S v MUKWEZVA 1992 (2) ZLR 283 (S)

Flynote

Criminal law — bribery — "official of the State" — when a person is an official of the State — whether employee of parastatal is official of the State

Criminal procedure (sentence) — bribery — deterrence and reflection of public indignation are predominant factors in assessing sentence

Headnote

Bribery can only committed where the bribee is an "official of the State". In deciding whether a person is an official of the State, emphasis is placed on the performance of governmental duties in the broadest sense. For a person to be an official of the State, he should have been

• engaged to perform some official, as opposed to a purely private, function; and
• paidout of a fund provided by public taxes and not by the private sector.

A person may be an official of the State even though

• he is only employed on a temporary basis and his employment is terminable at the will of the State;
• he is not a member of the public service as defined by the Public Service Act.

A person does not need to be a judicial officer to be an official of the State.

A person is an official of the State whether he is employed at central government level or some other level of the governmental system.

From decided cases examples of bribeses who have been held to be officials of the State include the following:

an excise officer, an assistant stock inspector, an assistant in the office of the government printer, a court interpreter, a municipal constable, a price control inspector, the head of the transport's compulsory motor insurance section, an acting mining commissioner, an army officer commanding a salvage unit in the quarter-master's stores, a security guard employed by a Provincial Administration whose duties included the guarding of property at a hospital.

In the present case the appellant was an employee of a parastatal corporation, namely the Posts and Telecommunications Corporation. The issue which had to be decided was whether the appellant was an official of the State for the purposes of the common law crime of bribery. On an examination of the legislation relating to this parastatal at the time the alleged offence was committed, it was decided that he was. In terms of the legislative provisions, he was employed by a parastatal effectively headed by a Minister of State and under the control of a Government body, the Parastatals Commission. His remuneration was derived at least partly from State funding, and his conditions of service were subject to the approval of the Parastatals Commission. He was not engaged to perform a purely private function, but an official one, being responsible for awarding contracts for maintenance work relating to public institutions. He derived his authority from the public sector. *

As regards the matter of sentence, the Supreme Court reiterated that deterrence and the reflection of public indignation are the predominant factors in assessing the penalty for this offence. Bribery is an insidious crime which undermines integrity and strikes at the roots of justice.