[Criminal Appeal HB 12-16]

January 4 and February 18, 2016


Criminal procedure  – Sentence  – Community service  – Need for court to demonstrate that it actually considered community service sentence  – Merely paying lip-service to that effect not sufficient.

Failure by a magistrate to inquire into the suitability of community service where he or she settles for effective imprisonment of 24 months or less amounts to a misdirection. Although a sentencing court has discretion in assessing an appropriate sentence and appellate courts do not lightly interfere with that discretion, it is axiomatic that whenever the sentence imposed is vitiated by misdirection an appellate court will not shy away from intervening to correct the misdirection. It is an injudicious exercise of the sentencing discretion for a sentencer to merely parrot words to the effect that community service is inappropriate without more or that it will trivialise the offence and end there. Put differently, it is not enough for a magistrate to simply pay lip-service to the factor of community service.

Cases cited:

S v Antonio & Ors 1998 (2) ZLR 64 (H), referred to

S v Chinzenze & Ors 1998 (1) ZLR 470 (H), referred to

S v Chireyi & Ors 2011 (1) ZLR 254 (H), referred to

S v Chiweshe 1996 (1) ZLR 425 (H), referred to

S v De Jager and Another 1965 (2) SA 616 (A), referred to

S v Mabhena 1996 (1) ZLR 134 (H), applied

S v Mundowa 1998 (2) ZLR 392 (H), referred to

S v Nhumwa SC 40-88 (unreported), referred to

S v Ramushu & Ors SC 25-93 (unreported), referred to

Legislation considered:

Criminal Law (Codification and Reform) Act [Chapter 9:23], s 113

G Nyoni, for the appellant

N Ngwenya, for the respondent


This is an appeal against sentence only following the conviction and sentence of the appellant by the magistrates court sitting at Lupane on three counts of theft in contravention of s 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”). The appellant had initially pleaded not guilty to all the charges but midway through the trial after the State had led evidence from all its witnesses, closed its case and the appellant had testified in defence and closed his case, the appellant underwent some damascene experience. Seeing the light for the first time he changed his plea to that of guilty. Down on his knees he then pleaded for mercy.

The magistrate was not impressed as to him the appellant’s plea for mercy was nothing more than the fulminations of a well and soundly beaten man, who, seeing no escape route ahead decides to capitulate after wasting the court’s energy, time and resources on a trial whose outcome was as predictable as ABC. He came down hard on the appellant, sentencing him to 24 months imprisonment of which eight months imprisonment was suspended for five years on the usual condition of future good behavior. A further two months was suspended on condition of restitution.

This section of the article is only available for our subscribers. Please click here to subscribe to a subscription plan to view this part of the article.

Please click here to login