adminLeonard Ncube Court Reporter
MAGISTRATES should not be harsh during sentencing but consider the particular circumstances of each case, a Bulawayo judge said yesterday.Justice Andrew Mutema, sitting with Justice Martin Makonese, said this while hearing an appeal by a 50-year-old Lupane man who bit off a chunk of his cousin’s lip in a witchcraft dispute.
Themba Mpala had been sentenced to 15 months in prison by Takudzwa Gwazemba at the Lupane court in August 2012 for assaulting Vincent Ndlovu of Zijimu Village. Mpala was accusing Ndlovu of bewitching him on their way from a beer drink.
Justice Mutema based his argument on reasons for the sentence by Gwazemba that assault cases were on the rise and a deterrent sentence was required, but failed to give regard to circumstances in the particular matter. Mpala appealed against the sentence and Justices Mutema and Makonese agreed that the magistrate was too harsh and set it aside.
“Before laws were codified, assault was regarded as common assault but now it is just assault and magistrates are not looking into circumstances in each case. Sentencing the applicant to 15 months in this case is a cause for concern,” said Justice Mutema.
He added: “There was no need to incarcerate the accused for that long period because there was no permanent injury. We’re concerned that a non-custodial sentence was not considered yet it could have met justice of the case.”
Justice Mutema said magistrates had a tendency of just preferring custodial sentences on accused persons even in instances where a non-custodial sentence or fine would be an option.
He also expressed concern that the trial magistrate Gwazemba did not suspend anything from the 15 months. Justice Mutema said it was unjust for the magistrate not to consider that a medical report from St Luke’s Hospital stated that there was no permanent injury on Ndlovu’s lips.
He then set aside the 15 months and replaced it with a new sentence of six months. Two months were suspended for good behaviour within five years while the remaining four months were commuted to 250 hours of community service at Phumakanye Primary School in Lupane starting on Tuesday next week.
In his appeal, Mpala complained about the magistrate’s failure to consider community service or an alternative punishment, adding that he deviated from sentencing standards. For the State, Gugulethu Ndlovu from the Attorney General’s Office said a custodial sentence was appropriate as Mpala assaulted an innocent man on suspicion of witchcraft.
In response, Justice Mutema said being 50 years old, Mpala could be justified to believe in witchcraft. On June 29, 2012, Mpala and Ndlovu were on their way home from a beer drink when they started arguing. Mpala assaulted Ndlovu several times with fists and went on to bite him on the lower lip.
A passer-by stopped the assault.
Online Reporter