S V SITHOLE & ANOR 2003 (2) ZLR 1 (H)

Flynote

Criminal procedure (sentence) —general principles — community service — hours to be performed — need for court to fix hours — accused attending school — need for court to fix hours so that accused may continue to attend school

Headnote

When imposing a sentence of community service, a court must state the hours which the offender must work and the times when the service should be commenced and completed. It is for the court, not the head of the institution concerned, to decide those times, and it is incumbent on the court, after due inquiry, to impose conditions that are appropriate to the offender. If the hours fixed by the court become inconvenient either to the institution or the offender, the court must be approached to vary the conditions of the community service order; the head of the institution does not have authority to amend the order but must seek an amendment from the court.

The accused persons, having been convicted of an offence by a magistrate, were sentenced to perform a specified number of hours of community service. Although the magistrate was told the accused were scholars at a secondary school, he directed that they should perform the community service during weekdays and at times when they would normally be at school. He apparently believed that it was for the accused persons to arrange with the head of the institution where they were to perform the work, to be given time off to attend school.

G Held, that the magistrate should have taken into account the fact that the accused persons were scholars and should have specifically excluded work during school days.