are basic principles of our Criminal Law that an accused has the right to address the court which is trying him before judgement on the merits of the offence charged against him and that the opportunity to exercise that right is afforded him regardless of the prospects of success. A failure to afford him that opportunity affects the essence of the administration of criminal justice and cannot be regarded as anything other or less than a gross irregularity. Such an irregularity destroys the fairness and accordingly also the legal validity of the proceedings in question. "See also S v Kwinda 1993 (2) SACR 408 (v) and S v Mbeje 1996 (2) SACR 252 (N)."</em></p> <p>            It is pertinent to note that s175 of the South African " Criminal Procedure Act," 51/77 on which those decisions are based is similarly worded to our Section 200.</p> <p>            Some authorities have gone as far as holding that a failure by the court to afford accused the opportunity address it, even unintentionally, is a serious irregularity which violates his constitutional right to a fair trial unless it can be shown that there was no prejudice to the accused (<em>S v Zingilo</em> 1995 (a) BCLR 1186 (O), <em>S v Mbeje</em> (supra) at 257e-h).</p> <p>            The accused can, of course waive his right to so address the court, needless to say that he can do so upon being apprised of its existence and import: suffice it to say that both the explanation and the election to waive it must be recorded and must appear <em>ex facie</em> the record of proceedings.</p> <p>            Ultimately, however, the primary consideration whether or not to set aside the proceedings for want of compliance with section 200 is that of prejudice occasioned to the accused thereby. In <em>S v Kwinda</em> (supra) at 411 b-d LIEBENBERG J after considering various authorities on the subject said the following:</p> <p>"<em>In terms of the above authorities the position can therefore be summarised as follows. The failure to afford an accused the opportunity to address the court before judgement is a gross irregularity which will result in the setting aside of the proceedings unless it is clear that the accused was not prejudiced thereby or that the failure was due to his fault or where it is clear that he has waived his right of address. The judicial officer must afford the accused the opportunity to address the court by enquiring from him whether he wishes to avail himself of his right to do so and must record the response of the accused."</em></p> <p> </p> <p>Determining whether or not prejudice resulted from an omission such is the one under discussion can be elusive. In <em>S </em>v <em>Davids</em>; <em>S </em>v<em> Dladla</em> 1989 (4) SA 172 at 193 E-F NIENABER J had this to say</p> <p>"<em>Not every irregularity, however, is fatal. To be fatal to the proceedings the irregularity must result in a failure of justice. There will be no failure of justice if there is no prejudice to the accused, and there will be no prejudice to him if he would have been convicted, in any event, irrespective of the irregularity"</em></p> <p> </p> <p>However, the court proceeded to caution against cursory speculation that there was no prejudice to the accused. The following was stated in this regard:</p> <p>"<em>For criminal proceedings to be vitiated and a conviction to be quashed there must first be an irregularity. An irregularity occurs whenever there is a departure from those formalities, rules and principles of procedure with which the law requires such a trial to be vitiated or conducted: (S v Xaba 1983 (3) SA 717 (A) at 728 D). An irregularity will thus be committed if a rule of practice, procedure or evidence, or a precept of natural) Justice recognised in our law is disregarded."</em></p> <p> </p> <p>At 193 F-h the learned judge further remarked:-</p> <p> </p> <p><em>"Prejudice must, in principle be proved. But there is a qualification which is fundamental to a proper administration of justice, the proceedings as a whole are tainted; when, as a result, there is a failure of the proceedings as a whole, there is by the same taken a failure of justice. It would then be idle to speculate, in addition, on what, but for the irregularity, the fate of the accused would have been. A failure of justice will thus be taken for granted whenever the irregularity compromises for instance a) the reliability, competence, integrity or impartiality to the tribunal; or b) the competence or ability of the accused to follow the proceedings, or c) his prerogative to present his defence; or d)his right to arrange legal representation; or e) the propriety of the prosecution as a whole or f) the rehabilitee of the  evidence as a whole, for instance when the testimony on its entirety was not properly sworn, affirmed or duly interpreted; or when the accused’s selected or assigned counsel is afterwards found not to have been legally qualified to act as such.".</em></p> <p> </p> <p>In the present matter, however, a thorough examination of the evidence does not appear to suggest prejudice to the accused. The evidence of the complainant was to the effect that accused was employed at the farm where she resided and also shared the same homestead. She testified how on several occasions accused would grab her, fondle her breasts before engaging in forcible non-consensual sexual intercourse with her. She indicated that accused warned her not to divulge the abuse to anyone and threatened to decapitate her should she do. She however let the cat out of the bag when she disclosed her fate at the hands of the accused to her school teacher. This followed a lesson on child sexual abuse.</p> <p>The evidence also shows that the complainant’s mother was not only unfortunately afflicted by some mental illness (suggesting that the abuse could very well have taken place right under her nose without her detecting it) but also that at certain intervals she resided elsewhere.</p> <p>The complainant’s school teacher essentially confirmed the circumstances that led to the disclosure by the complainant of the abuse and the steps she took to have the matter brought to the attention of the police.</p> <p>The investigating officer also testified in this trial and recounted her investigation which included her interview with the complainant and the revelations of the sexual abuse she made to her. She also testified about having taken the complainant for a medical examination which confirmed sexual penetration.</p> <p>The evidence of the accused as stated earlier amounted to a denial of any sexual contact with the complainant. He explained that he unceremoniously left the farm in question at roughly the same time that the rape allegations surfaced because he was disgruntled about the non-payment of his salary and wages. Implicit in his explanation is the suggestion that this was a mere coincidence of two separate and unrelated events.</p> <p>From a reading of the judgment it is hard to imagine how the magistrate’s reasons in accepting the version of the state witnesses and rejecting that of the accused were affected by the failure to afford the accused the right to address the court in terms of s200.  I could not find any suggestion of prejudice to the accused brought about by the said failure. And accordingly the proceedings are hereby confirmed.</p> <p> </p> <p> </p> <p>ZISENGWE J………………………………………..</p> <p> </p> <p>WAMAMBO J. agrees………………………………</p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/35/2020-msvhc-35.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26884">2020-msvhc-35.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/35/2020-msvhc-35.pdf" type="application/pdf; length=427583">2020-msvhc-35.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rape">Rape</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/unrepresented-accused">Unrepresented accused</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Tue, 28 Jul 2020 07:55:00 +0000 Sandra 9802 at https://old.zimlii.org S v Sahumani (HH 454-20, CRB 35/20) [2020] ZWHHC 454 (02 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/454 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>THE STATE</p> <p>versus</p> <p>BRIGHT LOVEJOY SAHUMANI</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 1 &amp; 2 June 2020</p> <p> </p> <p>ASSESSORS : 1. Mr Gweme</p> <p>                          2. Mr Nako</p> <p> </p> <p> </p> <p><strong>Criminal trial-murder</strong></p> <p> </p> <p> </p> <p><em>P. Gumbo</em>, f or the state</p> <p><em>R.T. Nyarugwe,</em> for the accused</p> <p> </p> <p>            CHITAPI J: The accused was charged with the crime of murder as defined in s 47 of the Criminal Law (Codification Reform) Act, [<em>Chapter 9:23</em>]. The charge alleged that on 25 December, 2018 at 1600hrs at Cheuchi Business Centre Chinhoyi, the accused unlawfully and intentionally stabbed Endasami Zhou with a knife on the head, stomach, left side of chest and back, thereby inflicting injuries from which the victim dies. The accused pleaded not guilty to the charges. The accused’s<em> pro-deo </em>counsel on behalf of the accused tendered a guilty plea to culpable homicide. State counsel accepted the guilty plea to the reduced charge. The accused confirmed his guilty plea to culpable homicide.</p> <p>            Both counsel undertook to jointly prepare a statement of aggrieved facts which would constitute the admitted evidence in the case. The statement of agreed facts was produced as exh 1. Its contents read as follows:</p> <p>“THE STATE AND DEFENCE HEREBY ENTER INTO STATEMENT OF AGREED FACTS ND AGREE AS FOLLOWS:</p> <ol> <li>The accused person will plead not guilty to the charge of Murder as defined by section 47 of the Criminal Law, Codification and Reform Act [<em>Ch 9.23</em>] but will plead guilty to a lesser charge of CULPBALE HOMICIDE as defined in section 49 of the Criminal Law Codification Act.</li> <li>The accused person will admit causing the death of the now deceased ENDASAMU ZHOU however negligently while trying to defend himself.</li> <li>The accused person and the deceased were drinking beer at Cheuchi Business Centre, Chinhoyi.</li> <li>Hardlife Sengu and the deceased confronted the accused person and his brother one Prince Chakwezera over allegation of bullying.</li> <li>An altercation arose between the four and HARDLIFE SENGU threw a stone which hit the accused person at the upper left eye brow.</li> <li>The accused and his brother fled the scene.</li> <li>The deceased and Hardlife Sengu hot pursued the accused and his brother and caught up with the accused at about 60metres from the scene. Prince Chakwezera was in front and how was not caught.</li> <li>A scuffle ensued between HARDLIFE SENGU, THE DECEASED AND THE ACCUSSED PERSON. Accused picked up a knife and stabbed the deceased four times which resulted in his death.</li> <li>The parties agree that the cause of death was as per post mortem report filed of record.”