HUNGWE J: The appellant was convicted of contravening
section 3(2) (a) as read with sub(s) 3 and 5 of the Gazetted Land
(Consequential Provisions) Act, [Cap 20:28] ("the Act"). He
was sentenced to US$250-00 or 25 days imprisonment as well as a wholly
suspended term of imprisonment. He appeals against both conviction and
sentence.
Five grounds of appeal are advanced on behalf of the appellant. The first
ground is that the court a quo erred in holding that the offences
under the Gazetted Land Act are strict liability offences.
The second ground advanced was that the court a quo erred in holding
that the appellant is in occupation of Coldstream Estate.
The third ground advanced was that the court a quo erred in imputing
criminal liability to the appellant for conduct which ought to have been
imputed to Allied Timbers (Pvt) Ltd.
The fourth ground of appeal was that the court a quo erred in
holding that the acquisition of 51% of the shares in EC Meikle (Pvt) Ltd by the
then Forestry Company of Zimbabwe (Pvt) Ltd was tantamount to a sale of land.
The final ground of appeal was that the court a quo erred in ordering
the eviction of the appellant in circumstances where the appellant was not in
occupation of Coldstream Estate.
The Act makes it a criminal offence for a former owner of land which has been
gazetted to continue in occupation of such land 45 days after the fixed date
without lawful authority. The appellant denied that he was in occupation of
gazetted land without lawful authority.
Is the offence charged a strict liability
offence?
The general rule is that actus non facit reum nisi mens
sit rea or nulla poena sine culpa (there can be no criminal
liability without fault) and that in construing prohibitions or injunctions,
the legislature is presumed, in the absence of clear and convincing indications
to the contrary, not to have intended innocent violations thereof to be
punishable. S v Arenstein 1964 (1) SA 361 (A) @ p365. See
also S v Zemura 1973 (2) RLR 357 (A).
In the case of statutory crimes not prescribed in the
Criminal Law (Codification and Reform) Act, [Cap 9:23] the question whether
or not an offence is one of strict liability depends on the express or implied
intention of the legislature. In the majority of statutory offences, no express
indication is given, one way or the other, regarding mens rea. The
statute merely provides, as in the case of the Gazetted Lands Act, that any
person who does a particular act is guilty of an offence. See Burchell and
Hunt, Principles of Criminal Law, 2nd ed (Juta & Co)
1983 at pp 219 – 220.
In Zimbabwe, all of the cases where the courts have decided
that strict liability was impliedly imposed relate to public welfare offences
that involve prohibitions or duties designed to prevent grave potential danger
to the welfare of the State generally or to public amenities. Public
welfare offences include such things as public health legislation, safety
regulations, legislation aimed at preventing contamination of drugs and
foodstuffs which are being processed and manufactured, motor carriage and
transportation regulations etc. See R v GD
Haulage (Pvt) Ltd 1977 (1) RLR 24 (A). See also Feltoe G, A
Guide to the Criminal Law of Zimbabwe, 3rd ed (Legal Resources
Foundation) 2004, p 128
The rationale underlying the imposition of strict liability for the prosecution
of public welfare offences will be immediately clear from the genus of crime at
which such liability is aimed: it is necessary in a modern urbanised and
industrial society to impose certain standards of conduct in the interest of
the community at large. A strict liability is imposed where the maintenance of
these standards would seriously be impaired if the defence of mistake or
blamelessness were to be generally admitted. Even where a case relates to the
public welfare offence, the courts are generally reluctant to imply that the
legislature intended strict liability. The reason for this is that strict
liability is directly contrary to the basic principle that there should be no
liability without fault. Academic writers, such as Burchell and Hunt, among
others, have expressed a doubt whether it can be justified in terms of social
and legal policy.
The learned trial magistrate's approach appears to have been that the offence
charged fell under the rubric of the “strict/absolute” liability offences
where, according to him, all the State needed to do was to prove that the
accused committed the act constituting the offence in order to secure a
conviction. This would be so notwithstanding the fact that the accused lacked mens
rea for the offence. In this respect the learned magistrate fell into
error as the authority he relied upon does not state what he states. Professor
Feltoe dwells on and discusses the strict liability category of offences rather
than absolute liability offences. In any event the offences created under the
Gazetted Land Act do not fall within the unique category of public welfare
offences. Accordingly, there is no justification for the departure from the
presumption that there can be no criminal liability without fault in the
prosecution of offences under this statute. The court therefore was obliged to
inquire into the question whether there was an unlawful mental element on the
part of the appellant in relation to the crime charged.
Did the appellant occupy gazetted land?
Even if it were assumed in favour of the State, that the requirement for mens
rea was expressly or impliedly excluded by the legislature, it is trite
that liability in strict liability offences is dependent on proof of the actus
reus constituting the offence, in this case, occupation of the land.
