The State v Tapiwa Hove

On 21 September 2017, the accused jumped over a durawall and unlawfully entered the complainant's yard. While inside, he unlawfully opened the complainant's shed and stole seven window frames valued at $490. Upon arrest, most of the window frames were recovered except for one valued at $60. The accused had a previous relevant conviction from 2015. The accused pleaded guilty and was convicted under section 131(1) and 113(1)(a)(b) of the Criminal Law (Codification and Reform) Act, Chapter 9:23. He was sentenced by the magistrate to 42 months imprisonment, with 1 month suspended on condition of restitution of $60 to the complainant within a specified date.

• Whether the magistrate's sentence was in accordance with real and substantial justice
• Whether the one month suspended sentence was sufficient to act as an incentive for restitution
• Whether a suspended sentence on condition of restitution can be imposed unilaterally without conducting an enquiry into the accused's ability and willingness to fulfill the condition

The court refused to certify the proceedings as being in accordance with real and substantial justice. The certificate was withheld.

Before imposing a suspended sentence on condition of restitution, a court must conduct a proper enquiry to satisfy itself that: (1) the accused is willing and able to fulfill the restitution condition; (2) there is a real likelihood that the condition can be fulfilled; (3) the accused has been given an opportunity to address the court on the details of the proposal (applying the audi alteram partem rule); and (4) a proper and thorough investigation into the capacity of the accused to pay has been conducted. A suspended sentence cannot be imposed unilaterally without such an enquiry. Additionally, any suspended portion of a sentence must be meaningful and sufficient to act as an incentive to encourage the desired positive conduct.

The court observed that one month imprisonment suspended on condition of restitution was a "miserable" period that was insufficient to achieve the desired objective of encouraging payment. This comment, while supporting the court's reasoning, suggests a broader principle that token suspended sentences undermine the purpose of such conditions, though this was not strictly necessary for the decision to withhold the certificate.

This case reinforces important procedural requirements for imposing suspended sentences on condition of restitution in Zimbabwean criminal law. It emphasizes that courts cannot unilaterally impose restitution conditions without first conducting a proper enquiry into the accused's ability and willingness to comply. The case also highlights that suspended portions of sentences must be meaningful and sufficient to achieve their intended purpose. It serves as a reminder to magistrates of the need to apply the audi alteram partem principle in sentencing and to ensure that conditions imposed are reasonably capable of fulfillment.