The State v Fanuel Mpofu

### Preamble
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HB 131/25
HCBCR 3465/25
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THE STATE

Versus

FANUEL MPOFU

HIGH COURT OF ZIMBABWE

MUTEVEDZI AND NDUNA JJ

BULAWAYO, 24 JULY 2025

Criminal review judgment

MUTEVEDZI J: The above record of proceedings was placed before me on automatic review in terms of section 57 of the Magistrates’ Court Act [Chapter 7:10] (“the MCA”).

The offender was arraigned before the court of a magistrate at Kwekwe on 4 July 2025 facing two counts; a charge of assault as defined in section 89(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the CODE”) and a charge of Robbery as defined in section 126(1) of the CODE. The allegations in count one were that on 17 April 2025 and at Village Masina, Chief Malisa, Silobela, the offender person assaulted the complainant by stabbing him once on the upper lip and twice on the back with a knife. In respect of count two, they were that at the same place and time the offender stabbed the complainant once on the back with the intention to induce the complainant to relinquish control of his Samsung cellphone. The accused pleaded guilty to both counts and was duly convicted. No issues arise from the convictions, save for a few indiscretions regarding the charge of robbery. I, therefore, confirm both convictions as being in accordance with real and substantial justice.

The offender was sentenced as follows:

“ COUNT1: 14 months imprisonment of which 2 months imprisonment is suspended on condition the accused does not commit an offence involving violence on the person of another for which upon conviction he will be sentenced to imprisonment. The remaining 12 months imprisonment to be effective.

COUNT 2: 36 months imprisonment of which 6 months is suspended on condition the accused restitutes the complainant in the sum of USD$150.00 or the equivalent ZIG through the Clerk of Court on or before 31.07.25. The remaining 30 months are effective.”

The above sentences are improperly formulated. Where a court suspends a portion or the whole of a prison sentence it must as a requirement specify the period for which the suspension will operate and the conditions which an offender must not breach. But as it is clear, the trial magistrate did not, in her sentence, state for how long the suspension period will run. She left it open. The inference is that the suspension will hang over the offender for the entirety of his natural life. Section 358 of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the CPEA”) empowers any court which has convicted an accused person for any offence other than an offence listed in the Eighth Schedule to pass a sentence and suspend the whole or a portion of such sentence for a period not exceeding 5 years on such conditions as the court may impose. At his or her discretion, a magistrate then chooses the appropriate duration of the suspension. In S v Mativenga HH46-18, CHITAPI J said:

“The issue which exercise the mind of the court which decides to suspend part of the sentence is the 	determination of the period of suspension. There is no fixed formula for determining the length of the period 	of suspension. The decision whether or not to suspend a portion of the sentence lies within the discretion of 	the court. The discretion must be exercised judiciously and it must be informed by a consideration of 	circumstances which the court should state.”

What a magistrate cannot do is to suspend the sentence for a period in excess of 5 years or for an indefinite period. Further, this court has repeatedly stated that when sentencing, it is not only permissible but also salutary, for a trial court to suspend a sentence on condition of future good behaviour. In Gilbert Baloyi vs The State HMA14-18, MAFUSIRE J had the following to say:

“Suspending portions of prison sentences is a useful tool at the disposal of a sentencing court to salvage multiple benefits out of a situation of criminality. Among other things, suspension on condition of good behaviour is both deterrent and rehabilitative. For that period that the suspension order is operative, the accused knows that a sword is hanging over his head, and that it will strike if he should step his foot wrong again.”

In the case of S v Dube HH409-88, the issue was again put thus:

“It must be stressed that there is no rule of practise requiring that part or all of a custodial sentence passed on a young offender should always be suspended, but much more often than not, I would suggest, such a form of sentence is both desirable and appropriate. I would even go so far as to say that it would be a most unusual case where some measures would not be advisable. Not only is the severity of the punishment thus moderated but the offender is encouraged to refrain from repeating his misconduct. (my emphasis)

In S v Ndhlovu HB86-15, this court dealt with the same issue in some detail and made the following remarks:

“The salutary practise which has evolved over the years of suspending part of the prison term must be applauded and embraced by all and sundry because of its immense benefits to both the offender and the society.

It is therefore, only in very exceptional circumstances that a sentencing court will refrain from adopting the tried and tested practice of putting the offender on the leash of a suspended sentence.  Even then, the reasons why the court will have decided against suspending a portion of the sentence on condition of future good behaviour must appear clearly on the record of proceedings. Such reasons may include where a statute clearly prohibits the suspension of the whole or any part of the sentence (see s 358(2) of the CPEA) or where the offender has not benefited from a previously suspended sentence. A court which fails to notice the benefits which accrue from a suspended sentence betrays its disregard for the objectives of sentencing some of which are rehabilitation and deterrence.

