The
accused was charged with stock theft as defined in section 114(2) of
the Criminal Law (Codification and Reform) Act [Chapter
9:23].
He was convicted on his own plea.
According
to the State Outline, whose facts were not disputed by the accused
during the canvassing of the essential elements, the accused was
employed by the complainant as a herd-boy. In 2006, the complainant
went to South Africa leaving his cattle in the custody of his
neighbour, Mr Kahuni. However, the accused continued to herd the
cattle as the herd boy whilst staying at Mr Kahuni's homestead. The
accused then lied to Mr Kahuni that he was related to the complainant
and that the complainant had authorised him to take four beasts for
the purposes of paying lobola for his (accused's) wife. Mr Kahuni
believed the accused's story and allowed him to take four beasts.
The
accused sold the beasts to three different people and to a beef
committee and enjoyed the proceeds. The people who bought the beasts
were mentioned by their names in the State Outline. When the
complainant returned, in June 2014, he discovered the offence and
caused the accused's arrest. I
find no issues on the conviction. I thus confirm it.
The
court imposed the following sentence on the accused;
“12
years imprisonment wholly suspended on condition accused restitutes
complainant four bovines through the village head, Raphel
Chikuvarara, by 30/12/14.”
The
accused was sentenced pursuant to section 114(2) and section 114(3)
which read as follows:
“(2)
Any person who -
(a)
Takes livestock or its produce -
(i)
Knowing that another person is entitled to own, possess or control
the livestock or its produce or realising that there is a real risk
or possibility that another person may be so entitled; and
(ii)
Intending to deprive the other person permanently of his or her
ownership, possession or control, or realizing that there is a real
risk or possibility that he or she may so deprive the other person of
his or her ownership, possession or control; or
(b)
Takes possession of stolen livestock or its produce -
(i)
Knowing that it has been stolen; or
(ii)
Realising that there is a real risk or possibility that it has been
stolen; shall be guilty of stock theft and liable -
(c)…,.
(d)…,.
(e)
If
the stock theft involved any bovine or equine animal stolen in the
circumstances described in paragraph (a)
or (b),
and there are no special circumstances in the particular case as
provided in subsection (3), to imprisonment for a period of not less
than nine years or more than twenty-five years; or
(f)
If the stock theft was committed in the circumstances described in
paragraph (a)
or (b)
but did not involve any bovine or equine animal, or was committed in
the circumstances described in paragraph (c)
or (d)
-
(i)
To a fine not exceeding level fourteen or twice the value of the
stolen property, whichever is the greater; or
(ii)
To imprisonment for a period not exceeding twenty-five years; or
both.
(3)
If
a person convicted of stock theft involving any bovine or equine
animal stolen in the circumstances described in paragraph (a)
or (b)
of subsection (2) satisfies the court that there are special
circumstances peculiar to the case, which circumstances shall be
recorded by the court, why the penalty provided under paragraph (e)
of subsection (2) should not be imposed, the convicted person shall
be liable to the penalty provided under paragraph (f)
of subsection (2).”
In
short, in terms of section 114(2)(e) of the Criminal Law
(Codification and Reform) Act there is a mandatory sentence of
between nine (9) years and 25 years imprisonment if the stock theft
involves cattle. A person can only escape the mandatory sentence if
they can satisfy the
court that there are special circumstances that are peculiar to the
case - which circumstances should be recorded by the court.
I
would like to deal with two issues that surround the sentence that
was imposed by the learned magistrate. The first relates to the way
he canvassed the special circumstances and the second relates to the
competence of the sentence that he imposed.
The
Canvassing of Special Circumstances
The
record shows that after convicting the accused, the learned
magistrate clearly explained to the accused the meaning of special
circumstances and that he risked going to prison for a period of not
less than nine (9) years and not more than 25 years if he failed to
advance any special circumstances.
