State v Elodrich Manyema

### Preamble
1
HMA 50-17
CA 27/17
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STATE

versus

ELODRICH MANYEMA

HIGH COURT OF ZIMBABWE

MAWADZE J & MAFUSIRE J

MASVINGO, 13 September 2017 & 5 October 2017

Criminal appeal

Mr O. Mafa, for the appellant

Mr B.E. Mathose, for the respondent

MAFUSIRE J:

[1]	On 26 April 2017 the appellant, after a full trial, was convicted in the magistrate’s court of defeating or obstructing the course of justice in contravention of s 184(1)(e) of the Criminal Law (Codification and Reform) Act, Cap 9:23 (“the Code”). That provision reads:

“184	Defeating or obstructing the course of justice

(1)	Any person who-

(a)	……………………………; or

(b)	……………………………; or

(c)	……………………………; or

(d)	……………………………; or

(e)	knowing that a police officer is investigating the commission of a crime, or realising that there is a real risk or possibility that a police officer may be investigating the commission of a crime, and who, by any act or omission, causes such investigation to be defeated or obstructed, intending to defeat or obstruct the investigation or realising that there is a real risk or possibility that the investigation may be defeated or obstructed; or

(f)	……………………………; or

(g)	……………………………; or

(h)	……………………………; or

shall be guilty of defeating or obstructing the course of justice …”

[2]	The prescribed penalty is a fine not exceeding level ten [$700], or imprisonment for a period not exceeding five years, or both. The appellant was sentenced to ten months imprisonment of which five months imprisonment was suspended for five years on the usual condition of good behaviour.

[3]	The appellant appealed to this court against both conviction and sentence. On 13 September 2017, in a judgment delivered ex tempore, we dismissed both appeals. The appellant has asked for written reasons because he says he now wants to appeal to the Supreme Court. These are they.

[4]	The facts germane to the charge were either common cause or largely uncontroverted. They were these. At around 9:00 hours, at a small commercial centre near the Chivi junction, along the Beitbridge-Masvingo-Harare Highway the appellant, a self-employed male adult aged twenty-nine years, altercated with a twenty five-year old complainant who was a police officer but was on that day clad in civilian attire. The complainant was in the company of another policeman who was clad in police uniform. The appellant knew the complainant to be a police officer.

[5]	The complainant and his colleague had seen some tyres being off-loaded from a long distance haulage truck parked by the business centre. The driver had been off-loading the tyres and the appellant receiving them. The complainant and his colleague went to investigate. They suspected the tyres had been smuggled into the country.

[6]	Upon demand the driver of the truck surrendered some documents to the complainant. These included the driver’s licence; some permit, and some importation documents. The complainant and his colleague directed the driver to secure his truck and to follow them to their police base nearby for verification of the documents.

[7]	The appellant seemed piqued by the complainant’s conduct. He protested. He alleged the complainant was in the business of accepting bribes from him whenever he was dealing in fuel illicitly. He said he did not want the complainant to interfere since on that day he was not dealing in fuel and was therefore not due to pay the usual bribe.

[8]	The appellant is said to have slapped the complainant once or twice on the ear or neck, and to have violently pulled him by the collar of his T-shirt, causing it to tear. The appellant is then said to have grabbed the documents from the complainant, handed them over to the truck driver and instructed him to leave immediately. The truck driver complied. However, following some message transmitted to other policemen manning some road-block along his route, the truck driver was apprehended. He telephoned the appellant to inform him that he had been arrested at some check-point. The appellant drove to the check-point. But he was soon arrested and charged with defeating or obstructing the course of justice.

[9]	In the court a quo the State led evidence from the complainant and his colleague. That evidence was more or less the summary above.

[10]	The appellant led evidence from himself and a witness who was said to have witnessed the whole incident. The summary of their evidence was to deny that on the day in question the appellant had ever physically confronted the complainant in the manner alleged, or at all. They maintained that the complainant must have been angered and embarrassed by the appellant’s public chiding about illegal fuel deals and the complainant’s habit of receiving bribes.