</li> </ol> <p> </p> <p>            In addition to the agreed facts there was produced by consent, a post mortem report prepared following the examination of the remains of the deceased at Chinhoyi Provincial Hospital on 28 December, 2018 by Doctor Mawire. The doctor observed multiple stab wounds which he recorded as follows</p> <ol> <li>One in posterior right chest</li> <li>One is subcombilial area of abdomen with bowel protruding through the wound.</li> <li>One in the left lateral chest involving the left lung which looked collapsed.</li> <li>One on the left frontal aspect of the head.</li> </ol> <p>The cause of death was recorded as:</p> <p>“cardio respiratory failure from Haemorrage and lung puncture secondary to multiple stab wounds.”</p> <p> </p> <p>The court was satisfied that the deceased died of unnatural but human inflicted injuries. The agreed facts explained how the accused had inflicted the injuries which led to the death of the deceased. A verdict of not guilty to murder but guilty to culpable homicide was returned.</p> <p>In mitigation of sentence the defense counsel submitted that there was no premeditation to commit the offence on the part of the accused. The deceased and his colleague Hardlife Sengu was the one who first confronted the accused over allegations that the accused and his brother Prince Chakwezera were behaving like bullies. The confrontation degenerated into a fight involving the quartet of the accused, the deceased, Hardlife Sengu and Prince Chakwezera. The accused was struck with a stone on the upper left eye brow by deceased’s colleague, Hardlife Sengu. The accused and his brother then removed from the scene but were pursued by the deceased and Hardlife Sengu for about 60 metres. Prince Chakwezera successfully made good his escape but the accused was caught and another scuffle ensured. The accused was outnumbered two to one. The accused then picked up a knife and used it to inflict on the deceased the injuries described in the post mortem report. The court accepted that there was no premeditation by the accused.</p> <p>            It was submitted that the accused was provoked. The court had some difficulty in appreciating the scope, nature and extent of the provocation. It is not sufficient for an accused to simply allege provocation without outlaying its foundation. Whether or not there has been provocation is a question of fact. It is from the facts that found or support the provocation that the court can reach an informed decision as to whether there was provocation brought to bear on the accused and the proportionality of the accused’s reaction to the provocation. In terms of the provisions of s 239 of the Criminal Law (Codification and Reform) Act, it is the duty of the court to determine whether or not the accused was provoked. The accused relying on provocation whether in rebutting <em>mens rea</em> or as a mitigatory fact must establish the provocation on a balance of probabilities.</p> <p>            For the avoidance of doubt, the provisions of sub s (2) of s 239 aforesaid read as follows:</p> <p>            “(2)      For the avoidance of doubt, it is declared that if a court finds that a person accused of                                  murder was provoked but that-</p> <ol> <li>He or she did have the intention or realization referred to in section forty-seven; or</li> <li>The provocation was not sufficient to make a reasonable person in the accused’s position    and circumstance lose his or her self-control;</li> </ol> <p>            The accused shall not be entitled to a partial defence in terms of subsection (1) but the court may             regard the provocation as mitigatory as provided in section two hundred and thirty eight.”</p> <p> </p> <p>            It is clear therefore that it does not follow that an allegation by the accused that he was provoked will be accepted at face value. The facts of the case must show that the accused was provoked by proven conduct which would reasonably make a reasonable person in the same circumstances as the accused to be provoked and lose self- control. It is also a decision which rests on the court to determine whether the provocation if proved would affect the <em>mens rea</em> of the accused or simply be regarded as a mitigatory factor.</p> <p>            In <em>casu</em>, there were no facts or evidence of provocation placed before the court other than that the deceased and Sengu upon approaching the accused asked him about allegations of bullying which the accused was allegedly involved in. The accused did not state as to why and how such an enquiry would result in provocation. The accused could simply have denied the allegation. In the view of the court, provocation was only mentioned but not proven or established. In the absence of establishing provocation by acceptable evidence, the mere allegation that the accused were provoked is not sufficient to prove provocation. The court could not find provocation as proven by the accused on a balance of probabilities.</p> <p>In the view of the court, the facts suggest a scenario which in all probability was punctuated by egos of the parties, the accused and Prince on one hand and the deceased and Sengu on the other hand. The very fact of the deceased approaching the accused accusing him of being a bully shows that the deceased considered himself as able to stand his ground. The whole incident smacks of a show of bravado by the persons involved in the fighting. The incident took place at a business centre where the accused and deceased were drinking beer. Although counsel did not address the issue of intoxication, the accused, deceased and their colleagues who became involved in the fracas must have had their minds affected by beer. Whilst the court cannot say to what extent beer played a part, what is clear is that beer affects the mind and in turn how the person who has taken beer behaves. The court takes this fact into consideration as a mitigatory circumstance. The fact that the minds of the persons were affect by beer was shown by the fact that even after the accused had fled the scene, the deceased pursued after them. A reasonable person does not pursue an antagonist who has fled from a fight.</p> <p>What is important to consider in this case is the degree of negligence exhibited by the accused. The accused at the critical time was out numbered two to one. It seems that he decided to hold his ground and use a knife which he “picked up.” There was nothing said to show that he could not escape other than to use the knife. He inflicted life threatening wounds on delicate parts of the deceased’s body, the head, chest and stomach. Severe force was used because the stab wound to the stomach opened it up and the deceased’s bowels protruded therefrom. The degree of negligence was high and multiple injuries were inflicted by use of a dangerous weapon.</p> <p>The sanctity of human life should be emphasized. The use of a dangerous weapon makes the offence serious. The accused was 26 years old and relatively a youth. He is a first offender whom courts have sympathy for. He however but he started crime at the deep end in that his first offence and the manner of its commission calls for a deterred sentence on him and society at large. A custodial sentence is called for. The accused has been in custody for 18 months. This fact has been taken into account in mitigation. Every sentence in cases where the accused has caused the death of another whether intentionally or negligently should reflect society’s abhorrence for such conduct. A greater part of the sentence will be suspended on conditions of good behaviour. The accused is sentenced as follows</p> <p>5 years imprisonment. 2 ½ years imprisonment is suspended for 5 years on condition that the accused is not within that period convicted of any offence of negligently causing the death of another person or an offence involving assault for which upon conviction he is sentenced to a term of imprisonment without the option of a fine.</p> <p> </p> <p><em>National Prosecuting Authority, </em>applicant’s legal practitioners</p> <p><em>Ushewokunze Law Chamber</em>, accused’s legal practitioners (<em>pro-deo</em>)</p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/454/2020-zwhhc-454.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24502">2020-zwhhc-454.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/454/2020-zwhhc-454.pdf" type="application/pdf; length=328638">2020-zwhhc-454.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/culpable-homicide">Culpable homicide</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/youthful-offenders">Youthful offenders</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Mon, 20 Jul 2020 14:15:24 +0000 Sandra 9800 at https://old.zimlii.org S v Manwere & Anor (HMT 5-20) [2020] ZWMTHC 5 (28 November 2019); https://old.zimlii.org/zw/judgment/mutare-high-court/2019/5-1 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>TELLMORE MANWERE</p> <p>and</p> <p>SEBASTINE TANAKA</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p>                                                                                                                       </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA and MUZENDA JJ</p> <p>MUTARE, 16 October 2019 and 28 November 2019</p> <p> </p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p> </p> <p><em>J Mangwende</em>, for the Appellants</p> <p>Mrs <em>J Matsikidze</em>, for the Respondent</p> <p> </p> <p> </p> <p>MWAYERA J: The appellant was convicted and sentenced for contravention of s 78 (1) of the Forest Act [<em>Chapter 19:05</em>]. The appellants were convicted of having removed 32 gum trees by cutting them down unlawfully and without authority from Forestry Commission of Zimbabwe. The appellants were sentenced to 24 months imprisonment of which 4 months imprisonment were suspended on condition of restitution of the complainant. Aggrieved by both conviction and sentence both the appellants lodged the present appeal with this court.</p> <p>The respondent partly opposed the appeal in that it conceded the sentence imposed was unduly harsh, whilst it opposed the appeal against conviction. The appellants raised grounds of appeal as follows:</p> <p>“Add Conviction</p> <ol> <li>The trial Court erred in disregarding the fact that there was no evidence linking the accused person to the cutting of the trees.</li> <li>The trial Court erred in disregarding the fact that there was no evidence showing any transport system to ferry the logs from the alleged crime scene.</li> <li>The trial Court erred in placing credence in witness evidence of Artwell who had a peculiar interest to safe guard his job by ensuring that anyone was charged and convicted as the trees has been cut under his watch.</li> <li>The trial Court erred in accepting that the Appellants were the persons who cut down the trees whilst not giving due weight to the fact that no tool, cart or any material was discovered that had been used in the commission of the alleged crime.