THE State V Mkhanyiso Sibanda

### Preamble
1
HB 119/25
HCBCR 3224/25
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THE STATE

versus

MKHANYISO SIBANDA

HIGH COURT OF ZIMBABWE

MUTEVEDZI AND NDUNA JJ

BULAWAYO, 16 JULY 2025

Criminal review judgment

MUTEVEDZI J: That the Magistrates’ Court is a creature of statute is a lesson that has been so repeated that every person engaged with the criminal law in one way or another in Zimbabwe knows it by heart. Yet that supposition appears illusory because some judicial officers presiding over such courts seem heedless of that reality.

The proceedings in this case were placed before me accompanied by a letter from a scrutinizing regional magistrate in terms of in terms of section 58 (3)(b) of the Magistrates Court Act [Chapter 7:10] (“the MCA”). The offender was convicted of the crime of ‘Physical Abuse’ in contravention of s 4(1)(a) as read with section 3 (1)(a) of the Domestic Violence Act [Chapter 5:16] (the DVA), and sentenced as follows:

“(a) 6 months imprisonment of which 4 months imprisonment is suspended for 5 years on condition offender does not within that period commit an offence for which violence on the 'person of another is an element, for which upon conviction he is sentenced to imprisonment without the option of a fine. Effective: 2 months imprisonment.

(b) In addition, the offender is mandated to go for counselling and educational programs focused on anger management and domestic violence awareness.”

In her letter the regional magistrate said whilst she was satisfied with the propriety of the conviction and the first part of the sentence, she had been taken aback by the order in paragraph (b) of the trial magistrate’s sentence. That had forced her, on 10 June 2025, to write a query to the trial magistrate couched as follows:

“Is the second part of the sentence provided for in the Domestic Violence Act or any other enactment to do with domestic violence? If so, how is it going to be executed seeing the offender is serving an effective prison term?”

With admirable efficiency, the trial magistrate had on the same day responded to the query and stated as follows:

“The trial magistrate acknowledges that the second part of the sentence is not provided for in the Domestic Violence Act. Furthermore, the magistrate recognizes that this oversight was a mistake on her part and will ensure that measures will be taken to prevent such errors in the future.”

As pointed out earlier, it has repeatedly been stated that unlike the High Court which has power to do anything except that which the law specifically prohibits it from doing, the Magistrates’ Court cannot do anything except that which the law says it can do. That statement in relation to the Magistrates’ Court simply means that it can only exercise its powers and jurisdiction within the confines of the laws which establish that court or in some other enactment. See the case of S v Ncube HB 6/2024 A magistrate must therefore know that if it is not provided for in a statue that he/she can exercise some power or pass a particular sentence, then it is impossible to do so. A magistrate cannot arrogate himself/herself power to impose a sentence which is outside those provided for by the Criminal Procedure and Evidence Act [Chapter 9:0] (the CPEA); the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the CODE) or other kindred statutes which create offences.

Section 4(1) of the DVA under which the offender was charged provides as follows:

“(1) Subject to subsection (2), any person who commits an act of domestic violence within the meaning of this section shall be guilty of an offence and liable to a fine not exceeding level fourteen or imprisonment for a period not exceeding ten years or to both such fine and such imprisonment.”

Clearly, in s 4(1), there is no room for a court to order that an offender must undergo counseling and anger management sessions. In fact domestic violence counsellors have no role to play in terms of that provision. The only time that domestic violence counselling features in the DVA is in Part IV which provides for Anti - Domestic Violence Counsellors and the Anti - Domestic Violence Council. Subsection (1) thereof provides for the appointment of Anti - Domestic Counsellors whilst subsection (2) defines their functions. An examination of that section demonstrates that the ‘complainant’ and ‘respondent’ it refers to are not synonymous with a complainant and accused in a criminal case. The words complainant and respondent in s 15 are used to describe parties in the civil sense of the DVA. The counselling of an offender or of a complainant in a criminal case cannot be ordered as part of the offender’s punishment.

