STATE v NDLOVU (179 of 2025) [2025] ZWBHC 179 (21 October 2025)

2 HB 179/25 HCBCR4984/25 THE STATE Versus ALTON NDLOVU HIGH COURT OF ZIMBAB WE MUTEVEDZI & NDUNA JJ BULAWAYO, 21 October 2025 Criminal review judgment MUTEVEDZI J: The offender, an apparently incorrigible criminal, was arraigned before a Magistrate at Esigodini Magistrate Court on charges of Stock theft and unlawful entry into premises as defined in section 114(2) (a) and 131(1) of the Criminal Law (Codification and Reform) [Chapter 9:23] [“the CODE”] respectively. The brief allegations in respect of count one, were that on 1 October 2025 and at Spaba Village, Maabeni Area, Chief Gwebu, Esigodini the offender stole one goat belonging to Nolwazi Ndebele. In respect of count two, the prosecution alleged that on 2 October 2025 and at Spaba Village, Mawabeni area, Chief Gwebu, Esigodini the accused without the permission of Jesper Kuneta the lawful occupier of the premises concerned or without any other lawful authority entered into Jesper Kuneta’s house by opening a locked door using an unknown object. He entered the house and took one window frame and two rolls of fencing wire belonging to Jesper Kuneta. His arrest came as a no brainer. In respect of count one, after taking the goat from the complainant’s pen, the offender had proceeded to slaughter it in a nearby bush and took the meat to his homestead. He was sold out by the spoor of blood which led to his homestead where he was arrested. In the second count, nobody had seen him commit the crime but as fate would have it, the property which he stole from the homestead was recovered from him upon his arrest for the first count. The trial court convicted him of both counts on his own plea of guilty. It sentenced him as follows: - “Count 1: 12 months imprisonment of which 3 months is wholly suspended on condition the accused restitutes the complainant US$70 as value not recovered payable in ZIG at the prevailing interbank rate at time of payment through the Clerk of Court, Esigodini on or before 31.10.25 Count 2 : 12 months imprisonment of which 4 months is suspended for 3 years on condition the accused does not within that period commit an offense of which unlawful entry into premises and/or dishonesty is an element for which upon conviction he will be sentenced to imprisonment without the option of a fine. The remainder of 8 months is suspended on condition the accused performs 280 hours of community service at Esibomvu Clinic. The community service starts on 09.10.25 and must be completed with 9 weeks of that date.” The record of proceedings was placed before me for automatic review in terms of section 57 of the Magistrate Court Act (“the MCA”). The conviction is beyond reproach. l hereby confirm it as in being in accordance with real and substantial justice. It is the sentence that is worrying. I raised a query regarding its appropriateness with the trial magistrate. My view, was that in count one the offender had been sentenced to effective imprisonment whilst in count two, he was sentenced to perform community service. Needless to state the effective imprisonment in count one would have made it impossible for the offender to perform the community service in count two. In addition, I noted that the sentence of community service appeared to be incomplete because the conditions of its performance were not apparent from the record of proceedings. In her response, the trial magistrate was at pains to explain herself. She partly placed the blame on the Integrated Electronic Management System (IECMS) recently introduced at her station. In her own words, she said: - “The trial magistrate acknowledges the queries raised by the Honourable Judge and acknowledges her error of not cross checking the record before forwarding it for review. The offender in the first count, was not sentenced to a custodial sentence but rather a wholly suspended sentence on condition of good behavior as indicated in the trial magistrate’s sentencing judgment. The sentence in the first count ought to have read as follows: Count 1: 12 months imprisonment of which 3 months is suspended on condition the accused restitutes the complainant in the sum of US$70 as value not recovered payable in ZIG at prevailing interbank rate at time of payment to the Clerk of Court Esigodini on or before 31.10.25. The remainder of 9 months imprisonment is wholly suspended for 3 years on condition the accused does not within that period commit an offense of which stocktheft is an element for which upon conviction he will be sentenced to imprisonment without the option of a fine. The trial magistrate undertakes to thoroughly review her work before sending her records in future as it appears part of her sentence was not captured in the system. A few system glitches were experienced on the day, however they were attended to by IT, unfortunately the record had already been sent.” In respect of the second count she conceded that her sentence did not speak to the conditions of the community service to be performed. Again, she demonstrated how the IECMS had failed her and resulted in her uploading an incomplete order.The trial magistrate and all others, must note that the IECMS is a human driven electronic tool. It does not function independent of the human element. It is intended to assist in smoothening over many of a judicial officer’s tasks. To those of us who have been using it for a while, it is an invaluable tool for judges and magistrates. Yet it remains dependent on what is inputted by the judicial officers themselves. It does not relieve a magistrate of the responsibilities that he/she has always carried in preparing records for review and ensuring that the proceedings are accurately captured. The system is efficient. Judges will not accept it being scapegoated