When
the accused was asked by the magistrate for special circumstances he
advanced the following. He said that he sold about six or more of the
complainant's beasts. In other words he was saying that the number
of beasts which were mentioned in the State Outline was actually less
than the number that he had actually stolen. He said that this was
prompted by the following reasons;
(i)
Firstly, the cattle had no stock card and time and again the
veterinary officer would threaten to impound the cattle.
(ii)
Secondly, there was a time he lost a brother and needed money for
funeral expenses.
(iii)
Thirdly, at another time his wife had a miscarriage and since he
needed money to foot the expenses he had to sell yet another beast.
(iv)
Fourthly, he averred that for all the years that the complainant was
in South Africa he never did anything towards the upkeep of his
cattle and payment of his salary. As the herd boy he was solely
responsible for the upkeep of the cattle which included buying
medicine for the cattle.
The
accused said that he had decided to sell the cattle and that upon the
complainant's return he was going to compensate him for all his
beasts. The accused said that it was unfortunate that when the
complainant returned and discovered the offence he rushed to the
police without giving him a chance to explain himself.
The
accused stated that he had brought with him his father in law to
court. He said that the father in law was willing to help him pay
back the complainant's four beasts. The father in law gave evidence
under oath and confirmed to the court that he was willing to help
compensate the complainant's beasts so that his son in law would be
spared a prison term. He said that he did not want to be burdened
looking after the accused's family while the accused was in prison
as he had a large family of his own to look after. The father in law
said that he had already spoken to the complainant about the issue of
compensation and the complainant was agreeable to it. He said that
all he needed was two weeks to compensate the complainant. He said
that the complainant, who was also in attendance at court, could
confirm the position.
The
court invited the complainant to comment on the matter. The
complainant, who also took the witness stand, confirmed the
arrangement with the accused's father in law. He also confirmed
that for the period that he was away in South Africa he did nothing
towards the upkeep of his cattle. He also explained that he was not
interested in the accused being sentenced to prison. All he wanted
was to be compensated for his beasts.
After
the accused had made submissions on special circumstances and led
evidence from his two witnesses the court went on to record
mitigation from him. Thereafter, the court gave its reasons for
sentence and then sentenced the accused.
What
I find flawed about the trial magistrate's approach in canvassing
the special circumstances is that;
(i)
Firstly, he did not give the State an opportunity to respond to what
the accused had submitted. The audi
alteram partem
rule was completely ignored as the court went on to make a ruling on
special circumstances without hearing the State's response on the
issue. It is a procedural irregularity and a serious misdirection for
the court not to ask the State to make submissions and act is if the
State has no role to play at all on the issue of special
circumstances.
(ii)
Secondly, while the learned magistrate did the correct thing of
allowing the accused to lead evidence from witnesses in line with
section 70(1)(h) of the Constitution of Zimbabwe Amendment Act
(No.20) which states that any person accused of an offence has the
right to adduce and challenge evidence, the procedural irregularity
that he made was of not allowing the State to cross-examine those
witnesses in order to ascertain the veracity of what they had said
and what the accused had said. It is a rule of criminal procedure
that if one party leads evidence from witnesses, the other party has
a right to cross-examine those witnesses.
What
the accused and his witnesses said went unchallenged yet it is
contradictory to what is contained in the State Outline - which
contents the accused did not dispute when the essential elements were
canvassed.
In
the State Outline, it is stated that the accused lied to Mr Kahuni
that he was related to the complainant and that the complainant had
authorised him to take four beasts for the purposes of paying lobola
for his (accused's) wife. Mr Kahuni is said to have allowed him to
take the four (4) beasts which beasts the accused then sold and
squandered the proceeds. It is obvious that what the accused
submitted on special circumstances is totally different from and
irreconcilable with the contents of the State Outline yet the learned
magistrate allowed this to go unchallenged. As the accused was making
his submissions, the court should have asked him to reconcile what he
was submitting with the contents of the State Outline, but this was
not done. The court has a duty to ask the accused to explain any
contradictions for it to be able to make an informed decision on the
existence or otherwise of special circumstances. The court should not
just accept submissions blindly.
