Criminal
Appeal
MUZOFA
J:
On the 8th of July 2019 we dismissed this appeal against conviction
and sentence. The appellant has requested for the written reasons for
the purposes of an appeal, we provide them herein.
The
appellant was convicted on a charge of contravening section 174(1)(a)
of the Criminal Law (Codification and Reform) Act [Chapter 9:23],
(Criminal abuse of duty as a public officer).
He
was sentenced to pay a fine of $700 or in default of payment 6 months
imprisonment. A further 5 months imprisonment were suspended on the
usual conditions.
He
noted an appeal against both conviction and sentence. The grounds of
appeal were set out as follows:
“Ad
Conviction
1.
The court a quo misdirected itself on convicting the appellant when
there was no evidence led beyond reasonable doubt that the appellant
committed the offence.
2.
The court a quo erred in convicting the appellant when all the
essential elements of the offence were not proved, in particular the
mens rea.
3.
The court a quo misdirected itself in basing its conviction of the
appellant on the grounds that the appellant had overall say on the
issuance of detention documents when in fact evidence to the contrary
had been led by the appellant and not disproved by the respondent.
4.
The court a quo also misdirected itself in (sic) failure to consider
the appellant's defence which was not disproved by the respondent.
Ad
Sentence
1.
The court a quo erred in imposing a fine which was unduly harsh
without enquiring into the appellant's ability to pay the same.
2.
The court a quo erred in imposing a fine which as unduly harsh to the
extent of inducing a sense of shock.”
The
appellant appeared before the trial magistrate jointly charged with
his co-accused who was not before this court.
The
State case was that the appellant and his co-accused were employed by
the Zimbabwe Revenue Authority (ZIMRA) based at the Beitbridge Border
Post. Appellant was a revenue supervisor.
On
the 23rd of December 2014 a truck owned by Turkey Trading (Pvt) (Ltd)
(the company) with a liquor consignment from South Africa en route to
Zimbabwe was cleared at the Beitbridge Border by a clearing agent
known as ASB Freight Services (Pvt) (Ltd) on lender bill entry number
C93285.
After
the clearance, the truck was intercepted by the appellant's
co-accused who referred the truck to the container depot for further
examination.
At
the container depot, the truck was examined and nothing untoward was
detected. However the appellant insisted that the detention of the
truck continue, no reasons were given for the decision.
The
appellant and his co-accused did not complete any documentation to
show why the truck was detained and why ZIMRA continued to detain it.
The
truck was subsequently released on the 14th of January 2015 after the
company applied to this court in an urgent chamber application for
its release.
When
the matter was heard before us, the appellant withdrew the appeal
against sentence. This judgment therefore is confined to the appeal
against conviction only.
Section
174(1) of the Criminal Code provides:
“1.
If a public officer, in the exercise of his or her functions as such,
intentionally;
(a)
Does anything that is contrary to or inconsistent with his or her
duty as a public officer; or
(b)
Omits to do anything which it is his or her duty as public officer to
do for the purpose of showing favour or disfavour to any person; he
shall be guilty of criminal abuse of duty as a public officer and
liable to a fine not exceeding level thirteen or imprisonment for a
period not exceeding fifteen years or both.
(2)
If it is proved, in any prosecution for criminal abuse of duty as a
public officer, that a public officer, in breach of his or her duty
as such, did or omitted to do anything to the favour or prejudice of
any person. It shall be presumed, unless the contrary is proved, that
he or she did or omitted to do the thing for the purpose of showing
favour or disfavour, as the case may be to that person.”
A
reading of the section shows that the essential elements of the
offence are that:
(i)
the accused person must be a public officer;
(ii)
the accused does an act contrary to his or her duty or omits to do
anything which is within his or her duty as a public officer;
(iii)
the act or omission must be done intentionally.
See
also R v Sacks (1943) SALR 413.
Once
the State establishes an intentional act or an omission inconsistent
with an accused's duties there is a rebuttable presumption that,
the act or omission was intended to show favour or disfavour to
another.
