The present review judgment deals with the issue of
whether section 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter
9:23] has retrospective effect.
The section first appeared in the present format as section
12A of the Stock Theft Act [Chapter 9:18] before the Stock Act was repealed by
the Criminal Law (Codification and Reform) Act [Chapter 9:23] on 23 June 2006.
The repealed statute reintroduced the mandatory minimum penalty of not less
than 9 years but not more than 25 years imprisonment for the theft of bovine or
equine animals.
There have been conflicting decisions in the High Court
on whether the section applies retrospectively to offences that were committed
before the mandatory sentence was promulgated on 27 August 2004. My research
has revealed that only one case held that the section has retrospective or retroactive
effect. This was the decision of NDOU J with the concurrence of BERE J in S v
Mzanywa & Ors HB09-06. I have been able to locate four cases from the
Harare High Court that held that the section did not have retroactive effect.
These are S v Forsten HH177-04 a judgment of BHUNU J concurred to by MAKARAU J…,;
S v Manaka HH77-05 by BHUNU J with the concurrence of UCHENA J; S v Ndlovu
& Anor HH70-06 a judgment of KAMOCHA J in which GARWE JP…, not only
concurred but wrote a separate opinion underscoring the point that the section
did not carry retroactive effect.
In the present matter what happened is as follows.
On an unknown date, but in August 2004, the second
accused, who was employed as a charge hand at the complainant's homestead,
connived with the first accused, the brother of the complainant, and stole and
sold the complainant's heifer. The two falsely indicated to the complainant
that the heifer had gone missing. It was, however, recovered on 18 February
2011, from the person to whom it had been sold, leading to the apprehension and
prosecution of the two accused persons.
The two accused persons were correctly convicted on their
respective pleas of guilty to stock theft in violation of section 114(2)(a) of
the Criminal Law (Codification and Reform) Act [Chapter 9:23].
The trial magistrate recorded mitigation before properly
explaining the meaning, nature and scope of special circumstances peculiar to
the case. He did not find any special circumstances. On 30 March 2011 he
sentenced each accused person to 10 years imprisonment and suspended 1 year
imprisonment for 5 years on appropriate conditions of future good conduct.
The difficulty that confronted me on review was the
failure to disclose the particular date in August 2004 when the theft occurred.
The theft could have taken place either before or after 27 August 2004 when the
mandatory minimum sentence took root. In the absence of a clear indication of
whether it took place before or after the crucial date, it seemed to me
appropriate to give the benefit of the doubt to the accused persons and find
that it took place before the defining date. It was only after making such a
finding that the question raised at the beginning of this review judgment cried
out for an answer.
In S v Mzanywa & Ors HB09-06…, NDOU J stated…, that:
“The issue here is whether the provisions of s12 apply
retrospectively in respect of offences committed before it came into operation
where the accused is only convicted after its promulgation? It is a fundamental
rule of law that no statute shall be construed to have a retrospective
operation unless such a construction appears very clearly in the terms of the
Act or arises by necessary and distinct implication – Carson v Carson
[1964] 1 WLR 511 at 516, DPP v Lamb [1941] 2 k.B 89, Maxwell
on Interpretation of Statutes
(12th Ed) by P. St. J Langan at 226-7; It is conceded that the operation of this
presumption is difficult because the distinction between statutes that operate
retrospectively for the purpose of the
presumption and those which do not is hard to draw, Cross Statutory Interpretation (2nd
Ed) by Dr J Bell and Sir G Engle at 184-6 and Re Athlumney [1898] 2 QB 547 at
551. This presumption against retrospectivity is rebutted by a statutory
provision or Act either expressly or by necessary implication – S v Fazzie & Ors 1964 (4) SA 673 (A), Lek v Estate Agents Board 1978 (3) SA
160(c). By using the phrase “who is convicted” as opposed “who has committed”
the legislature clearly intended that s12 should have retroactive operation.
The date of conviction is the decisive date from the wording of s12. The date
of the commission of the offence is rendered irrelevant.”
He held that the use of the phrase “who is convicted” as
opposed to “who has committed” was decisive.
On the other hand, KAMOCHA J stated in the S v Ndlovu
& Anor HH70-06 case….,:
“The second error relates to applying the law
retrospectively. The theft of the four donkeys was committed on 25 October 2003,
which was 10 months before the Stock Theft Amendment Act 6 of 2004 was enacted.
