S v Musiya & Ors (CRB N 317 of 2013) [2014] ZWHHC 66 (5 February 2014)

1 HH 66-14 CRB N 317/13 CRB 961/13 CRB 940/13 CRB 912/13 THE STATE versus MUNOAMBAZVE MUSIYA and JOSIAH MUCHONO SITHOLE and LOVEMORE CHIMHUTU and ELIAS SAMBO HIGH COURT OF ZIMBABWE TAGU J HARARE, 6 February 2014 Review Judgment TAGU J: I have decided to deal with the four records at once because the cases where dealt with by the same magistrate and the issues in all the records are the same. All the records were referred for review and guidance by the Regional Magistrate based in the Eastern Division. The records were referred with the following comment- “May the above records be placed before the Honourable Judge for review and guidance. The records were dealt with by the same Magistrate. In all the records I noticed that the Trial Magistrate repeats the same anomaly in sentencing the accused. He suspends the first portion of sentence on conditions of good behaviour. The second portion is suspended on condition the accused clears the outstanding arrears of maintenance. He does not set the period or date upon which the accused should have paid the arrears. Where there is no such period or date, it becomes futile to enforce the sentence. The sentence becomes open to abuse by the accused who has nothing forcing him to comply. I raised the issue with the Trial Magistrate in my scrutiny minute dated 2nd January 2014, the Trial Magistrate appears not to properly comprehend the issues at stake. He does not seem to understand that where he intended the accuse to clear the arrears before leaving Court, he should explicitly state so in his sentence by suffixing in his sentence the term “forthwith” or in any other way to the same effect. I am concerned that the Magistrate is of the rank of a Provincial Magistrate and such basic issues of sentence should not present him with a problem.” HH 66-14 CRB N 317/13 CRB 961/13 CRB 940/13 CRB 912/13 In an earlier response to the same issue raised by the same scrutinizing Regional Magistrate the same trial magistrate had explained as follows – “I did not give time to pay to the accused for I wanted to compel them to pay the arrears in regards the maintenance record involved. The jail term is suspended on condition that they pay, if they do not then they will serve the alternative jail terms. Anyway, I stand guided by the learned Regional court but that was my intention at the time of sentencing.” I will now examine the sentence in each of the four records. In S v Munoambazve Musiya CRB N317/13 the trial magistrate worded the sentence as follows:- “12 months imprisonment of which 6 months imprisonment is suspended for 5 years on condition he does not commit any offence involving contempt of court and C/S.23(1) of the Maintenance Act for which upon conviction will be sentenced to imprisonment without the option of fine. A further 6 months is suspended on condition he clears the arrears of $1 880.00 for M45/09. All the payments to be paid through Clerk of Court, Chipinge.” In S v Josiah Muchono Sithole CRB 961/13 the sentence was as follows:- “12 months imprisonment of which 6 months imprisonment is suspended for 2 years on condition that he is not convicted of an offence in contravention of Section 23(1) of the Maintenance Act and for which upon conviction will be sentenced to imprisonment without the option of a fine. A further 6 months imprisonment is suspended on condition that he clears the arrears in respect of record M311/13 totalling to US$520.00. All payments to be paid through Clerk of Court, Chipinge.” In S v Lovemore Chimhute CRB 940/13 the sentence was:- “90 days imprisonment wholly suspended for 2 years on condition he does not commit any offence during that period involving contravening section 23(1) of the Maintenance Act for which upon conviction accused is sentenced to imprisonment without the option of a fine. In addition he is sentenced to 30 days imprisonment wholly suspended on condition that he clears the maintenance arrears of $130 for the maintenance of case number M331/13. All payments to be paid through clerk of Court or direct into applicant’s bank account. Lastly in the case of S v Elias Sambo CRB 912/13 the sentence was:- HH 66-14 CRB N 317/13 CRB 961/13 CRB 940/13 CRB 912/13 “12 months imprisonment of which 6 months imprisonment is suspended for 3 years on condition that the accused does not commit any offence of contempt of court or contravening of section 23(1) of the Maintenance Act for which upon conviction will be sentenced to a term of imprisonment without the option of a fine. A further 6 months is suspended on condition that he clears the arrears of $ 1 820.00 on case number MM30/11. All payments to be through Clerk of Court, Chipinge or directly into complainant’s bank