In
S v Munoambazve 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 ...
In
S v Munoambazve 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= 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=. 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 v Elias 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=
on case number MM30/11. All payments to be through Clerk of Court, Chipinge or
directly into complainant's bank account.”…,.
Section
23(2) of the Maintenance Act [Chapter 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, the 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 the Clerk of Court or into the 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 [Chapter
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 the applicant's bank
account.”