</li> <li>The trial Court erred by finding the accused persons guilty based only on circumstantial evidence.</li> <li>The trial Magistrate erred by ignoring evidence which tended to be in favour of the accused person.”</li> </ol> <p> </p> <p>“Add Sentence</p> <ol> <li>The trial Court erred by failing to give due weight to the following mitigatory factors which would have resulted in a lessor sentence….”</li> </ol> <p>The brief facts informing the charge are that both accused persons on 10 February 2019, cut down gum trees and hid the poles in their village. The appellants were seen by Artwell Mushowe who then laid an ambush for the appellants. The accused later came to collect the poles and as they tied the poles for collection they were intercepted and then arrested. It is clear from the grounds of appeal against conviction that the appellants are questioning the finding of the court and its reliance on the witness evidence.</p> <p>It is apparent in this case that gum poles were removed from the forest and that both appellants were apprehended at or close to the pile while tying the poles. The court <em>a quo</em> had to decide on whether or not from the evidence adduced the State had discharged the required onus of proving the case beyond reasonable doubt. The court <em>a quo</em> did not hold the appellants’ explanations to be probable and reasonably possibly true given the evidence adduced by the State. The first appellant denied all allegations pointing out his attention was drawn to the scene by people talking. The second appellant denied saying the poles were not at his residence and that on the day in question he was with his wife.</p> <p>The findings of the court <em>a quo</em> were based on credibility. The court was impressed by the State witnesses and not appellants. It is settled that credibility or otherwise of witnesses is a domain of the trial court. The findings of fact are not lightly interfered with. It is only when the factual findings are at variance with the facts on record that the appellate court can interfere with the findings of the trier of fact who for the obvious reasons has the opportunity to hear, observe and assess the witnesses.</p> <p>The main witness Artwell Mushowe gave clear evidence of how the appellants were found in the vicinity of the stolen poles securing same for purposes of ferrying the poles away. The appellants themselves do not dispute being in the vicinity of the stolen poles. The witness was well known to both appellants and as such no question of mistaken identity. In fact at the time of arrest the witness conversed with the appellants who were apologetic. It is also on record that the witness and appellants enjoyed cordial relations hence the trial court found no reason why the witness would have falsely incriminated the appellants. That the witness Artwell Mushowe was a security guard cannot be held against him given the totality of evidence. The bare denials by the appellants and the fact that they were found bundling the poles for purposes of later ferrying supports the finding of the court <em>a quo</em>. The conviction was therefore well-founded on evidence anchored on the record. The findings of the court <em>a quo</em> on both facts and law can therefore not be faulted.</p> <p>Turning to the sentence imposed it is apparent the court <em>a quo</em> did not give due weight to the circumstances of the commission of the offence, mitigatory and aggravatory factors. Lip service was paid to the laid out sentencing principles of seeking to strike a balance between the offence and the offender while at the same time tempering justice with mercy.</p> <p>A reading of the penalty provision of the relevant charge provides for the option of a fine. It has been said on countless times by this court that to consider imprisonment were the penalty provision gives the option of a fine without cogent reasons is a misdirection. Imprisonment is a preserve for the very bad and serious cases not minor infractions. In casu both appellants were first offenders, family men with dependants. The value of the poles forming the subject of the offence was given as $320-00 most of which were recovered. The court opted for imprisonment of which no portion was suspended on conditions of good behaviour. There are no reasons recorded why first offenders were not granted the opportunity to have a suspended prison term act as a deterring factor. Punishment is not meant to break the individual but should be appropriately considered so as to have the positive effects of rehabilitating the offender.</p> <p>The reasons for sentence are devoid of the thought process of how the trial court discarded the other sentencing options namely a fine and or community service. To this end therefore the court <em>a quo</em> did not properly exercise its sentencing discretion. We are at large to interfere with the sentence which in the circumstances is viewed as unduly harsh. In the result the appeal against conviction is dismissed and the appeal against sentence is upheld</p> <p>Accordingly it is ordered that:</p> <ol> <li>The appeal against conviction is dismissed.</li> <li>The appeal against sentence succeeds. The sentence imposed by the court <em>a quo</em> is set aside and substituted as follows:</li> </ol> <p>Each accused is to pay a fine of RTGS$500-00 or in default of payment 3 months imprisonment. In addition 3 months imprisonment is suspended for 3 years on condition accused does not within that period commit any offence involving dishonesty for that he is sentenced to imprisonment without the option of a fine.</p> <p> </p> <p>MUZENDA J agrees_____________________</p> <p> </p> <p><em>Chiwanza &amp; Partners,</em> appellants’ legal practitioners</p> <p><em>National Prosecuting Authority</em>, State’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2019/5/2020-zwmthc-5_0.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33531">2020-zwmthc-5.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2019/5/2020-zwmthc-5_0.pdf" type="application/pdf; length=325214">2020-zwmthc-5.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-statutory-offences-other-offences-under-criminal-law-code">CRIMINAL LAW STATUTORY OFFENCES (Other than offences under Criminal Law Code)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/alteration-sentence">Alteration of sentence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-sentence">Appeal of sentence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/matters-which-court-may-take-account-sentence">Matters which court may take into account (Sentence)</a></li></ul></span> Tue, 07 Jul 2020 14:44:25 +0000 Sandra 9773 at https://old.zimlii.org S v Tsaura & Anor (HMT 2-20, CA 64/19) [2020] ZWMTHC 2 (28 November 2019); https://old.zimlii.org/zw/judgment/mutare-high-court/2019/2-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>KUNDAI TSAURA</p> <p>and</p> <p>JOSEPH TSAURA</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA J</p> <p>MUTARE, 16 October 2019 and 28 November 2019  </p> <p> </p> <p> </p> <p><strong>Criminal Appeal </strong></p> <p> </p> <p> </p> <p><em>C Ndlovu</em>, for the applicant</p> <p>Mrs <em>J Matsikidze</em>, for the respondent</p> <p> </p> <p> </p> <p>MWAYERA J: The appellants lodged the present appeal against sentence imposed by the court <em>a quo</em>. The appellants were both convicted of two counts of assault as defined in s 189 of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>] and secondly convicted of indicating a witch or  wizard as defined in s 99 of the Criminal  Law (Codification and Reform) Act[<em>Chapter 9:23</em>]. For assault the accused were each sentenced to 12 months imprisonment of which 3 months were suspended on usual conditions of good behaviour.</p> <p>The salient facts of the state case were that the appellants and other relatives at a funeral resisted the traditional way of passing condolences by shaking hands. The complainant stretched her hand to console the appellants at a funeral and was rebuffed. Following which appellants labelled the complainant a witch responsible for causing the death of their niece.</p> <p> After indicating the complainant a witch the appellants went outside and retrieved a log with which to assault the complainant. The complainant escaped to a nearby bush but was followed by the appellants. The first appellant struck the complainant with an iron bar on the brow bone causing injuries and bleeding from the eye, nose and mouth. The second appellant  also struck the complainant on the back collarbone. The two then dragged the appellant back to the yard where there was a crowd and they wanted to throw the complainant in the fire. The complainant was rescued by other women and made good her escape.</p> <p>The appellants were further charged and convicted of assaulting. Christopher Magaya the husband of the complainant in count 1 and 2 when he sought to intervene and rescue his wife. For imputation as a wizard or witch in contravention of s 99 of the Criminal Law (Codification and Reform) Act the appellants were each sentenced to pay a fine of $200-00 or in default of payment 30 days. They did not raise any qualms. For the two counts for which an effective prison term was imposed the appellants raised 2 grounds of appeal as follows: </p> <p>“1.       The trial magistrate erred and misdirected herself in exercise of her sentencing discretion by failing to conduct an inquiry into the appropriateness of community service in circumstances where she settled for a prison term of less than 24 months.</p> <p> </p> <p>2.         The court <em>a quo</em> erred and misdirected itself in its approach to the issue of community service a real and substantial form of punishment. The trial court misdirected itself by sentencing the appellants to a custodial sentence.”</p> <p> </p> <p>            A perusal of the record of proceedings from the court <em> a quo </em>reveal the trial court did consider community service but discarded it as inappropriate given the nature of assault. To the extent that community service and a fine were not viewed as appropriate the trial court cannot be said to have erred in not considering the other sentencing options. The first ground of appeal seems to suggest that the court had to carry out the community service placement enquiry because the sentence imposed is less than 24 months. That the sentences falls within the community service grid should not be misconstrued to take away the court’s sentencing discretion. The trial court is however expected to judiciously exercise its sentencing discretion and come up with an appropriate sentence. It is not for the community service’s officer to come up with the final decision of whether or not community service is appropriate in the circumstances. The community service officer may recommend the suitability or otherwise of a probationer but remains his opinion and it’s not binding on the sentencing court. What is important though is that in the exercise of the sentencing discretion the trial court upon considering an appropriate sentence must and shall give reasons for discarding one form of sentence given the circumstances. The court <em>a quo</em> cannot be faulted for not requesting the carrying out a community service enquiry for it did  not consider community service as appropriate given the nature of assault visited on an elderly  woman by the two appellants who used an iron bar and log interchangeably. However the trial court’s failure to outline reasons for not imposing community service is an anomaly which amounts to a misdirection.