account.” From the wording of the sentences I quoted above and the trial magistrate’s response to the Regional Magistrate’s issue it is clear the trial magistrate did not state specifically as to when the monies have to be paid. The only interpretation that one can make is that the trial magistrate intended that the money be paid forthwith though he did not specifically use the word “forthwith” as suggested by the Regional Magistrate. In my view it means the accused persons were not supposed to be released by Prison Officials until the money has been paid in full since the sentences were passed in a criminal court. Of course it would be clearer to everyone concerned where the words forthwith are used. But be that as it may it would be wrong for the Prison Officials to release the accused where no time to pay was not given. Equally it would be improper for the clerk of court to fill in a time to pay sheet or register where no such time has been granted. The abuse envisaged by the Regional Magistrate can only occur where the accused is improperly released when there is no specific time to pay granted by the court. By and large I do not see anything wrong with the sentence if the magistrate is of the view that the money has to be paid there and then. As an example an accused may be sentenced to a term of imprisonment which is partially suspended on condition of good behaviour and partially on condition of restitution, or even the whole sentence may be suspended on condition of restitution without the court specifying as to when that restitution has to be paid. If an accused fails to apply for time to pay he/she can still be kept in prison until he/she pays. The implication being that the money or restitution has to be paid before the person can be released. Section 23(2) of the Maintenance Act [Cap 5.09] says “If a person is convicted of the offence referred to in subsection (1), the court may, in addition to any penalty which it may impose, order that all payments in terms of the order, including any payments which are in arrears, shall be made through the clerk of the appropriate maintenance court of the province or district where the convicted person resides.” If the court orders that the arrears be paid by a stated date then the accused has an opportunity to be released and to make payments on or HH 66-14 CRB N 317/13 CRB 961/13 CRB 940/13 CRB 912/13 before that date. If no date is given the arrears have to be paid forthwith before the accused is released. In respect of the cases of MUNOAMBAZVE MUSIYA, JOSIAH MUCHONO SITHOLE and ELIAS SAMBO I do not see any misdirection by the trial magistrate although I agree with the Regional Magistrate’s views that the use of the word “forthwith” will make the sentence clearer to the accused and all other parties. The convictions and sentences in these three cases are therefore proper. I however, have problems with the sentence in respect of the case of LOVEMORE CHIMHUTU. The conviction is proper and it is confirmed. However, the accused seemed to have been sentenced to two custodial sentences. Firstly accused was sentenced to 90 days (3 months) imprisonment which was wholly suspended for 2 years on condition of future good behaviour. Then in addition he was again sentenced to 30 days (1 month) imprisonment which was again wholly suspended on condition he pays arrears of $130 through Clerk of Court or into applicant’s bank account. The proper sentence should have been to sentence the accused to 120 days (4 months) imprisonment. Then suspend 90 days on condition of future good behaviour and the remainder of 30 days on condition of payment of arrears. In my view this sentence is incompetent. It has to be quashed and substituted with an appropriate sentence. Accordingly, it is ordered that: 1) The convictions and sentences in respect of the cases of MUNOAMBAZVE MUSIYA, JOSIAH MUCHONO and ELIAS SAMBO are hereby confirmed as being in accordance with real and substantial justice. 2) The conviction in respect of LOVEMORE CHIMHUTU is hereby confirmed. However, the sentence imposed by the court a quo is quashed and substituted with the following sentence- “120 days imprisonment of which 90 days imprisonment is suspended for 2 years on condition that the accused does not within this period commit an offence involving the contravention of section 23(1) of the Maintenance Act [Cap 5.09] for which on conviction accused is sentenced to imprisonment without the option of fine. The remaining 30 days imprisonment is wholly suspended on condition that the accused pays arrears of $130 for the maintenance case number M331/13 through the clerk of court or direct into applicant’s bank account. HH 66-14 CRB N 317/13 CRB 961/13 CRB 940/13 CRB 912/13 MAWADZE J: agrees………………………………………………………………