S v MASUKU & ANOR 1989 (3) ZLR 33 (S)

Flynote

Criminal law - kidnapping-elements - accused refusing to drop hitchhikers off at agreed stopping place - whether amounts to kidnapping.

Headnote

The appellants had agreed to give four schoolgirls a lift in their open truck from Bulawayo to the girls' school at Matobo Mission. On the way the appellants made advances to the girls, but their advances were rejected. The appellants then informed the girls that they would not stop at the Mission, as agreed, for fear of Army patrols in the area, and requested the girls to accompany them to the second appellant's communal land home where they would drink, dance and sleep until the next morning, when they would be taken to the school. When they got near the Mission they drove past the gate without stopping. The girls, believing that they were going to be transported to the second appellant's home with some evil intent, jumped off the moving truck as it passed the school, sustaining minor injuries in so doing. The appellants were convicted of kidnapping. On appeal:

Held, that the nature of the offence of kidnapping is an attack on, and the infringement of, the personal liberty of the individual. The law is concerned with two things: the protection of personal liberty (a) from any interference and (b) from any restraints on the freedom of movement. The relevant ingredient of the crime is the absence of consent of the person who is taken, even if that person is a child. The seizure of a person without his consent, however transient, is an interference with his personal liberty. There is a deprivation of liberty or custody when there is any substantial interference with freedom of movement, what is substantial being tested by the de minimis principle and relating not only to matters of time but also of space and other factors. On the facts of this case there had been a substantial interference with the complainants' freedom of movement and the appellants had been rightly convicted.