S v MWONZORA 2016 (2) ZLR 869 (C)

Flynote

Constitutional C law: — Constitution of Zimbabwe 1980 — Declaration of Rights — right to protection of the law (s 18) — basing criminal charge on facts which, if proved at the trial, would not constitute an offence — a violation of an accused's right to the protection of the law

Criminal D procedure: — charge — purpose of — what averments must be in charge

Criminal law: — offences under Criminal Law Code — undermining authority of or insulting the President (s 33) — false statement — need to allege in what respect statement was false — false and obviously unbelievable statement — cannot carry intent to inflame feelings of hostility towards the President

Headnote

The applicant, an opposition party member of Parliament, was charged under s 33(2)(a) of the Criminal Law Code [Chapter 9:23], which deals with undermining the authority of or insulting the President. The charge included statements he was alleged to have uttered to the audience at a political gathering, the contents of which were not about or concerning the President. The contents of those statements could not be said to be false nor could they be said to have the consequences prohibited by the statute. It was alleged in part two of the charge that the statements he made in the Shona language were false. There was no allegation that the applicant knew that the statements were false. He was also alleged to have said that the President was a "goblin".

Held, that basing a criminal charge on facts which, if proved at the trial, would not constitute an offence would be a violation of an accused's right to the protection of the law. The right to the protection of the law is guaranteed to every person under s 18(1) of the 1980 Constitution and s 18(3)(b) requires that any person who is charged with a criminal offence

Held, further, that s 139 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that where a public prosecutor has determined to prosecute any person in a magistrates court for any offence within the jurisdiction of that court, he shall forthwith lodge with the clerk of court a statement in writing of the charge against that person setting forth shortly and distinctly the nature of the offence and the time and place at which it was committed. The object of a charge is to inform the accused person in sufficient detail and clear language of the offence with which he is charged to enable him to consider the accusation. The charge must state the essential elements of the offence with sufficient precision and provide sufficient particulars of the acts or omissions alleged to have been committed which constitute the criminal offence. The accused person must not be left to guess or speculate as to the true nature of the offence he is charged with and the case he has to answer.

Held, further, that it is the prosecutor's duty to ensure that the accused is charged with the correct offence. It is also his duty to ensure that only necessary particulars relating to acts or omissions alleged to have been committed by the accused person which constitute the offence are included in the charge. Where the offence relates to specific types of statements made with an intention to bring about a prohibited consequence only particulars of such statements need to be included in the charge.

Held, further, that s 178(1) of the CP & E Act gives an accused person the right to apply to the court, before pleading, to quash the charge on the ground that it is calculated to prejudice or embarrass him in his or her defence. Section 180(1) of the Act gives the accused person who considers that a charge is framed in vague language or that the particulars of the offence are not disclosed in a manner that enables him to answer the charge to except to it on the ground that it does not disclose any offence cognizable by the court. The magistrate is obliged to hear the exception and determine whether it is well founded. If the exception is well founded the magistrate has the power to dismiss the charge. Held, further, that one of the essential elements of the offence of contravening s 33(2)(a) of the Criminal Law Code is that the statement about or concerning the President must be false. The outline of the State case made no reference to the falsity of the statements the applicant was accused of having uttered. All the statements contained in the outline of the State case allegedly made by the applicant could not be false. The prohibited statement must be about or concern the President or his office. The slogan exalting the opposition party and the statement on corruption in Government could not have been about or concerning the President. They could not be described as false statements either. The sarcasm in the conveyance of the message may have offended some of the listeners. It did not, however, make the message itself false. It was necessary for the State to indicate the false statements uttered by the applicant because it was required to state facts that would prove that the applicant had knowledge of the falsity of the statements.

Held, further, that the statement that the President was a goblin was obviously a false statement. The offence is, however, not committed because a person has uttered at a public place a false statement about or concerning the President. The statement must be accompanied at the time of its utterance by the knowledge of its falsity and an intention to use it to engender feelings of hostility in the audience against the President. A patently false statement to the effect that the President is a goblin was unlikely to deceive any right thinking person into believing that it is true. It was unlikely to engender in the hearer feelings of hostility towards the President. In other words, a statement that is so patently false that no right thinking person can believe it to be true cannot carry the intent to inflame in the audience feelings of hostility towards the President.

S v Hugo 1976 (4) SA 536 (A)

Williams & Anor v Msipha NO & Ors 2010 (2) ZLR 552 (S)