Kudakwasi Mupatsi v The State

### Preamble
1
HB 223/20
HCA 53/19
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KUDAKWASHE MUPATSI

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE & TAKUVA JJ

BULAWAYO21 SEPTEMBER & 15 OCTOBR 2020

Criminal Appeal

N. Sibanda for the appellant

Ms N. Ngwenya for the respondent

MAKONESE J:	This is an appeal against the judgment of the Provincial Magistrate sitting at Bulawayo on 15th March 2019.

The appellant was charged with public violence as defined in section 36 (1) (a) (b) of the Criminal Law (Codification and Reform) Act (Chapter 9:23).  Appellant pleaded not guilty but was however convicted and sentenced to 6 years imprisonment of which 1 year was wholly suspended for 5 years on the usual conditions of future good conduct.  Dissatisfied with the conviction and sentence, the appellant has noted this appeal.

Factual background

During the week commencing Monday 14th January 2019 violent demonstrations erupted around the country.  In Bulawayo, shops were looted and torched by mobs of angry demonstrators.  At Nketa 9, Bulawayo, a supermarket and sports bar belonging to the complainant was targeted by looters.  The shops were broken into and extensively damaged.  The looted wares included alcoholic beverages, groceries and other valuable items.  It is common cause that the appellant called the complainant on his mobile phone advising him that a group of people were heading towards his shop.  It is not disputed that appellant was one of the persons who entered complainant’s shops.  The mob swelled to about 200 people.  The shops were vandalized and people helped themselves to groceries, drinks and food items. It was a free for all. Appellant states that he was not looting but was protecting the appellant’s property.  The state led evidence from two witnesses and tendered video footage captured live by close circuit television (CCTV) at the scene.  The video footage was tendered by consent.  The court rejected appellant’s version that he was trying to protect the complainant’s property.  It is on these facts that the appellant had noted this appeal.

Grounds of appeal

The appellant raised five grounds of appeal in the following terms:

The court a quo erred and therefore misdirected itself by sentencing the appellant to an effective sentence of imprisonment without the option of a fine notwithstanding that a fine could have been appropriate.

Having regard to the appellant’s personal circumstances and that it was his first appearance in  court, the sentence of 6 years imprisonment with 1 year wholly suspended on the usual conditions is manifestly excessive and disproportionate so as to induce a sense of shock.

The court a quo grossly erred in convicting the appellant on a charge of public violence when the essential elements of the charge were not proved.

The court a quo grossly erred and misdirected itself in misreading the intention of the appellant in the close-circuit television footage as to that of disturbing peace instead of protecting the shop.

The court a quo failed to appreciate that the appellant’s explanation was probably not false and was supported by his action of protecting the chop.

With regards to the first ground of appeal the appellant argues that the court a quo erred and misdirected itself in convicting the appellant when the state had failed to prove its case beyond reasonable doubt.  It is contended that the offence of public violence was not proved by the state.  On the accused’s version, he phoned the complainant informing him that his shop was about to be raided by violent persons.  Appellant admits that he went to the shop and that he participated in the looting.  The video footage shows that the applicant was part of the crowd that broke into the supermarket.  Appellant was seen handing some food items to other persons through screen bars.  Appellant is also seen in the video footage taking and gulping some beer.  Appellant admits drinking the liquor but says that he wanted to be seen as being part of the invading crowd.  Appellant alleges that he was at the scene to save complainant’s property.  This is at variance with the CCTV footage.  The property that was “recovered” by the appellant was never accounted for.  From the evidence adduced in the court a quo it is clear that on the day in question, the appellant’s mission was not to save the complainant’s property.  This might have been the appellant’s intention when he phoned the complainant but he later changed his mind and joined in the disturbance of peace and engaged in acts of public violence, destruction and theft of property.