for the carelessness of a trial magistrate. If anything, the responsibility to feed accurate information into the system actually becomes heightened because like many electronic systems, the IECMS cannot be rigged. It is unforgiving and will always reflect that which went into it. It follows therefore that the record of proceedings on the IECMS platform must reflect the full proceedings. Any other explanation outside the record of proceedings cannot be considered formal. It is the duty of the trial magistrate to ensure that the proceedings that are captured on IECMS are a true and correct reflection of what transpired in court. That way transparency is achieved and justice is served.That having been said, the trial magistrate’s errors are apparent. She passed sentences which are mutually exclusive. An offender cannot go to prison and perform community service at the same time. Equally her community service sentence was incomplete. Clearly, both sentences are therefore not in accordance with real and substantial justice. The misdirections are gross and go to the root of the sentences. I cannot let them stand. I therefore direct as follows: - The sentences passed by the court a quo in both counts be and are hereby set asideIn their places is substituted the following: “Count 1: 12 months imprisonment of which 3 months is suspended on condition the offender restitutes the complainant in the sum of US$70 payable in ZIG at prevailing interbank rate at time of payment through the Clerk of Court Esigodini on or before 31.10.25. The remaining 9 months imprisonment is suspended for 5 years on condition the offender does not within that period commit an offence involving dishonesty for which upon conviction he will be sentenced to imprisonment without the option of a fine. Count 2: 12 months imprisonment of which 4 months imprisonment is suspended for 5 years on condition the offender does not within that period commit an offence involving unlawful entry into premises and/or dishonesty for which upon conviction he will be sentenced to imprisonment without the option of a fine. The remaining 8 months is suspended on condition the accused performs 280 hours of community service at Esibomvu Clinic on the following conditions: Community service starts on 24.10.25 and must be completed with 9 weeks of that date.Community service shall be performed between the hours of 0800hrs to 1300hrs and 1400hrs to 1600hrs on Mondays and Fridays which are not public holidays and to the satisfaction of the person in charge of that institution whom the court has granted authority to grant the offender leave of absence on a particular day(s) or during certain hours of good cause shown.Any such leave shall not count as part of community service performed. The trial magistrate is directed to recall the offender and advise him of the changed sentence. MUTEVEDZI J……………………………………. NDUNA J……………………………………… I agree 2 HB 179/25 HCBCR4984/25 2 HB 179/25 HCBCR4984/25 THE STATE Versus ALTON NDLOVU HIGH COURT OF ZIMBAB WE MUTEVEDZI & NDUNA JJ BULAWAYO, 21 October 2025 Criminal review judgment MUTEVEDZI J: The offender, an apparently incorrigible criminal, was arraigned before a Magistrate at Esigodini Magistrate Court on charges of Stock theft and unlawful entry into premises as defined in section 114(2) (a) and 131(1) of the Criminal Law (Codification and Reform) [Chapter 9:23] [“the CODE”] respectively. The brief allegations in respect of count one, were that on 1 October 2025 and at Spaba Village, Maabeni Area, Chief Gwebu, Esigodini the offender stole one goat belonging to Nolwazi Ndebele. In respect of count two, the prosecution alleged that on 2 October 2025 and at Spaba Village, Mawabeni area, Chief Gwebu, Esigodini the accused without the permission of Jesper Kuneta the lawful occupier of the premises concerned or without any other lawful authority entered into Jesper Kuneta’s house by opening a locked door using an unknown object. He entered the house and took one window frame and two rolls of fencing wire belonging to Jesper Kuneta. His arrest came as a no brainer. In respect of count one, after taking the goat from the complainant’s pen, the offender had proceeded to slaughter it in a nearby bush and took the meat to his homestead. He was sold out by the spoor of blood which led to his homestead where he was arrested. In the second count, nobody had seen him commit the crime but as fate would have it, the property which he stole from the homestead was recovered from him upon his arrest for the first count. The trial court convicted him of both counts on his own plea of guilty. It sentenced him as follows: - “Count 1: 12 months imprisonment of which 3 months is wholly suspended on condition the accused restitutes the complainant US$70 as value not recovered payable in ZIG at the prevailing interbank rate at time of payment through the Clerk of Court, Esigodini on or before 31.10.25 Count 2 : 12 months imprisonment of which 4 months is suspended for 3 years on condition the accused does not within that period commit an offense of which unlawful entry into premises and/or dishonesty is an element for which upon conviction he will be sentenced to imprisonment without the option of a fine. The remainder of 8 months is suspended on condition the accused performs 280 hours of community service at Esibomvu Clinic. The community service starts on 09.10.25 and must be completed with 9 weeks of that date.” The record of proceedings was placed before me for automatic review in terms of section 57 of the Magistrate Court Act (“the MCA”). The conviction is beyond reproach. l hereby confirm it as in being in accordance with real and substantial justice. It is the sentence that is worrying. I raised a query regarding its appropriateness with the trial magistrate. My