MATHONSI J: The appellant was convicted by the regional
magistrate's court in Hwange of one count of stock theft in contravention of
section 114 of the Criminal Law Code [Chapter 9:23]. He was sentenced to eleven (11) years
imprisonment of which two (2) years imprisonment was suspended on condition he
makes restitution to the complainant in the sum of US$600-00 on or before 31
March 2010 being the value of the beast that was stolen.
He has appealed against both conviction and sentence and has submitted
that in the event that the appeals against conviction and sentence do not find
favour with the court, the matter should be referred to the Supreme Court in
terms of section 24(2) of the Constitution of Zimbabwe on the basis that the
mandatory sentence of 9 years for stock theft prescribed by section 114, is an
inhuman and degrading punishment which is proscribed by section 15(1) of the
Constitution.
The state case is that the appellant was employed by the Ministry of
Justice as the messenger of court for Hwange.
One Mackenzie Ndebele had a dispute with his wife, Sibusiso Ndlovu,
after the latter had sold certain matrimonial property pursuant of a court
order granted in her favour by the magistrates court. Mackenzie obtained a High Court order for the
return of the property is question which included a scotch cart box in the
custody of the complainant Mike Ndlovu, who had bought it from Sibusiso
Ndlovu. The High Court order was to the
effect that each of the parties was to bear its own costs.
By letter dated 12 February 2007 (exhibit 1), Cheda and Partners, the legal practitioners representing Mackenzie,
instructed the appellant to proceed to recover their client's property in terms
of the court order. The letter reads in
part as follows:
“The
Messenger of Court
P
O Box 99
Victoria Falls
Dear
Sir
RE: MACKENZIE NDEBELE VS SIBUSISO
NDLOVU: CASE NO. 1539/05.
We
refer to the above matter and attach hereto copy of a court order directing
your office under paragraph 1b to recover all the property taken away from our
client under case number CC13/03. Such
property includes certain cattle which our client has managed to locate.
To
that end we attach hereto for your reference copies of the application for
review and advise that our client will accompany you to recover certain head of
cattle which belong to him and are in the custody of other people following
distribution by Sibusiso Ndlovu.
He
shall liase (sic) directly with you concerning your fees. We await your return of service which you
have to give to our client.
Yours
faithfully
(signed)
CHEDA
AND PARTNERS”
In pursuance of those instructions and in execution of the court order,
the appellant demanded that Mackenzie pay him ZS$8 million and 60 litres of
fuel to cover his execution costs. When
that was done, he, in the company of Mackenzie proceeded to Lusulu, Binga to
recover property from villagers who had it, including the complainant from
where he intended to recover the scotch cart box. He did not recover the scotch cart box as the
complainant insisted on being refunded the purchase price he had paid to
Mackenzie's wife.
Sometime in June 2007 the appellant made another trip to Lusulu with
Mackenzie but before doing so, he charged him another 60 litres of fuel and
Z$4million as his costs. The appellant
told Mackenzie that he wanted to punish all the people who had resisted with
the property by charging them a beast each.
Upon arrival in Lusulu, the appellant gathered people including the
veterinary officer and some police officers at the complainants homestead. Unfortunately both the complainant and his
wife were away from home. They had left
three (3) children, the oldest of whom was aged 13, looking after the
home. The appellant demanded an
unspecified sum of money as his execution costs and when none was given, he
directed that the cattle be penned.
Whereupon he selected “a very fat heifer” which he said was equivalent
to Z$15 million. It was unprocedurally
cleared for slaughter.
After the heifer was slaughtered the appellant took it in his car
without skinning it and left for Hwange.
In his defence, the appellant stated that although the complainant was
not a party to the proceedings between Mackenzie and his wife and there was no
order for him to pay the execution costs, he had to slaughter the heifer to
recover his costs of travelling to Lusulu on two occasions. He did not explain why this was necessary
when he had already levied the costs of execution against Mackenzie.
The court a quo found that the state had proved its case beyond a
reasonable doubt and having failed to find special circumstances as would
entitle the appellant to a sentence other than the mandatory one, it sentenced
him aforesaid.
The appellant was not happy with the decision of the court a quo and
launched this three pronged appeal. In
respect of conviction Mr Nkiwane for
the appellant submitted that the seizure and slaughter of the complainant's
beast did not constitute theft as defined in section 114(2)(a) of the Criminal
Law Code as the circumstances under which the beast was taken, in execution of
a court order, transformed the actus reus
from unlawful to lawful. He went on to
argue that the appellant lacked the requisite mens rea in that h e subjectively believed that he was entitled to
recover execution costs from the judgment debtor. He took the view that the fact that the
appellant observed all the formal requirements for slaughtering a beast by
involving the village head, the veterinary service and the police shows that
the appellant subjectively believed that he was acting lawfully and this
entitled him to the defence of “claim of right.”
