This is a Stated Case referred to this court pursuant to
the provisions of section 21(3) of the Immigration Act [Chapter 4:02].
FACTUAL BACKGROUND
The appellant is a South African citizen. On 6 June 2014,
he appeared before the Magistrates' Court charged with contravening the
Immigration Act [Chapter 4:02] and the Civil Aviation Act [Chapter 13:16].
The exact nature of the allegations preferred against him
is not apparent from the record but is irrelevant for the purpose of the Stated
Case before this court.
Following a trial, he was convicted on both counts and
sentenced to an effective three and a half years imprisonment. He was not given
the option a fine. On 12 June 2014, he was served with a notice of prohibition.
In terms of the notice, the appellant had, in terms of section 14(1)(e) of the Immigration
Act [Chapter 4:02], become a prohibited person. It is apparent from the notice
that he had attained that status on account of the term of imprisonment without
the option of a fine imposed upon him.
Dissatisfied, the appellant appealed to the High Court
against sentence only. On 12 May 2015, the High Court set aside the sentence of
imprisonment and in its place imposed the following:
“On each count, US400= or in default of payment 6 months
imprisonment. In addition, 12 months imprisonment wholly suspended for 5 years
on condition the accused does not commit any offence involving contravening of
Civil Aviation Act and the Immigration Act for which he is sentenced to
imprisonment without the option of a fine.” (sic)
On 19 August 2015, the appellant flew into the country
through the Joshua Mquabuko Nkomo International Airport in Bulawayo. He was
refused entry on the basis that he was a prohibited person in terms of section
14(1)(e)(i) of the Immigration Act [Chapter 4:02].
Following the refusal by the respondent to admit him, the
appellant appealed to the Bulawayo Magistrates' Court in terms of section 21(1)
of the Immigration Act [Chapter 4:02]. At the hearing of the appeal before the magistrate,
the appellant argued that the alteration of the sentence from one of
imprisonment to a fine materially altered his status, and, consequently, the
prohibition effected on 12 June 2014, predicated as it was on the sentence of
imprisonment, now fell away.
The respondent, on the other hand, whilst acknowledging
that the sentence had been altered by the High Court, now argued that the
appellant remained a prohibited person, not on account of the sentence, but the
mere fact of his conviction.
It is perhaps apt to point out at this stage that during
the appeal proceedings before the Magistrates' Court, the basis upon which the
respondent sought to justify the decision to prohibit the appellant from
entering the country had changed. The basis, before the appeal hearing, had
been that the appellant had become a prohibited person owing to the fact that
he had been sentenced to a term of imprisonment without the option of a fine.
During the appeal, however, the respondent sought to argue that the sentence of
a fine that was imposed by the High Court was irrelevant. The mere fact of
conviction formed the basis of the prohibition.
At the request of both parties, the court a quo couched the question of law arising
from the facts as follows:
“Whether a successful appeal against sentence in the High
Court setting aside a sentence which was the reason for prohibition has an
effect of terminating an initial prohibition which came into being as a result
of a sentence imposed by the court a quo.”
It is clear, however, that following submissions made by
both parties in the court a quo, a
further issue that arose but was not captured in the referral, was whether it
is the fact of conviction, and not sentence, which remains the paramount
consideration.
This issue arose for the reason that a person attains
prohibited status by operation of law once the circumstances itemised in section
14(1)(e)(i) and (iii) of the Immigration Act [Chapter 4:02] are established or
found to exist….,.
This line of argument was abandoned by the respondent
before this court.
There was a further attempt by the respondent to raise, for
the first time before this court, a further issue, namely, whether, in terms of
section 14(1)(i) of the Immigration Act [Chapter 4:02], the appellant had
become a prohibited immigrant by reason of him having been convicted of
contravening the Immigration Act…,.
