MALABA
DCJ: The unanimous view of the
Court is that the appeal is without merit.
The
facts which are common cause show that the appellant was found in possession of
weapons designated as dangerous weapons under s 13(1) of the Public Order and
Security Act [Cap. 11:17].
The
section prohibited possession of the weapons in question without a ministerial
authority. The appellant did not obtain
the requisite authority before he took the weapons into his possession. The argument that the appellant did not act
unlawfully because he intended to hand the weapons to the police ignores the
essential elements of the offence. He
knew that he needed to have the necessary ministerial authority before he took
those dangerous weapons into his possession.
He was a general arms dealer whose general licence could not provide
authority for the possession of the dangerous weapons. It is clear from his own explanation that his
conduct was a deliberate violation of the law.
The
trial court properly found the appellant guilty of contravening s 13(1) of the
Act.
On
sentence, the court a quo considered
the mitigating factors and weighed them against the aggravating features. Amongst the mitigating factors it took into
account were the lengthy pre-trial incarceration of the appellant, the torture
the appellant was subjected to by the State agents prior to being prosecuted;
his contributions to the local community and that he was a first offender. The aggravating features the Court took into
account included the seriousness of the offence particularly that he knew as a
professional arms dealer and former member of the special constabulary and that
these were dangerous weapons the use of which could seriously affect national
security.
The
court a quo exercised its discretion
and imposed the sentence of 4 years imprisonment of which 1 year was suspended
on the usual conditions.
We
do not share the view that the court a
quo did not place sufficient weight on the mitigatory factors which it
clearly took into account. The sentence
imposed reflects that the Court considered the mitigatory factors to be weighty
because the maximum sentence for the offence is 10 years.
The
appeal is accordingly dismissed.
ZIYAMBI
JA: I agree
CHEDA
AJA: I agree
Zimbabwe Lawyers for Human Rights,
applicant's legal practitioners
Attorney-General's
office, respondent's legal practitioners
