The State v Pardon Sibanda

The accused was charged with seven counts of contravening section 89(1)(a) of the Postal and Telecommunications Act, read with Statutory Instrument 4/2000, for destroying, injuring or removing telecommunication lines. On different dates, the accused forced open Tel-One manholes and removed underground copper cables, disrupting telecommunication services. He was arrested on 2 May 2020 at the scene of another offense with a pliers, hacksaw and hammer in his possession. He confessed to all seven counts and made indications at the scenes. The total value of stolen copper wire was $27,414.25 with nothing recovered. The accused pleaded guilty to all counts before a Regional Magistrate at Bulawayo and was convicted. The trial magistrate imposed 10 years imprisonment per count (totaling 70 years) but suspended 20 years, leaving an effective 50 years imprisonment. The matter came before the High Court on automatic review in terms of section 57 of the Magistrates' Court Act.

• Whether it is competent to suspend any portion of a mandatory minimum sentence prescribed by statute
• Whether the trial magistrate erred in suspending 20 years of the 70-year mandatory minimum sentence
• What is the appropriate sentence where multiple counts attract mandatory minimum sentences

The sentence imposed by the trial court was set aside. In its place, the following was substituted: 10 years imprisonment on each of the seven counts, with count 3 concurrent with count 1, count 4 concurrent with count 2, and count 7 concurrent with counts 5 and 6. Total effective sentence: 30 years imprisonment.

Where a court imposes the mandatory minimum sentence prescribed by statute, it is not competent to suspend any portion of that mandatory minimum sentence. The mandatory minimum is exactly that - a minimum that cannot be reduced. However, where the court considers the cumulative mandatory minimum sentence to be too harsh, it may order sentences for certain counts to run concurrently, particularly where counts were committed on the same day, at the same place, or during the same period. Suspension is only permissible where a sentence exceeds the mandatory minimum, and only the excess portion may be suspended.

The court observed that the proper approach when grouping sentences for concurrent running is to look at counts which were committed on the same day or at the same place and group them together. The court also noted that had the trial magistrate imposed a sentence exceeding the mandatory minimum (such as 12 years per count for a total of 84 years), it would have been competent to suspend the excess (14 years in that example) leaving the mandatory minimum of 70 years intact. The principle articulated was: "Once you impose the minimum sentence, it remains the minimum."

This case reinforces the principle that mandatory minimum sentences prescribed by statute cannot be suspended in whole or in part. It provides guidance on the proper approach to sentencing where multiple counts attract mandatory minimums - the court may order concurrent sentences for related offenses but may not suspend portions of the mandatory minimum. The judgment clarifies the application of section 337(1) read with the Sixth Schedule of the Criminal Procedure and Evidence Act in the context of mandatory minimum sentences, and provides a practical example of how courts can mitigate harshness through concurrent sentencing rather than impermissible suspension of mandatory terms.