APPELLANT'S SUBMISSIONS
BEFORE THIS COURT
In submissions before this court, the appellant argued that
the decision that is sought from this court is whether a declaration of
prohibition consequent upon a sentence of imprisonment which is set aside on
appeal and substituted with a fine on appeal remains valid.
It was the appellant's further submission that the
respondent cannot treat this matter as an open-ended enquiry as he has tended
to change his stance on why the applicant remains a prohibited person. In the
Magistrates' Court, the respondent had taken the stance that the appellant was
a prohibited person because he had been sentenced to a term of imprisonment
without the option of a fine. Once the respondent became aware that the
sentence of imprisonment had been set aside, his stance changed. He then argued that it was the mere fact of
conviction which rendered him a prohibited immigrant. The respondent now seeks
to argue that the appellant is a prohibited immigrant on account of the fact
that he was convicted of an offence for which he was sentenced to imprisonment
without the option of a fine, whether such imprisonment is suspended or not.
The appellant submits that the use of the word 'such' in
the phrase “whether such imprisonment is suspended or not” in section 14(1)(e)(ii)
of the Immigration Act [Chapter 4:02] is pertinent, as it can only relate to a
term of imprisonment that is imposed as the effective sentence, whether
suspended or not.
RESPONDENT'S
SUBMISSIONS BEFORE THIS COURT
Before this court, the respondent argued that the issue is
the interpretation of sectiion 14(1)(e)(ii) of the Immigration Act [Chapter
4:02], and, in particular, whether the appellant remained a prohibited person.
Counsel for the
respondent accepted that paragraphs (i) and (iii) of section 14(1)(e) of the Immigration
Act [Chapter 4:02] are not applicable to the appellant.
The stance earlier adopted by the respondent, that it is
the fact of conviction alone which is relevant, was abandoned.
Whilst accepting that the original sentence of imprisonment
imposed on the appellant was altered on appeal, the respondent has argued that
the fact that in addition to a fine, the appellant was sentenced to 12 months
imprisonment but which was suspended, puts him within the contemplation of section
14(1)(e)(ii) of the Immigration Act [Chapter 4:02] which provides that a
prohibited person includes a person who has been convicted of any offence,
common law or statutory, not specified in Part 1, for which he is sentenced to
imprisonment without the option of a fine, whether such imprisonment is
suspended or not.
I understand the respondent to be saying this. The sentence
of imprisonment was, on appeal, altered to a fine. That is not a problem. But
he was, in addition, sentenced to a term of twelve months' imprisonment which
was suspended for five years on certain conditions. Since section 14(1)(e)(ii) of
the Immigration Act [Chapter 4:02] makes it clear that the suspension of such
term of imprisonment is irrelevant; the fact remains that a term of
imprisonment was imposed on him. On that score alone, the appellant remains a
prohibited person.
I pause to note that this line of argument does indeed
represent a shift by the respondent in his attempt to justify the prohibited
status of the appellant.
The respondent has also submitted that section 14(1)(i) of
the Immigration Act [Chapter 4:02] provides that a person is a prohibited
immigrant by virtue of a contravention of the Immigration Act, whether or not a
prosecution has ensued for such contravention. Because the appellant
contravened the Immigration Act, he is a prohibited immigrant on that basis
alone.
The above submission was taken for the first time in
supplementary heads of argument filed with this court but was not addressed
during oral submissions. The appellant too did not respond to the submission.
In my view, in a Stated Case, such as the present, a party
cannot be allowed to raise, in supplementary heads of argument, new issues of
law not hitherto canvassed before the court a quo, unless both parties
have had the opportunity to deal adequately with the issues so raised.
Moreover, the essence of a Stated Case involves stating a particular question
or questions of law arising upon agreed facts and requesting this court to
determine the question or questions of law arising therefrom. This cannot
happen if parties were to be given the freedom to abandon the issue or issues
referred and to raise their own issues of law at the hearing of the Stated Case.
