S v Nhire (172 of 2026) [2026] ZWHHC 111 (20 February 2026)

1 HH 172-26 HCHCR 862/26 THE STATE versus EMMANUEL JOHANNES NHIRE HIGH COURT OF ZIMBABWE DEMBURE J HARARE, 20 February 2026 Criminal Review DEMBURE J: It is settled law that an order of 840 hours of community service is unlawful and has no place in our sentencing framework: See The State v Kamucharari, State v Pikini, State v Tichabaiwa HH411/24. This court, having set out the law, the lower court was bound and had to comply with that decision. This is in accordance with the principle of stare decisis . There can be no justification whatsoever for the lower court to continue to ignore the rule of law emanating from this court. Thus, MALABA CJ in Denhere v Denhere & Anor CCZ 09/19 at pp 16-17 aptly stated as follows: “The doctrine of stare decisis is, therefore, a rule of precedent or authority, addressed to lower courts and members of the public who are decision-makers, to the effect that decisions of the higher courts on particular points of law presented to and passed upon by those courts are law . Lower courts are bound to obey them in similar cases in future until they are overruled, even though a rigorous adherence to them might at times work individual hardship . … The importance of the rule of precedent to the rule of law cannot be gainsaid. It is indeed a rule of law, the purpose of which is to ensure uniformity and legal certainty in the decisions of courts, particularly lower courts, and points of law arising for determination in similar cases.” (my emphasis) This review record indeed shows that some magistrates still disregard the law outlawing any sentence of 840 hours of community service. Whether the continued failure to comply with the law is due to ignorance of the law cannot be an excuse. Judicial officers must accordingly take their decisions seriously as they impact the rights of citizens to the protection of the law. In casu, the offender, a male adult aged 20 years, was convicted of having sexual intercourse with a young person as defined in s 70(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was alleged that on 20 December 2025, the offender proposed love to the complainant and she accepted. On 22 December 2025, at Magamba Village, Chivhu, the offender asked the complainant to have sexual intercourse with her, and she agreed; they had 2 HH 172-26 HCHCR 862/26 unprotected sexual intercourse. The offender and complainant continued to have sexual intercourse on diverse occasions. The matter was then reported to the police, leading to the offender’s arrest. The offender was arraigned before the lower court and pleaded guilty to the offence. The offender was found guilty as pleaded and was sentenced to 36 months’ imprisonment, of which 12 months were suspended for 5 years, and the remaining 24 months were suspended on condition that the offender performs and completes 840 hours of community service at Kushinga Phikelela within 25 weeks. With regard to the conviction itself, I did not find anything amiss. It was in accordance with real and substantial justice, and I will accordingly confirm it. However, an issue arose with regard to the sentence, in particular, the order of 840 hours of community service as a condition of suspension of the prison term of 24 months. There was a glaring gross irregularity which showed that an actual miscarriage of justice had occurred. The court has no option but to interfere with that part of the sentence. The other portions of the sentence presented no issues. The relevant statutory provisions on the appropriate sentence are contained in s 70(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], which stipulate that: “70 Sexual intercourse or performing indecent acts with young persons (1) Subject to subsection (2), any person who— (a) has extra-marital sexual intercourse with a young person; (b)… (c)... shall be guilty of sexual intercourse or performing an indecent act with a young person, as the case may be, and liable to a fine not exceeding level twelve or imprisonment for a period not exceeding ten years or both.” Section 18 of the Criminal Procedure (Sentencing Guidelines) Regulations, 2023, S.I. 146/2023, also states that: “18.(1) Subject to section 350A of the Act and to the existing Community Service Guidelines, a community service penalty may be imposed on a person convicted of any offence, unless a law expressly provides that a community penalty may not be imposed. … (5) The Court imposing community service shall specify— (a) the number of hours per month of community service that the person is required to serve ; and (b) the type of community service work that the person is required to perform. (6) Where a minimum penalty is prescribed in the enactment concerned as punishment for the offence, it shall be impermissible for the court to impose a community service sentence.” (my emphasis) 3 HH 172-26 HCHCR 862/26 The presumptive penalty, where there are aggravating circumstances, is 3 years imprisonment and a level 4 fine where the offence was committed by two children under 18 years. The court has emphasised