Court name
Harare High Court
Case number
HH 277 of 2017
CA 935 of 2014

S v Mukondo (HH 277 of 2017, CA 935 of 2014) [2017] ZWHHC 277 (10 May 2017);

Law report citations
Media neutral citation
[2017] ZWHHC 277
Coram
Hungwe J
Mwayera J

1

HH 277-17

CA 935/14

 

FEATHERS MUKONDO                                                                            

versus

THE STATE

 

HIGH COURT OF ZIMBABWE

HUNGWE & MWAYERA JJ

HARARE, 2 December 2015 & 10 May 2017

 

Criminal Appeal

 

D Ngwerume, for the appellant

I Muchini, for the respondent

 

            HUNGWE J:  The appellant was convicted of bribery as defined in s 170 (1) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]. He was sentenced to 12 months imprisonment of which 4 months imprisonment was suspended for five years on condition of good behaviour. He appeals to this court against both conviction and sentence.

            In his notice and grounds of appeal the appellant advances five grounds of appeal. In the first ground it is averred that the court a quo erred in ignoring the glaring inconsistencies in the State witnesses’ evidence which created doubt in the State case. In the second ground, it is claimed that the State failed to prove its case beyond a reasonable doubt. The third ground bemoaned that failure to prove that there was no formal approval for a police trap which was employed to arrest the appellant. The fourth ground criticised the alleged gross violations of police standing orders contained in the Standing Order Volume 1 Manual. The final ground was that the court a quo failed to consider that the appellant’s case was highly probable and therefore showed that no offence was committed. The remaining five grounds attacked the propriety of imposing a custodial sentence on the appellant who was a first offender.

            The first ground of appeal attacks the factual findings by the court a quo in respect of credibility. In a well-reasoned judgment by the learned trial magistrate, the following findings of fact were made. The appellant was a police officer at Guruve Police Station. The informant Biggie Chipfunde had a case pending at the local court. There was an exchange of money from Biggie Chipfunde to the appellant. The appellant denies that this was a bribe handed over at his behest in order to make the matter in which Biggie Chipfunde was a suspect at his police station go away. Biggie Chipfunde alleged that the payment was in response to persistent demands for a bribe by the police officer when he had been implicated in a criminal matter reported at the police station. The magistrate preferred the evidence given by State witnesses to that given by the appellant as to the real purpose of the payment which was recovered in a police trap sting operation. There were minor inconsistencies which the magistrate ably dealt with and undoubtedly was aware of during trial. The police team details who set the trap in which previously recorded bank notes were given to the informant were subsequently recovered from the appellant upon his arrest were produced during the trial. I am unable to fault these factual findings by the court a quo. In any event the question to ask on a full appreciation of the facts found prove is whether in their totality the State has proved the essential elements which make up the offence of bribery as defined in the Criminal Law Code.

            That section provides:

            “170 Bribery

(1) Any:-

(a) agent who obtains or agrees to obtain or solicits or agrees to accept for himself or herself or any other person any gift or consideration as an inducement or reward:-

(i) for doing or omitting to do, or having done or omitted to do, any act in relation to his or her principal’s affairs or business; or

(ii) for showing or not showing, or having shown or not shown, any favour or disfavour to any person or thing in relation to his or her principal’s affairs or business;

knowing or realising that there is a real risk or possibility that such gift or consideration is not due to him or her in terms of any agreement or arrangement between himself or herself and his or her principal;

or

(b) person who, for himself or herself or any other person, gives or agrees to give or offers to an agent any gift or consideration as an inducement or reward:-

(i) for doing or omitting to do, or having done or omitted to do, any act in relation to his or her principal’s affairs or business; or

(ii) for showing or not showing, or having shown or not shown, any favour or disfavour to any person or thing in relation to his or her principal’s affairs or business;

knowing or realising that there is a real risk or possibility that such gift or consideration is not due to the agent in terms of any agreement or arrangement between the agent and his or her principal;

shall be guilty of bribery and liable to:-

A. a fine not exceeding level fourteen or not exceeding three times the value of any consideration obtained or given in the course of the crime, whichever is the greater; or

B. imprisonment for a period not exceeding twenty years;

or both.

(2) If it is proved, in any prosecution for bribery, that:-

(a) an agent has obtained, agreed to obtain or solicited any gift or consideration, whether for himself or herself or for another person; or

(b) any person has given, agreed to give or offered any gift or consideration :-

(i) to an agent, whether for himself or herself or for another person; or

(ii) to any other person, after agreeing with an agent to do so;

it shall be presumed, unless the contrary is proved, that he or she did so in contravention of this section.”

[Section amended by section 31 of Act 9 of 2006.]

            The first ground fails for the above reasons. The second ground is a nullity as it does not comply with the requirements of the Rules. (See r 22 (1) of Supreme Court (Magistrate Court) Criminal Appeals Rules, 1979). The remaining three grounds of appeal relate to the defective trap set by the arresting police details.

            Whilst the absence of the authority to trap the accuse may be a cause for concern, the overall impression given by the evidence exclude any perception of impropriety on the part of the State witnesses who went about the process of investigating the validity of the complaint by a suspect that the police officer involved was demanding a bribe. The Police General Headquarters gave the green light to the investigating detail to entrap the appellant so as to test the credibility of allegations raised by the complaint. Indeed the appellant received the money from a suspect who was under investigation by the same police station where the appellant held a senior rank. The courts have long recognised and distinguished between trapping which is acceptable and trapping which is not. For example if the trapping was such that it promoted the commission of the offence by someone who would not otherwise have committed it, that would have required a stricter approach to the evidence of entrapment. This is not a case where it could be said that bit for the trap, the appellant would not have committed the offence. The evidence shows that it was the appellant who solicited the bribe. The learned magistrate demonstrated the length to which the appellant went in order to make sure that he personally received the money from the complainant. See S v Fisher 1971 (1) SA 745 (RA); S v Kamtande 1983 (1) ZLR 302. There is in my view no basis to interfere with the conviction by the magistrate as it is proper. The appellant in any event failed to discharge the reverse onus set out in ss 170 (2) above. Once he accepted that he received money from the suspect in a matter pending at the police station, he had to discharge the onus cast by the presumption created in the State’s favour that he had received the money in contravention of the provision of s 170. This the magistrate correctly found, he failed to do.

            In the event the appeal against conviction fails.

As for the appeal against sentence, the learned trial magistrate cited the case of Attorney-General v Bryan-Johnsen and Patrick Maganja SC 119/98 as authority for the proposition that where the offender is a police officer or an agent of the state, a custodial punishment is called for unless there are cogent reasons which indicate the contrary. The appellant’s counsel had no answer to cited authority. I am similarly persuaded. The appellant deserved what he got as punishment. As such the appeal against sentence similarly fails.

Accordingly the appeal is dismissed in its entirety.

 

 

MWAYERA J agrees………………………….

 

 

 

 

National Prosecuting Authority, legal practitioners for the State

Hamunakwadi, Nyandoro & Nyambuya, legal practitioners for the appellant