GARWE JA:
[1] This is a
stated case referred to this court pursuant to the provisions of s 21 (3) of
the Immigration Act, [Chapter 4:02]
FACTUAL BACKGROUND
[2] 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 s 14 (1) (e) of the Immigration Act, 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.
[3] 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)
[4] 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 s 14 (1) (e) (i) of the Immigration Act.
[5] Following
the refusal by the respondent to admit him, the appellant appealed to the
Bulawayo Magistrates' Court in terms of s 21 (1) of the Immigration Act. 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.
[6] 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.
[7] 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.”
[8] 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 subparagraphs (i) and (iii) of subsection (1) (e) of s 14 of the Immigration
Act are established or found to exist.
As will be shown later in this judgment, this line of argument was abandoned
by the respondent before this court.
[9] 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 s 14 (1) (i) of the Immigration Act, the appellant had
become a prohibited immigrant by reason of him having been convicted of
contravening the Immigration Act. This
submission will be dealt with shortly.
APPELLANT'S
SUBMISSIONS BEFORE THIS COURT
[10] 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 s 14 (1) (e) (ii) 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
[11] Before
this court the respondent argued that the issue is the interpretation of s 14
(1) (e) (ii) of the Immigration Act and, in particular, whether the appellant
remained a prohibited person. Mr Magadure, for the respondent, accepted
that para (i) and (iii) of s 14 (1) (e) of the Act 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.
[12] 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 s 14 (1) (e) (ii) of the Act,
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.
[13] 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 s 14 (1) (e) (ii) of
the Act 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.
[14] The
respondent has also submitted that s 14 (1) (i) 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.
[15] 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.
[16] The decision of this court was essentially
requested on the correct interpretation of s 14 (1 (e) 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 s
14 (1) (i), 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
[17] 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.
[18] 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.
[19] In my view
the above concession was properly made.
Paragraph (e) of s 14 (1) 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 subpara (ii), and the person is declared by the Minister in terms subs 2 to
be a prohibited person.
[20] On the
facts of this case, as correctly conceded by the respondent, subpara (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 s 14 (2) of the Act. 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.
[21] The issue
that arises for determination is the interpretation to be given to subpara (ii)
of para (e) of s 14 (1) of the Act, given the particular facts of this case.
[22] 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.
[23] The
appellant was convicted by the Magistrates' Court of two offences and sentenced
to three and a half years' imprisonment.
In terms of para (e) (ii) of s 14 (1), by operation of law, the
appellant would have become a prohibited person following that sentence.
[24] 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
[25] 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.”
[26] 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.
[27] It is
clear from a reading of s 14 (1) (e) (ii) 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 s 14 (1) (e) (ii), 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.
[28] 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.
[29] 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.
[30] 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.
[31] 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 ss 347 (1) (a) and 358 (2) (c) of the Criminal
Procedure and Evidence Act, [Chapter 9:07]
[32] 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 s 14 (1) (e) (ii) of the Act.
[33] Clearly
that cannot be the position. The
imprisonment referred to in such para (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 Mr Girach, 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.
[34] Argument
to the contrary would be absurd. Surely
there must be a distinction, for purposes of the 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.
[35] 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 s 14 (1) (e) (ii) of
the Act.
COSTS
[36] These
should follow the event.
DISPOSITION
[37] 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 s 14 (1) (e) (ii) of the Act.
[38] The
respondent is to pay the costs of this referral.
GOWORA JA: I
agree
BERE AJA: I agree
Majoko
& Majoko, appellant's legal practitioners
Civil Division of the Attorney General's Office, respondent's legal
practitioners