I do not agree. Section 114(2)
under which the appellant was charged provides;
“(2) Any person who –
(a) takes livestock or its produce-
(i) knowing that another
person is entitled to own, possess or control the livestock or its produce or
realising that there is a real risk or possibility that another person may be
so entitled; and
(ii) intending to deprive
the other person permanently of his or her ownership, possession or control, or
realising that there is a risk or possibility that he or she may so deprive the
other person of his or her ownership, possession or control; or
(b) ---; or
(c) ---; or
(d)
---
Shall be guilty of stock theft and liable-
(e) if the stock theft
involved any bovine or equine animal stolen in the circumstances described in
paragraph (a) or (b), and there are no special circumstances in the particular
case as provided in subsection (3), to imprisonment for a period of not less
than nine years or more than twenty-five years.”
In casu, the appellant knew
that the complainant was entitled to own, possess and control the heifer. Notwithstanding such knowledge and intending
to permanently deprive the complainant, proceeded to take the beast using his
position as the messenger of court. This
was done in the absence of the complainant.
In my view the actions of the appellant fell within the provisions of
section 114.
The appellant was armed with a court order in which only Mackenzie
Ndebele and Sibusiso Ndlovu were parties.
That court order specifically provided that “there shall be no order as
to costs,” meaning that neither of the named parties was to bear the other's
costs.
What is more, the complainant was not a party cited in the court order
he was executing and neither was he directed to bear the costs of
execution. Indeed the appellant went on
to issue a notice of attachment (exhibit 2) in which, not only was the
complainant's name conspicuous by its absence, but the property being attached
was a scotch cart.
That notwithstanding, the appellant inexplicably proceeded to attach,
slaughter and take away the complainant's heifer. The appellant did not even take away the
heifer for sale by public auction, as would be expected of a messenger of court
executing a writ. According to the
appellant's own witness, Andrew Chihembekedza who was driving the appellant,
they took the carcass straight to the appellant's home even as it had not been
skinned. We can only speculate what
happened to the carcass thereafter.
There can be no worse case of impunity by a court official. Here is an official of the court who has no
less than 13 years experience, who should be taken to know pretty well that he
cannot just seize people's property without the authority of the court and has
been paid anywhere, but who decides that he would arrogate to himself the power
of the court and award himself costs he scarcely deserved.
The appellant was a law unto himself when he got to Lusulu on that
assignment. It was for this reason that
he blissfully told Mackenzie that he would appropriate a beast each from those
villagers who resisted his overtures. In
doing so he was acting outside the law and nothing can turn this unlawful
misadventure into a lawful one as Mr Nkiwane
would want the court to believe.
In respect of the sentence, Mr Nkiwane
submitted that the court a quo fell
into grave error in sentencing the appellant to a term in excess of the
mandatory minimum sentence. He relied inter alia on an order that I granted by
consent, with CHEDA J concurring, in S v
Goredema HCA 198/10. In that case the trial court had convicted
the appellant of stock theft and sentenced him to 13 years after failing to
find special circumstances. 1 year was
suspended on condition of good behaviour while 3 years was suspended on
condition of restitution. As in casu, neither the complainant nor the
prosecution had applied for an order for restitution in terms of section 368(1)
of the Criminal Procedure and Evidence Act [Chapter 9:07].
The state conceded that the trial court had misdirected itself by mero motu ordering restitution.
Section 365 of the Criminal Procedure and Evidence Act empowers a court
convicting a person of unlawfully taking another person's property to restore
it or an equivalent amount. However, one
should not lose sight of the peremptory provisions of section 368(1) of that
Act which provides:
“A
court shall not make an award or order in terms of this Part unless the injured
party or the prosecutor acting on the instructions of the injured party applies
for such an award or order.”
In the present, the record shows that only the appellant made an offer
to make restitution. Neither the complainant nor the prosecution made an
application for restitution. It was
therefore incompetent for the court a quo
to mero motu, make such an order.
Looking at the penal provision in section 114, it is clear that the
legislature wanted to impose a deterrant penalty for what it regarded as a
prevalent crime. The penalty provided
for is severe enough without the court having to add on to it. Granted the sentencing court has a discretion
to impose a sentence of up to 25 years but there is nothing to suggest that the
legislature intended to accord the court the power to suspend part of that
sentence where no special circumstances exist.
In any event it is part of our sentencing principles that where a court
considers suspending part of a sentence subject to conditions, it must make it
possible for the affected person to fulfil the condition. S v
Mukura and others 2003(2) ZLR 596 at 599H-600A. A person already serving a minimum sentence
of 9 years would have no motivation to restitute even if the court was entitled
to suspend part of the sentence.
