Judgment No. HB 39/2003
Case No. HC 450-451/2003
CRB ENT 1288/02
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 27 MARCH 2003
CHEDA J: This record was forwarded to me for review together with one
for Artha Gumede – CRB ENT 1287/02. The learned scrutinising Regional
Magistrate decided to send them together as she was of the view that they presented
the same issues. On perusal I find that there are only two issues which arise in this
matter and the only issue which is in common with the other matter being that
whether or not it is appropriate when sentencing an accused to imprisonment to
further state that his imprisonment is to be with labour.
I have decided to separate these two cases and I will deal with them
separately. The brief facts of this matter are that accused who was aged 19 was
charged with theft of $4 000 cash from his friend whom he had paid a visit. He
pleaded guilty to the charge and was duly convicted and sentenced. The sentence is
couched as follows:
“12 months iwl of which 7 months iwl is suspended on condition accused restitutes complainant $4 000 through the clerk of court by 4pm 15/10/02.”
The learned scrutinising Regional Magistrate raised two issues namely the
way the charge was couched and the appropriateness of the sentence.
When asked whether a non-custodial sentence would not have been
appropriate the learned trial magistrate while admitting that it would have been
appropriate went further to state that he was of the view that accused had abused his
friend’s (complainant) hospitality. While this, indeed is a valid point, it can not be a
sole determining factor. There are various other factors which weigh in his favour.
Accused is a youthful first offender, he pleaded guilty to the charge albeit that this
money was not recovered.
The fact that he was not a stranger to the complainant is in my opinion
mitigatory particularly when it is born
IBMBIO COMIBMDOS COMUªhas been stated by these courts on time
without number that the first line of sentence of first offenders for less serious crimes
particularly where a custodial sentence of less than 24 months is to be considered, the
court must as of necessity consider community service. The appropriate authorities
have indeed gone out of their way by holding seminars in an attempt to educate
judicial officers to accept positive changes in our sentencing policies. There is
nothing on the record that shows that the learned trial magistrate ever considered this
approach. Failure to consider it in circumstances where there is a clarion call for one
is in my opinion a misdirection which therefore invites interference by this court as
the sentence is manifestly excessive.
In addition, our courts should as a matter of a practical approach accept that
due to the run-away inflation the amount of $4 000 is nothing but a figure as
compared to its value in real monetary terms.
The other point raised is whether it is necessary to suffix a term of
imprisonment with the words “imprisonment with labour”. This wording
is found in the previous Criminal Procedure and Evidence Act which specifically
provided for imprisonment with labour. However the position has since changed, Part
XVII of the Criminal Procedure and Evidence Act [Chapter 9:07] refers to
imprisonment simpliciter. The prison authorities under the Prisons Act [Chapter
7:11] are empowered to use their discretion as to what type of labour if any, a
convicted prisoner should perform and in what manner it should be performed.
The courts therefore do not have power to determine the day to day performance of
the said punishment. Their mandate ends after pronouncement of the sentence which
orders lodgement in prison. To order the prisoner to perform labour would be an
usurpation of the prerogative bestowed on the prison authorities. In S v Nyambo
1997(2) ZLR 333(H) at 338A-B SMITHJ had this to say:-
“It is not for the magistrate to require that a committed person who is
sentenced to imprisonment must perform labour. It is therefore wrong for a magistrate to sentence a person to imprisonment with labour.”
See also S v Ketinah Chiwai, Juliet Chamborara & Jona Evylene HH-93-02
As pointed out above the sentence of 12 months imprisonment of which 7
months imprisonment is suspended for 5 years is unduly harsh in the circumstances.
Accordingly, the conviction is confirmed but the sentence is set aside and substituted
by the following:
“3 months imprisonment of which 1 month is suspended on condition accused restitutes complainant the sum of $4 000 through the clerk of court by 4pm 15 October 2003.”
Chiweshe J ………………….. I agree