Burchell and Hunt put the matter thus:
“It must be stressed that even where the requirement of mens
rea is expressly or impliedly excluded by the legislature, liability is
dependent upon proof by the prosecution of the actus reus. It
would have to be proved that the accused's act was both a voluntary one and
that it was unlawful. It follows that although a defence which excludes mens
rea would be irrelevant, a defence which excludes the unlawfulness of the actus
(e.g. necessity, impossibility, authority) would remain open to the
accused. Liability is therefore 'strict' rather than 'absolute'.”
The undisputed evidence by the appellant was that the
appellant was not in occupation of Coldstream Estate as alleged in the State
Outline but that he resides at 'Mountain Home, Penhalonga'. The Gazetted Land
Act does not define 'occupation'. Black's Law Dictionary, 5th
ed (West Publishing Co) defines occupation as:
“Possession; control; tenure; use. The act or process by
which real property is possessed and enjoyed. Where a person exercises physical
control over land.”
The Appellant does not possess or enjoy Coldstream Estate,
nor does he exercise physical control over it. A company, Allied Timbers
(Saligna) (Pvt) Ltd, in which he is a minority shareholder, enjoys control of
the same. Clearly, the magistrate fell into error when he held that because the
appellant is a minority shareholder of this company, he therefore, was in
occupation of the land in question. As noted by Cilliers and Banade, an important
consequence of the separateness of a company from its shareholders is
that
“[t]he assets of the company are its exclusive property and
the members have no proportionate proprietary rights therein. Only
on liquidation of the company are the
members entitled to share in a
division of the assets of the company. Consequently, it is
not necessary to transfer a company's assets when there is a change of
membership….”
Cilliers and Banade, Company Law, 4th
ed (Butterworths) 1982 @ p11
As such the magistrate erred in holding as he did that the
appellant was in illegal occupation of the land through his minority
shareholding. A company holds its property as its exclusive property not on
behalf of its shareholders. In any event since the land in issue vests in the
State by virtue of s16B of the old Constitution, the appellant cannot hold some
proportionate right to land that is owned by the State simply because he is a
12, 5% shareholder in Allied Timbers (Saligna) (Pvt) Ltd.
Is the appellant criminally liable for acts of a
company?
Coldstream Estate was formerly held by EC Miekle (Pvt) Ltd.
This company, from the evidence on record, ceased to exist on 23 August 2006
when the Forestry Company of Zimbabwe (Pvt) Ltd bought 51% of the shareholding
in that company. The new company assumed the name Allied Timbers (Saligna)
(Pvt) Ltd. It assumed the operations at Coldstream Estate. The law recognises
that where a particular state of mind was an essential ingredient of an
offence, that state of mind can be attributed to a company. Director of
Public Prosecutions v Kent and Sussex Contractors Ltd [1944] KB 146.
However such liability can only be attributed to a company in respect of the
conduct and mental state of certain persons who control and direct its activities.
R v ICR Haulage Ltd [1944] KB 551. The
persons so acting must be considered the company itself, the mind of a company
has been described as that of 'somebody who for some purposes may be called an
agent, but who is really the directing mind and will of the corporation, the
very ego and centre of the personality of the corporation…somebody for whom the
company is liable because his action is the very action of the company
itself.' Lennard's Carrying Co. Ltd v Asiatic Petroleum Co.
Ltd [1915] AC 705.
It follows that the procedure of prosecuting a company is
that a director or servant of the corporate body is cited as a representative
of the company, not its shareholders, as the offender. In the present case,
Joseph Kanyekanye, the Group Chief Executive Officer for Allied Timbers
Holdings under which Allied Timbers (Saligna) (Pvt) Ltd fell, according to the
evidence on record, is the person who directed and controlled the affairs of
the company carrying on business at Coldstream Estate. That company, as
represented by Kanyekanye, ought to have been cited for the offence of
occupying the land, if any criminal liability arose under the Gazetted Lands
Act. In my view, the magistrate failed to appreciate the fact that Allied
Timbers (Saligna) (Pvt) Ltd was different and separate from the appellant. The
appellant in the circumstances, could not be held criminally liable for the
acts committed by the company.
Finally, it follows from the above analysis that upon the
compulsory acquisition of land, the company lost its rights in the land. But
the company continued to exist. What was compulsorily acquired, through
gazetting by the State, was the land, not the company. What was sold were
shares in the company EC Miekle (Pvt) Ltd, no shares in the land acquired were
sold, as held by the court a quo. The agreement on the sale of shares
was a stand-alone transaction as the general rule is that shares are freely
transferable in the manner provided for by the Companies Act, [Cap 24:03]
and articles of association. The sale of shares agreement expressly state that
the land was formerly owned by EC Meikle (Pvt) Ltd. The court a quo
therefore erred in equating the sale of shares to the sale of land.
In the result therefore we are satisfied that the
conviction of the appellant in the court a quo was bad in law. The
appeal succeeds. The conviction is quashed and the sentence is set aside.
MANGOTA J agrees.
Bere Brothers, appellant's
legal practitioners
National
Prosecuting Authority, respondent's legal practitioners
