The State v Doesmatter Muchenga and Kudzanai Muchimwe

In June and July 2014, the two accused persons approached two complainants on separate occasions and misrepresented that they were in a position to secure employment for them at Proton Bakeries. The complainants were induced to pay $100 and $50 respectively for the facilitation of employment. The complainants paid these monies believing they would secure employment. However, the accused persons knew and realised they were not in a position to facilitate employment for the complainants. The first accused was convicted of both counts of fraud whilst the second accused was convicted on one count under section 36(a) and (b) of the Criminal Law Codification and Reform Act [Chapter 9:23].

• Whether the sentence imposed by the trial magistrate was properly worded and legally competent
• Whether a stand-alone sentence of restitution can be imposed
• Whether a trial court can alter a sentence after it has become functus officio
• Whether default conditions can be imposed on top of a restitution order
• The proper manner of incorporating restitution into a custodial sentence

The High Court set aside the original sentence and substituted it with: $150 fine in default of payment 30 days imprisonment. In addition, 3 months imprisonment of which 2 months imprisonment is wholly suspended for 5 years on condition of good behaviour. The remaining one month imprisonment is suspended on condition the accused restitutes the complainant in the sum of $75 through the clerk of court Marondera on or before 31 December 2015. The trial court was ordered to recall the accused and advise him of the revised sentence, with freedom to change the date for restitution after conferring with the accused.

1. A stand-alone sentence of restitution cannot be imposed in criminal cases. When a court decides to order restitution, the correct approach is to suspend a portion of the custodial sentence on condition that the accused does not commit any offence involving dishonesty and another portion suspended on condition of restitution. 2. It is incompetent and undesirable to impose a default condition on top of a restitution order. Instead, the accused should be given time within which restitution is required to be made. 3. A condition once imposed cannot have another condition put on it, as this creates undesirable multiple default conditions on the same sentence. 4. A trial court becomes functus officio once it has convicted and sentenced an accused, and may not alter the sentence imposed. The trial court must refer the record to the High Court for correction rather than attempting to correct the sentence itself.

The court observed that section 136 of the Criminal Law Codification and Reform Act provides for a fine or imprisonment or both, making it permissible for the trial magistrate to impose both a fine and a custodial sentence. The court also noted that once an accused is at large, he can pay restitution when he wants to, and the payment of restitution is not checked, which creates practical difficulties with imposing default conditions on restitution orders. The court indicated flexibility by allowing the trial court to change the date for restitution after conferring with the accused when recalling him to advise of the revised sentence.

This case establishes important principles regarding the proper formulation of sentences in Zimbabwean criminal law, particularly where restitution is ordered. It clarifies that restitution cannot be imposed as a stand-alone sentence but must be incorporated as a condition of suspension of a custodial sentence. The case also reinforces the doctrine of functus officio in sentencing, confirming that trial courts cannot alter sentences once passed and must refer such matters to the High Court on review. The judgment provides important guidance on avoiding multiple default conditions and ensuring sentences are properly structured and legally competent.