THE State V Isheunopa Sibanda THE State V Aleck Nkomo THE State V Joseph GIFT Kaira THE State V Peace Brown Zikhali

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HB 05/21
HCAR 2278/20
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1.	THE STATE							BYO P 844/20

Versus

ISHEUNOPA SIBANDA

2.	THE STATE							BYO P 584/20

Versus

ALECK NKOMO

3.	THE STATE							BYO 824/20

Versus

JOSEPH GIFT KAIRA

4.	THE STATE							BYO P 823/20

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PEACE BROWN ZIKHALI

HIGH COURT OF ZIMBABWE

DUBE-BANDA J

HARARE, 14 JANUARY 2021

Criminal Review

DUBE-BANDA J: 	These four matters were dealt with in separate trials by the same Bulawayo magistrate.  The matters raise a similar issue, as will appear below. These four accused persons, in different records were convicted and sentenced by a Bulawayo magistrate for various crimes. In respect of Isheunopa Sibanda, the allegations were that: on the 15 March 2020, at Broadwell Farm, in Umguza-, the accused unlawfully hunted an Eland in contravention of section 59(1) (a) of the Parks and Wildlife Act [Chapter 20:14], and he was sentenced to a fine of $2000, in default of payment, 3 months’ imprisonment. In addition, 3 months imprisonment was suspended on the usual conditions. An award of USD900 was awarded to the National Parks. In respect of Aleck Nkomo, the allegations were that during the period stretching from January 2020, up to February 2020, at number 11 Browning Road, Malindela, Bulawayo, accused stole a Samsung Galaxy Tab 4 cellphone, he was sentenced to 12 months imprisonment, of which 4 months was suspended on the usual conditions, and the remaining 8 months suspended on condition accused completed 280 hours of community service. In respect of Gift Joseph Kaira, the allegations are that on the 24 February 2020, in contravention of section 131(1) of the Criminal Law (Codification and Reform) Act, Chapter 9:23, as read with section 131(2)(e) of the same Act, the accused without permission and authority, entered the premises of the complainant, and stole some items of property. He was sentenced to 12 months of which 4 months was suspended for 5 years on condition he restitutes the complainant in the sum of $19800. Effective 8 months imprisonment. In respect of Peace Brian Zikhali, it is alleged that in contravention of section 113 of the Criminal Law (Codification and Reform) Act, Chapter 9:23, he stole a Samsung Galaxy S7, the property of the complainant. He was sentenced to 12 months imprisonment of which 2 months was suspended for 5 years on the usual conditions, and the remaining 10 months suspended on conditions of community service.

On the 26 November 2020, a Provincial Magistrate based at Bulawayo addressed a memorandum to the Registrar of the High Court, in the following terms:

The Deputy Registrar

High Court of Zimbabwe

BULAWAYO

The above cited records were presided over by Mr. C. Chiruma who resigned from service.

Unfortunately the records have no reasons for sentence.

May they be placed before the Honourable Judge for review.

S. MJANJA

FOR: PROVINCIAL MAGISTRATE

BULAWAYO

The letter was received by the Registrar on the 11 December 2020. The letter and the records were placed before me for review. All the accused persons pleaded guilty, and were duly convicted.  Nothing turns on the convictions.

The presiding magistrate did not furnish reasons for the sentences he imposed on the accused persons. It is elementary practice that an accused person is entitled to reasons for sentence.  The giving of reasons in support of the sentence imposed on the accused, occupy a pivotal space in sentencing. They must be informative and provide a window into the basis and rationality of the sentence.  They explain why a particular sentence was meted out to an accused person. They assist the accused to understand the issues the trial court factored into the equation in considering sentence. Reasons offer a justification for the sentence meted out to the accused. It is only fair to inform an accused person of the reasons why a particular sentence was imposed on him. They give an accused something to work with, for example in considering whether to appeal the sentence.  A sentence without reasons is arbitrary and capricious, which is inconsistent with notion of a fair trial. I hold the view that a failure to provide reasons for sentence is an irregularity and abdication of duty.

In general, I would have set-aside the sentences and remitted the matters to the trial court, for passing of sentence in terms  of section 334(7) of the Criminal Procedure and Evidence Act [Chapter 7:09]. See: Manga HH-122-06. However, on the facts of these matters, such a course of action would not serve a practical useful purpose.  I say so because of the following: Isheunopa Sibanda was sentenced on the 28 March 2020; Aleck Nkomo on the 18 March 2020; Joseph Gift Kaira on the 19 March 2020; Peace Brown Zikhali on the 20 March 2020; it is approximately ten months after the accused persons were sentenced. These accused persons have long served their sentences and consider the matters closed. To re-open the cases might be prejudicial to the accused persons, as such would entail them being re-called, stand in the dock again, not a pleasant experience for many. Again, I take the view that, apart from the regrettable failure to provide the reasons for sentence, the sentence themselves appear competent. It is for these reasons that I do not intend to set-aside the sentences.

In conclusion, I am not suggesting that a sentence without reasons would be allowed to stand, this case must be seen as an exception, not representing the general rule. In the result, notwithstanding the irregularity, no substantial miscarriage of justice has actually occurred. As a result of the irregularity, I am unable to confirm the proceedings in these four matters as being in accordance with true and substantial justice.  I accordingly withhold my certificate.