S v MASEKO & ANOR 2014 (2) ZLR 240 (H)

Flynote

Appeal — criminal matter — suspension of portion of sentence relating to community service and restitution — refusal by trial magistrate to suspend such punishments pending appeal — appeal against such refusal — may be heard on same basis as appeal against refusal to grant bail

Criminal procedure (sentence) — community service — suspension of — appeal to High Court from a decision of a magistrate refusing to suspend community service pending appeal — such appeal may be heard by a single judge of the High Court sitting as a bail court

Headnote

The appellants were convicted of fraud and sentenced to a period of imprisonment, part of which was suspended on conditions relating to future good behaviour and restitution, and part on condition that they performed community service. They applied for the suspension of the community service and payment of restitution pending appeal. Their application was rejected by the magistrate and they appealed to the High Court. The issue was whether such an appeal should be heard by a single judge, as a bail application, or by bench of two judges, like other appeals.

Held, that this appeal was akin to an appeal where bail has been refused by a magistrate. Community service forms part of the sentencing options in our jurisdiction. It is a form of restriction imposed on an accused person who has been found guilty of committing an offence. When an accused person seeks suspension of the sentence of community service, all he is saying is that the court should suspend the operation of the sentence of community service until his appeal is determined. Equally so when he is seeking suspension of payment of restitution. At this stage the court is not dealing with the substantive appeal; it is merely looking at whether an appeal court is likely to set aside the conviction and sentence. Community service must be treated as a deprivation of liberty, just like imprisonment. Where an appeal is made from a decision of the magistrates court, refusing an application for the suspension of community service, pending an appeal, such an appeal may be determined by a single judge of the High Court, sitting as a bail court, rather than by two judges thereof, sitting as a full court of appeal.