The appellant stole a single beast and not a herd. He was treated as a first offender. In my view the mandatory sentence of 9 years
met the justice of the case. I would
therefore dismiss the appeal against conviction but partially uphold the appeal
against sentence.
It remains for me to deal with the application for a referral of the
matter to the Supreme Court on the basis that the mandatory sentence infringes
section 15 of the constitution. Mr Nkiwane submitted that the mandatory
sentence amounts to inhuman and degrading punishment because;
“A
person who steals a piglet valued at US$2,00 is subjected to the same penalty
as a person who steals an exhortic (sic) pedigree bull valued at US$5000-00.”
The fallacy of this contention is self evident in that while the
definition of livestock in section 114 embraces all sorts of animals including
a pig, the mandatory sentence complained of is confined to theft involving “any
bovine or equine animal” This argument
therefore suffers a still birth.
Mr Hove for the respondent
strongly argued that or for any question to be referred to the Supreme Court it
must meet the prerequisites contained in section 24(2) of the
constitution. That section provides;
“If
in any proceedings in the High Court or in any court subordinate to the High
Court any question arises as to the contravention of the Declaration of Rights,
the person presiding in that court may, and if so requested by any party to the
proceedings shall, refer the question to the Supreme Court, unless, in his
opinion, the raising of the question is merely frivolous or vexatious.”
Mr Hove submitted that the
application for a referral is frivolous and vexatious and must be dismissed for
that reason. The effect of section 24(2)
was discussed by GUBBAY C J in Martin v
AG and Another 1993(1) ZLR 153(S) at 157C –E where he said:
“In
the context of section 24(2) the word 'frivolous' connotes, in its ordinary and
natural meaning, the raising of a question marked by a lack of seriousness; one
inconsistent with logic and good sense, and clearly so groundless and devoid of
merit that a prudent person could not possibly expect to obtain relief from
it. The word 'vexatious', in
contradistinction, is used in the sense of the question being put forward for
the purpose of causing annoyance to the opposing party, in the full
appreciation that it cannot succeed; it is not raised bona fide and a referral would be to permit the opponent to be
vexed under a form of legal process that was baseless--- --.
To
my mind, the purpose of the descriptive phrase is to reserve to subordinate
courts the power to prevent a referral of a question which would amount to an
abuse of the process of the Supreme Court.”
Section 15(1) of the Constitution is aimed primarily at the quality and
nature of punishment. It also extends to
punishment which is inhuman and degrading in its disproportionality to the
seriousness of the offence in that no one could possibly have thought that the
particular offence would have attracted such a penalty. S v
Ncube and Others 1988(1) SA 702 ZSC) at 715 G-H.
I have already stated that the
application had a false start in that Mr Nkiwane
proceeded from the erroneous premise that every livestock falls under the
mandatory sentence of 9 years. In S v Anand S -205-88 which is cited in S v Arab 1990(1) ZLR 253(S) at 256E the
Supreme Court took the view that a sentence of 3 years imprisonment with labour
in a country in which imprisonment is not generally held to be inhuman or
degrading, cannot, standing alone, be said to violate s15 (1) of the
Constitution.
More importantly, the Supreme Court ruled in S v Arab (supra) that a provision imposing a mandatory minimum
sentence was not inhuman and degrading, nor did it create a punishment which is
disproportionate to the offence because the power of the trial court to
consider and find special circumstances allowed for a sentence which is not
necessary disproportionate.
The same principle applies in the present case where the penal section
allows the trial court to impose a sentence other than the mandatory 9 years
where special circumstances exist. It is
only in those cases where no special circumstances are found that the court's
sentencing discretion is taken away.
To my mind, this court has a duty to satisfy itself that the application
for referral to the Supreme Court has merit.
In re: Chinamasa 1999(2) ZLR
291(H). If the raising of the
constitutional question is frivolous or vexatious then the court must purposely
refuse to refer the matter in order to guard the process of the Supreme Court
against abuse. I am of the view that the
raising of the constitutional question in this matter is indeed frivolous and
vexatious.
In the result, I make the following order.
(1) The appeal against conviction is hereby
dismissed.
(2) The
appeal against sentence is upheld with the result that the sentence of 11 years
imprisonment is set aside and in its place is substituted the sentenced of 9
years imprisonment.
(3) The
application for a referral to the Supreme Court is hereby dismissed.
Kamocha
J agrees.................................................................
S. Nkiwane the appellant's legal practitioners
Criminal Division, Attorney General's Office,
the state's legal practitioners