In his second ground of appeal, the appellant avers that the court a quo grossly erred in convicting the appellant on a charge of public violence when this had not been proved.  The court a quo properly considered the evidence and found the appellant’s defence to have been a lie. Appellant participated in the violent destruction and of looting of property and was caught on CCTV footage.  The appellant was not seen restraining the crowd.  Instead, appellant was seen distributing beer and other items to various persons through a screen door.  He was seen taking people to the back of the shop.  Witnesses who testified indicated that appellant did not assist the shop owners’ employees to save complainant’s property.  Appellant did not call any witnesses whom he claimed to have assisted in salvaging complainant’s property. The trial magistrate correctly captured the role of the appellant in this case as that of the biblical “wolf in a sheep skin”.  There is ample evidence showing that applicant was in active participant in the disturbance of peace, security and order, and the subsequent public violence that led to the destruction and pillaging of complainant’s property.  The essential elements of the offence of public violence were proved beyond reasonable doubt.

In his book, A Guide to the Criminal Law of Zimbabwe, G. Feltoe defines public violence at page 117 as follows:

“The unlawful and intentional commission by a number of people acting in concert of acts of sufficiently serious dimensions which are intended to forcibly disturb the public peace or security or to invade the rights of others.”

The physical elements of the offence of public violence involve the conduct of a group of persons whose conduct is unlawful.  What constitutes a sufficient number of persons for this offence depends upon the circumstances of each case.  In this particular case the group was about 200 persons.  There can be no doubt the number of people satisfied the requirement of a group of people.  The other requirement is that those persons must have acted in concert.  There must be a common purpose to disturb the public peace or to invade the right of others.  The evidence adduced in the court a quo clearly established that the appellant was not only an active participant in the acts of public violence.  He was at the front and centre of the looting as he is seen on CCTV video footage taking beer and distributing it to others.  He is also captured on video taking margarine and shoving it in his pockets.

In Momberume & 9 Others v The State HH-76-04, BHUNU J (as he then was) citing the case of S v Chaita & Others SC-120-04, held as follows:

“In a case of this nature it is not necessary to establish who exactly did what, suffice it to say that the state only has to show beyond reasonable doubt that the accused were acting in concert and common purpose and that each accused was actively associating  himself with the unlawful conduct …”

The third and fourth grounds of appeal raise essentially a repetition of the first two grounds of appeal.  I have already dealt with the sufficiency of the evidence led in the court a quo.  The trial magistrate cannot be faulted for reaching the conclusion that the state succeeded in proving its case beyond reasonable doubt.  Applicant’s defence was false.  He did not deny that he took some beers, which he consumed during the disturbances and destruction of property.  Appellant in fact invited members of the group to help themselves to various items of grocery.  Appellant was seen on CCTV video footage taking people to the back of the shop.  Appellant’s defence was shown to be false.  In fact it is false.  His explanation was not reasonably possibly true.

As regards sentence, the appellant argues that the sentence is excessive and induces a sense of shock.  It is a settled principle of our law that the issue of sentence is the domain of the trial court. The appeal court will not normally interfere with the sentence of a lower court unless the sentence is manifestly excessive so as to induce a sense of shock or there is a misdirection.  See: S v Ramushu SC-25-95.  The trial court has a wide discretion in sentencing convicted offenders.  The appeal court will only interfere with that sentencing discretion where there is gross irregularity or misdirection.  In this case the sentence of 6 years imprisonment with one year suspended is unduly harsh and excessive.  The state concedes that the sentence is wholly inappropriate.  From the facts on record, the appellant formulated the intention to participate in the violence and looting when he arrived at the shop.  The appellant was known to the complainant and when he phoned him he may have intended to save the complainant’s property.  Appellant’s moral blameworthiness is therefore reduced in that there seems to have been no pre-planning to engage in public violence.  Appellant is a first offender and a lengthy term of imprisonment is not appropriate.	In considering an appropriate sentence the court a quo overemphasized the aggravating features of the case.  Whilst a custodial sentence is ordinarily considered suitable in cases involving public violence the sentence of 6 years imprisonment was unduly harsh and excessive.  It is my view, that the learned trial magistrate misdirected himself in his approach to sentence.

In the circumstances, and accordingly the following order is made.

The appeal succeeds in part.

The appeal against conviction is dismissed.

The sentence of the court a quo is set aside and substituted with the following:

“Accused is sentenced to 3 years imprisonment of which 2 years is wholly suspended for 5 years on condition accused does not within that period commit any offence involving public violence for which upon conviction accused shall be sentenced to a term of imprisonment without the option of a fine.”

Takuva J ……………………………………… I agree