[11]	It was said there were about fifteen to twenty people present at the scene. The complainant promised “to fix” the appellant. He caused the arrest of the truck driver. He subsequently re-appeared with some medical affidavit listing some injuries which he alleged he had sustained from an assault perpetrated upon him by the appellant.

[12]	The court a quo found the evidence of the two police officers to be coherent, consistent and corroborative. It believed them. On the other hand, it found the evidence of the appellant and his witness contrived, contradictory and unworthy of belief. Among other things, the court found as proved, the fact that the complainant and his colleague had terminated their intended investigation of the truck driver by reason of the appellant’s violent confrontation.

[13]	In his appeal to this court, the appellant’s grounds against conviction were:

that the court erred to convict when the evidence was insufficient, and

that the court erred to convict in the absence of independent evidence of a non-police officer, given that the offence had allegedly been committed in the presence of a crowd.

[14]	Against sentence, the grounds of appeal were:

that the court erred in imposing an effective custodial sentence without considering a fine or community service, given the abundant mitigatory factors; and

that the court erred by sentencing the appellant for assaulting [or] resisting a police officer when the charge of which he had been convicted had been obstructing the course of justice, which is far removed from, and is not a competent verdict to, the charge of which he was convicted.

[15]	At the hearing of the appeal, Mr Mafa, for the appellant, abandoned the second ground of appeal against conviction, namely the one relating to the court a quo allegedly having erroneously convicted only on the evidence of the police witnesses, to the exclusion of independent, non-police witnesses.

[16]	Mr Mafa also expressly advised that contrary to his defence outline and his evidence in court, and that of his witness, the appellant was admitting assaulting the complainant on the day and occasion in question.

[17]	The appellant’s admission of the assault of the complainant on the occasion in question should have put paid to the appeal against conviction. But Mr Mafa vainly went about trying to split hairs. Without specifying whether this was an argument in support of the appeal against conviction or against sentence only, or against both, he insisted that the appellant ought to have been charged under paragraph (g) of sub-section (1) of s 184 of the Code, instead of paragraph (e).

[18]	Paragraph (e), the contravention of which the appellant was convicted, is the one set out above. Paragraph (g) provides as follows:

“[Any person who]- , resists, hinders or disturbs a police office in the execution of his or her duty, knowing that the police officer is a police officer executing his or her duty or realising that there is a real risk or possibility that the police officer may be a police officer executing his or her duty … [shall be guilty of defeating or obstructing the course of justice …]”

[19]	The penalty for contravening paragraph (g) is a fine not exceeding level seven [$400], or imprisonment for a period not exceeding two years, or both.

[20]	Mr Mafa’s point was that the penalty under paragraph (g) is far less severe than that under (e). Of course, it is. That goes without saying. But his major bone of contention was that the evidence in the court a quo had disclosed contravention of paragraph (g), not (e). Among other things, he argued, the charge as outlined by the State did not disclose that on the day in question the complainant and his colleague had gone to the truck to investigate. Rather, they had gone there merely to inquire. To inquire is not the same thing as to investigate. In any event, the complainant and his colleague had not been hindered in their investigation of the truck driver since they had subsequently followed him after he had been apprehended at the check-point along his route. They had eventually decided that he had no case to answer. Therefore, the appellant could not be accused of having defeated or obstructed the course of justice.

[21]	After several exchanges with the court, Mr Mafa eventually conceded that his argument lacked merit. He abandoned it. Among other things, it was explained to him that an investigation necessarily involves an inquiry. Whilst a police officer carrying out an investigation is obviously executing his duties, it is not always the case that a police officer executing his duties is necessarily carrying out an investigation. To investigate is to execute police duties. But to execute police duties is not necessarily to investigate.

[22]	The charge under (g) encompasses all aspects of police duties, even including controlling crowds or traffic, for example. The charge under (e) is concentrated on blocking a police officer from conducting a specific duty, namely the carrying out of an investigation.

[23]	Naturally Mr Mafa’s concessions were well made. The evidence abundantly disclosed commission of the offence under paragraph (e). The appellant was admitting the assault on the complainant. It was a forgone conclusion anyway. There was enough evidence of that. Even his counsel’s cross-examination in the court a quo had started from the premise that the appellant had pulled the complainant by the collar. It had also started from the premise that it had been the truck driver who had stopped the appellant from assaulting the complainant. And both witnesses for the State had testified inter alia that the appellant had grabbed from the complainant the documents the truck driver had originally surrendered and had given them back to him, instructing him to drive away, which he had done. So the conviction had been proper.

