This is an urgent chamber application for stay of execution pending review. The relevant background to this matter is as follows:On 14 December 2009, the Regional Court sitting at Harare convicted the applicant Bank of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced ...
This is an urgent chamber application for stay of execution pending review. The relevant background to this matter is as follows:
On 14 December 2009, the Regional Court sitting at Harare convicted the applicant Bank of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced the applicant to pay a fine of $500 and also ordered the applicant to compensate the first respondent the sum of $250,000.
The learned Magistrate suspended the payment of the fine to the next day, 15 December 2009. Immediately after the sentence, the applicant noted an appeal against both conviction and sentence.
That appeal is still pending before this court.
Mr Clemence Zingoni, who deposed to an affidavit on behalf of the applicant says that he was shocked to hear, on 17 December 2009, that, on the same day, the second respondent, armed with a writ of execution together with a Bond of Indemnity, had been at the applicant's Head Office with the intent to attaching property in order to satisfy the Order of Restitution.
Mr Zingoni averred, that, the issuing of the writ was improper and unlawful, as, the effect of noting of an appeal against the magistrate's decision was to suspend its execution. The writ was therefore defective as it could not be issued in those circumstances.
It was Mr Zingoni's further contention that the value of the writ exceeded the jurisdiction of the Regional Magistrate as prescribed by Statutory Instrument 21 of 2009.
It was also contented, that, in terms of section 372 of the Criminal Procedure and Evidence Act [Chapter 9:07] any Court purporting to enforce a Restitution Order made in criminal proceedings can only do so if it has monetary jurisdiction in the first instance.
Following the service of the writ of execution on the applicant, its legal practitioners immediately filed an ex parte application, on 18 December 2009, in the Magistrate's Court, for stay of execution.
The application was dismissed by a magistrate on the same day.
Immediately thereafter, the applicant filed an application for review of the learned magistrate's judgment. That application for review was filed simultaneously with this application for stay of execution.
It is worthy noting, that, in its application for the review of the conduct of the learned magistrate who dismissed the ex parte application, the Messenger and the Clerk of Court, the applicant concedes, that, the noting of an appeal does not suspend the execution of any sentence of imprisonment, fine or community service as is provided in section 63 of the Magistrate's Court Act [Chapter 7:10].
However, the applicant's argument is that the Order which is subject of these proceedings is neither a term of imprisonment, a fine nor an Order for community service. It is an order for restitution. It is further argued that restitution is not specifically mentioned by the said Magistrates Court Act, and, therefore, in accordance with rules of interpretation, the express mention of the other forms of punishment excludes what is not stated in section 63 of the Magistrate Court Act....,.
It was further argued, that, the order of compensation, which prompted the writ of execution, had been suspended by the appeal which the applicant had filed.
Section 63 of the Magistrate Court Act provides as follows:
“The execution of any sentence of imprisonment, fine, or community service shall not be suspended by -
(a)…,.
(b) The noting of an appeal referred to in section sixty unless -
(1) In the case of imprisonment or fine, bail is granted by a judge or magistrate in terms of section 163 of the Criminal Procedure and Evidence Act [Chapter 9:07]; or
(2) In the case of community service, an application is granted by the magistrate to suspend the operation of the sentence pending determination of the appeal.”
What this means is that the payment of the fine is not suspended by the appeal.
The Magistrate Court Act does not, however, mention whether or not an order of compensation is suspended by an appeal.
In terms of section 370 of the Criminal Procedure and Evidence Act “a court which makes an award or order in terms of this Part may require the injured party to give security for repayment of the compensation or the return of the property, in case the award is reversed on appeal or review.”
This clearly suggests that payment of compensation is immediate and is not suspended by an appeal or review.
If an order of restitution was suspendable by an appeal or review, the legislature would not have provided for security to be given by the injured party. The need to provide security by the injured party pre-supposes that compensation would have been paid soon after the sentence is passed.
