State v Willard Tumbare and Task Chitau

HH 20-11
                                                                           CRB MRD 416-17/10


STATE
versus
WILLARD TUMBARE
and
TASK CHITAU


HIGH COURT OF ZIMBABWE
KUDYA J
HARARE 19 January 2011


Criminal Review


         KUDYA J: This case is concerned with the proper wording of the sentence of “the
passing of sentence”. The two accused persons jointly committed two counts of unlawful
entry for which they were properly convicted on their pleas of guilty. They were correctly
sentenced on 29 November 2010 to two disparate sentences on account of their different ages.
The second accused, a juvenile aged 17 who was attending school, was found to have acted
under the bad influence of his 30 year old uncle; the first accused.
       The uncle was sentenced to twenty months imprisonment of which five months was
suspended for five years on the traditional grounds of future good conduct. The nephew was
sentenced as follows:

       “Passing of sentence is postponed for five years on condition accused does not within
       that period commit any offence involving unlawful entry and or dishonesty for which if
       convicted he is sentenced to imprisonment without the option of a fine.”

       While the sentences that were imposed were appropriate, the wording of the passing of
sentence on the nephew was wrong. The way it was worded indicated that the trial magistrate
did not understand what postponing the passing of sentence entails and the procedure that is
used to invoke it. It means that the trial court is deferring the imposition of sentence to a time
in the future when the accused is again convicted of an offence of either unlawful entry or
dishonesty. What happens is that the court convicting him of the subsequent offence does not
sentence him but refers him back to the court which postponed the passing of sentence to
impose the sentence it passed. Thereafter he is returned to the subsequent court for sentencing
for the subsequent offence. The invocation of the earlier sentence is therefore not triggered by
the latter sentence. If the trial magistrate had appreciated this he would not have made the
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HH 20-11
CRB MRD 416-17/10

invocation of his sentence dependant on a subsequent sentence of imprisonment without the
option of a fine. The passing of the postponed sentence is dependent on conviction and not on
sentence. Rather, he would have worded the sentence imposed on the nephew along the lines
that were indicated in S v Eigner 1965 RLR 153 at 154D.
       Accordingly, the wording of the sentence of Task Chitau is amended so that it reads
as follows:

       “Passing of sentence is postponed for five years on condition the accused is not
       during this period convicted of any offence of which unlawful entry or dishonesty
       is an element.”

       The trial magistrate is directed to recall the accused to explain the meaning of the
amended sentence to him.




MUTEMA J: agrees .