KAMOCHA J: At the
end of arguments presented by both legal representatives we dismissed this
appeal against sentence and indicated that our reasons for so doing would
follow in due course. These are they.
The appellant pleaded guilty to a
charge of contravening section 179(1) of the Criminal Law (Codification and Reform)
Act [Chapter 9:23]. It being alleged
that from 19 to 26 February 2010 he wrongfully and unlawfully impersonated a
public official.
The facts that he admitted in toto were as follows:
“On the 19th February 2010 the accused who is the
managing director of Vilox Investments Group approached Simbarashe Chivaura a
legal practitioner employed by Mashayamombe and Company Attorneys situated at
Salaamat Mews suite 301 3rd floor, Bulawayo. Accused sought legal advice in drafting a
letter of proposal as he intended acquiring 51% shares from Lobels Biscuits,
Bulawayo in line with the Indigenisation and Economic Empowerment Act. After having his draft edited and printed on
his company letterheads by Simbarashe Chivaura, the accused then delivered the
letter to Lobels Biscuits at the corner of Birmingham and Luton Streets,
Belmont, Bulawayo.
Later on the same date the 19th February 2010
accused telephoned complainant to ascertain if he (complainant) had received
his letter. Complainant indicated that
he had received the letter.
On 22 February 2010 accused phoned Charmaine Fletcher, the
personal assistant to the managing director posing as Simbarashe Chivaura from
the President's Office. Accused
indicated that he was making a follow up to the Vilox Investments group
proposal. On 23 February 2010 accused
again phoned Lobels Biscuits posing as Collin Coetzee and that he was checking
on the progress in respect of Vilox Investments group's shares proposal. On the 24th day of February 2010
accused personally visited Lobels Biscuits and was attended to by the human
resources manager Andrew Dinhidza.
Accused highlighted that the complainant had to make serious
considerations of the proposal as there were very big and influential people
involved.
Between the 24th and 26 February 2010 accused made
phone calls from land line number 231148 and cell phone number 0914137464 to
Lobels Biscuits still posing as either Simbarashe Chivaura or Collin
Coetzee. At some instances accused would
demand an urgent and positive response towards his proposal. He further lied to the managing director of
Lobels Biscuits that His Excellency President Robert Mugabe and Minister
Saviour Kasukuwere were soon going to tour complainant's company.”
When the essential elements were canvassed with him he
admitted that each time he phoned the complainant and when he visited the
complainant he held out that he was a member of the Central Intelligence
Organisation (CIO).
The trial court was of the view that
no other form of punishment other than a term of imprisonment was appropriate
in the circumstances. The court reasoned
that what the accused did would bring the name of the government into
disrepute. His actions would further
discredit any good intentions the Indigenisation and Empowerment Act may have. Moreso as the appellant was alleging that
senior government officials were involved in such malpractices. The court arrived at the conclusion that
severe and deterrent sentences should be meted against the miscreant so that
others with like minds could be deterred.
The court then sentenced the accused
to undergo 8 months imprisonment. In
terms of section 179(1)(b) a person who is convicted of impersonation is liable
to a fine not exceeding level six or imprisonment for a period not exceeding
one year or both.
The 8 months imprisonment imposed by
the trial court is within the limit provided by law. The appellant was persistent in his behavior
leading the trial court to the conclusion that the only suitable form of
punishment was a term of imprisonment.
The trial magistrate appears to have exercised his discretion properly,
in my view, when arriving at the sentence which was finally imposed.
The sentence might have been on the
steep side. This court may have imposed
a somewhat different sentence had it been the trial court. That, however, is no reason for this court to
interfere with judicial discretion properly exercised. The appellant did not suggest that the
sentence was excessive so as to warrant interference by this court. This court, therefore, would have no basis
for altering the trial court's sentence.
In the result the appeal fails and
is accordingly hereby dismissed.
Mathonsi
J …………………………………………. I agree
Messrs T. Hara and Partners, appellant's legal practitioners
Attorney-General's Office
respondent's legal practitioners