The decision of this court was essentially requested on the
correct interpretation of section 14(1)(e) of the Immigration Act [Chapter
4:02] which comprises three sub-paragraphs. During argument, attention shifted
to sub-paragraph (ii). At no stage were
submissions made on whether or not the appellant also remained a prohibited
person in terms of section 14(1)(i) of the Immigration Act [Chapter 4:02],
which section provides for a prohibited immigrant status where a person has
entered or remained in Zimbabwe in contravention of the Act - whether or not
there has been a prosecution. In the circumstances, and regard being had to the
fact that this is a Stated Case, it is not permissible for the respondent to
shift goal posts in the way he has done in this case and to raise this matter
for the first time before this court.
THE ISSUE FOR
DETERMINATION
The question referred to this court is whether the
successful appeal against the sentence of three and half years, which was the
basis of the prohibition of June 2014, and the substitution in its place of a
sentence of a fine, and, in addition, a suspended sentence of imprisonment, has
an effect of terminating the initial prohibition which had come into being as a
result of the sentence of imprisonment which had been imposed.
As already noted, the respondent conceded before this court
that the argument previously raised, namely, that it is the fact of the
conviction and not the sentence which determines the prohibited immigrant
status of a person, is not applicable on the facts of this case.
In my view, the above concession was properly made.
Paragraph (e) of section 14(1) of the Immigration Act [Chapter 4:02] has three
components to it. It refers to a conviction whether in Zimbabwe or elsewhere of;
(a) An offence specified in Part 1 of the Schedule;
(b) An offence, whether common law or statutory, not
specified under Part 1 of the Schedule, for which a person is sentenced to a
term of imprisonment without the option of fine, whether such imprisonment is
suspended or not; and
(c) An offence specified in Part 11 of the Schedule, other
than an offence referred to in sub-paragraph (ii), and the person is declared
by the Minister, in terms subsection 2, to be a prohibited person.
On the facts of this case, as correctly conceded by the
respondent, sub-paragraph (i) is not applicable as the offences in respect of
which the appellant was convicted are not specified offences under Part 1. Subparagraph (iii) is also not applicable for
one good reason. The reason is that a person convicted of an offence specified
in Part 11 of the Schedule must, in
addition, be declared by the Minister to be a prohibited person in terms of
section 14(2) of the Immigration Act [Chapter 4:02]. It is common cause in this
case that there was no such declaration. Consequently, that provision is also
not applicable on the facts of this case.
The issue that arises for determination is the
interpretation to be given to section 14(1)(e)(ii) of the Immigration Act
[Chapter 4:02] given the particular facts of this case.
For the sake of clarity, that paragraph applies to a person
convicted anywhere in the world of a common law or statutory offence, other
than an offence specified in Part 1 of the Schedule, for which the person is
sentenced to imprisonment without the option of a fine, whether such imprisonment
is suspended or not.
The appellant was convicted by the Magistrates' Court of
two offences and sentenced to three and a half years' imprisonment. In terms of
section 14(1)(e)(ii) of the Immigration Act [Chapter 4:02], by operation of
law, the appellant would have become a prohibited person following that
sentence.
As already noted, the High Court, on appeal, substituted
that sentence with a fine and, in
addition, a term of imprisonment
suspended for five years on condition of good behaviour. The argument by the
parties centres around the implications of the term of imprisonment which was
imposed in addition to the fine.
ISSUE IS ONE OF
INTERPRETATION
The issue, therefore, is the interpretation to be given to
the words “for which he is sentenced to a term of imprisonment without the
option of a fine, whether such imprisonment is suspended or not.”
The golden rule of interpretation is that words are to be
given their ordinary and grammatical meaning, unless doing so results in an
absurdity, in which case a court can depart from such ordinary meaning, but
only to the extent necessary to cure such absurdity. It is also part of our law
that in construing the meaning of a statute or the intention of the
legislature, a court should lean towards a construction that makes sense rather
than nonsense, a construction that achieves justice rather that injustice.
