THE State V Zvidzai Dingani

### Preamble
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HB 125/19
HCAR1115/19
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THE STATE

Versus

ZVIDZAI DINGANI

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 22 AUGUST 2019

Review Judgment

TAKUVA J:	This matter was placed before me by the Registrar on automatic review.

The accused, a 29 year old single mother of 3 minor children appeared before a Magistrate at Western Commonage facing a charge of contravening section 7(1) of the Children’s Act (Chapter 5:06) “Ill treatment or neglect of children and young person”.  She pleaded guilty and was sentence to 36 months imprisonment of which 6 months imprisonment was suspended for  five years on condition that accused does not within that period commit any offence involving ill treatment or neglect of a child and for upon conviction will be sentenced to imprisonment without the option of a fine.

Nothing turns on the conviction but the sentence is disturbingly worrying.  I sought the trial magistrate’s comment on the sentence which apparently exceeds that stipulated in section 7(5) of the Children’s Act (the Act).

The trial magistrate’s comment is as follows:

“The trial magistrate would like to apologise for imposing a sentence in excess of that prescribed in section 7(5) of the Children’s Act.  It was an oversight on the part of the trial magistrate.

The trial magistrate prays that the error be rectified and she stands guided.”

The charge is based on the following facts which are captured in the outline of the State case.

The accused is employed as a maid and resides at house number 648 Nkulumane, Bulawayo.

On the 29th day of March 2019 at approximately 16:30 hours the accused went to house number 1316 Nkulumane where she requested her baby’s father to buy her groceries at the nearby shops.

They then left for the shops taking the 3 week old baby with them.  Whilst inside the shop, the accused left the baby indicating that she was “going to the toilet”.  She never returned.

It appears that accused was subsequently arrested but the date is not revealed.  On these scanty facts, the accused pleaded guilty and was duly convicted.  In mitigation the accused told the court that she is a 29 year old single mother of 3 children and that she is employed as a maid.  Although she had $57,00 on her person she has no valuable assets.  She also informed the court that her two elder children live with their grandmother and she could not take the youngest child subject to these proceedings to that “grandmother” as the children have different fathers.   Presumably this is the paternal grandmother of the 1st two children.

In its reasons for sentence the court a quo noted that the accused is a female 1st offender who pleaded guilty.  As regards aggravation, the court found as follows:

“Baby dumping is a serious offence especially when the baby is in its first days of life.  Such offenders should be punished so that they reform and so as to deter the would be offenders ….”

In coming up with the sentence the court a quo totally ignored the provisions of section 7(5) of the Act resulting in a sentence in excess of the maximum permissible sentence.  Quite clearly the court adopted the wrong principles in assessing sentence.  This amounts to a misdirection.  Secondly, the court a quo proceeded to assess sentence with insufficient information surrounding the commission of the offence.  It was not for example established whether or not the child was left in its father’s custody or was “dumped” somewhere inside the supermarket.  It was not stated how long after abandoning the child the accused was arrested.

On a charge of ill treatment or neglect of children these are the relevant factors to consider.  In casu they were not ventilated leading to a sentence so severe as to induce a sense of shock.  Starting point is a fine.  In terms of the penalty clause, the starting point is a fine.

At the time the matter was referred to me the accused had served a total of 15 days and I ordered her immediate release from prison.

For these reasons I order as follows:

The conviction of the accused is confirmed.

The sentence imposed by the court a quo is hereby set aside and in its place is substituted the following:

“3 months imprisonment of which 2 months imprisonment is suspended for 5 years on condition the accused does not within that period commit any offence involving ill treatment or neglect of a child and for which upon conviction will be sentenced to imprisonment without the option of a fine”.

Takuva J …………………………………

Mabhikwa J agrees ………………………