The absurdity that any interpretation other than the above may occasion was aptly summed up by the regional magistrate in her query. It is impossible for the offender to fulfil the court’s order. He was imprisoned for an effective 2 months. The unavoidable conclusion is that the trial magistrate overstepped his/her mandate and imposed an order that is not only onerous on a person in detention but is clearly not provided for as part of a convicted person’s punishment. The order is therefore an illegality and cannot be allowed to stand.

In addition, the sentence of imprisonment itself, is cause for concern. The circumstances which led to the offender’s imprisonment are that he is husband to the complainant.  On the 14 March 2025, he approached the complainant and requested R200 to buy fuel. The complainant said she did not have such money. The offender wasn’t amused. An argument ensued during which the offender lifted a tin with hot water intending to splash it on the complainant’s face. Sensing danger, the complainant held the tin before the water was thrown at her. Her hands instead of the face were burnt in the melee. She later went to hospital where an examination revealed that she had suffered “superficial partial thickness burns on both upper limb – 6% surface area.”  The injuries were classified as serious but with no potential danger to life or permanent disability. The degree of force used to inflict injuries was deemed to have been moderate. The bolded words are an important consideration when assessing sentence. See CHIGUMBA J’s sentiments in the case of S V Allen Gudyanga HH 167/15. At the offender’s trial, the complainant submitted a victim impact statement. In it, she confessed that she was shocked by the conduct of the accused and had sought help from relatives to meet medical expenses. Crucially, she said she had forgiven the accused because he had been remorseful and had vowed not to repeat the offence. The trial magistrate must have appreciated that this was a case where he/she could sentence the offender to perform community service. Interestingly however, the community service officer after vetting the offender commented that he was not a good candidate for community service because domestic violence cases were on the rise in the area. It was the community service who then recommended that the offender undergoes counselling. The magistrate swallowed those ‘recommendations’ hook, line and sinker because he/she repeated them in his/her sentencing judgment.

I must point that community service officers do not sentence offenders convicted by the courts. Their opinions remain recommendations to the court. It is erroneous to accept without more, a bald allegation by a community service officer that an offender isn’t suitable to perform community service because the offence he committed is prevalent in the area. Sentencing an offender to effective imprisonment on the basis of the prevalence of a particular crime is a measure that can only be informed by empirical evidence assessed by the court. The record of proceedings in this case is bereft of such numbers or evidence. It vindicates my view that the trial magistrate simply took the opinion of the community service officer as gospel. It clearly is a wrong way of assessing sentence and amounts to a serious misdirection warranting the intervention of this court. The uselessness of an effective sentence of 2 months imprisonment cannot be overemphasized. Further, the trial magistrate lost sight of the major objectives of the DVA. It is not to simply punish offenders and break up families. Rather, it is there to ensure that families live in harmony. The courts must attempt to reconcile the feuding parties in a way that does not cause further disharmony between and amongst them. Only when that is not possible must a court resort to the imprisonment of the offending member of the family. In this case, the victim indicated that she had forgiven the offender and had accepted his contrition as a genuine sign for better things to come.  The court could have punished him in any other way than to effectively incarcerate him.

It is unfortunate in this case that I am forced to intervene at a time the offender is a few days away from completing his prison term if he has not already done so. He was sentenced on 2 June 2025. Given the remissions which come with sentences of imprisonment that it is so, is very likely. That notwithstanding, this is a sentence that is vitiated by the many irregularities I pointed out. I cannot let it stand. In the circumstances I order as follows:

That the conviction of the offender is certified as being in accordance with real and substantial justice

The sentence imposed by the court a quo be and is hereby set aside and in its place is substituted the following:

“The offender is sentenced to 6 months imprisonment which is wholly suspended for 5 years on condition he does not within that period commit an offence involving violence on the person of another for which he is sentenced to imprisonment without the option of a fine.”

In the event that the offender is still in prison, the clerk of the court a quo is directed to immediately issue a warrant for his liberation.

The trial magistrate is directed to recall the offender and explain to him the new sentence.

MUTEVEDZI J…………………….

NDUNA J………………………… Agrees