The State v Mguni Bornwell

On 23 June 2016, along Masiyephambili Road close to the intersection with Luveve Road, the accused negligently hit the deceased with a motor vehicle. The deceased subsequently died at Mpilo Hospital from injuries sustained in the accident. The accused was convicted of contravening section 49(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced by the magistrate's court to pay a fine of $300 or in default of payment to undergo 24 months imprisonment, plus a 24-month prohibition from driving any class of motor vehicle.

• Whether the alternative period of imprisonment imposed in default of payment of a fine was properly determined
• What enquiry must a magistrate conduct when imposing an alternative period of imprisonment in default of payment of a fine
• Whether the alternative period of 24 months imprisonment for a $300 fine was appropriate

The conviction and fine of $300 were confirmed. The prohibition from driving for 24 months was confirmed. The alternative period of imprisonment was set aside and substituted. The new sentence read: $300 or in default of payment the accused undergo 3 months imprisonment. The court withheld its certificate (indicating the matter was not dealt with satisfactorily by the lower court).

When imposing an alternative period of imprisonment in default of payment of a fine, a magistrate must conduct a proper enquiry which must be reflected in the record of proceedings. This enquiry must include questions and answers regarding: (1) the accused person's source of income; (2) the time required for the accused to raise the fine imposed; and (3) the accused's savings and other assets of value. The alternative period of imprisonment must not be based on guesswork or intuition but must be well-anchored in the results of this enquiry to ensure it is realistic and proportionate. Only after such an enquiry can a court properly determine an appropriate alternative period of incarceration.

The court observed that allowing magistrates to indulge in an intuitive approach to determining alternative imprisonment periods would result in serious injustice. The court noted that the process of determining alternative imprisonment has no room for guesswork. While the specific comments about the disproportionality of 24 months imprisonment for a $300 fine illustrate the point, the general principle about avoiding intuitive approaches serves as guidance for future sentencing practices.

This case establishes important procedural safeguards in Zimbabwean criminal sentencing practice regarding the imposition of alternative periods of imprisonment in default of payment of fines. It clarifies that courts cannot arbitrarily or intuitively determine alternative imprisonment periods but must conduct a structured enquiry into the accused's financial circumstances. The judgment protects accused persons from disproportionate alternative imprisonment periods that bear no relation to their ability to pay fines and prevents potential injustice arising from arbitrary sentencing practices.