The
Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] 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 ...
The
Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] 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)…,. 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 [Chapter 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 (Consequential
Provisions) Act [Chapter 20:28], 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…,.
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..,.
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 Lands
(Consequential Provisions) Act [Chapter 20:28] 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 Lands (Consequential
Provisions) Act [Chapter 20:28] 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…,.
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 section 16B
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.