(iii)
Thirdly, after the accused had finished addressing the court on
special circumstances the magistrate went on to ask him to make
submissions in mitigation. Thereafter, the learned magistrate gave
his reasons for sentence. It is in his reasons for sentence that he
made a finding that there were special circumstances in the case
justifying the non-imposition of the mandatory sentence.
This
is a procedural irregularity.
The
correct procedure is to canvass special circumstances just after the
verdict - before mitigation. See S
v Mbewe & Another
1988 (1) ZLR 7. In canvassing the special circumstances, both the
accused and the State should be given a chance to address the court.
They can also lead evidence from witnesses if they so wish; and, if
they do so, the other party has a right to cross examine the
witnesses. Thereafter, the court should give its ruling on the
existence or otherwise of special circumstances. In the case of S
v Happy Simba Manase
HH110-15 I dealt at length with this procedure.
The
Finding on Special Circumstances
In
view of the procedural irregularities highlighted above I was tempted
to remit the case to the trial magistrate for him to canvass special
circumstances afresh but I have realized that despite the procedural
irregularities I can ascertain from the contents of the record
whether or not his findings on special circumstances were correct.
So, remitting the matter will not serve any purpose but cause
unnecessary delays in the finalization of this case.
As
I have already stated above, for theft of a bovine, the accused can
only be spared the mandatory sentence if he can show to the court
that there are special
circumstances peculiar to the case.
The phrase 'special circumstances peculiar to the case' should be
given a wide or broad interpretation so as to include circumstances
that relate to the way the offence was committed and personal
circumstances of the offender which should be special in nature.
In R
v DA Costa Silva
1956 (92) SA 173 (SR) BEADLE J said;
“There
is, to my mind, some difference between 'a circumstance of the
case' and 'a circumstance of the offence'. The court is here
dealing with the quantum of punishment, and in making a decision on
this I think that any
fact which might legitimately be considered as an aggravating or
mitigating feature of the case must be regarded as 'a circumstance
of the case', even though it may not be 'a circumstance of the
offence'.
An example might perhaps best illustrate this point. If a very
elderly man who is suffering from some chronic disease which requires
special diet and specialised medical treatment were convicted of
driving a car whilst not insured against third party risks, and if it
were shown that a sentence of imprisonment would be likely to cause
his death, it seems to me that this would be a proper factor which
the court could take into account in imposing a sentence of a fine
instead of a sentence of imprisonment, although it would be a
circumstance 'special' to the offender and not 'special to the
offence'.”
He
went on to say;
“I
fail to see why, in assessing punishment, a circumstance which is
special to the offender cannot be regarded as 'a circumstance of
the case' simply because it is not related to the offence. It may
well be that many circumstances of a case which relate only to the
offender, and not to the offence, should not be taken into account;
but this is because they would rightly be regarded as 'general',
as opposed to 'special' circumstances.”
It
is also clear from the above case that special circumstances must not
be general in character but special and the record must support their
existence.
Quite
a number of cases have examined what is meant by special
circumstances.
In
the case of S
v Vera
1976 (2) RLR 228…, it was stated that these are circumstances which
should be out of the ordinary either in their degree or in their
nature. It was further stated that the court should not accept all
mitigating factors as constituting 'special circumstances'
although every special circumstance will always be a mitigating
factor. See also S
v Telecel (Pvt) Ltd
2006 (1) ZLR 476 and S
v Dumisani Sibanda
HB103-09.
It
is my conviction that had the legislature used the phrase 'special
circumstances peculiar to the offence' instead of 'special
circumstances peculiar to the case' a narrow interpretation
restricted only to the way the offence was committed would be
appropriate.
I
will now turn to deal with the circumstances of the present case.
There
are contradictions between the contents of the State Outline and the
submissions made by the accused as he addressed the court on special
circumstances. Since the accused's submissions were not challenged
I will take it that he, in a way, disputed the contents of the State
Outline. So I will go by what he said. He said that when his brother
died and when his wife had a miscarriage, he sold the complainant's
beasts in order to raise money to meet the necessary expenses.
