THE State V Ntokozo MOYO

### Preamble
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HB 242/23
HCBCR397/23
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THE STATE

Versus

NTOKOZO MOYO

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 23 November 2023

Review judgment

DUBE-BANDA J:

[1] This matter was placed before me on automatic review. The accused was arraigned before the Magistrate’s court sitting at Western Commonage, Bulawayo. He was charged with two counts. In count 1 he was charged with the crime of contravening s 42(2) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] (Criminal Law Code), it being alleged that on 23 July 2023 in a commuter omnibus he publicly uttered an insulting and grossly provocative statement targeting people of Shona ethnic group. In count 2 he was charged with the crime of assault as defined in s 89(1) (a) of the Criminal Law Code. He pleaded guilty and was convicted. In count 1 he was sentenced to 6 months imprisonment. In count 2 he was sentenced to 24 months imprisonment of which 6 months was suspended for a period of 5 years on the usual conditions of good behaviour.

[2] The basic facts can be shortly stated. Count 1 is anchored on that on 23 July 2023 the complainant boarded a commuter omnibus plying the Pumula-Town route. The complainant in Shona language requested the accused to sit on the next seat. The accused initially refused and later agreed to sit on the next seat, but he then started to insult the complainant in isiNdebele language saying “You Shona people it’s been long ill-treating us (sic), who do you think you are here, your asshole it does not matter as to who you are even if you are the police, CIO, I am not afraid of you, you are assholes together with your President Emmerson Mnangagwa.” Count 2 is anchored on that the accused slapped the complainant twice on the face. The complainant neither sustained any visible injuries nor sought medical treatment.

[3] The convictions on both counts are proper and nothing turns on them. It is the sentence in count 2 that is disturbingly inappropriate. It is trite that the power of this court on review to interfere with a sentence imposed by a lower court is limited. This is so because punishment is pre-eminently a matter for the discretion of the trial court, and the reviewing court should be careful not to erode such discretion, unless there is a recognizable ground of review at law to interfere.

[4] Count 1 is indeed serious. The utterances of the accused undermine the founding values on which this country is anchored. The founding values of the Constitution speak to the recognition, amongst others of the rights of ethnic, cultural and linguistic groups. Further, the Constitution forbids unfair discrimination based on tribe, ethnic origin, language and political affiliation etc. No person must feel insecure in any corner of this country merely because of their tribe, ethnic origin, language or political affiliation. Disparaging State institutions and demeaning the President of the Republic is aggravating. Labelling and associating institutions of State with a tribal and ethnic taint is aggravating. Where any manifestation of such intolerance or discrimination in any form or shape raises its ugly head, the force of law must quickly without fear nor favour descend on the wrong doer. The sentence in count 1 is in terms of the law. The utterances of the accused cannot be countenanced and he must be held accountable for this crime. There must be consequences for such a crime. Therefore, the sentence is proportionate and equal measure to the damage done to the society.

[6] It is the sentence in count 2 that is disturbingly inappropriate and irrational. In punishing an accused, the court must not be vengeful and angry, otherwise it will be no different from the accused. The sentencing principles must be applied as required by the law. It is trite law that in sentencing, the punishment should fit the crime, as well as the offender, be fair to both society and the offender, and be blended with a measure of mercy. See S v Rabie 1975(4) 855 (AD) at 862 G.

[5] In assessing sentence in count I, the trial court took as aggravating that the words uttered by the accused were provocative and insulting. In respect of count 2, the court took as aggravating that the assault on the complainant was politically motivated, and that it was also motivated by discrimination anchored on tribe and political affiliation.  The court further took into account that community service was not recommended for the accused, and concluded that direct imprisonment in respect of both counts would meet the justice of the case.

[6] The remarks of the trial court in count 2 do not show a careful consideration of all the relevant factors. I take note of the fact that the accused was without legal representation, and in mitigation he said he committed this crime because the complainant insulted him. The magistrate did not canvass or investigate this issue further with the accused for the purposes of ascertaining its weight in mitigation. The trial court had a duty to comment on this issue, and say how it located it in the whole sentencing matrix. However, notwithstanding that the issue of insult, which amounts to provocation was not canvassed or investigated it still remains a mitigatory factor. I say so because the record does not show that this issue was disputed by the prosecution. And that which is not controverted is taken as admitted. Section 238 of the Criminal Law Code is clear that provocation is not a defence to crimes other than murder, but it may be mitigatory.

[7] The accused suffered double jeopardy in this case. I say so because in sentencing the accused in respect of both counts, the trial court took into account the same aggravating factors. In count 1 he was sentenced to direct imprisonment because of the insulting and provocative utterances he made against the complainant. Again, in count 2 the same utterances were taken as aggravating to justify a sentence of direct imprisonment. This resulted in count 2 to an irrational sentence of 24 months imprisonment, and leaving him with an effective sentence of 18 months’ imprisonment.

[8] The trial court did not give weight to mitigating circumstances in this matter. The accused pleaded guilty. The State was spared the expense of going through a trial process and some credit should have been given to such a plea of guilty. He is a first offender and a family man. Again, in count 2 the penalty provisions provide for a fine or imprisonment, the record does not show that the trial court gave serious consideration to a fine. Except to say it judicially considered community service but it was not recommended.  Sentencing is a judicial function. The sentencing court is enjoined to factor into the sentencing matrix all the relevant facts, including the views of the community service officer where such are available, but none of it is binding on the court.  Imprisonment is a severe punishment which must only be imposed as a last resort. See S v Mpofu (2) 1985 (1) ZLR 285(H). If it is possible to spare an accused imprisonment, particularly a first offender who pleaded guilty, that is the way to go. The reading of the sentencing judgment, in respect of count 2 does not show that the trial court gave serious consideration to sparing the accused direct imprisonment.

[9] This court may review a sentence of the trial court on the grounds of irrationality. This principle acts as a safety net to give this court some degree of control over sentences of the subordinate courts that are disturbingly inappropriate and not in accordance with the law. Review on grounds of irrationality simply means that the trial court did not act in accordance with the established principles, and that a court that had correctly applied its mind to the principles of sentence would not have imposed such a sentence.

[10] In count 2 the sentence of the trial court is not rationally related to the applicable sentencing principles and the facts of this case. I say so because sentencing an accused to 24 months imprisonment, 6 months of which were suspended for 5 years on condition of good behaviour, and leaving an effective sentence of 18 months for slapping complainant twice, in a case where complainant did not seek medication attention, and where there are no injuries is irrational. In fact, the complainant in his affidavit on record says he did not seek medical attention because he did not suffer any injuries. The sentence in count 2 is not in accordance with real and substantial justice and is susceptible to be reviewed and set aside.

[11] This court, for the reasons stated above, finds that the sentence in count 2 is irrational and should be reviewed and set aside.

I the result, I order as follows:

The convictions on both counts be and are hereby confirmed.

The sentence on count 1 be and is hereby confirmed.

The sentence in count 2 be and is hereby reviewed and set aside and substituted with the following:

In count 2, the accused is sentenced to a fine of USD100. 00 and in default of payment 3 months imprisonment. The fine is payable at the equivalent Zimbabwean dollar at the interbank rate.

Dube-Banda J ……………………………………………..

Kabasa J Agrees …………………………………………..