CHEDA
J: This is an appeal against both conviction and sentence, a decision
made by the magistrate sitting in Bulawayo on the 20th November
2006.
The appellants were charged with
contravening section 6(f) of the Miscellaneous Offences Act [Chapter 9:15]
(hindering a Police Officer in the execution of his duties). They pleaded
not guilty but were convicted and sentenced as follows:
“6 months
imprisonment of which 5 months imprisonment is suspended for 5 years on
condition of good behaviour accused and 1 month is suspended on condition the
accused completes 35 hours of community service in 1 week.”
The brief facts of this matter are
that the two appellants are members of the Christ Apostolic Church. On
the 15th December 2005 the complainant who is a Detective Sergeant
in the Zimbabwe Republic Police intended to arrest one Jevas Mutsambiwa who is
second appellant's father at Tredgold Building, Bulawayo where second appellant
was appearing as
an accused. When complainant
tried to effect an arrest both appellants interfered and prevented him from
carrying out his lawful duties as a police officer. While he was still trying
to effect an arrest, members of appellants' church formed a circle around him,
started shouting abscenties and made menancing gestures in a threatening
manner. It is as a result of their actions that he abandoned his
intention to arrest Jevas Mutsambiwa as the atmosphere was not conducive to
effect a lawful arrest.
Conviction
It is appellant's contention that they
were not properly convicted because their actions were not a threat to the
complainant to the extent of causing him to abandon the intended arrest.
The trial court made a finding that
appellants and members of their sect mobbed and surrounded the complainant,
thereby, preventing him from effecting an arrest. The law prohibits
anyone, whatsoever, from preventing a Police officer from executing his lawful
duties including effecting a lawful arrest.
In determining the question of whether
complainant's failure to execute his duty was as a result of appellant's action
the court must consider the circumstances surrounding the arrest. The
police officer subjectively must have felt fear for his life or threat to his physical
safety to an extent that the best way out was to abandon a lawful execution of
his duties.
Incasu it is on record that Jevas
Mustsambiwa was on the Police wanted list. He was found at a place where
the complainant was in a position to effect an arrest and indeed attempted to
do so, but, was prevented by appellants.
Second appellant told the complainant that
he was not going to allow the complaint to take his father away and grabbed his
father's hand from the complainant, by so doing he released him from the
complainant's hand. It was at that time that first appellant also joined
in the fray specifically telling the complainant that he was not going to allow
him to take away Jevas Mutsambiwa. The presence of an emotionally charged
and rowdy crowd in the form of the members of the Christ Apostolic church was
enough to cause shivers on the complainants' spine and his abandonment of the
arrest was reasonably expected. It is therefore clear that he was
prevented from performing his lawful duties.
I agree with Miss Ndlovu for the
respondent that the prevention by appellants was a clear contravention of the
section of the miscellaneous offences Act (supra) they were charged
with. The irony of the complaint is that this was at Tredgold Building, a
seat of the magistrate court where even the worst criminal is expected to
temporarily behave.
These courts will not entertain or
gloss-over such unlawfulness clothed with barbaric behaviour and/or conduct
against the police by anybody let alone by members of a supposed pious crowd
masquerading as the Holy ones. Appellants' conduct smacks of the expected
conduct associated with the expectedly-non-violent religious group of
people. Nonetheless their behaviour indeed was offensive and deserved
censure.
The learned magistrates' finding was in
order and cannot be faulted. The conviction was therefore quite proper.
Sentence
Appellants derailed the smooth running of
the wheels of justice. Their conduct was clearly unacceptable and
therefore calls for punishment. In my view, they were lucky to have been
sentenced to a non-custodial sentence. This is the case where a short, but,
sharp term of imprisonment would have been appropriate. Their conduct
towards a Police Officer and in the court premises goes against all the tenets
of piety.
The need for severe punishment in the
circumstances was called for. Again there was no misdirection on the part
of the learned trial magistrate on both conviction and sentence.
The appeal is dismissed accordingly.
Shenje and partners,appellants' legal practitioners,
Criminal Division, Attorney General's
Office, respondent's legal practitioners
Cheda
AJ............................................................
