The State v Nkosilomusa Ncube

The accused, an 18-year-old man, had a misunderstanding with the complainant which resulted in him assaulting the complainant on the knees and head with the back of an axe. The complainant sustained injuries. The accused pleaded guilty to contravening section 89 of the Criminal Law Codification and Reform Act [Chapter 9:23] and was convicted. He was sentenced to receive moderate correction of 4 cuts with a rattan cane to be administered by a prison officer in Lupane. Before the sentence could be carried out, the prison officer observed that the accused had swollen testicles, a medical condition confirmed by a nursing sister at Lupane prison clinic. The prison authorities were of the opinion that the sentence could not be carried out without possible further harm to the accused.

• Whether a corporal punishment sentence should be carried out on an accused person with a medical condition that could be aggravated by the punishment
• Whether the original sentence should be substituted on review where it cannot be safely administered due to the accused's health condition

The conviction was confirmed. The sentence of 4 cuts with a rattan cane was set aside and substituted with 6 months imprisonment wholly suspended for 5 years on condition that the accused does not during that period commit any offence of which violence is an element for which upon conviction the accused is sentenced to imprisonment without the option of a fine.

A sentence of the court should only be administered on an accused or prisoner if the individual is visibly or clinically healthy. Where an individual shows signs or symptoms of ill health, even to untrained personnel, the sentence should not be carried out unless there is medical evidential proof that it can be administered without further jeopardizing the person's health. Prison authorities have a duty to observe and report medical conditions that would make a sentence unsafe to carry out.

The court made a commendatory observation about the prison officer's diligence in observing the accused's medical condition and taking steps to prevent the sentence from being carried out, noting that such vigilance by prison officials is commendable and should be encouraged.

This case establishes an important principle in Zimbabwean criminal law regarding the administration of sentences, particularly corporal punishment. It emphasizes the duty of courts and prison authorities to ensure that sentences are only carried out when the accused/prisoner is medically fit and that the punishment will not cause further harm to their health. The judgment underscores the importance of humane treatment of prisoners and the necessity of medical assessment before administering physical punishment.