S v DZIMURI & ORS 1997 (2) ZLR 27 (H)

Flynote

Criminal law — common law offences — kidnapping — what is — deprivation of liberty — relevance of length of time during which person is deprived of liberty — accused forcing driver of bus to take them on a short detour — motive unclear — whether kidnapping of driver proved — element of "evil intent" — meaning and relevance of — charge —

use of word plagium — not likely to be understood by the common person — use of word "kidnapping" preferable — need in charge to allege intention of depriving person of his liberty

Criminal law — defences — de minimis non curat lex — application — principles relevance — effect of conduct upon the community's interests

Criminal procedure — charge — splitting — two offences forming part of single course of conduct — evidence required to prove essential elements of each not the same — general criminality of conduct being adequately punished on one count — may be taken into account in determining whether to regard other count as requiring separate conviction or punishment

Headnote

The thirteen accused were passengers on a country bus. When they were getting off, one of them got into a dispute with the conductor who said that he had not paid for the carriage of a bicycle on the bus. Members of the group were angered by this accusation. They put rocks across the road to prevent the bus continuing. They got on board, assaulted the conductor and the loader. The conductor fled. Members of the group broke two windows on the bus. They then forced the driver to take them to a place called Chereya, instead of to the bus's destination, G Gokwe. The driver was thus forced to go some 20 km out of his way. On these facts the accused were charged with public violence and kidnapping. They all pleaded guilty and were sentenced to terms of imprisonment, of which portions were suspended.

The main issue on review was the propriety of the conviction for kidnapping. In particular, the questions of thelength of time during which the victim was deprived of his liberty and the accused's intent were considered.

Held, that the length of time for which a person is deprived of his liberty or removed from his parental control is immaterial. The only relevance it may have, apart from affecting sentence, is in distinguishing kidnapping from cases of assault involving only a transient and incidental seizure of a person for a short period, that is, where the principle of de minimis non curat lex applies. In such cases, the court should have regard to the accused's "evil intent". If the "evil intent" was in order to extort a ransom or other benefit, a very short period would suffice. If there were nosuch "evil intent", a longer period would be necessary. In this case, there was no evidence of how long it took for the driver to go the extra 20 km, though it would not have taken him long. But the accused had not carried off the driver or seized the bus with any "evil intent". Their reasons for making the driver take them to Chereya were unclear. Consequently, the convictions for kidnapping should be set aside.

Held, that the use of the word plagium to describe the offence with which the accused were charged, though recommended in R v Long 1970 RLR 1 (A), betrayed much arcane learning and was food too rich for ordinary people. The word "kidnapping" was one generally and reasonably accurately understood by the common person and is the accepted term in South Africa.

Held, further, that the use by Macdonald JA in R v Long of the term "evil intent" was not meant to elevate whatever varying motive there may be for the offence into an additional requirement of the necessary element of intention. It was rather an intimation that, although one may be unable in any particular case to ascertain an intention to deprive a person of his liberty for more than a short period of time, an offence will nevertheless be disclosed where the alleged wrong is committed in circumstances (which include consideration of the motive behind the restraint upon the victim) which ought in principle to be regarded as subject to penal sanction.

Held, further, that the application of the de minimis principle is a value judgment. Crimes affect the interests of the community as a whole, not merely those of the individual complainant. If the harm done is very trifling, the community is not really affected. In determining the application of the principle, the judicial officer is charged with a policy decision to be exercised according to all the relevant circumstances of the case. In the case of a charge of kidnapping, where all the circumstances, including the short period of time involved or the absence of any ulterior motive, are such that it might be considered as a matter of policy that the wrongdoing ought not to attract conviction as kidnapping, then an acquittal should follow.

Held, further, that there was not an improper duplication or splitting of charges in this case. Although the two charges formed part of one continuous expression of public and violent dissatisfaction with the bus conductor, the legal intent required for each of the two charges was technically quite different from the other. Nevertheless, the fact that the general criminality of the conduct was adequately punished on another count was a factor to take into account in determining whether or not to regard the kidnapping as a triviality not requiring separate conviction or punishment.

Held, further, that the charge should allege an intention to deprive the victim of his liberty and if the accused pleads guilty that intention should be admitted.