that where the trial court has made the decision to impose community service on an offender, it ought to adhere to the guidelines set forth by the law. In the case of Kamucharari (supra) at p 6, the court stated as follows: “Where a trial court decides to impose a sentence of community service on an offender, it must adhere to the guidelines set forth in the Criminal Procedure and Evidence (Community Service) Regulations 1998, SI 12/98(referred to as “the Community Service Regulations”). These regulations formalise the community service framework and its procedures.” (my emphasis) The Community Service Guidelines have stipulated a grid to be applied to ensure uniformity of sentences where community service has been imposed. At pp 8-9, MUNGWARI J in Kamucharari (supra) further stated that: “The community service guidelines include a structured grid to aid judicial officers in accurately determining the number of hours to be served. These hours are not arbitrarily assigned but are meticulously calculated within the parameters of the grid. The designated range of community service hours typically spans from a minimum of 35 hours to a maximum of 6.30 hours. The court must evaluate what duration of imprisonment would be appropriate if community service was not imposed and align the community service hours with the grid accordingly, considering an average workday of 7 hours. Quite clearly, a court cannot, as it were, toss a coin in the air and without any rational basis choose hours or a time frame within which to perform the community service.” The trial court in this case sentenced the offender to perform 840 hours of community service in place of a 24-month jail term. The Community Service Guidelines have imposed a grid to be followed when sentencing an offender to community service. It states that a sentence of 18 to 24 months is equivalent to 526 to 630 hours of community service. The hours of community service imposed ought not to exceed 630. Again, in the Kamucharari case (supra), at p 10, para 26, the court was very emphatic on the legal position by stating that: “Furthermore, the hours imposed should not have exceeded 630 as any hours in excess of that go against the dictates of the community service grid. The timeframe within which to perform should not have exceeded between 18 -19 weeks. An order of 840 hours of community service to be completed withing 53 weeks is unreasonable and borders on the absurd. It has no place in our sentencing framework. Fifty-three weeks is in excess of a year and it undermines the purpose of the sentence. In fact, it is unlawful . Consequently, the sentence cannot be allowed to stand.” (my emphasis) The law is, therefore, clear that the hours of community service imposed on an offender should not exceed 630. There is no rational basis for the 840 hours imposed. I wonder where those hours came from. The Revised Guidelines for Magistrates, Prosecutors and Other Court Officials clearly peg the hours at a minimum of 35 and a maximum of 630. The 526 to 630 4 HH 172-26 HCHCR 862/26 hours are for a sentence of 18 to 24 months. The law has already been outlined in Kamucharari case. The importance of adhering to previous binding decisions of the superior courts cannot be overemphasised. The principle of stare decisis is the backbone of an efficient system of administration of justice. Thus, in the Denhere case ( supra), the court further noted that: “The doctrine of stare decisis, therefore, forms the basis of the policy of the courts and the principles upon which rests the authority of judicial decisions as precedents in subsequent litigation. In Payne v Tennessee 501 US 808 (1991) at 827 the rule of stare decisis was lauded for promoting “the even-handed, predictable and consistent development of legal principles” and contributing to “the actual and perceived integrity of the judicial process”. See Daniel A Farber, The Rule of Law and the Law of Precedents 90 MINN.L.Rev. 1173, 1179 (2006).” There was no reason for the trial court to have strayed in the circumstances, given the existing binding precedent or decision of this court. It is the law and must be adhered to. The imposition of the 840 hours is, without doubt, unlawful and ought to be vacated. The proper order of community service should not have exceeded 630 hours for the 24-month term of imprisonment imposed. Accordingly, that part of the sentence of 840 hours of community service must be set aside and substituted with the permissible number of hours. It is accordingly ordered as follows: 1. The conviction be and is hereby confirmed. 2. Part of the sentence, in particular, the order of 840 hours of community service is hereby set aside and substituted with the order of 630 hours of community service. Accordingly, the reference to “840 hours” in the sentence is hereby deleted and substituted with “630 hours”. 3. All the other parts of the sentence are hereby confirmed. 4. The court a quo shall forthwith recall the offender and read out the corrected sentence. DEMBURE J: ………………………………………………. MAMBARA J: Agrees ……………………………………... 5 HH 172-26 HCHCR 862/26