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    HB 72 21

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    Panganayi James
    This document summarizes a court case from the High Court of Zimbabwe regarding a criminal review. The accused was convicted of physical abuse under the Domestic Violence Act and sentenced to 9 months imprisonment with 3 months suspended for 5 years on the condition that he does not commit any offense under the Domestic Violence Act. The Regional Magistrate referred the case to the High Court as they felt the suspension condition was too broad. The High Court judge agreed that the condition was too broad and vague, as the Domestic Violence Act contains many offenses and the accused was only convicted of physical abuse. The condition did not reasonably relate to the offense committed.

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    HB 72 21

    Uploaded by

    Panganayi James
    23 views5 pages
    This document summarizes a court case from the High Court of Zimbabwe regarding a criminal review. The accused was convicted of physical abuse under the Domestic Violence Act and sentenced to 9 months imprisonment with 3 months suspended for 5 years on the condition that he does not commit any offense under the Domestic Violence Act. The Regional Magistrate referred the case to the High Court as they felt the suspension condition was too broad. The High Court judge agreed that the condition was too broad and vague, as the Domestic Violence Act contains many offenses and the accused was only convicted of physical abuse. The condition did not reasonably relate to the offense committed.

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    HB-72-21

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    This document summarizes a court case from the High Court of Zimbabwe regarding a criminal review. The accused was convicted of physical abuse under the Domestic Violence Act and sentenced to 9 months imprisonment with 3 months suspended for 5 years on the condition that he does not commit any offense under the Domestic Violence Act. The Regional Magistrate referred the case to the High Court as they felt the suspension condition was too broad. The High Court judge agreed that the condition was too broad and vague, as the Domestic Violence Act contains many offenses and the accused was only convicted of physical abuse. The condition did not reasonably relate to the offense committed.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    23 views5 pages

    HB 72 21

    Uploaded by

    Panganayi James
    This document summarizes a court case from the High Court of Zimbabwe regarding a criminal review. The accused was convicted of physical abuse under the Domestic Violence Act and sentenced to 9 months imprisonment with 3 months suspended for 5 years on the condition that he does not commit any offense under the Domestic Violence Act. The Regional Magistrate referred the case to the High Court as they felt the suspension condition was too broad. The High Court judge agreed that the condition was too broad and vague, as the Domestic Violence Act contains many offenses and the accused was only convicted of physical abuse. The condition did not reasonably relate to the offense committed.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 5

    1

    HB 72/21
    HCAR438/21
    CRB BING 226/20

    THE STATE

    Versus

    ONESIMO NYENGE

    HIGH COURT OF ZIMBABWE


    DUBE-BANDA J
    BULAWAYO 22 & 29 APRIL 2021

    Criminal review

    DUBE-BANDA J: This matter was placed before me on automatic review. The


    accused was arraigned before the Magistrate’s court sitting in Binga. He was charged with the
    crime of contravening section 4 as read with section 3(1) (a) of the Domestic Violence Act
    [Chapter 5:16] “Physical Abuse.” It being alleged that he committed an act of physical abuse
    upon the complainant by striking her with open hands and a switch all over the body intending
    to cause bodily harm realising that there is a real risk or possibility that bodily harm may result.
    He pleaded guilty and was duly convicted. Nothing turns on the conviction. The accused was
    sentenced as follows:

    “9 months imprisonment of which 3 months imprisonment is suspended for 5 years on condition


    the offender does not within that period commit any offence of which contravening of the
    Domestic Violence Act is an element for which upon conviction he is sentenced to
    imprisonment without the option of a fine. The remainder 6 months imprisonment is suspended
    on condition he completes 210 hours of community service ……….”

    The record of proceedings was forwarded to the Regional Magistrate for scrutiny. The
    Regional Magistrate raised an issue in respect to the propriety of the condition upon which the
    suspension of the three months was anchored. The Regional Magistrate then referred the record
    to this court, under cover of a letter which I quote in extensio, hereunder:

    “Re: State v Onesimo Nyenge BNG 226/20 S54/20


    Kindly find attached a record of proceedings to be placed before any Honourable Judge of the
    High Court with the following comments.
    “Accused appeared before a Magistrate in Binga facing a charge of having contravened section
    4 as read with section 3(1) of the Domestic Violence Act Chapter 5:16 that is Physical Abuse.”
    2
    HB 72/21
    HCAR438/21
    CRB BING 226/20

    He was convicted on his own plea and sentenced as follows:

    9 months imprisonment of which 3 months imprisonment is suspended for 5 years on condition


    the offender does not within that period commit any offence of which contravening of the
    Domestic Violence Act is an element for which upon conviction he is sentenced to
    imprisonment without the option of a fine. The remainder 6 months imprisonment is suspended
    on condition he completes 210 hours of community service ……….

    I raised a query with the trial magistrate regarding the condition of the suspended prison term.
    The trial magistrate’s response to the query is that he explained to the accused what he should
    avoid in order not to retransgress and what the Domestic Violence Act entails. He concedes
    that his explanation is not on record.

    Is it my considered view that the condition of suspension is too wide. Accused was not
    defended, he needs to read the whole Domestic Act to know what he is supposed to do and not
    to do. Clearly the trial magistrate’s formulation of the condition of suspension of the prison
    term is inappropriate.

    It is my considered view that part of the prison term should have been suspended on condition
    that the accused did not commit any offence involving physical abuse.

    May the Honourable Judge take corrective measures.