In
a number of cases it has been mentioned that economic hardships do
not constitute special circumstances as these are considered to be
ordinary mitigating circumstances. See S
v Martin Mugunzva and 2 Others
HB99-10.
That
the accused offered to compensate the complainant for his beasts and
that the complainant accepted the offer and further indicated that he
did not want the accused incarcerated does not stop the court from
imposing the mandatory sentence. Again, these are ordinary mitigatory
circumstances. Even the argument that imprisonment would weigh
heavily upon the accused's family, including his father-in-law, who
would be burdened by looking after the accused's family, does not
constitute a special circumstance. In R
v DA Costa Silva
1956 (92) SA 173 (SR) BEADLE J said;
“The
magistrate, in my view, correctly, held that in the light of the
purpose of the statute, the facts that the appellant had no previous
convictions and that imprisonment would bear heavily upon him and his
family, were insufficient to justify the suspension of imprisonment
if a sentence of such imprisonment was required by law.”
However,
in S
v Mugangavari
1984 (1) ZLR 80 (S) it was stated that mitigatory factors, if
considered cumulatively, they can constitute special circumstances.
In
casu,
the accused faced financial challenges while he was looking after the
complainant's beasts for eight years and he was without a salary
for that whole period. Having been convicted he offered to compensate
the complainant his beasts. An extraordinary thing about this case is
the fact that the complainant was away in South Africa for eight
years. He knew very well that he had left the accused whom he had
employed as a herd boy looking after his cattle, but for all those
eight years he never sent money for the salary of the accused and for
the upkeep of the cattle. Eight years is a very long time for anyone
to survive without a salary if they are employed. Obviously, the
accused had family responsibilities and for him to deal with them he
needed money. With his employer having gone away for years, the
accused was put in the predicament of having to dispose of the
complainant's beasts whenever he faced financial challenges. All
these factors, considered cumulatively, do constitute special
circumstances….,.
Having
made a finding that there were special circumstances in the case the
learned magistrate ought not to have sentenced the accused to the
mandatory sentence of between 9 years and 25 years imprisonment but
to a sentence under section 114(2)(f) of the Criminal Law
(Codification and Reform) Act [ Chapter 9:23].
Other
than that, the sentence that was passed is not a competent one.
In
terms of section 358(2)(b) and section 358(3)(b) of the Criminal
Procedure and Evidence Act [Chapter
9:07]
a court may pass sentence but order the operation of it to be
suspended on condition that the accused pays “compensation for the
damage
or pecuniary loss
caused by the offence.” Pecuniary loss means monetary loss. This
therefore means that the compensation should be in monetary terms. In
R
v Kokerayi
1939 SR 237 it was stated that it is not competent to award
compensation of cattle.
In
casu,
the
learned magistrate awarded compensation of cattle. He had a prison
term of 12 years suspended on condition that the accused delivered
four herds of cattle to the complainant by 30 December 2014 through
the village head. The most disappointing thing is that the learned
magistrate who dealt with this matter is a Provincial Magistrate who,
by virtue of his rank, is expected to be well versed with sentencing
principles.
Conclusion
There
is need to set aside the incompetent sentence that was imposed by the
trial magistrate and substitute it with a competent one. I will
impose a prison term which I will suspend wholly on condition the
accused pays restitution to the complainant in monetary terms. The
State Outline states that the value of the four beasts is $2,000=.
However,
in the incompetent sentence the accused had been given until 30
December 2014 to deliver the four (4) beasts to the complainant. In
the event that he has delivered the beasts then there will not be any
need for him to pay the $2,000= but if he hasn't by now delivered
the four (4) beasts then he should not deliver them but pay $2,000=
to the complainant.
The
accused is sentenced as follows:
“5
years imprisonment wholly suspended on condition he pays restitution
to the complainant in the sum of $2,000= through the Clerk
of Court
at Banket Magistrates Court.”