It is clear from a reading of section 14(1)(e)(ii) of the Immigration
Act [Chapter 4:02] that the intention of the legislature was to differentiate between,
on the one hand, a person sentenced to pay a fine, and, on the other, a person
sentenced to a term of imprisonment without the option of a fine. The reason
for this is obvious. An offence that merits a sentence of a fine is, in general
terms, not regarded as a serious offence. Per contra, an offence for which a
term of imprisonment is imposed without the option of a fine is a serious
offence and must be regarded as such. The intention of the legislature, to be
deduced from the language of section 14(1)(e)(ii) of the Immigration Act
[Chapter 4:02], is that even if such term of imprisonment is suspended, the
offence is a serious one and the convicted person becomes a prohibited person
by operation of law.
In the present case, a sentence of a fine, and, in default
of payment, imprisonment for 6 months on each count was substituted on appeal
by the High Court. In addition, a sentence of twelve months' imprisonment was
also imposed but its operation was suspended for five years on condition of
good behaviour.
In these circumstances, it is clear that the sentence
imposed by the High Court was a fine and not a term of imprisonment without the
option of a fine. Any other construction would result in an absurdity. It would
be nonsensical for anyone to suggest that a convicted person whose sentence of
imprisonment is altered to a fine of $400= has not been given the option of a
fine.
The fact that, in default of payment, the High Court
further ordered that the appellant undergoes six months' imprisonment is irrelevant.
Once the fine is paid, even in instalments that is the end of the matter.
Indeed, it is permissible, where a fine is imposed, to
impose a term of imprisonment in default of payment of such fine. Attention is
drawn to sections 347(1)(a) and 358(2)(c) of the Criminal Procedure and
Evidence Act [Chapter 9:07].
The issue that then arises is whether the additional
sentence imposed by the High Court, of twelve months' imprisonment, suspended
for five years on condition of good behaviour, is “the imprisonment without the
option of a fine, whether such imprisonment is suspended or not” envisaged in section
14(1)(e)(ii) of the Immigration Act [Chapter 4:02].
Clearly, that cannot be the position.
The imprisonment referred to in such paragraph (ii) must surely
relate to the main or effective sentence imposed. In other words, in a case
where the effective sentence is one of imprisonment, it matters not whether
such imprisonment is suspended or not. That would be the operative sentence
imposed. In this regard, I agree with counsel for the appellant that the use of the word 'such' before the word
imprisonment is significant. It was placed there for a purpose. The purpose was
not to include a suspended sentence imposed additionally to a sentence of a
fine. It refers to a term of imprisonment that is imposed as the effective
sentence following a conviction, whether or not such imprisonment is suspended.
Argument to the contrary would be absurd.
Surely, there must be a distinction, for purposes of the Immigration
Act, between one sentenced to three and a half years' imprisonment and another
sentenced to pay a fine, and, in addition, a sentence of imprisonment wholly
suspended on condition of good behaviour. In the first scenario, the person
goes to prison immediately. In the second, he does not, unless he fails to pay
the fine, or if, thereafter, he violates the terms of the suspension of his
sentence.
It follows from the above that the appellant, having
succeeded in having the sentence altered to one of a fine, and, in addition,
imprisonment suspended on condition of good behaviour, is not a prohibited
person as envisaged in section 14(1)(e)(ii) of the Immigration Act [Chapter
4:02].
COSTS
These should follow the event.
DISPOSITION
In the result, in response to the question referred to this
court by the Magistrates' Court, this court makes the following findings:
(a) The appellant, having become a prohibited person on
pronouncement of the sentence of three and a half years, reverted to his
original status once the sentence was substituted with one of a fine
(b) The suspended sentence of 12 months imposed in addition
to the fine is not the term of imprisonment envisaged in section 14(1)(e)(ii) of
the Immigration Act [Chapter 4:02].
(c) The respondent is to pay the costs of this
referral.