[24]	That at some stage the complainant could have resumed his investigation of the truck driver, which the appellant had earlier on unlawfully caused to be terminated, or that the complainant had in fact eventually found no misconduct by the truck driver, does not detract from the fact that at the crucial moment, at that Chivi – Mhandamahwe turn-off, the offence under paragraph (e) had been committed and completed.

[25]	With those concessions, the appeal against conviction was all but dead in the water.

[26]	As against sentence, Mr Mafa’s argument was that the sentence was manifestly so excessive as to induce a sense of shock. He said the magistrate had not sufficiently taken the mitigating features into account. These were that the accused was a first offender; that he was a married man with a wife and two young children, and that he was the bread winner. A custodial sentence would be harsh and wasteful. Not only would the State have to actually expend money for his upkeep in prison, but also he would be unnecessarily incapacitated from working for his family. In this regard, the judgment of EBRAHIM JA in S v Mugwenhe & Anor was cited in support of the principle that the courts should strive as much as possible to keep first offenders out of jail. At pp 69G – H and 70A – B the learned judge of appeal quoted previous cases as follows:

“Apart from the fact that … prisons are overcrowded and that the upkeep of prisons and the maintenance of prisoners place a tremendous economic burden on the State, there are also other considerations attaching to imprisonment. The convicted person is removed from society, he is deprived of all responsibility and opportunities of acting independently as a free member of the community, his life is disrupted, manpower is lost and the prisoner comes into contact with elements which are … out of all proportion to that which he possibly deserves. If the same purpose in regard to the nature of the offence and the interests of the public can be attained by means of an alternative punishment to imprisonment, preference should, in the interests of the convicted offender, be given to the alternative punishments …”

[27]	But the appellant’s mitigatory circumstances were nothing out of the ordinary. Collateral damage of the sort complained of, whilst regrettable, is the obvious and natural consequence of a criminal enterprise.

[28]	Public assault and humiliation of police officers on duty, in spite of the infamy that their conduct sometimes draws, necessarily erodes public confidence in the maintenance of law and order. In S v Luka [not reported] MAKONESE J, stressing that an assault on a policeman on duty is a serious offence which should attract a custodial sentence, even for a first offender, said:

“The confidence of the public will be eroded where police officers are assaulted whilst in the execution of their duties and the offenders walk away with sentences of a fine. In any civilized society the uniform of a policeman gives hope to those who are offended that they can resort to the law. …. A sentence other than a custodial sentence sends the wrong message to would-be offenders.”

[29]	In Chitoro v S [unreported] MAWADZE J said the general approach is that the courts should take a dim view where an assault is carried out for purposes of resisting arrest and with the clear intention to intimidate law enforcements agents, and that in the absence of special mitigatory features, such conduct should deserve a custodial sentence. See also S v Masango and S v Chipere.

[30]	In casu, the appellant’s conduct, as noted by the court a quo, was highly reprehensible. He violently concerned himself with an issue that had little to do with him. The focus of the complainant, on the day in question, was the truck driver and his tyres, not the appellant or his illicit fuel deals. In his reasons for sentence, the trial magistrate amusingly put it as follows:

“He was not the one who was being investigated but he smuggled himself in a matter which had nothing to do with him. He ended the criminal investigations prematurely which were being duly conducted by the complainant. He humiliated the complainant as well as the office the complainant was occupying. Such self-anointed freedom fighters should be dealt with severely.”

[31]	We found no misdirection by the court a quo. The appellant’s moral blameworthiness was unquestionably high. The court a quo did consider a fine and community service as alternatives to jail, but found them inappropriate. We agreed. That is why we dismissed the appeal in its entirety.

5 October 2017

Hon Mawadze J:	I agree

Mutendi, Mudisi & Shumba, legal practitioners for the appellant

National Prosecuting Authority, legal practitioners for the respondent