</p> <p>            The second ground of appeal speaks to improper exercise of sentencing discretion whereby the court <em>a quo</em> is said to have misdirected itself by imposing an effective prison custodial sentence where circumstances warranted imposition of other sentencing options like a fine and or community service. The penalty provisions for the offence of assault provides for the option of a fine. It is settled that where the penalty provisions provides for the option of a fine then  imprisonment should only be considered as a last resort for the very bad cases. It would be a misdirection to start off at the deep end and impose imprisonment without giving due weight to the sentencing option so provided by statute. There has to be clear compelling reasons justifying imprisonment. Mathonsi J in <em>S v Mulauzi</em> HB 159/16 emphasised that where a statute provides for a fine or imprisonment, it is a misdirection on the part of the sentencing court to impose imprisonment without giving serious consideration first and foremost to a fine. See also <em>S v Ncube </em>1989 (2) ZLR 232 in which it was held that:</p> <p>“Whenever possible and more particularly where the imposition of a fine is a permissible penalty, a fine should be considered before imprisonment. Only when the facts are such that a fine is inappropriate should imprisonment be considered. First offenders in particular should be kept out of prison as much as possible ….” See also <em>S v Dzotizei</em> HH 126/14.</p> <p>           </p> <p>            In this case both accused are first offenders who pleaded guilty to an offence of assault in which according to the penalty provisions a fine is permissible. The complainant an old woman was seriously injured but the medical evidence is clear that there was no potential danger to life and there was no permanent injuries or disabilities occasioned. The nature of injuries occasioned when viewed together with the plea of guilty and the motive or reasons behind the commission of the offences in this case ought to have exercised the mind of the court <em>a quo </em>in considering the appropriate sentence. In this case the court <em>a quo</em> did not give regard to the circumstances surrounding the commission of the offence, whereas it is not a defence to have a strong belief in witchcraft the mitigatory nature of such deep rooted belief especially amongst the rural folk cannot be whisked away as it goes to the centre of the motive to commit the crime. The belief in witchcraft in the circumstances although not reducing criminal liability in that the belief is not a defence it certainly qualifies as mitigatory and as a factor reducing the moral blameworthiness of the appellants.</p> <p>            The belief in witchcraft is what motivated the appellants to commit the crime and given the rural set up such belief is not foreign and would appropriately weigh in as mitigatory. See <em>S v Techu and Others</em> HH 271/15 and <em>S v Misimo and Others</em> HH 358/17. Cultural beliefs can motivate commission of offences and where such is the case the sentencing court should not ignore the impact on reduction of the moral blameworthiness of the appellants. Such reduction of moral blameworthiness brought about by the belief in witchcraft ought to have been considered as mitigatory together with the plea of guilty and the fact that the appellants are first offenders cumulatively considered ought to have weighed heavily in favour of upholding the option of a fine as provided for by the penalty provision. On belief in witchcraft being mitigatory s 101 of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>] is instructive. It states:   </p> <p>“It shall not be a defence to murder, assault or any other crime that the accused was actuated by a genuine belief that the victim was a witch or wizard, but a court convicting such person may take such belief into account when imposing sentence upon him or her for the crime.”</p> <p> </p> <p>            See also <em>S v Hamunakwadi</em> ZLR (1) 2015 392 and <em>S v Musimo and Others </em>HH 358/17. In my view the underpinning principle in considering the belief in witchcraft as mitigatory emanates from the general trend that witchcraft accusations are almost always preceded by tension and conflict within the family village and on community at large. Emotions and tempers flare in communities in which witchcraft beliefs are deep rooted. In my view it would not be proper to ignore the background while at the same time not condoning the criminal infringement.   The belief tends to minimise the moral blameworthiness albeit not reducing the criminal liability. In the present case therefore the sentencing court in exercising its sentencing discretion misdirected itself by not giving regard to the sentencing provision which is clear. Section 189 (1) (a) reads:</p> <p>“Any person who commits an assault upon another person intends to cause that other person bodily harm or realising there is a real risk or possibility that bodily harm may result. Shall be guilty of assault and liable to a fine up to exceeding level fourteen (14) or imprisonment for a period not exceeding ten years or both.”</p> <p> </p> <p>That sentencing provision when considered together with the circumstances of the commission of the offence and all the other mitigatory factors speaks loudly of the need to explore other sentencing options and not imprisonment. The sentencing discretion was not properly exercised thus warranting interference by this court.</p> <p>It is accordingly ordered that:</p> <ol> <li>The appeal against sentence in respect of count 2 and 3 be and is hereby upheld.</li> <li>The custodial sentence imposed by the court <em>a quo</em> is set aside and substituted as follows:</li> </ol> <p>Both counts as one for sentence. Each accused is to pay RTGS$500-00 or in default of payment 3 months imprisonment.</p> <p>In addition 6 months imprisonment wholly suspended for 5 years on condition accused does not within that period commit any offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.</p> <p> </p> <p>MUZENDA J agrees _____________________</p> <p> </p> <p><em>Gonese &amp; Ndlovu</em>, applicant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2019/2/2020-zwmthc-2.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=29139">2020-zwmthc-2.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2019/2/2020-zwmthc-2.pdf" type="application/pdf; length=330218">2020-zwmthc-2.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/assault-intent-do-grievous-bodily-harm">Assault with intent to do grievous bodily harm</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-common-law-offences">CRIMINAL PROCEDURE (SENTENCE) Common Law Offences</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/assault-sentence">Assault (Sentence)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/alteration-sentence">Alteration of sentence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/community-service-sentence">Community service (Sentence)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/bulawayo-high-court/2016/159">S v Mulauzi (HB 159-16 HCA 58-14) [2016] ZWBHC 159 (16 June 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/271">S v Techu &amp; Others (CRB No. 175/14) [2015] ZWHHC 271 (20 February 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Tue, 07 Jul 2020 12:52:05 +0000 Sandra 9770 at https://old.zimlii.org S v Chiturumani (HMT 17-20, CRB 49/19) [2020] ZWMTHC 17 (23 January 2020); https://old.zimlii.org/zw/judgment/mutare-high-court/2020/17-0 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2020/17/2020-zwmthc-17_0.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=35529">2020-zwmthc-17.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2020/17/2020-zwmthc-17_0.pdf" type="application/pdf; length=332656">2020-zwmthc-17.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/assault-intent-do-grievous-bodily-harm">Assault with intent to do grievous bodily harm</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/suspended-sentence">Suspended sentence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/conditions-suspended-sentence">conditions of suspended sentence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/youthful-offenders">Youthful offenders</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/267">S v Kurangana (HH 267-17 CRB No. 35/16) [2017] ZWHHC 267 (03 March 2017);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Tue, 07 Jul 2020 11:23:08 +0000 Sandra 9768 at https://old.zimlii.org S v Muchadei ( HMT 3-20, CRB 39/19) [2020] ZWMSVHC 03 (13 November 2019); https://old.zimlii.org/zw/judgment/masvingo-high-court/2019/03 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HMT 3-20                                                                                                                                             CRB 39/19</p> <p>THE STATE</p> <p>versus</p> <p>BERNARD MUCHADEI</p> <p>                                                                                                         </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA J</p> <p>MUTARE, 1 and 17 October 2019 and 13 November 2019</p> <p> </p> <p> </p> <p><strong>Criminal Trial </strong></p> <p> </p> <p>ASSESORS:   1. Mrs Mawoneke                  </p> <p>2. Mr Mudzinge</p> <p> </p> <p> </p> <p>Mr <em>M. Musarurwa</em>, for the State </p> <p>Ms <em>F Maroko</em>, for the accused</p> <p> </p> <p>MWAYERA J: The accused was arraigned before this court facing a charge of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>]. The brief allegations are that the accused struck the deceased his mother with a stone on 9 March 2018 at Matereke Village Chief Zimunya, Arda Odzi. It is the state’s contention that when accused struck his mother Constance Muchadei he intended to kill her or realised that there was a real risk or possibility that his conduct might cause death and continued to  engage in that conduct despite the risk or possibility resulting in injuries from which the said Constance Muchadei died. The accused pleaded not guilty to the charge.