KAMOCHA J: The
appellant was charged with theft of stock as defined in section 114 of the
Criminal Law (Codification and Reform Act Chapter 9:25) (“the Act”). It being alleged that he stole 4 donkeys
belonging to Charles Shumba on 15 September 2006. He pleaded not guilty but was found guilty of
theft of two donkeys despite his protestation.
He was sentenced to undergo 9 years imprisonment as the trial court
believed that the appellant was liable to the minimum mandatory sentence for a
period of not less than nine years or more than twenty-five years imprisonment
as stipulated by section 114 (2)(e) of the said Act.
The appellant had initially appealed
against both the conviction and sentence but later abandoned the appeal against
conviction. In his sole ground of appeal
against sentence he complained that the trial court erred by imposing on him a
sentence which was meant for theft of a horse or bovine when he was convicted
of theft of two donkeys.
The advice to abandon the appeal
against conviction was proper, therefore nothing turns on the conviction.
What needs to be considered is
whether or not a donkey is an equine animal.
The Stock Theft Act [Chapter 9:18] defined “stock” in section 2 as
follows:-
“Stock” means –
(a)
Any horse, mule, ass, bovine, sheep, goat,
pig, poultry, pigeon or chinchilla; or”
The Stock Theft Act
was amended by the Stock Theft Amendment Act 6 of 2004 which inserted a new
section to the principal Act. That
section set out special sentences for offences in respect of certain stock and
it reads as follows:-
“12 Special sentences for offences in respect
of certain stock
(1)
Any
person who is convicted of the theft or attempted theft of any equine or bovine
animal or receiving knowing it to have been stolen, or inciting or conspiring
with any other person to commit any offence shall, if there are no special
circumstances on the particular case as provided in subsection (2) be liable to
imprisonment for a period of not less than nine years or more than twenty-five
years.”
The above section was repealed by section 282 of Act 23 of
2004 which we now know as the Criminal Law (Codification and Reform Act
[Chapter 9:23]. This Act defines, in
section 114 (1) “livestock” to mean;
(a)
Any
sheep, goat, pig, poultry, ostrich, pigeon, rabbit or bovine or equine animal;
or
(b)
Any
domesticated game; or”
Unlike the Stock Theft Protection Act the above section does
not include an ass or donkey as livestock.
Could the legislature have regarded a donkey as an equine animal? Is it an equine animal?
The word equine is defined in the Chambers 21st
Century Dictionary as belonging or relating to, or like, a horse or
horses. From equinus; from equus horse. A
horse in Latin is known as equus. But the word equus in zoology means the genus of ungulates including, horses,
asses and zebra.
See the Collins English Dictionary which defines equine as
pertaining to a horse when used as an adjective. When used as a noun it also means a horse.
As can be seen from the above definitions the word equine
does not include an ass or donkey. It
only relates to a horse or horses. A donkey
is not an equine animal.
There is need for the legislature to amend section 114 of the
Criminal Law (Codification and Reform) Act [Chapter 9:23] so that it includes
an ass like the Stock Theft Protection Act [Chapter 9:18].
In the case of S v Ndlovu & Anor 2006 (2) 19 this court
arrived at the same conclusion. It was
therefore not proper in casu to
impose the minimum mandatory sentence of 9 years imprisonment meant for those
convicted of theft of a bovine or equine animal.
In the result the appeal succeeds
and the sentence of 9 years imprisonment is hereby set aside. This court is therefore at liberty to pass a
sentence it deems appropriate in the circumstances.
The accused is a first offender who
was aged 35 years at the time he committed the offence. He is now 40 years old. He is married with 5 children. The 8 days he served before he was released
on bail have been taken into account.
The donkeys he stole were
fortuitously recovered, therefore, not much weight can be attached to
that. Instead what is clear is that he
is a greedy man because he himself owns 4 donkeys. The theft of the complainant's donkeys was
out of sheer greed. He stole for sale
not because he was a poor man. He has 9
cattle. If he was desperately in need of
money he could have sold one of his beasts or one of his donkeys to raise
money. Instead he sold the donkeys he
stole. This was a mean theft
indeed. Depriving a rural dweller of two
donkeys is a serious matter since donkeys mean a lot to rural dwellers. They use them for ploughing their lands and
as a means of transport.
The
aggravating features far outweigh the mitigating ones. No other form of punishment other than a
custodial sentence is appropriate in the circumstances. I shall however suspend a portion of the
sentence on condition of future good behavior.
In the result, the appellant is sentenced as follows:-
“15 months imprisonment of which 6 months imprisonment is
suspended for 3 years on condition that he is not convicted of any offence of
which theft or dishonesty forms an element committed within that period for
which he is sentenced to imprisonment without the option of paying a fine.
Effective: 9 months imprisonment”
Mathonsi J
………………………………………………. I agree
H Tafa & Associates, c/o Mlweli
Ndlovu & Associates, applicant's legal practitioners
Criminal Division of the Attorney General's
Office, respondent's legal practitioners
