THE State V Tinashe Kasaira

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THE STATE
versus
TINASHE KASAIRA



HIGH COURT OF ZIMBABWE
MUSAKWA AND MAWADZE JJ
HARARE, 12 MARCH 2012



Criminal Review


       MUSAKWA J: The record of proceedings was addressed to the Registrar by the
scrutinizing regional magistrate with the following comments-
       “The trial Magistrate erred by bringing into effect 7 months imprisonment instead of 2
       months imprisonment.

       May the sentence be altered so that it reads “in addition, 2 months imprisonment
       suspended on 1 March 2010 is hereby brought into effect. Total sentence is 14 months
       imprisonment.”

       The brief background is that accused pleaded guilty to two counts of contravening s 113
(1)(a)(b) of the Criminal Law (Codification and Reform) Act [Cap 9:23]. The correct citation
should be contravening s 113 (1). Paragraphs (a) and (b) relate to the elements of theft and one
cannot really cite them as the provision that was violated.
       In mitigation it was proved that accused had a previous criminal record for theft for
which he was sentenced to 7 months imprisonment of which 2 months imprisonment was
suspended for 3 years on “the usual conditions.” The remaining 5 months imprisonment was
suspended on condition accused completed 175 hours of community service.
       Two issues arise for consideration. The first such is the delay in submitting the record of
proceedings for review, considering the matter was tried at Mbare Magistrates Court. Accused
was sentenced on 18 November 2011. The scrutinizing magistrate addressed his query to the trial
magistrate on 11 January 2012. The response by the trial magistrate is dated 6 February 2012
whilst the minute to the Registrar is dated 15 February 2012. Delays in submitting records for
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scrutiny or review must always be explained. In this case the registers at the respective courts
should reflect where the delay occurred.
       The other issue relates to the suspended sentence. It did not occur to the scrutinizing
magistrate to query the bringing into effect of a sentence that was suspended on the “usual
conditions.” The relevant provision is s 358 (2) of the Criminal Procedure and Evidence Act
[Cap 9:07] which states that-
       “(2)   When a person is convicted by any court of any offence other than an offence
              specified in the Eighth Schedule, it may—

              (a)     postpone for a period not exceeding five years the passing of sentence and
                      release the offender on such conditions as the court may specify in the
                      order; or

              (b)     pass sentence, but order the operation of the whole or any part of the
                      sentence to be suspended for a period not exceeding five years on such
                      conditions as the court may specify in the order; or

              (c)     pass sentence of a fine or, in default of payment, imprisonment, but
                      suspend the issue of a warrant for committing the offender to prison in
                      default of payment until the expiry of such period, not exceeding
                      twelve months, as the court may fix for payment, in instalments or
                      otherwise, of the amount of the fine, or until default has been made by the
                      offender in payment of the fine or any such instalment, the amounts of any
                      instalments and the dates of payment thereof being fixed by order of the
                      court, and the court may in respect of the suspension of the issue of the
                      warrant impose such conditions as it may think necessary or advisable in
                      the interests of justice; or

              (d)      discharge the offender with a caution or reprimand.”
       It is therefore important that when a court suspends a sentence or a portion thereof it must
specify the conditions for such suspension. In S v Taylor 1971 (2) ZLR 55 the accused was
convicted of assault with intent to do grievous bodily harm. He was sentenced to six months
imprisonment and six cuts. In addition, six months imprisonment was suspended for three years
on condition he was not convicted of any offence involving violence. Upon subsequent
conviction for a statutory offence which consisted of assault in the form of a verbal threat, the
suspended sentence was brought into effect.
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       On review, the court had to consider whether the condition of suspension relating to
violence was void for vagueness. BEADLE C.J. had this to say about a condition of suspension
at 58-59;
       “There are, therefore, two requirements for a valid condition of suspension. One is that
       the condition must be appropriate to the crime……….. The other requirement is that the
       condition should be stated with such precision that the accused person clearly
       understands the ambit of the condition. This, of course, is most important. An accused
       person must know exactly what he must or must not do if he is to avoid having a
       suspended sentence brought into effect…….”

       It may be that the condition of suspension was not properly spelt out and was paraphrased
when the extract relating to the previous conviction was written out by the clerk of court.
However, this does not resolve the issue as the trial court did not seek clarification before it
brought the suspended sentence into effect. Therefore, the sentence cannot stand.
       In the result, the sentence imposed by the trial court is set aside and in its place is
substituted the following;
       “Twelve months imprisonment.”




MAWADZE J agrees…………. …………….