In this case, the trial magistrate in the second count relating to robbery, singularly emphasized the seriousness of the crime and forgot everything else in circumstances where it was clear that both the offender and society could benefit from the salutary practice of suspending a portion of the sentence on good behaviour.

I also note that the offender was sentenced to an effective 12 months imprisonment in count one and another 30 months imprisonment stemming from count 2. The trial magistrate however neglected to direct how the offender will serve his terms of imprisonment. In other words where a court has imposed two or more separate terms of imprisonment, it is important that it directs not only the offender but also those charged with the execution of prison sentences on how the sentences will be served. That is so, because a court may decide that the offender will serve the terms either consecutively or concurrently. Whilst I admit that in the end, such considerations are the discretion of the sentencing court, there must always be a rational basis for whichever route is taken. See the cases of S v Damba & Anor 2004 (1) ZLR 296 (H); S v Chera & Anor 2008 (2) ZLR 58 (H)and S v Nyathi 2003 (1) ZLR 587 (H).

In this case, the offender is a married man with two minor children. The two offences were kindred because they both involved violence. They were committed practically at the same time and place.  I appreciate that the second offence is considered to be a serious one but that does not take away the sentencing considerations I speak to above.  An over-emphasis on the seriousness of the offence alone may lead to an unduly harsh sentence.  Punishment must not be purely retributive but must also aim to reform the offender. As oft-repeated, it must be commensurate to the offender; must consider the interests of the victim of the crime and those of society. At all times, the objective of punishment must never be to break the offender.  In S v Sawyer 1999 (2) ZLR 390 (H) at p. 393C the court stated that principle in the following terms:

“On the other hand, where different counts are closely related to one another in some way, then it is not only permissible, but often preferable, to treat separate counts collectively for sentence. For instance, where different offences are committed together as part of the same criminal activity or where identical or similar offences are committed individually over a period of time but as one part of an ongoing cause of conduct or collective sentences will generally be appropriate.”

I have already indicated that the learned magistrate in this case erred in failing to address these issues. That constituted gross misdirections on her part which leave this court at large to interfere with the sentences imposed.  Before I make an order though, I must add that the period of imprisonment which a court suspends must always be meaningful to serve the purposes for which it is designed. In another words, it must be significant enough to really be a deterrent to the offender. This court, dealing with that aspect pointed out in S v Mativenga (supra) that:

It follows in my view that the suspended portion should be of such nature in length and in conditions attaching to it that it acts as deterrent on the accused from further offending. It must provide the accused with an incentive to behave as a law-abiding citizen and not further offend. The suspended sentence should therefore be such that it incentives the accused person to change his or her behaviour. In this way, the public is protected because the accused will reflect on the consequences of engaging in crime posed by the suspended sentence and the punishment he will undergo if he breaks the conditions of suspension. In my judgment, once a court decides in its discretion to suspend a portion of a prison term, then the suspended period should be of such length and be premised on such conditions as would make the accused person refrain from offending in future.”

A token suspension is therefore of no practical benefit to anyone. In casu, I would hardly be wrong to conclude that the 2 months imprisonment suspended by the trial magistrate was for the sake of it. I do not think that the offender would blink an eye about the prospect of serving such a sentence if he were to offend again. The two months do not bear any relationship to the effective 12 months. They do not qualify as a deterrent for the offender not to engage in future bad behaviour. The objectives of suspending a portion of the sentence therefore appear lost in that muddle.

It is for the above reasons that l am unable to certify the sentence as being in accordance with real and substantial justice. In the circumstances, I order as follows:

The conviction of the offender on both counts is certified. It accords with real and substantial justice

The sentences imposed by the court aquo are set aside and in their place is substituted the following:

“COUNT 1: 14 months imprisonment

COUNT 2: 36 months imprisonment

Of the total 50 months imprisonment 20 months imprisonment is suspended for 5 years on condition   the offender does not during that period commit any offence of which dishonesty and/or violence is an element for which he is sentenced to imprisonment without the option of a fine. Of the remaining 30 months imprisonment, a further 6 months imprisonment is suspended on condition the offender restitutes the complainant in count 2 in the sum of USD$150.00 or its ZIG equivalent through the Clerk of Court Kwekwe on or before 31.07.25. The remaining 24 months are effective.”

MUTEVEDZI J……………………………………..

NDUNA J ………………………………………….Agrees