</p> <p>The accused’s defence was basically a denial of the charges. He stood by his confirmed warned and cautioned statement which was tendered as exh 2 by consent. His stance was that he found the deceased already injured and lying on the floor in the house in which where many stones which showed the deceased had been struck by stones and sustained injuries on the forehead. The accused denied even having an altercation with the deceased. He pointed out that on the day in question there were many people at the homestead drinking beer as his mother the deceased was in the habit of selling traditional brew. The accused was the only witness who testified in the defence case while the state relied on 14 witnesses 2 of whom gave oral evidence while the other 12’s evidence which was not contentious was formerly admitted as it appears on the summary of the state case.</p> <p>Rutendo Matereke gave oral evidence. She narrated events of the fateful day as per her observation from the time she arrived at the scene. The witness a member of the neighbourhood watch committee told the court that upon her arrival at the scene she received a report that the accused had assaulted deceased with a stone. She entered the room and found deceased lying unconscious on the floor. She also observed a cut on the deceased’s forehead from which the deceased was bleeding. She with the help of others carried the deceased outside whereupon the deceased regained consciousness. According to the witness the deceased spoke words to the effect that Benard had hurt her and was supposed to finish her off. She stated deceased said “Benard why have you killed me? Come and finish me off.” The witness told the court that at that stage accused picked another stone intending to strike the deceased and was restrained by other people. The witness identified the stone which she recovered from the scene as the murder weapon. She then arrested the accused and as she was taking accused to the police station she was interrupted by one Timothy Mutore who interfered insisting it was a domestic matter to be resolved at home. The accused’s mother the deceased who was being wheeled in a wheel barrow by Madeline Javason was then wheeled back home instead of proceeding to hospital. The witness’ evidence was straight forward. She maintained her version even under cross-examination. It was clear she did not seek to exaggerate her testimony. She got to the scene after the deceased had been struck and the report she received that accused had struck his mother tallied with the deceased’s statement when she regained consciousness. The witness impressed the court as an honest witness.</p> <p>Isaac Muchadei a juvenile 14 year old also gave oral evidence. His evidence was to the effect that on the day in question he was at home not having attended school at the deceased’s behest. The witness told the court that the accused and the deceased had a misunderstanding over failure of the witness and other children to go to school in the morning. The altercation ended and people including accused drank beer. Later around 5:00pm a misunderstanding again arose between accused and deceased when the deceased sought refuge inside accused pursued her and struck the deceased on the forehead. The witness told the court that the stone used to strike the deceased was the only stone besides the deceased in the house and other stones were just outside in the yard. The witness observed that the deceased was hurt on the forehead and was bleeding. The witness’s evidence tallied on all material aspects with Rutendo Matereke. There was only one stone indoors and that was indicated as the murder weapon. The witness’ evidence that he observed accused pursue the deceased while accused was armed with a stone exh 5 when viewed in conjunction with the fact that accused and deceased had a misunderstanding and that deceased sustained injuries on the forehead gives a clear picture of what transpired. The witness stood his ground even during cross-examination. He was clear at the time of delivery of the fatal blow there were not many people gathered. The accused pursued the deceased. The stone was recovered from beside the deceased indoors. We find no reason why the witness would have given false evidence against the accused protecting the actual perpetrator. Generally the witness gave a substantial and credible narration of events of the fateful day regard being had to his age. Worth noting is the fact that the witness Isaac Muchadei’s version tallied with Timothy Mutore’s evidence which was formerly admitted in terms of the law. The evidence of Timothy Mutore was to the effect that around 5:00pm the accused exchanged harsh words with the deceased. The witness observed accused entering the house in which the deceased was and shortly after heard deceased crying accusing the accused of stoning her. The witness rushed to the house and observed deceased lying on the floor whilst holding her forehead from which she was bleeding.</p> <p>Also formerly admitted was evidence of an 11 year old grandchild of the deceased Maxwell Muchadei. His evidence was essentially to the effect that accused had an altercation with the deceased. At around 5:00pm the witness invited Isaac Muchadei to the scene. He witnessed accused stone the deceased on the forehead from which she bled. The witness also saw the stone beside the deceased. The admitted evidence corroborated the oral evidence of the two witnesses who testified especially on the issue of altercation between the deceased and accused and also the murder weapon and the striking of the deceased itself. Also formerly admitted was the evidence of Madeline Javason which confirmed the deceased was injured on the forehead. The witness, before being interrupted by one Timothy Mutore ferried the injured deceased towards Odzi Clinic in a wheel burrow. It is apparent the admitted evidence of Kuziva Zinyundu is that he ferried the now deceased in an ambulance from Odzi Clinic to Mutare Provincial Hospital. At Mutare Provincial Hospital Mufaro Mhungu admitted the deceased who passed on during admission process, following which Doctor Domonic Khulu examined the remains and compiled a post mortem report exh 1, concluding that cause of death was head injury. The police details namely Itai Chawatama, Artwell Mangwindime, who attended the scene, recorded statements and drew a sketch plan their evidence was formerly admitted. Also formerly admitted is the evidence of Liberty Mukwavaya’s who measured the stone and compiled a certificate of weight exh 4 showing stone weighed 2,080 kg and had a circumference of 43 cm.</p> <p>Further adduced in evidence by consent were the following exhibits. The post-mortem report exh 1. Accused’s confirmed warned and cautioned statement exh 2. Sketch plan exh 3 Certificate of weight exh 4. The stone exh 5.</p> <p>The accused in turn testified in the defence case. The accused insisted that he only got to the scene after the deceased had been struck while he was answering to the call of nature. He could however not dispute that he was the only person who was with the deceased at the time the deceased was struck. Absurdly, the accused was the only witness who observed more than one stone in the house next to the deceased. Also he seemed to be the only witness from those who were at the scene (Isaac Muchadei and Timothy Mutore) who did not know that he had an altercation with the deceased. We observed and viewed the accused as a dishonest witness who was raising dust so as to mislead the court. In the face of clear evidence that the stone recovered from the kitchen hut was the one used to strike the deceased the accused sought to unconvincingly introduce existence of other stones so as to shift liability. The other patrons if they were still  at the deceased’s home would have been well known to the state witnesses and the neighbourhood watch member Rutendo Matereke would have taken them in for questioning if it  was not clear. Only accused had an altercation with the deceased and only the accused struck the deceased as evidenced by not only the deceased’s utterances which amount more to a dying declaration but by the juvenile witnesses who were at the homestead. The accused impressed the court as an incredible man with no conscience and heart for the truth. He was evasive and denied even the obvious that the deceased died as a result of head injuries caused by being struck with a stone tendered as exh 5 in court. The accused is simply foreign to truth and thus unreliable. This unreliable personality was also envisaged in closing submissions where it is suggested that accused be found guilty of culpable homicide because there was an altercation between him and his mother and that they were in a drunken state thus accused negligently caused the death of his mother. The accused throughout the proceedings as evidenced by the contradictions, inconsistencies and change of stance in his defence, sought to raise smoke so as to mislead the court. The accused simply   has no defence. We are alive to the fact that the accused has no obligation to prove his innocence however the accused’s story has to be reasonably possibly true. In this case the accused’s story of having gone to the lavatory and coming back after the deceased had been struck is not only unbelievable but false. A lot of questions come in given the eye witness’ evidence inclusive of Timothy Mutore accused’s friend. What further exposes the accused’s version is that he could not have guessed his mother was lying unconscious indoors if the injury had been caused during his absence.</p> <p>The accused is facing a charge of murder which requires both the <em>actus reas </em>and <em>mens rea</em> to be proved beyond reasonable doubt. A reading of s 47 (1) of the Criminal Law (Codification and Reform) Act defines murder with actual intention and murder with constructive intention. It is apparent when there is no clear evidence of one setting out with an aim to kill and proceeding to kill, then the second stage of murder with constructive intention has to be considered. This is murder emanating from the realisation or possibility of risk of death but despite the realisation proceed with conduct resulting in death.</p> <p>The  law is  clear that where there is no actual intention legal intention can be inferred from the circumstances of the matter, with factors such as  the nature of  blow, weapon used and the body parts to which the blow is directed among others falling into consideration. Where the state has discharged the required onus of proof then the accused ought to be convicted. The reverse is true that where the state has failed to prove the guilt of the accused beyond reasonable doubt then the accused ought to be acquitted. In this case therefore upon considering the totality of the evidence adduced the issue to be determined is whether or not the accused unlawfully and intentionally killed the deceased.   </p> <p>It is clear from the circumstances of the matter there was no plan by accused to kill the deceased which the accused executed. He may from the evidence escape liability for murder with actual intention but certainly going by the nature of weapon used a stone weighing 2, 080 kg aimed at the head one cannot fail to realise the risk of death occurring. The accused and deceased had both partaken the traditional beer but there is no evidence placed before the court to show that the accused did not know what he was doing. In any event if he was intoxicated voluntary intoxication is not a defence. See <em>S v Musina </em>2010 (2) ZLR 498 and also s 221 of the Criminal Code. In this case events shortly before striking and after striking do not show that the accused was not capable of having foresight that by striking his mother with a big stone in the head there was real risk and possibility of death occurring. Despite such realisation the accused proceeded with his conduct and struck the deceased on the head resulting in the fatal injuries.</p> <p>The accused is accordingly found guilty of murder with constructive intention as defined in s 47 1 (b) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>].</p> <p> </p> <p><strong>Sentence </strong></p> <p>            In our endeavour to reach at an appropriate sentence we have considered all mitigatory and aggravatory factors submitted by Ms <em>Maroko</em> and Mr <em>Musarurwa</em> respectively. You are a first offender who has been awaiting the finalisation of the matter since 9 March 2018 when the offence was committed. Although you were out of custody for the longer part of the waiting period the court will take note of the trauma and anxiety that goes with that difficult period of suspense. You are a family man with a dependant juvenile child. You had partaken of alcohol on the day in question. That is all that can be said in mitigation.</p> <p>            You however stand convicted of a serious murder charge emanating from domestic violence. The state counsel has correctly pointed out the societal expectations of children having a duty to exercise self-restraint and respect parents. In this case life was needlessly lost. You struck your own mother on the head with a stone weighing more than 2kgs. You exhibited a high degree of cruelity and lack of respect for human life. From the time of commission of the offence you were devious as evidenced by desire to have the matter resolved at home and not reported to police as you stopped the member of the neighbourhood watch from taking you to the police and taking your mother to hospital. What further aggravates the offence is the fact that you do not regret commission of the offence at all. There are no signs of remorse at all. You in your defence and closing submissions admitted to culpable homicide saying it happened when you were intoxicated but in mitigation despite direct questions you did not seem moved at all by the loss of life of your mother at your hands. Further in aggravation is the fact that you have throughout the proceedings been very economical with truth.  The murder was callous and savage. Society abhors the use of violence and courts have to weigh in and pass appropriate sentences in order to deter likeminded people. The inhuman treatment you subjected the deceased to has to be visited with an appropriate sentence.</p> <p>            The offence you stand convicted of is deserving of a custodial sentence. People like you who are not perturbed by loss of life have to be removed from circulation for you pose danger to society.  </p> <p>            You are sentenced as follows:</p> <p>            20 years imprisonment.</p> <p> </p> <p><em>National Prosecuting Authority</em>, state’s legal practitioners</p> <p><em>Mugadza, Chinzamba &amp; Partners</em>, accused’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2019/03/2020-zwmsvhc-03.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=39131">2020-zwmsvhc-03.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2019/03/2020-zwmsvhc-03.pdf" type="application/pdf; length=133708">2020-zwmsvhc-03.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/matters-which-court-may-take-account-sentence">Matters which court may take into account (Sentence)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Sun, 05 Jul 2020 19:46:29 +0000 takudzwa 9746 at https://old.zimlii.org S v Ndebele (HB 18-20, HCAR 2533/19 XREF CRB PT 891/19) [2020] ZWHB 18 (22 January 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/18 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>THE STATE</strong></p> <p><strong>Versus </strong></p> <p><strong>JATHO NDEBELE</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 22 JANUARY 2020</p> <p><strong>Criminal Review</strong></p> <p>            <strong>MAKONESE J:</strong>        This matter has been forwarded by the scrutinizing Regional Magistrate.</p> <p>The accused in this matter appeared before a Provincial Magistrate at Plumtree facing charges of stock theft as defined in section 114 of the Criminal Law (Codification &amp; Reform) Act (Chapter 9:23) .  The accused stole four donkeys valued at $2 800.  The accused sold the donkeys and nothing was recovered.  The accused pleaded guilty and was convicted and sentenced on his own plea of guilty.  Accused was sentenced to 12 months imprisonment of which 3 months was suspended for 5 years on the usual conditions of future good conduct.  A further 4 months was suspended on condition of restitution.  The remaining 5 months was suspended on condition the accused performed 175 hours community service.</p> <p>Nothing turns on the conviction in this matter.  The Regional Magistrate requested the trial magistrate to justify the sentence which he viewed as lenient considering the following facts:</p> <ol> <li>Stock theft is inherently a serious offence.</li> <li>The number of donkeys stolen is high.</li> <li>The accused stole from a relative thus breaching his trust.</li> <li>A non-custodial sentence was wholly inappropriate.</li> </ol> <p>In her response to the query by the Regional Magistrate the trial magistrate responded as follows:</p> <p>“<em>The reason why I deemed a custodial sentence inappropriate is because accused person is a first offender.  The general sentencing trend is that first offenders should be kept out of prison where possible.  That was mentioned in State v Chitenda HH 215-89, Matwana v State SC 20/ … (sic), MUNYAMWA HB 14/87.  He tendered a plea of guilty plus he shows remorse.  The complainant mitigated on his behalf.  So whilst I do appreciate the aggravating factors. It is a breach which the complainant has forgiven stating that he wants to keep family relations intact.  Accused is also willing to restitute the complainant.  In addition to which he is of ill health.  These were part of the factors considered in conclusion that imprisonment should be spared.  The complainant actually said that he did not want accused to be arrested.  So it will be terrible for him to be imprisoned.  Thus I have noticed that accused is remorseful.  He appears to have learnt a lesson.  These are my reasons why I arrived at my sentence.  I stand guided</em>.”</p> <p>In his response to these remarks the Regional Magistrate had this to say, <em>inter alia</em>:</p> <p><em>“… In my view, even if the learned trial magistrate had opted for a non-custodial sentence, which is within her discretion, still the gross sentence should reflect the big number of donkeys which were stolen coupled with the nature of tthe offence.  I think that a gross sentence of 12 months imprisonment underestimates the nature of the offence and the number of donkeys stolen.  Whether she opted to suspend a portion on restitution and the remaining portion on community service or any other condition to remain with a non-custodial sentence, the total gross term of imprisonment should reflect what I have said above.  See;  State v Lovemore Ncube HB 111.2008.”</em></p> <p>Theft of stock is without doubt always considered a serious offence.  The accused person stole 4 donkeys and sold them.  He naturally benefited from the commission of the offence.  Theft of a large number of donkeys should necessarily attract a custodial sentence.  Donkeys provide draught power in communal areas.  When a person decides to steal a donkey he robs the complainant of his means of survival.  The seriousness of the offence should be reflected in the imposition of custodial sentences for theft of stock especially when   more  than two donkeys are involved.  Whilst I concede that the trial magistrate was persuaded by the mitigating factors advanced by the accused, the danger is that a wrong precedent will be set and the offence of theft of donkeys will be trivialised.  To ensure that there is uniformity in sentencing in similar offences, involving theft of donkeys, I would hazard to say that where one donkey is stolen and weighty mitigating factors are placed before the court, a sentence of community service may be appropriate.  Where two or more donkeys are stolen, my view is that a custodial sentence is called for.</p> <p>In <em>State</em> v <em>Lovemore Ncube</em> HB 11.08, the accused stole three donkeys valued at Z$150 000 (old currency).  Nothing was recovered.  The accused pleaded guilty and was sentenced to 15 years imprisonment.  This court set aside the sentence and substituted it with an effective sentence of 3 years imprisonment.</p> <p>In all the circumstances of this case, inspite of the attitude of the complainant, who did not want to see the accused sentenced to a custodial term, the court was enjoined to hand down an appropriate sentence.  In my view a sentence of 2 years imprisonment would have met the justice of the case.</p> <p> </p> <p>I would, accordingly decline to confirm the proceedings as being in accordance with real and substantial justice, and withhold my certificate.</p> <p> </p> <p>                                           Takuva J…………………………………. agrees</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/18/2020-zwhb-18.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19011">2020-zwhb-18.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/18/2020-zwhb-18.pdf" type="application/pdf; length=573237">2020-zwhb-18.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/theft">Theft</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/imprisonment-sentence">Imprisonment (Sentence)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/r">R</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review-0">REVIEW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-see-criminal-procedure-review">Criminal matter See CRIMINAL PROCEDURE (Review)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Tue, 30 Jun 2020 12:09:39 +0000 Sandra 9742 at https://old.zimlii.org S v Tshuma (HB 11-20, HCAR 71/20 Ref CRB GKP 2031/10) [2020] ZWBHC 11 (13 February 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/11 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>THE STATE</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>GILBERT TSHUMA</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>KABASA J</p> <p>BULAWAYO 13 FEBRUARY 2020</p> <p> </p> <p><strong>Review Judgment</strong></p> <p>            <strong>KABASA J:   </strong>The accused pleaded guilty to contravening section 140 of the Criminal Law (Codification and Reform) Act Chapter 9:23.