Mavillin Mataruse v The State

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HH 202-13
B 574/13
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MAVILLIN MATARUSE

versus

THE STATE

HIGH COURT OF ZIMBABWE

MUSAKWA J

HARARE, 14, 18, 19 and 25 June 2013

A Makoni, for applicant

J Uladi, for respondent

MUSAKWA J:  The applicant purports to make an application for bail pending appeal. I use the term purport on account of the procedural incongruity of seeking bail for someone who is not in custody.

The applicant was convicted of four counts of theft. She was sentenced as follows:

“36 months imprisonment of which 10 months imprisonment is suspended for 5 years on condition accused does not during that period commit any offence involving dishonesty for which she is sentenced to imprisonment without the option of a fine.

Of the remaining 26 months imprisonment 14 months imprisonment is suspended on condition accused makes restitution to complainant in the sum of $398 960,48 through the clerk of court Harare on or before 30 August 2013.

The remaining 12 months imprisonment is suspended on condition accused completes 420 hours of community service at Admiral Tait School on the following conditions:-

Community service starts on 16 August 2013 and must be completed within 13 weeks of that date.

Community service shall be performed between the hours of 9 a.m. and 1 p.m. and 2 p.m. and 4 p.m. on Mondays to Fridays which are not public holidays and to the satisfaction of the person in charge of that institution whom the court has granted authority to grant the accused leave of absence on a particular day or during certain hours for good cause shown.

Any such leave shall not count as part of community service performed.”

The applicant noted appeal against both conviction and sentence. Having thus noted the appeal the applicant also applied for suspension of the community service order pending determination of the appeal. The application was dismissed by the trial court. Nonetheless the trial court ordered the stay of restitution in respect of four of the counts on which it had acquitted the applicant.

Mr Makoni submitted that he erroneously sought suspension of the community service order before the trial court. He further submitted that in essence the applicant was sentenced to imprisonment which was suspended on the various conditions.

Mr Makoni also submitted that the term imprisonment does not entail that the accused person be detained in custody. In this respect he submitted that the applicant’s liberty has been fettered by the order that she performs community service. Thus the manner in which the community service is performed constitutes a form of imprisonment. Finally, Mr Makoni submitted that since there is no other way the community service order may be stayed, the only appropriate procedure is to seek bail.

On the other hand Mr Uladi submitted that a community service order can be suspended in terms of s 63 (b) (iii) of the Magistrates Court Act [Cap 7:10]. In the event that the court turns down such an application, the aggrieved party may appeal against such a decision or seek a review. He also submitted that bail pending appeal can only be sought by a person who is in custody.

It is trite that at common law the noting of appeal suspends the decision that is being appealed against. However, it is also known that a statute may provide that the noting of appeal does not suspend the sentence appealed against. That applies to s 63 of the Magistrates Court Act which provides that:

“The execution of any sentence of imprisonment, fine or community service shall not be suspended by—

the transmission of or the obligation to transmit the record of the proceedings in the case for review in terms of section fifty-seven or for scrutiny by a regional magistrate in terms of section fifty-eight; or

the noting of an appeal referred to in section sixty; unless

in the case of imprisonment or fine, bail is granted by a judge or magistrate in terms of s 123 of the Criminal Procedure and Evidence Act [Cap 9:07]; or

in the case of community service, an application is granted by the magistrate to suspend the operation of the sentence pending determination of the appeal (Section substituted by s 2 of Act 9/2003).

There is no doubt that the applicant was sentenced to imprisonment. However, the sentence was suspended on various conditions such that the overall effect was that the applicant will not serve an effective prison term unless she breaches the conditions. The various forms of punishment a court may impose are provided in s 336 of the Criminal Procedure and Evidence Act [Cap 9:07]. For purposes of this application we are concerned with imprisonment for a determinate period or community service.

The rendering of service is what is commonly termed community service.

Can one term a community service order imposed as an alternative to imprisonment a prison term? Or put differently, is the term community service restricted to a direct community service order as opposed to community service as an alternative to a fine or imprisonment?

However, in terms of s 358 a court has discretion to suspend a sentence on conditions of good conduct, compensation for loss or damage or the rendering of service to the community or a section thereof. The purpose of community service was put succinctly by CHINHENGO J in S v Mhlanga & Another 2000 (2) ZLR 73, at 74 as follows:

“The basic idea behind an order of community service is that a person who has been convicted of a minor offence is not imprisoned but rather given an opportunity to atone for his offence by doing work beneficial to the community whilst he is not in prison. Imprisonment has several adverse effects on an offender. He may become a hardened criminal by association with other prisoners. He becomes stigmatised and such stigmatisation may affect him psychologically with the result that he may degenerate into criminality-see J. Rowland in Criminal Procedure in Zimbabwe pp 25-28 and S v Antonio & Ors 1998 (2) ZLR 64 (H) AT 67.”

Therefore as much as Mr Makoni submitted that s 63 of the Magistrates Court Act requires no interpretation my understanding of community service as provided in paragraph (ii) is that it may be a direct community service order or community service as an alternative to a fine or as an alternative to imprisonment. I am fortified in my view by the remarks of GARWE J (as he then was) in S v Chinzenze & Ors 1998 (1) ZLR 470 (H), at 475 where he had this to say:

“The Criminal Procedure and Evidence Act [Cap 9:07] now provides for community service in three situations. These may be summarised as follows:

By the suspension of a sentence, whether a fine or imprisonment, on condition that the accused person renders service for the benefit of the community or a section thereof-s 358;

As an alternative to a fine-s 347; and

As a substantive penalty in its own right i.e. a community service order-s 350A.”

It means Mr Makoni had adopted the correct procedure when he sought suspension of the community service order before the trial court. As to the remedy where a court denies to suspend the community service order, that is not the issue before me.

In the result, the application is hereby dismissed.

Makoni Legal Practice, applicant’s legal practitioners

Attorney-General’s Office, respondent’s legal practitioners