TAGU J: I have decided to deal with the
four records at once because the cases where dealt with by the same magistrate
and the issues in all the records are the same. All the records were referred
for review and guidance by the Regional Magistrate based in the Eastern
Division.
The records were referred with the
following comment-
“May the above
records be placed before the Honourable Judge for review and guidance. The
records were dealt with by the same Magistrate. In all the records I noticed
that the Trial Magistrate repeats the same anomaly in sentencing the accused.
He suspends the first portion of sentence
on conditions of good behaviour. The second portion is suspended on condition
the accused clears the outstanding arrears of maintenance. He does not set the
period or date upon which the accused should have paid the arrears. Where there
is no such period or date, it becomes futile to enforce the sentence. The
sentence becomes open to abuse by the accused who has nothing forcing him to
comply. I raised the issue with the Trial Magistrate in my scrutiny minute
dated 2nd January 2014, the Trial Magistrate appears not to properly
comprehend the issues at stake. He does not seem to understand that where he
intended the accuse to clear the arrears before leaving Court, he should
explicitly state so in his sentence by suffixing in his sentence the term
“forthwith” or in any other way to the same effect. I am concerned that the
Magistrate is of the rank of a Provincial Magistrate and such basic issues of
sentence should not present him with a problem.”
In an earlier response to the same issue
raised by the same scrutinizing Regional Magistrate the same trial magistrate
had explained as follows –
“I did not give
time to pay to the accused for I wanted to compel them to pay the arrears in
regards the maintenance record involved. The jail term is suspended on
condition that they pay, if they do not then they will serve the alternative
jail terms.
Anyway, I stand
guided by the learned Regional court but that was my intention at the time of
sentencing.”
I will now examine the sentence in each of
the four records.
In S vMunoambazve Musiya
CRB N317/13 the trial magistrate worded the sentence as follows:-
“12 months
imprisonment of which 6 months imprisonment is suspended for 5 years on
condition he does not commit any offence involving contempt of court and
C/S.23(1) of the Maintenance Act for which upon conviction will be
sentenced to imprisonment without the option of fine. A further 6 months is
suspended on condition he clears the arrears of $1 880.00 for M45/09. All the
payments to be paid through Clerk of Court, Chipinge.”
In S v Josiah Muchono Sithole
CRB 961/13 the sentence was as follows:-
“12 months
imprisonment of which 6 months imprisonment is suspended for 2 years on
condition that he is not convicted of an offence in contravention of Section
23(1) of the Maintenance Act and for which upon conviction will be sentenced to
imprisonment without the option of a fine. A further 6 months imprisonment is
suspended on condition that he clears the arrears in respect of record M311/13
totalling to US$520.00. All payments to be paid through Clerk of Court,
Chipinge.”
In S v Lovemore Chimhute
CRB 940/13 the sentence was:-
“90 days
imprisonment wholly suspended for 2 years on condition he does not commit any
offence during that period involving contravening section 23(1) of the
Maintenance Act for which upon conviction accused is sentenced to imprisonment
without the option of a fine. In addition he is sentenced to 30 days imprisonment
wholly suspended on condition that he clears the maintenance arrears of $130
for the maintenance of case number M331/13. All payments to be paid through
clerk of Court or direct into applicant's bank account.
Lastly in the case of S vElias
Sambo CRB 912/13 the sentence was:-
“12 months imprisonment of which 6 months
imprisonment is suspended for 3 years on condition that the accused does not
commit any offence of contempt of court or contravening of section 23(1) of the
Maintenance Act for which upon conviction will be sentenced to a term of
imprisonment without the option of a fine. A further 6 months is suspended on
condition that he clears the arrears of $ 1 820.00 on case number MM30/11. All
payments to be through Clerk of Court, Chipinge or directly into complainant's
bank account.”
From the wording of the sentences I quoted
above and the trial magistrate's response to the Regional Magistrate's issue it
is clear the trial magistrate did not state specifically as to when the monies
have to be paid. The only interpretation that one can make is that the trial
magistrate intended that the money be paid forthwith though he did not
specifically use the word “forthwith” as suggested by the Regional Magistrate.
In my view it means the accused persons were not supposed to be released by
Prison Officials until the money has been paid in full since the sentences were
passed in a criminal court. Of course it would be clearer to everyone concerned
where the words forthwith are used. But be that as it may it would be wrong for
the Prison Officials to release the accused where no time to pay was not given.
Equally it would be improper for the clerk of court to fill in a time to pay
sheet or register where no such time has been granted. The abuse envisaged by the
Regional Magistrate can only occur where the accused is improperly released
when there is no specific time to pay granted by the court. By and large I do
not see anything wrong with the sentence if the magistrate is of the view that
the money has to be paid there and then.
As an example an accused may be sentenced
to a term of imprisonment which is partially suspended on condition of good
behaviour and partially on condition of restitution, or even the whole sentence
may be suspended on condition of restitution without the court specifying as to
when that restitution has to be paid. If an accused fails to apply for time to
pay he/she can still be kept in prison until he/she pays. The implication being
that the money or restitution has to be paid before the person can be released.
Section 23(2) of the Maintenance Act
[Cap 5.09] says “If a person is convicted of the offence referred to
in subsection (1), the court may, in addition to any penalty which it may
impose, order that all payments in terms of the order, including any payments
which are in arrears, shall be made through the clerk of the appropriate
maintenance court of the province or district where the convicted person
resides.” If the court orders that the arrears be paid by a stated date then
the accused has an opportunity to be released and to make payments on or before
that date. If no date is given the arrears have to be paid forthwith before the
accused is released.
In respect of the cases of MUNOAMBAZVE
MUSIYA, JOSIAH MUCHONO SITHOLE and ELIAS SAMBO I do not see any misdirection by
the trial magistrate although I agree with the Regional Magistrate's views that
the use of the word “forthwith” will make the sentence clearer to the accused
and all other parties. The convictions and sentences in these three cases are
therefore proper.
I however, have problems with the sentence
in respect of the case of LOVEMORE CHIMHUTU. The conviction is proper and it is
confirmed. However, the accused seemed to have been sentenced to two custodial
sentences. Firstly accused was sentenced to 90 days (3 months) imprisonment
which was wholly suspended for 2 years on condition of future good behaviour.
Then in addition he was again sentenced to 30 days (1 month) imprisonment which
was again wholly suspended on condition he pays arrears of $130 through Clerk
of Court or into applicant's bank account. The proper sentence should have been
to sentence the accused to 120 days (4 months) imprisonment. Then suspend 90
days on condition of future good behaviour and the remainder of 30 days on
condition of payment of arrears. In my view this sentence is incompetent. It
has to be quashed and substituted with an appropriate sentence.
Accordingly, it is ordered that:
1) The
convictions and sentences in respect of the cases of MUNOAMBAZVE MUSIYA, JOSIAH
MUCHONO and ELIAS SAMBO are hereby confirmed as being in accordance with real
and substantial justice.
2) The
conviction in respect of LOVEMORE CHIMHUTU is hereby confirmed. However, the
sentence imposed by the court a quo is quashed and substituted with the
following sentence- “120 days imprisonment of which 90 days imprisonment is
suspended for 2 years on condition that the accused does not within this period
commit an offence involving the contravention of section 23(1) of the
Maintenance Act [Cap 5.09] for which on conviction accused is
sentenced to imprisonment without the option of fine. The remaining 30 days
imprisonment is wholly suspended on condition that the accused pays arrears of
$130 for the maintenance case number M331/13 through the clerk of court or
direct into applicant's bank account.
MAWADZE
J: agrees………………………………………………………………
