Particular aspects of sentencing (Zimbabwe)
When difficult specific issues on sentencing arise reference should be made to A Guide to Sentencing in Zimbabwe by G. Feltoe published by the Legal Resources Foundation in 1990. This section will only deal with a few selected points of sentencing which have caused difficulty in the past.
The following things are legally impermissible:
- antedating a prison sentence: Chahora HH-349-84.
- imposing a prison sentence of less than four days: s 357 CPEA.
- imposing two sentences for one offence: Chipxere HH-314-83 (Magistrate wrongly imposing for one offence a prison term plus another prison term, wholly suspended on condition that X made restitution), Sibanda HB-36-86 (Magistrate wrongly imposing two separate prison sentences, subject to conditions, for same offence).
- making of fines run concurrently or a fine run concurrently with a prison sentence: Kambuzuma HH-60-86, Gororo HH-145-86.
- suspending a sentence of a fine where the fine is mandatory or giving the X time to pay such fine. In terms of s 356(2) as read with Sixth Schedule CPEA the court has no power to suspend any portion of a mandatory sentence of a fixed minimum fine. Nor may such a fine be postponed: De Montille 1979 RLR 105, Kudavaranda 1988 (2) ZLR 367 (H).
- suspending or postponing of a mandatory prison sentence. But where the legislature lays down that a mandatory prison sentence of a fixed term or of a length to be determined by the court must be imposed, the court may suspend all or a portion of the prison sentence: Patel S-63-87; Muzambe HH-121-90. However, in Horowitz 1976 (1) RLR 238 at 241D it is stated that the court will not lightly suspend the whole of a mandatory prison sentence; it will only do so when the mitigatory circumstances clearly make such a course desirable.
It must be carefully noted that in terms of s 356(2) as read with paragraph 3 of the Sixth Schedule [s 337(1) as read with paragraph 3 of the Seventh Schedule] CPEA the court may not suspend or postpone the prison sentence where the statute in question not only prescribes a mandatory period of imprisonment for without the option of a fine but prescribes a minimum period of such imprisonment.
- imposing a standard sentence for the particular crime without considering the individual circumstances and the moral blameworthiness of X. As far as possible there is a need for individualised sentencing: David & Anor 1964 RLR 2 and Mugwenhe & Anor 1991 (2) ZLR 66 (S).