Judgment No. HB 117/14
Case No. HCAR 2810/13
CRB No. REG 216/13
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 24 JULY 2014
MOYO J: The accused person was convicted of kidnapping as defined in section 93(1)(a) of the Criminal Law Codification and Reform Act [Chapter 9:23]. He was sentenced to 15 years imprisonment with 3 years imprisonment suspended for 5 years on condition the accused person, is not within that period convicted of the offence of kidnapping for which upon conviction he shall be sentenced to imprisonment without the option of a fine. This left the accused person with 12 years effective.
It is the sentence that has drawn my attention as I am of the view that it is unduly harsh and excessive so much so that it induces a sense of shock.
The facts of the case are that accused and complainant were neighbours. The accused on the 2nd of November 2012, at around 0630 hours, followed complainant who was on her way to school with some pupils. Complainant is apparently a teacher and was on her way to school in the company of these pupils. The accused approached complainant from behind and paced up until when he caught up with her. He greeted the complainant with a harsh voice. The complainant asked the accused person what he wanted and the accused demanded that she should stop. Complainant quickened her pace so did accused until he caught up with her. Accused had an okapi knife. He then dragged complainant through the fields to his home where he pushed her into the kitchen and sat on the doorway to stop her from escaping. He detained her for 20-60 minutes. Meanwhile the children that were walking with the complainant had run in different directions and some of them advised complainant’s husband of what had transpired. Complainant’s husband then came to the accused person’s homestead and accused attacked complainant’s husband assaulting him in the process. The accused person had previously been hauled before the Chief’s court whereupon he was ordered to pay 3 beasts for adultery damages to the complainant’s husband. The accused had been charged with rape and kidnapping whereupon at the close of the state case he was found to have no case to answer on the rape allegations. From the accused’s own defence he had an affair with complainant who was a married woman. Whilst complainant stated that accused was ordered to pay 3 beasts for the rape by the Chief, accused stated that 3 beasts were ordered as a result of consensual sex between him and complainant. The prosecutor conceded in his submissions to the court that the Chief would most certainly have ordered the accused to pay 3 beasts for adultery as opposed to rape. There was obviously some background relationship and interaction between accused and complainant prior to the kidnapping incident.
The accused person is a 49 year old first offender, married with 7 children. The accused’s version that he was in love with the complainant is supported by the chief’s order that he pays adultery damages to the complainant’s husband. Whilst the kidnapping charge is sustained by the school child’s evidence, it is clear from the facts that these two people had a background and accused had been punished for having an affair with someone else’s wife who is the complainant.
The sentence given to the accused person is not in line with other kidnapping cases and is accordingly excessive especially if one looks at the background that these parties already had. In Nyathi and Another vs S HB 19/92, the accused persons kidnapped the wife of a person who had sold them fake gold. This person was rescued after about 45 minutes. A sentence of 24 months imprisonment with 6 months imprisonment suspended on the usual conditions was confirmed in appeal by the Supreme Court.
In Mahuni and Others vs S HH 406/86, a policeman had been kidnapped for 3 hours by a bus crew and they were sentenced to 10 months imprisonment with 4 months imprisonment suspended on the usual condition. Also refer to Hove vs S SC 64/88 and Masuku and another SC 132/89.
The sentences are generally 3 years imprisonment or 2 years imprisonment with a portion suspended or even less.
In my view the facts of this case warrant a sentence less than 3 years imprisonment as I have alluded to the general guideline given by the decided cases.
I accordingly confirm the conviction. The sentence of 15 years imprisonment with 3 years suspended for 5 years, on the usual conditions, is accordingly set aside and substituted with the following:
The accused person is sentenced to 30 months imprisonment of which 12 months imprisonment is suspended for 5 years on condition the accused person does not, during that period commit any offence involving the deprivation of liberty of another person, whereupon conviction the accused person shall be sentenced to imprisonment without the option of a fine.
Takuva J agrees...............................................................