HIGH COURT OF ZIMBAWE
MWAYERA & TSANGA JJ
HARARE, 26 February 2015
MWAYERA J: The accused was properly convicted of malicious damage to property as defined in s 140 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. On 17 September 2014 at Mudzingwa Village, Gutu, the accused knowingly burnt a hut and household goods belonging to Ephraim Mudzingwa.
The accused a 16 year old form 4 pupil set the hut on fire after the complainant had forcefully retrieved a cell phone from her. The accused, in fury set the hut on fire destroying property worth $950-00. She pleaded guilty to the charge and regretted the offence.
A probation officer report was compiled and placed before the trial magistrate. Although the probation officer’s report is not binding on the magistrate, the opinion raised therein should be taken into consideration when passing sentence. The report recommended that she be given a rehabilitative sentence which would allow her to complete her education without “upsets”. The report further suggested that she be discharged with a strong reprimand.
The trial magistrate sentenced the accused to 12 months imprisonment of which 10 months imprisonment was suspended on condition the complainant restitutes the complainant by paying $900-00 through the Gutu clerk of court on or before 3 January 2015. The remaining 2 months imprisonment was suspended on the usual conditions of good behaviour.
The regional magistrate correctly queried the logic of sentencing a 16 year old to pay restitution as there was high possibility of her failing to raise the money and then serve the 10 months imprisonment. Furthermore, there was no basis for the trial magistrate to reject the probation officer’s report on the need for the sentence to be rehabilitative. The case of S v Tendai 1998 (2) ZLR 423 is instructive. Restitution cannot be described as rehabilitative in the circumstances. It in fact would cause the kind of angst in a 16 year old which the probation officer was keen to guard against hence the suggestion of a reprimand.
In the circumstances of this case the sentence imposed by the trial magistrate is unduly harsh and it ought to be set aside and substituted as follows:
The accused is cautioned and discharged. The trial magistrate is directed to recall the accused and explain the new sentence.
If the complainant has paid part or all of the money to the clerk of court it should be refunded. In the event that the accused is already in prison serving the alternative sentence a warrant of her liberation is issued.
TSANGA J agrees _____________________