</p> <p>            The brief facts are that accused was assaulting his ex-wife and the complainant tried to restrain him. This angered the accused who went on to burn the complainant’s 3 huts destroying property worth RTGS39 400.  He pleaded guilty and is a first offender.</p> <p>            Accused was sentenced to 7 years imprisonment of which 1 year was suspended on condition of good behaviour and a further 3 years on condition he pays restitution.</p> <p>            The learned Provincial Magistrate correctly observed in his reasons for sentence that a fine or community service would trivialize “this reprehensible offence.”</p> <p>In <em>S</em> v <em>Machingura </em>SC-233-88 the Supreme Court stated that arson is not uncommon in rural areas and should be seriously regarded when it involves burning of huts at night.</p> <p>This offence occurred around 1800 hours and whilst one may not describe this as “night time”, that does not detract from the seriousness of the offence.</p> <p>However given that the learned Provincial Magistrate ordered restitution, the sentence of 7 years is manifestly excessive.</p> <p>In <em>S</em> v <em>Mpofu</em> 1985 (1) ZLR 235 at 293 the court had this to say:-</p> <p>“It is, in my view, desirable for the courts to encourage any person convicted of having committed an offence against property, such as theft or arson, to restitute to the victim of the crime the value of the property in question.  Such an approach is consistent with the greater emphasis which is increasingly being placed on reconciliation, restitution and rehabilitation as a means of crime prevention and remedial control.”</p> <p>The penalty of 7 years is mostly retributive and lost the reconciliation, restitution and rehabilitation aspects.</p> <p>Granted the learned Provincial Magistrate considered that the offence of setting huts on fire was prevalent in that area. That notwithstanding, the court should not permit the aspect of prevalence to shackle its discretion to impose an appropriate and constructive penalty. (<em>R</em> v <em>Makaza</em> 1969 (1) RLR 100; <em>S</em> v <em>Sibanda</em> HCH-87-86)</p> <p>Restitution is a factor which palliates the sentence (<em>S</em> v <em>Zindoga</em> HC-H-124-88) and this ought to be reflected in the overall sentence imposed where restitution has been ordered.</p> <p>The court suspended a total of 4 years, leaving the accused with 3 years imprisonment to serve.  It is not so much the effective term of imprisonment that one looks at to determine whether the sentence is not excessive, but the sentence as a whole.  The question therefore is whether considering all the mitigatory factors weighed against the aggravating ones, 7 years imprisonment is not unduly harsh?</p> <p>In <em>S</em> v <em>Tsibo Ndlovu</em> HC-B-46-96 MALABA J (as he then was) said;</p> <p>“It is also well to remember that too harsh a sentence is as ineffective and unjust as is a sentence that is too lenient.  In arriving at a just and fair sentence the court should never assume a vengeful attitude.”</p> <p>            The accused’s actions were reprehensible but in sentencing him there is need to approach sentence in a rational manner for it to make sense to him as the offender and to society at large.</p> <p>            Given the value of the property damaged, the plea of guilty, the accused’s age and the parties’ relationship, a sentence of 4 years with part suspended on condition of good behaviour and restitution will fit both the offence and the offender.</p> <p>            The sentence of 7 years imprisonment is accordingly set aside and substituted with the following:</p> <p>“The accused is sentenced to 4 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition accused does not within that period commit any offence involving malicious damage to property for which if convicted, he is sentenced to imprisonment without the option of a fine.</p> <p>A further 1 year imprisonment is suspended on condition accused restitutes Mandla Cheni in the sum of RTGS39 400 to be paid through the Clerk of Court, Gokwe by 30 January 2020.”</p> <p>The accused will therefore serve an effective 2 years imprisonment.</p> <p>The trial magistrate is directed to recall the accused person and explain the sentence that has been substituted by this court.</p> <p> </p> <p> </p> <p>                                    Makonese J ………………………………………. I agree</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/11/2020-zwbhc-11.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=17749">2020-zwbhc-11.docx</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/malicious-injury-property">Malicious injury to property</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review-criminal-procedure">Review (CRIMINAL PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/alteration-sentence">Alteration of sentence</a></li></ul></span> Tue, 30 Jun 2020 09:14:07 +0000 Sandra 9735 at https://old.zimlii.org S v Shoko & Anor (HH 409-20, CRB, CHG 1450-51/19) [2020] ZWHHC 409 (15 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/409 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p>  </p> <p>  </p> <p>THE STATE</p> <p>versus</p> <p> KUDAKWASHE JOE SHOKO</p> <p>and</p> <p>CAIN PEMBEDZA</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSAKWA J</p> <p>HARARE, 15 June 2020</p> <p> </p> <p><strong>Criminal Review</strong></p> <p> </p> <p>MUSAKWA J: The record of proceedings was submitted by the scrutinizing magistrate who drew attention to some procedural irregularities in the manner in which trial was conducted, how the condition of suspension of sentence was formulated and the inadequacy of the sentence that was imposed.</p> <p>Having convicted the accused persons of robbery, each was sentenced to 9 months’ imprisonment of which 3 months were suspended on condition of good behavior. A further 3 months were suspended on condition of restituting $80 by 15 December 2019.</p> <p>Section 358 of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] provides for powers of court as to suspension and postponement of sentences. The relevant provisions for purposes of the present matter provide that-</p> <p>            “(1) In this section—</p> <p>            “postponement” means the postponement of the passing of sentence under paragraph (<em>a</em>) of             subsection (2) and includes any further postponement granted in terms of paragraph (<em>a</em>) of   subsection (7);</p> <p>            “suspension” means the suspension of the operation of the whole or part of a sentence under             paragraph (<em>b</em>) of subsection (2) or of a warrant under paragraph (<em>c</em>) of that subsection, and   includes any further such suspension granted in terms of paragraph (<em>a</em>) of subsection (7).</p> <p>            (2) When a person is convicted by any court of any offence other than an offence specified in        the Eighth</p> <p>            Schedule, it may—</p> <p>            (<em>a</em>) postpone for a period not exceeding five years the passing of sentence and release the    offender on such conditions as the court may specify in the order; or</p> <p><strong>            (<em>b</em>) pass sentence, but order the operation of the whole or any part of the sentence to be suspended for a period not exceeding five years on such conditions as the court may specify in the order; or</strong></p> <p>            (<em>c</em>) pass sentence of a fine or, in default of payment, imprisonment, but suspend the issue of a             warrant for committing the offender to prison in default of payment until the expiry of such             period, not exceeding twelve months, as the court may fix for payment, in instalments or     otherwise, of the amount of the fine, or until default has been made by the offender in payment    of the fine or any such instalment, the amounts of any instalments and the dates of payment             thereof being fixed by order of the court, and the court may in respect of the suspension of the   issue of the warrant impose such conditions as it may think necessary or advisable in the          interests of justice; or</p> <p>            (<em>d</em>) discharge the offender with a caution or reprimand.</p> <p>            (3) Conditions specified in terms of paragraph (<em>a</em>) or (<em>b</em>) of subsection (1) may relate to any one      or more of the following matters—</p> <p><strong>            (<em>a</em>) good conduct;</strong></p> <p>            (<em>b</em>) compensation for damage or pecuniary loss caused by the offence:</p> <p>            Provided that no such condition shall require compensation to be paid in respect of damage or         loss that is the subject of an award of compensation in terms of Part XIX;</p> <p>            (<em>c</em>) the rendering of some specified benefit or service to any person injured or aggrieved by the             offence:</p> <p>            Provided that no such condition shall be specified unless the person injured or aggrieved by the             offence has consented thereto;</p> <p>            (<em>d</em>) the rendering of service for the benefit of the community or a section thereof;</p> <p>            (<em>e</em>) submission to instruction or treatment;</p> <p>            (<em>f</em>) submission to the supervision or control of a probation officer appointed in terms of the Children’s Act [<em>Chapter 5:06</em>] or regulations made under section <em>three hundred and eighty-      nine</em>, or submission to the supervision and control of any other suitable person;</p> <p>            (<em>g</em>) compulsory attendance or residence at some specified centre for a specified purpose;</p> <p>            (<em>h</em>) any other matter which the court considers it necessary or desirable to specify having regard       to the interests of the offender or of any other person or of the public generally.”</p> <p> </p> <p>Whilst good conduct is one of the conditions for which a court may suspend a sentence, the practice has always been to specify the conduct. It is a well-established principle of sentencing that a condition of suspension must be capable of fulfilment. In the present matter it is too wide a condition to simply suspend a sentence on condition of good behaviour that is not specified. With such a widely stated condition, it means that any crime that the accused persons subsequently commit would attract the imposition of the suspended sentence.</p> <p>A more serious blunder occurred in the manner in which the proceedings were conducted. On 11th October 2019 both accused persons pleaded guilty to the charge. When the facts were read the first accused stated that he did not take some of the items stated in the charge. The matter was stood down to enable the prosecutor to interview the complainant. Proceedings resumed and the court put questions to the accused whereupon the first accused stated that he took airtime worth $62. Upon enquiry by the court the prosecutor submitted that he was accepting the limited plea. Following further canvassing of essential elements the first accused was found guilty. When it came to the second accused, he denied taking the complainant’s money. The matter was postponed to 15th October 2019 for trial.