S v HARINGTON 1988 (2) ZLR 344 (SC)

Flynote

Criminal law — *Official Secrets Act [Chapter 97] — s 3(c)(ii) — communicating information to an "enemy" — "for any purpose prejudicial to the interests of Zimbabwe" — meaning of.

Statutes — interpretation of — legislation modelled on foreign statutes — extent to which interpretations by foreign courts may be relied on.

Criminal procedure (sentence) — *assessment of sentence — need for a balance between interests of society and those of criminal — statutory offence — court expressing personal view on what sentence should be — impropriety of — torture at hands of police before trial — mitigatory effect of — Official Secrets Act [Chapter 97] — communicating information to an enemy — woman communicating information to South African agents about ANC personnel and activities in Zimbabwe — appropriate sentence.

Headnote

The appellant, a citizen of South Africa, was asked by South African secret agents to go to Zimbabwe, posing as a courier for the African National Congress of South Africa. Her task was to collect and send to South African agents information about the ANC. She sent some information and documents to her controllers, but a letter containing a diagram of a house belonging to ANC officials, together with names and other information relating to those officials, was intercepted. She was charged before the High Court with contravening s 3(c) (ii) of the Official Secrets Act [Chapter 97]. That section penalises - "[Any] person who for any purpose prejudicial to the safety or interests of Zimbabwe. . . obtains, collects, records, publishes or communicates to any person. . . any model, article, document or other information which is calculated to be or which might be or is intended to be useful, directly or indirectly, to an enemy. . ."

The appellant pleaded not guilty but was convicted and sentenced totwenty-five years' imprisonment, the maximum sentence provided by the Act.

In sentencing the appellant, the Presiding Judge expressed the view that the death sentence, not imprisonment, was the most appropriate sentence. The maximum sentence was imposed in spite of challenged evidence from the appellant of torture of a most degrading, indecent and immoral nature at the hands of members of the Zimbabwean Central Intelligence Organization. This treatment was meted out in the presence of a member of the ANC.

An appeal was noted against conviction and, with the leave of the Supreme Court, against sentence. In respect of conviction, it was argued on behalf D of the appellant that -

• (a) as Zimbabwe was not at war with South Africa, there was no "enemy" for the information to be useful to;
• (b) for the information to provide the basis for a criminal offence, their content must be such as to be useful to a potential enemy in a war situation and that the appellant had discharged the onus placed on her by s 8(1) of the Act;
• (c) there was no connection between the information sought to be supplied and the interests of Zimbabwe.

Held, that it was not necessary for Zimbabwe to be in a state of war for the section to be contravened. While that limited connotation to the word "enemy" was one of long standing and was appropriate in s 16(8)(b) ofthe Constitution, which dealt with the protection of property rights of individual citizens, in interpreting the word's meaning in the Official Secrets Act the court must look at the Act and at what the legislature desired to achieve and the mischief it sought to remedy. The Zimbabwean Act was modelled on the English Official Secrets Act 1911. In interpreting a statute that is moulded on a foreign statute, assistance can be had from the interpretations made by foreign courts. In England, it has been held that in the context of the Official Secrets Act, the word "enemy" includes a potential enemy. In the light of a Ministerial certificate showing that South Africa had carried out cross-border military incursions, the assassination of people in Zimbabwe and thebombing of property in Zimbabwe, South Africa was a potential enemy, even though South Africa and Zimbabwe had trade relations and were connected by air, road and rail links and each had a trade mission in the other's country.

Held, further, that the appellant had failed to discharge the onus cast on her by s 8(1) of the Act, which required her to show that she had not, for a purpose prejudicial to the safety or interests of Zimbabwe obtained or attempted to obtain information which is calculated to be or might or is intended to be useful to an enemy. There was a direct connection between the information supplied and the interests of Zimbabwe, since the protection of all the people living in Zimbabwe, whatever their status, the protection of all property in Zimbabwe, irrespective of its ownership, and the safety and security of Zimbabwe are in every respect the interests of Zimbabwe. The appellant's purpose encompassed the destruction of Zimbabwean property occupied by members of the ANC and the killing of members of the ANC living in Zimbabwe.

Held, further, that fairness and justice exclude a passionate approach to sentence. Courts should, when assessing sentence, avoid insensitivity to one side or an exaggerated sense of the wrong done to society. Fairness does not exclude the element of mercy nor does it exclude a robust approach to sentence. The courts have a duty to do justice to all manner of people. This includes the protection of the interests of society and of the accused. It is the clear and balanced weighing in the scales of justice of the facts of the case that results in punishments that fit the crime as well as the criminal and are at the same time fair to society.

Held, further, that by expressing the private opinion that the death penalty was the most appropriate one for this offence, the Presiding Judge had not applied his mind judiciously to the evidence before him. The expression of such views and opinions not connected to the case before the court was a misdirection and there was no need to think of it when discussing sentence.

Held, further, that the uncontroverted evidence of torture should have been regarded as mitigatory, as should the presence of the ANC official during the interrogation and torture sessions, which was, to say the least, improper.

Held, further, that although the appellant confessed a support for the apartheid system, her political beliefs were not a factor to be taken into account when assessing sentence.

Held, further, that the maximum sentence of twenty-five years' imprisonment was exceptionally long and should be resorted to in very exceptional circumstances. This case was not exceptional but even if it were, the mitigatory features justified a sentence less than the maximum. sentence. A sentence of twelve years' imprisonment would be substituted.