At
the centre of the offence is an act or omission beyond mere
negligence or just some neglect of duty.
This
is what the court in S v Taranhike HH222/18 had in mind when it
noted:
“What
emerges from the definition in section 174 as to what constitutes
abuse of office is the use of the word 'intentionally' in
carrying out the act an eschewed act of omission or commission. This
means that the conduct constituting abuse must be deliberate,
calculated or purposeful. Furthermore, the word abuse itself connotes
misuse, exploitation, taking advantage and recklessness in the
conduct.
The
1979 English case of R v Dytham 1979 (2) QB 722 gives an indication
of what is required in terms of arriving at an informed conclusion
that there was abuse of or neglect of public office.
As
the court stated therein:
'The
neglect must be wilful and not merely inadvertent; and it must be
culpable in the sense that it is without reasonable excuse or
justification.'
As
further stated therein, the misconduct impugned must be calculated to
injure the public interest so as to call for condemnation and
punishment.”
In
this case, the appellant was a public officer, no issue arises out of
that requirement.
The
undisputed evidence in the record is that the truck in question was
referred to the container depot by the appellant's accomplice. The
appellant was the supervisor at the container depot. Although there
is evidence that the appellant did not personally receive the truck
at the depot there is evidence of culpability in his conduct.
Appellant
confirms that his accomplice handed over the consignment note to him
for verification. He confirmed that according to the systems
procedure no documentation was made in respect of the truck.
In
short there was no official reason why the truck was detained by
ZIMRA.
Appellant
did not deny that he gave instructions to the driver of the truck to
disengage the horse from the trailer and park the truck. Isaac
Masharu's evidence, that the appellant advised him that the truck
had been impounded was not disputed either in his evidence in chief
or under cross examination. The utterances were made immediately
after the truck was searched at the container depot.
The
information that the truck was impounded was “technically”
correct because the truck spent 21 days under detention.
However
appellant communicated this, when there was no documentation to
support it. If appellant did not know what was taking place, on what
basis then did he communicate the information?
He
communicated the fact that the truck had been impounded yet no proper
documentation was available. It was his duty to make sure that
whatever communication and order were documented in terms of the
procedures because at that point in time he was the authority that
communicated the ZIMRA decision.
He
deliberately omitted to do his duty. That is not all.
It
seems the truck became an issue at ZIMRA. Christian Magwali engaged
appellant with a view to release the truck. Amkela Ndebele also
engaged the appellant about the release of the truck. What boggles
the mind and where inferences can be drawn is that at all relevant
times of engagement the appellant could not release the truck yet
there was no official reason why the truck was impounded.
From
his evidence the appellant said he engaged his superiors and they
agreed to send someone to South Africa to investigate the importer.
If
this was indeed the case at least the investigating officer should
have been favoured with this information. No evidence was placed
before the court about this investigation.
In
any event the appellant was seized with the matter, obviously he had
access to all the documentation in respect of the truck, save for the
reasons for impounding it. The appellant was well aware of the
non-documentation and was complicit in the unlawful detention of the
truck.
The
issue that arises is whether his conduct was just an oversight or the
conduct constitutes an abuse calculated to disadvantage the truck
owner.
There
was evidence of the abusive conduct of the appellant towards the
truck owner and the clearing agents. This kind of offence is
sometimes difficult to connect the dots, because the public official
would just sit on work in order to induce a consideration.
In
this case the appellant could not possibly take over an investigation
of an impounded truck when in the first place the truck was not
properly impounded.
The
Magistrate's reasons for convicting the appellant are very clear.
The inconsistencies highlighted by the appellant are of no
consequence, they do not go to the substance of the conviction.
It
is for these reasons that we dismissed the appeal.
MUSAKWA
J agrees
Mutandiro,
Chitsanga and Chituwa, appellant's legal practitioners
National
Prosecuting Authority, respondent's legal practitioners