    Regional Magistrate. “

    First, the Magistrates’ Court is a court of record.1 The record must be complete and tell
    a full and accurate story of what transpired in court. The presiding officer cannot start to add
    and explain what is not in the record. The record must speak for itself. The record must not be
    aided by evidence that is not in the record. See: The State v Luckson Bhuru HB 191/20. I take
    the view that the explanation by the trial magistrate that “The trial magistrate’s response to the
    query is that he explained to the accused what he should avoid in order not to retransgress and
    what the Domestic Violence Act entails.” is inconsequential. It serves no useful purpose. The
    record does not have such an explanation. This court can only review what is on record, not in
    the mind of the trial magistrate.

    Second, in terms of section 358 of the Criminal Procedure and Evidence Act [Chapter
    9:07], a court may suspend a sentence on a number of conditions specified therein. It is trite

    1
    Section 5(1) of the Magistrates Court [Chapter 7:10].
    3
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    HCAR438/21
    CRB BING 226/20

    that the condition must be reasonable and related to the offence concerned, i.e. it must not be
    too wide that it has no nexus with the offence committed. See: S v Van den Berg 1976 (2) SA
    232 (T) 234-5; R v Mokwena 1948 (4) SA 378 (O); S v Mjware 1990 (1) SACR 388 (N). In S
    v Grobler 1992 (1) SACR 184 (C) it was decided that conditions of suspension should not be
    unduly onerous and should remain reasonably possible for the accused to comply with. The
    condition must be clear and the accused should know exactly what conduct may lead to his
    having to serve the sentence. See: S v Valashia 1973 (3) SA 934 (O); S v Xhaba 1971 (1) SA
    232 (T). In S v Gabriels 2004 (2) SACR 156 (C) it was held that the conditions of suspension
    should be formulated in such a way that they do not cause future unfairness or injustice. They
    must also be framed to take account of human fallibility and it was held that no condition
    should unjustifiably infringe upon accused’s basic human rights.

    The Domestic Violence Act contains a number of offences, i.e. physical abuse; sexual
    abuse; intimidation; harassment; stalking; malicious damage to property; forcible entry into the
    complainant’s residence where the parties do not share the same residence; depriving the
    complainant of or hindering the complainant from access to or a reasonable share of the use of
    the facilities associated with the complainant’s place of residence; the unreasonable disposal
    of household effects or other property in which the complainant has an interest; abuse derived
    from the following cultural or customary rites or practices that discriminate against or degrade
    women; forced virginity testing; female genital mutilation; pledging of women or girls for
    purposes of appeasing spirits; forced marriage; child marriage; forced wife inheritance; sexual
    intercourse between fathers-in-law and newly married daughters-in-law; abuse perpetrated on
    the complainant by virtue of complainant’s age, or complainant’s physical or mental
    incapacity; abuse perpetrated on the complainant by virtue of complainant’s physical, mental
    or sensory disability, including a visual, hearing or speech functional disability; abuse
    perpetrated on the complainant by virtue of complainant’s mental illness, arrested or
    incomplete development of the mind, psychopathic disorder or any other disorder or disability
    of the mind.2

    2
    Section 3 of the Domestic Violence Act.
    4
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    CRB BING 226/20

    To suspend a prison term on condition the accused does not commit an offence of which
    Domestic Violence Act is an element for which upon conviction he is sentenced to
    imprisonment without the option of a fine, is too wide, vague, onerous, unreasonable and does
    not relate to the offence he was convicted of. The accused was convicted of physical abuse, as
    defined in the Domestic Violence Act, i.e. any act or threatened act of physical violence
    towards a complainant.3 He was for example, not convicted of sexual harassment, malicious
    injury to property etc. Any condition of suspension that speaks to other offences accused was
    not convicted of, is too wide, onerous and heavy on the accused. Such a condition is not clear
    and the accused would not know exactly what conduct may lead to his having to serve the
    sentence. The Regional Magistrate says such a condition of suspension is inappropriate. I agree.
    To illustrate how inappropriate this condition of suspension is, I use the example of a
    conviction arising from the Mines and Mines Act [Chapter 21:05]. This Act contains a number
    of offences, e.g.an accused convicted for contravening section 368 (2) as read with 368 (4) of
    the Mines and Minerals Act [Chapter 21:05] (Prospect for Minerals without a Licence), a
    sentence may (where special circumstances exists) be suspended on condition he does not
    prospect for minerals without a licence. Such a sentence may not be suspended on condition
    an accused is not convicted of an offence where the contravention of the Mines and Minerals
    Act is an element. Such a condition would be too wide, heavy and unreasonable. In this case,
    the accused was convicted of contravening section 3 (1) (a) of the Domestic Violence Act
    “Physical Abuse,” this is what a condition of suspension must target and speak to, not the whole
    Act. This constituted a misdirection on the part of the trial court. It goes against the spirit of
    section 358 of the Criminal Procedure and Evidence Act [Chapter 9:07]. This court is therefore
    at large to intervene. This court cannot permit such a condition of suspension to stand.

    In the result:

    1. The conviction is confirmed.


    2. The sentence of the trial court is amended by the substitution of:
    i. 9 months imprisonment of which 3 months imprisonment is suspended for
    5 years on condition the offender does not within that period commit any

    3
    Section 3 (2)(a) of the Domestic Violence Act.
    5
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    HCAR438/21
    CRB BING 226/20

    offence of which contravening of the Domestic Violence Act is an element


    for which upon conviction he is sentenced to imprisonment without the
    option of a fine.

    With:

    ii. 9 months imprisonment of which 3 months imprisonment is suspended for


    5 years on condition the offender does not within that period commit any
    offence of physical abuse as defined in the Domestic Violence Act is an
    element and for which upon conviction he is sentenced to imprisonment
    without the option of a fine.
    iii. The remainder of the sentence remains unchanged.

    Lastly, in light of the above, the accused should be called and be properly advised of
    the amendments I made.

    Kabasa J agrees ……………………………….

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