view, was that in count one the offender had been sentenced to effective imprisonment whilst in count two, he was sentenced to perform community service. Needless to state the effective imprisonment in count one would have made it impossible for the offender to perform the community service in count two. In addition, I noted that the sentence of community service appeared to be incomplete because the conditions of its performance were not apparent from the record of proceedings. In her response, the trial magistrate was at pains to explain herself. She partly placed the blame on the Integrated Electronic Management System (IECMS) recently introduced at her station. In her own words, she said: - “The trial magistrate acknowledges the queries raised by the Honourable Judge and acknowledges her error of not cross checking the record before forwarding it for review. The offender in the first count, was not sentenced to a custodial sentence but rather a wholly suspended sentence on condition of good behavior as indicated in the trial magistrate’s sentencing judgment. The sentence in the first count ought to have read as follows: Count 1: 12 months imprisonment of which 3 months is suspended on condition the accused restitutes the complainant in the sum of US$70 as value not recovered payable in ZIG at prevailing interbank rate at time of payment to the Clerk of Court Esigodini on or before 31.10.25. The remainder of 9 months imprisonment is wholly suspended for 3 years on condition the accused does not within that period commit an offense of which stocktheft is an element for which upon conviction he will be sentenced to imprisonment without the option of a fine. The trial magistrate undertakes to thoroughly review her work before sending her records in future as it appears part of her sentence was not captured in the system. A few system glitches were experienced on the day, however they were attended to by IT, unfortunately the record had already been sent.” In respect of the second count she conceded that her sentence did not speak to the conditions of the community service to be performed. Again, she demonstrated how the IECMS had failed her and resulted in her uploading an incomplete order. The trial magistrate and all others, must note that the IECMS is a human driven electronic tool. It does not function independent of the human element. It is intended to assist in smoothening over many of a judicial officer’s tasks. To those of us who have been using it for a while, it is an invaluable tool for judges and magistrates. Yet it remains dependent on what is inputted by the judicial officers themselves. It does not relieve a magistrate of the responsibilities that he/she has always carried in preparing records for review and ensuring that the proceedings are accurately captured. The system is efficient. Judges will not accept it being scapegoated for the carelessness of a trial magistrate. If anything, the responsibility to feed accurate information into the system actually becomes heightened because like many electronic systems, the IECMS cannot be rigged. It is unforgiving and will always reflect that which went into it. It follows therefore that the record of proceedings on the IECMS platform must reflect the full proceedings. Any other explanation outside the record of proceedings cannot be considered formal. It is the duty of the trial magistrate to ensure that the proceedings that are captured on IECMS are a true and correct reflection of what transpired in court. That way transparency is achieved and justice is served. That having been said, the trial magistrate’s errors are apparent. She passed sentences which are mutually exclusive. An offender cannot go to prison and perform community service at the same time. Equally her community service sentence was incomplete. Clearly, both sentences are therefore not in accordance with real and substantial justice. The misdirections are gross and go to the root of the sentences. I cannot let them stand. I therefore direct as follows: - The sentences passed by the court a quo in both counts be and are hereby set aside In their places is substituted the following: “Count 1: 12 months imprisonment of which 3 months is suspended on condition the offender restitutes the complainant in the sum of US$70 payable in ZIG at prevailing interbank rate at time of payment through the Clerk of Court Esigodini on or before 31.10.25. The remaining 9 months imprisonment is suspended for 5 years on condition the offender does not within that period commit an offence involving dishonesty for which upon conviction he will be sentenced to imprisonment without the option of a fine. Count 2: 12 months imprisonment of which 4 months imprisonment is suspended for 5 years on condition the offender does not within that period commit an offence involving unlawful entry into premises and/or dishonesty for which upon conviction he will be sentenced to imprisonment without the option of a fine. The remaining 8 months is suspended on condition the accused performs 280 hours of community service at Esibomvu Clinic on the following conditions: Community service starts on 24.10.25 and must be completed with 9 weeks of that date. Community service shall be performed between the hours of 0800hrs to 1300hrs and 1400hrs to 1600hrs on Mondays and Fridays which are not public holidays and to the satisfaction of the person in charge of that institution whom the court has granted authority to grant the offender leave of absence on a particular day(s) or during certain hours of good cause shown. Any such leave shall not count as part of community service performed. The trial magistrate is directed to recall the offender and advise him of the changed sentence. MUTEVEDZI J……………………………………. NDUNA J……………………………………… I agree