S v NEMAPARE 1982 (2) ZLR 10 (S)

Flynote

Criminal law — obstructing or interfering with course of justice — what c is — magistrate disposing of criminal case informally and in absence of prosecutor because he considered matter trivial — record written to show an apparently proper trial — too evidence of corrupt motive but at least was doing accused a favour — appropriate sentence.

Headnote

The appellant was, at the time of the offence, a provincial magistrate of some two and a half years' standing.

The complainant, a prison wardress, had laid a complaint of assault against two fellow wardresses, who were placed on remand on charge of assault with intent to do grievous bodily harm. They were remanded out of custody, because the magistrate who remanded them considered the matter petty.Thereafter, before the police investigations were complete and without consulting the public prosecutor, the appellant subpoenaed the complainant and the two accused wardresses to appear in his once. There the appellant questioned the parties and later in the day, in court, gave what purported to be a judgment in the matter, in which he stated that the two accused had been convicted of common assault. He cautioned and discharged them. The public prosecutor had at no time been consulted about the matter and had not agreed to a reduction of the charge to common assault. The record of the "trial" gave the appearance of being that of a properly conducted trial.

There was no evidence of a corrupt motive on the appellant's part nor that the case would have had a different result if it had proceeded regularly. The magistrate trying the appellant found that, whatever the appellant's motive, his intention must have been to deal with the case so that it would not be tried in the ordinary way before a properly constituted court. He sentenced the appellant to nine months' imprisonment, of which six months were conditionally suspended. The appellant appealed against conviction and sentence.

Held, dismissing the appeal against conviction, that there had clearly been an interference, procedurally at least, with the course of justice. Whether this amounted to the offence of obstructing the course of justice depended on the appellant's state of mind. On the evidence, this was not merely a case of the appellant helping expedite matters with a quick plea; the least inference that could be drawn was that he was doing the two accused women a favour, possibly by ensuring that they were only cautioned and discharged, possibly by ensuring that their trial was conducted in private and with no publicity.

Held, further, that, as there was nothing to show that the accused had received anything but just treatment for their offence, the balance could just be tilted in the appellant's favour, despite the general consideration that the integrity of judicial officers must be above reproach. A fine of $500, coupled with a suspended term of imprisonment, should be substituted.