The magistrate sentenced the accused for an offence committed before the law
was enacted using the provisions of the new law. That, in my view, is not
proper as the general rule at common law is that statutes are not to operate
retrospectively. See Crais on Statute Law 7th edition by S.G.G.
Edgar at p391. Francis Benion in Statutory Interpretation Butterworths 1984 at
p313 states the principle as follows:
'It is a principle of legal policy that, except in
relation to procedural matters, changes in the law should not take effect
retrospectively. The court, when considering, in relation to the fact of the
instant case, which of the opposing constructions of the enactment would give
effect to the legislative intention, should presume that the legislator
intended to observe this principle.'
This general rule can, however, be departed from where it
is expressly enacted that an enactment shall be retrospective. Further, Crais on Statute Law supra at p392 states
that:-
'If it is a necessary implication from the language
employed that the legislature intended a particular section to have a
retrospective operation, the courts will give such an operation.'
The above approach has been adopted by our courts several
times for instance in Agere v Nyambuya 1985
(2) ZLR 336 (SC) at 338H-339A GUBBAY JA (as he then was) had this to say:-
'It is a fundamental rule of construction in our law,
dating probably from Codex 1:14:7, that there is a strong presumption that
retrospective operation is not to be given to an enactment so as to remove or
in any way impair existing rights of obligations unless such a construction
appears clearly from the language used or arises by necessary implication. For
instance, where it is expressly retrospective, or deals with past events, or
concerns a matter of procedure, practice or evidence. The supposition is that
the legislature intends to deal only with future events and circumstances.'
See also Bater & Anor v Muchengeti 1995 (1) ZLR 80 (S) at 84G-H and Nkomo
& Anor v A-G & Ors 1993 ZLR 422 (S) at 428H-429B.
In casu, there is nothing to suggest that the provisions
of s12 inserted by the Stock Theft Amendment Act No.6 of 2004 were to be
applied in retrospect. Neither can it be said that there is a necessary
implication from the language used that the legislature intended the said
section to operate retrospectively. There was, therefore, no basis for the
trial court to have had recourse to s12 of the Stock Theft Act [Cap 9:18] as
amended when sentencing the accused. He should have exercised the jurisdiction
conferred on him by the Stock Theft Act prior to the amendment.”
The views expressed by KAMOCHA J find further support in
the case of S v Mutandwa and Another 1973
(3) SA 391 (R). In that case, two accused persons were convicted of stock theft
on 29 September 1976 and sentenced to the mandatory minimum sentence
promulgated in the Stock Theft Amendment Act 10 of 1976. At 391E DAVIES J, with
whom WHITETAKER J agreed with, set aside the mandatory minimum sentences
because the trial magistrate overlooked the fact that the Stock Theft Amendment
Act was not operative at the time of the commission of the offence.
The 1976 Amendment Act was couched in identical terms as
the present section 114(2)(a) of the Criminal Law (Codification and Reform) Act
[Chapter 9:23]. It read:
“Any person who is convicted of the theft or
attempted theft of any equine or bovine animal or receiving knowing it to have
been stolen or inciting or conspiring with any other person to commit any of
the foregoing offences shall, if there are no special circumstances in the
particular case as….,.”
In my view, the distinction sought to be drawn by NDOU J
in the wording of the present section does not confer retroactive effect to the
section. If the legislature intended the section to have retroactive effect it
should have expressly said so. It did not. After all, it was radically
increasing the punishment for the theft of a bovine or equine animal. In
addition, the legislature repeated the same wording which was held had no
retrospective effect in 1976. The legislature is assumed to have been aware of
that decision when it promulgated the present section in identical terms.
Accordingly, I would, with respect, differ with the
conclusion reached in S v Mzanywa & Ors HB09-06. I find myself in agreement
with the decisions which hold that it has no retroactive effect.
Accordingly, the two accused persons should have been
sentenced to sentences that were appropriate before the promulgation of section
114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in
its present format.
The mandatory minimum sentence imposed by the trial
magistrate is set aside and is substituted by the following:
Each accused: 3 years imprisonment of which 1
year imprisonment is suspended for 5 years on condition he does not within that
period commit any offence involving dishonesty for which he is sentenced to a
term of imprisonment without the option of a fine.