</p> <p>There is no record of what transpired on 15th October 2019. On 25th November 2019, notwithstanding that the first accused had already been convicted, the trial court enquired whether he was still denying the charge. To this the first accused replied in the negative. Without further ado, at the instigation of the prosecutor, Noel Tanana took to the witness stand. The record does not show that the witness was sworn. The witness was informed about the accused admitting taking airtime only and was asked if he would be prejudiced by the accused’s denial of stealing the other items. When the complainant confirmed that he would be prejudiced the court then ordered that the matter proceed to trial.</p> <p>The charge was again put to the accused persons. This is despite that they had previously pleaded to the same charge. The first accused who had pleaded guilty and had been convicted pleaded not guilty. The second accused, who had previously pleaded not guilty again pleaded not guilty. The accused persons outlined their defences. The nature of the outlined defences prompted the trial court to ask the accused persons whether they were admitting the charge. The record does not reflect that the first accused was specifically asked whether he was admitting. A similar question posed by the court reflects that it was directed at the second accused. Having received affirmative answers to the question posed, the trial court then proceeded to convict both accused persons.</p> <p>The manner in which the proceedings were conducted reflects a lack of appreciation of how a criminal trial is conducted. Even though the first accused person pleaded guilty from the onset and was convicted accordingly, the canvassing of essential elements was rather jumbled. Following the entering of pleas the proceedings of 11th October 2019 went as follows (and I reproduce verbatim the manuscript notes):</p> <p>            “Listen to facts-facts read.</p> <p>            Q Have you understood the facts Axd 1</p> <p>            Brown bag marked exh 1, Smasung.. marked exh 2, Hosepipe, 3</p> <p>            Q Anything to add or subtract</p> <p>            1st Axd -I did not take some of the staff on (sic) the charge.</p> <p>            Matter stood down for state to interview comp.</p> <p>            Q Correct that on 7th /10/19 u wr at Pfupajena Stadium at 20;10 hrs</p> <p>            Yes</p> <p>            Q Axd 1 earlier on u sed u tuk the etym worth how much: It was $62</p> <p>            Q State do u accept the limited plea</p> <p>            Yes</p> <p>            Q Axd 2 do u hv anything to add or subtract</p> <p>            Nothing</p> <p>            Q Correct that on 7/10/19 @ 20:10 hrs u wr at Pfupajena Stadium</p> <p>            Yes</p> <p>            Q Admit that you committed an offence of robbery on e day</p> <p>            Yes</p> <p>            Q Admit that u tuk $62-00, wallet &amp; Samsung charger</p> <p>            Yes</p> <p>            Q what did u intend to do w e property</p> <p>            To raise money</p> <p>            Q</p> <p>            Any ryt to do so</p> <p>            No</p> <p>            Any defence</p> <p>            No</p> <p>            I have found u guilty as charged</p> <p>            Axd 2</p> <p>            Q Correct tht u wr at Pfupajena on 7/10/19</p> <p>            Yes</p> <p>            Q Admit u committed an offence of robbery</p> <p>            Yes</p> <p>            Q Admit u tuk the said property</p> <p>            I didn’t take the money</p> <p>            FFP to 15/10/19 @ 8:00 for trial</p> <p>            Noel Tanana warned to appear</p> <p>            Axd to remain in custody.”  </p> <p>Then on 25th November 2019 the following took place-</p> <p>            “Q Are you still denying e charges   Axd 1 No</p> <p>            PPV May Noel Tanana take e witness stand</p> <p>            Q How old are u</p> <p>            32 yrs</p> <p>            Q whr do u reside</p> <p>            Industrial area.</p> <p>            Q Do you know e axxd</p> <p>            Yes</p> <p>            Q Axxd are admitting taking e etym &amp; deny taking e other property. So is there any prejudice           if ey deny</p> <p>            Yes I will be prejudiced coz ey took my property</p> <p>            PP May we proceed to trial</p> <p>            Crt Very well</p> <p>            Q Charge put to axd &amp; ubnderstood</p> <p>            Q How do you plead</p> <p>            A Plea not guilty entered- Axd 1</p> <p>            A Plea o not guilty entered- Axd 2</p> <p>            Facts read to axd &amp; understood</p> <p>            Prov o s 188 &amp; 189 CPEA explained</p> <p>            DEFENCE OUTLINE 1st Axd</p> <p>            I deny coz we found out tht e ety wr 62 recharge cards, a charger, Samsung cell phone, data             cable, black walletthts wat we saw in the wallets.</p> <p>            DEFENCE OUTLINE 2nd Axd</p> <p>            There wr 62 recharge cards, a charger, a brown bad, a wallet with no wallet (sic)</p> <p>            Q So are admitting to e charge 1st</p> <p>            Yes</p> <p>            Q You are also admitting toe charge axd 2</p> <p>            Yes</p> <p>            I therefore found u guilt as pleaded</p> <p>            1st &amp; 2nd axd we went (sic)</p> <p>            PP May e 2 be treated as 1st offenders.”</p> <p> </p> <p>When an accused person pleads to a charge other than by pleading guilty, that plea should be determined by the court. In this respect s 186 of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] provides that-</p> <p>            “If the accused pleads any plea or pleas other than the plea of guilty or a plea to the jurisdiction       of the court, he is, by such plea without any further form, deemed to have demanded that the         issues raised by such plea or pleas shall be tried by the court.”</p> <p> </p> <p>By virtue of the above provision, it makes no sense that an accused person who has pleaded not guilty can be made to enter another plea, even if that plea is again that of not guilty.</p> <p>Equally, where an accused person pleads guilty, he cannot be asked to plead again without disposal of the guilty plea. A plea of guilty raises no issues unless doubt arises regarding the genuineness of such a plea. Following the first accused’s conviction on the plea of guilty, the trial court should have proceeded to sentence him after recording mitigation. In respect of the first accused, if there had been doubt regarding the genuineness of the initial plea of guilty, the trial court was enjoined to alter that plea to that of not guilty. In this respect s 272 of the Criminal Procedure and Evidence Act provides that-</p> <p> </p> <p>            “If the court, at any stage of the proceedings in terms of section <em>two hundred and seventy-one         </em>and before sentence is passed—</p> <p>            (<em>a</em>) is in doubt whether the accused is in law guilty of the offence to which he has pleaded guilty;     or</p> <p>            (<em>b</em>) is not satisfied that the accused has admitted or correctly admitted all the essential elements        of the offence or all the acts or omissions on which the charge is based; or</p> <p>            (<em>c</em>) is not satisfied that the accused has no valid defence to the charge;</p> <p>            the court shall record a plea of not guilty and require the prosecution to proceed with the trial:</p> <p>            Provided that any element or act or omission correctly admitted by the accused up to the stage         at which the court records a plea of not guilty and which has been recorded in terms of            subsection (3) of section <em>two hundred and seventy-one </em>shall be sufficient proof in any court of           that element or act or omission.”  </p> <p>                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              </p> <p>Even the canvassing of essential elements of the offence was cursory. The canvassing of essential elements in terms of s 272 (2) (b) is not confined to asking the accused whether he agrees with the outlined facts and as happened in the present case, whether the accused admitted to committing robbery. The essential elements of the crime of robbery should have been apparent from the canvassing of the essential elements. Authorities are clear that a court must be careful when canvassing essential elements where a guilty plea is involved; see <em>S </em>v<em> Dube and Another </em>1988 (2) ZLR 385 (S) and <em>S </em>v<em> Sibanda</em> 1989 (2) ZLR 329 (S). The care that was exhorted in the cited authorities is not apparent in the present case.</p> <p>Apart from tripping on procedure regarding plea taking, the trial court further erred on how to conduct a trial. After the accused persons outlined their defences, no evidence was led by the state. The trial court then reverted to eliciting admissions from the accused persons. At that stage when the accused persons indicated that they were admitting the charge, the trial court should have ascertained whether they were altering their pleas. With the accused having confirmed so, the trial court should then have canvassed the essential elements of the crime.</p> <p>It is evident that the proceedings are tainted with gross irregularity. It is unnecessary to consider the adequacy of the sentence that was imposed.</p> <p>Accordingly the conviction and sentence is hereby set aside. I leave it open to the Prosecutor General to institute fresh proceedings before a different magistrate if he is so inclined. In the event that such re-trial takes place and the accused are convicted, the trial court should take into account the sentence that the accused have served.</p> <p> </p> <p>MUZOFA J AGREES:………………………….</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/409/2020-zwhhc-409.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24164">2020-zwhhc-409.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/409/2020-zwhhc-409.pdf" type="application/pdf; length=149697">2020-zwhhc-409.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/robbery">Robbery</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/trial">Trial</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/irregularity-trial">irregularity of trial</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/unrepresented-accused-trial">unrepresented accused in trial</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/suspended-sentence">Suspended sentence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/conditions-suspended-sentence">conditions of suspended sentence</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Mon, 29 Jun 2020 13:16:11 +0000 Sandra 9730 at https://old.zimlii.org