Judgment No. HB 22/05

                                                                                                Case No. HCA 200-6/03

WILSON MANGENA

And

TINOMUVONGA ZHOU

And

PHILLIP MLOTSHWA

And

ROSEMARY GUMBO

And

TREVOR NGWENYA

And

BONIFACE TEMBO

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

CHIWESHE AND NDOU JJ

BULAWAYO 17 JANUARY AND 10 MARCH 2005

Sizibafor the appellants

A V Mabhandefor the respondent

Judgment

            NDOU J:        The appellants were jointly arraigned before a Provincial Magistrate sitting at the Gwanda Magistrates’ Court on 22 October 2003 facing a charge of public violence.  They pleaded guilty to the charge and were each accordingly sentenced to 48 months imprisonment of which 3 months imprisonment was suspended for 5 years on the usual conditions of good behaviour.  They are not satisfied with propriety of the sentence and have appealed against sentence only.  The

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background facts are that on 15 October 2003 and at Boulder Greek Ranch, West Nicholson, the appellants and fourteen other persons thereabout, armed themselves with axes, knob-kerries, sticks, whips and knives and disturbed public peace or security or invaded the rights of others.  In short they disarmed a National Parks and Wild Life officer of his official AK 47 rifle with a magazine of 26 rounds.  The fired at him and his fellow game scouts.  They shot and damaged the tyre and rim of vehicle registration number 735-785Q, a Mazda B2500, the property of Drummond Ranch.  They confiscated two Motorolla radios and car keys and an AK rifle from the scouts.  They further assaulted the game scouts.  The motive of the public violence was to “rescue” the wives, relatives and fellow villagers who had been lawfully arrested for poaching offences committed at the ranch.  The complainants were carrying out their lawful duties of preserving and managing wild life and game at the time of the attack by the appellants.

            At the conclusion of submissions we indicated that the appeal was partly successful.  We set aside the original sentence and substituted it with one of 48 months imprisonment of which 24 months is suspended for 3 years on condition that the accused does not within that period commit an offence involving public violence and for which he or she is convicted and sentenced to imprisonment without the option of a fine.  We indicated that our reasons will follow.  This judgment provides the said reasons.  Public violence, vis, publica, is generally a serious offence striking at the roots of orderly and peaceful co-existence.  It is aimed at a vital and main objective of criminal law itself. 

“In an atmosphere and under circumstances of disorderly mob rule, of a serious breach of public peace and orderly co-existence, the law itself may become endangered.  Orderly administration may become difficult, if not impossible and the interests of law abiding members of society may be

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seriously and irreparably prejudiced …” – South African Criminal Law and Procedure Vol II, Common Law Crimes, 3^rd Ed, P M A Hunt and J R L Milton at pages 95-6. 

Public violence usually calls for exemplary sentences – S v Thonga 1993(1) SACR 365 (V) at 372; S v Mushonga 1975 (1) SA 247 (RA); S v Muyambo 1981 (1) SA 385 (ZA); S v Maseko 1988 (4) SA I (A) at 3I-4A; S v Khumalo 1991(4) SA 310 (A) at 365; S v Simbi 1996(1) ZLR 167 (H) and S v Quandu 1989(1) SA 517(A).

            In this case a large number of persons was involved i.e. the six appellants plus fourteen others.  This is a relevant factor in the assessment of sentence.  The appellants used an assortment of weapons as alluded to above.  They assaulted complainant – Richard Moyo until he was “powerless” and disarmed him of the AK 47 rifle.  Such a severe assault is an aggravating factor – R v Cele 1958(1) SA 144(N) and R v Salot 1955(1) PH H35 (N).  The appellants damaged a motor vehicle as indicated above.  This is also aggravating – S vMangcola 1987(3) SA 791(C).  From the facts all the appellants participated actively and played pivotal roles in the violence.  This is an aggravating factor – R v Mushonga, supra; S v Katsande 1974(1) SA 355 (RA) and S v Chaka 1978(2) SA 65 (O).  Another aggravating factor is that the appellants were challenging the authority of public officials i.e. National Parks and Wild Life game scouts and officials – R v Mathabalala 1957(1) SA 49 (T) and S v Usayi & Ors 1981 (1) ZLR 61 (A).  Against all this the ages and personal circumstances of the appellants have to be considered – S v Abrahams 1990(1) SACR 172(C)            and S v Malinga 1986(4) SA 296 (E).  The appellants are first offenders.  According to his reasons for sentence, the trial magistrate attempted to balance the mitigatory personal circumstances as against the seriousness of the offence.  Generally, sentence is the province of the trial court which enjoys discretionary

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powers.  This court of appeal is enjoined to be careful not to erode such discretion – S v Ramushu & Ors SC-75-93; S vMundowa 1998(2) ZLR 392; Matanhire & Ors v S

HH-18-02; Mavhundura v S HH-91-02; Msindo & Ors v S HH-25-02 and Zulu v S HB-52-03.

            I propose to deal with the issues raised by the appellants in turn.  Firstly, the appellants argue that there is a need to individualise the punishment I agree that the sentencing court has a duty to enquire into the subjective elements in order to individualise the punishment – Maxaku, Williams v S 1973(3) SA 248 (C); S v Zinn 1969(2) SA 537 (A); S v Beman & Ors HB-71-03 and S v CM;  S v ZD HB-67-03.  There is evidence that the trial magistrate was alive to this need as he sentenced the appellants’ accomplice who fired the AK 47 rifle more severely than the appellants.  He individualised the offenders’ cases as best as he could.  In view of the elastic nature of the public violence he cannot be faulted for the extent of the individualisation – R v Kashion 1963(1) RLR 727 (SR) and S v Mzwakala 1957 (4) SA 273 (AD) at 277.

            Secondly, as for the period of the suspended sentence, Mr Mabhande, for the respondent conceded that a longer period of suspension was called for.  I agree that this concession is proper bearing in mind the sentences in the cases that he referred in his heads of argument.  It is only to that extent that we felt that the trial court misdirected itself.  We accordingly altered the sentence as reflected above.

                                    Chiweshe J ……………………….. I agree

Cheda & Partners, appellants’ legal practitioners

Criminal Division, Attorney-General’s Office,respondent’s legal practitioners