The State v Abel Hungwe

### Preamble
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HB 111/25
HCBCR2642/25
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THE STATE

versus

ABEL HUNGWE

HIGH COURT OF ZIMBABWE

MUTEVEDZI AND CHIVAYO JJ

BULAWAYO, 14JULY 2025

Criminal review judgment

MUTEVEDZI J: Abel Hungwe (the offender) was arraigned before the court of a magistrate at Mvuma on charge of theft as defined in section 113(1)(a)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the CODE”). He had, on the 12 November 2024, stolen various items which belonged to Gloria Karavhina. He pleaded guilty to that charge and was duly convicted. My view is that the conviction was proper. I therefore confirm it as being in accordance with real and substantial justice.

Following the conviction, the offender was sentenced as follows:

“Offender is hereby sentenced to pay a fine of US$105 or ZIG equivalent in default 3 months imprisonment. In addition, offender is to restitute the complainant the sum of $50 on or before 03.05.3025. In default 1-month imprisonment.”

The above proceedings were subsequently placed before a scrutinizing regional magistrate who was concerned with the propriety of the sentence. He sought an explanation from the trial magistrate whether it was competent to impose restitution as a stand-alone sentence. The trial magistrate responded to the query in the following manner:

“I admit that l erred in the phrasing and structure of part of my sentence. I stand guided. The correct and competent phrase should be “In addition, offender is sentenced to 1-month imprisonment suspended on condition that he restitutes the complainant the sum of US$50-00 on or before 30 May 2025.”

After the above exchanges, the regional magistrate forwarded the record of proceedings for review. Clearly, the regional magistrate was right. Even more satisfying is that the trial magistrate accepted their error and appears to know what ought to have been done on the circumstances.

For guidance purposes, I need to restate once more, something that this court has on many previous occasions extensively dealt with.  It has been emphasised that restitution is not a sentence but a condition on which the sentence of imprisonment may be suspended. In the case of S v Jasina & Anor HH850-22, this court dealt with a similar irregularity and cited with approval MAFUSIRE J’s dicta in the case of S v Mtetwa HH374/15.  I can do no better than refer the trial magistrate and other magistrates to the remarks in S v Jasina at p. 2 of the cyclostyled judgment, which were that:

“[Restitution] is a condition which a court can resort to in suspension of sentences. That position is made apparent by the fact that restitution is provided for outside the sections which deal with punishments.  It falls under Part XIX of the code under the heading “compensation and restitution.” That fact emphasizes the reality that restitution is synonymous with compensation. As Mafusire J put it in S v Maxwell Mutetwa HH 374/15, the argument that compensation is not restitution is “a distinction without a difference”. Whilst there are two distinct methods of awarding restitution, what is undoubted is that restitution which ever method a court chooses to use is not a sentence.  The first method is in terms of s 358(2) (b) as read with subsection (3) (b) of the Criminal Procedure & Evidence Act [Chapter 9:07]. It states that a court which has convicted a person of an offence other than an offence specified in the 8th Schedule, may suspend the operation of the whole or portion of the sentence for a period not exceeding five years on condition the accused pays compensation for damage or pecuniary loss caused by the offence. As is clear from that provision, restitution is not a sentence but a condition of suspension of sentence.  It needs no explanation therefore that if it is a condition of suspension of sentence, it cannot be awarded directly like the trial magistrates did in these cases. It must be preceded by the sentence which is suspended.  If follows that if the restitution in these cases was awarded pursuant to s 358(2) (b), the awards are incompetent for want of compliance with that section.”

It needs no emphasis therefore, that it is wrong for a court to impose restitution as a standalone sentence as was done in this case. Restitution cannot be suspended on condition of imprisonment. Instead, it is imprisonment which can be suspended on condition of restitution.  For the above reason, the sentence which was imposed by the trial magistrate cannot be allowed to stand. It is incompetent.

There are also a few other indiscretions which were not observed by the regional magistrate but which the trial magistrate needs to be careful with. They do not vitiate the conviction but make the proceedings hard to follow. The court of a magistrate is a court of record. That phrase simply implies that everything that happens in that court must be documented and the document on which the proceedings are captured is maintained in case one or the other of the parties involved may wish to appeal against the decision arrived at or to seek a review of the same. A haphazardly maintained record of proceedings may easily hamstring litigants from seeking remedies available to them.

In the instant case, the trial magistrate entered a plea of guilty at the back of the charge sheet but omitted to indicate whether he/she was proceeding in terms of section 271(2)(a) or section 271(2)(b) of the Criminal Procedure and Evidence Act [chapter 9:07] (“the CPEA”). The law requires that. In addition, the magistrate did not indicate the dates on which the plea or the verdict were entered. Those issues may look insignificant but can actually cause a lot of strife in cases of appeals and reviews which are filed in compliance with strict deadlines. The date on which a person was convicted or sentenced may determine the fate of an appeal or a review. It is therefore important for judicial officers to treat such matters seriously. Judges have noted that the carelessness extends to various other issues like magistrates omitting to indicate their names and ranks on their proceedings making it difficult for reviewing judges to assess compliance with jurisdictional limits of such magistrates. Regional magistrates must when exercising their scrutiny functions ensure adherence to those formalities without deviation.

In disposing of the review, I note that the offender was given time to pay to 3 May 2025. Most probably, he has already paid the restitution. But the sentence is irregular all the same and would need to be interfered with. I, therefore, order as follows:

The sentence imposed by the court aquo is set aside and its place is substituted the following:

““Offender is sentenced to pay a fine of US$105 or its ZIG equivalent as at the date of payment in default of payment 3 months imprisonment. In addition, offender is sentenced to 1- month imprisonment wholly suspended on condition he restitutes the complainant the sum of $50 on or before 03.05.3025.”

The trail magistrate is directed to recall the offender and explain to him the amended sentence.

MUTEVEDZI J……………………….

CHIVAYO J………………………….Agrees