THE STATE

 versus

MAXWELL MAPANZURE

and

KILLION MUWUYA

HIGH COURT OF ZIMBABWE

KUDYA J

HARARE, 6 July 2011

Review Judgment

                KUDYA J: The present review judgment deals with the issue of whether s 114 (2)(a) of the Criminal Law (Codification and Reform) Act [Cap 9:23] has retrospective effect. The section first appeared in the present format as s 12A of the Stock Theft Act [Cap 9:18] before the Stock Act was repealed by the Criminal Law (Codification and Reform) Act, supra, on 23 June 2006. The repealed statute reintroduced the mandatory minimum penalty of not less than 9 years but not more than 25 years imprisonment for the theft of bovine or equine animals.

There have been conflicting decisions in the High Court on whether the section applies retrospectively to offences that were committed before the mandatory sentence was promulgated on 27 August 2004. My research has revealed that only one case held that the section has retrospective or retroactive effect. This was the decision of NDOU J with the concurrence of BERE J in S vMzanywa & Ors HB 9/2006. I have been able to locate four cases from the Harare High Court that held that the section did not have retroactive effect. These are S vForsten HH 177-04 a judgment of BHUNU J concurred to by MAKARAU J, as she then was, S vManaka HH 77-05 by BHUNU J with the concurrence of UCHENA J, S vNdlovu & Anor HH 70-06 a judgment of KAMOCHA J in which GARWE JP, as he then was, not only concurred but wrote a separate opinion underscoring the point that the section did not carry retroactive effect.

In the present matter what happened is as follows. On an unknown date but in August 2004, the second accused who was employed as a charge hand at the complainant’s homestead connived with the first accused, the brother of the complainant and stole and sold the complainant’s heifer. The two falsely indicated to the complainant that the heifer had gone missing. It was, however, recovered on 18 February 2011 from the person, to whom it had been sold, leading to the apprehension and prosecution of the two accused persons.

The two accused persons were correctly convicted on their respective pleas of guilty to stock theft in violation of s 114 (2)(a) of the Criminal Law (Codification and Reform) Act. The trial magistrate recorded mitigation before properly explaining the meaning, nature and scope of special circumstances peculiar to the case. He did not find any special circumstances. On 30 March 2011 he sentenced each accused person to 10 years imprisonment and suspended 1 year imprisonment for 5 years on appropriate conditions of future good conduct.

The difficult that confronted me on review was the failure to disclose the particular date in August 2004 when the theft occurred. The theft could have taken place either before or after 27 August 2004 when the mandatory minimum sentence took root. In the absence of a clear indication of whether it took place before or after the crucial date, it seemed to me appropriate to give the benefit of the doubt to the accused persons and find that it took place before the defining date. It was only after making such a finding that the question raised at the beginning of this review judgment cried out for an answer.

In Mzanywa’s case, supra, NDOU J stated at p 2 of the cyclostyled judgment that:

“The issue here is whether the provisions of s 12 apply retrospectively in respect of offences committed before it came into operation where the accused is only convicted after its promulgation?  It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication – Carson v Carson [1964] 1 WLR 511 at 516, DPP v Lamb [1941] 2 k.B 89, Maxwell on Interpretation of Statutes (12^thEd) by P. St. J Langan at 226-7;  It is conceded that the operation of this presumption is difficult because the distinction between statutes that operate retrospectively for the purpose of the  presumption and those which do not is hard to draw Cross Statutory Interpretation (2^ndEd) by Dr J Bell and Sir G Engle at 184-6 and Re Athlumney [1898] 2 QB 547 at 551.  This presumption against retrospectivity is rebutted by a statutory provision or Act either expressly or by necessary implication – S v Fazzie & Ors 1964(4) SA 673 (A) Lek v Estate Agents Board 1978(3) SA 160(c).

By using the phrase “who is convicted” as opposed “who has committed” the legislature clearly intended that s 12 should have retroactive operation.  The date of conviction is the decisive date from the wording of s 12.  The date of the commission of the offence is

rendered irrelevant.

He held that the use of the phrase “who is convicted” as opposed to “who has committed” was decisive”.

On the other hand KAMOCHA J stated in the Ndlovu case, supra, at pp 2-3 of the cyclostyled judgment:

“The second error relates to applying the law retrospectively.  The theft of the four donkeys was committed on 25 October 2003 which was 10 months before the Stock Theft Amendment Act 6 of 2004 was enacted.  The magistrate sentenced the accused for an offence committed before the law was enacted using the provisions of the new law.  That, in my view, is not proper as the general rule at common law is that statutes are not to operate retrospectively.  See Crais on Statute Law 7^thedition by S.G.G. Edgarat p 391.  Francis Benion in Statutory Interpretation Butterworths 1984 at p 313 states the principle as follows:

‘It is a principle of legal policy that, except in relation to procedural matters, changes in the law should not take effect retrospectively.  The court, when considering, in relation to the fact of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator, intended to observe this principle.

This general rule can however, be departed from where it is expressly enacted that an enactment shall be retrospective.  Further, Crais on statute law supra at p 392 states that:-

‘If it is a necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the courts will give such an operation.’

The above approach has been adopted by our courts several times for instance in Agere vNyambuya 1985 (2) ZLR 336 (SC) at 338H-339A GUBBAY JA (as he then was) had this to say:-

‘It is a fundamental rule of construction in our law, dating probably from Codex 1:14:7, that there is a strong presumption that retrospective operation is not to be given to an enactment so as to remove or in any way impair existing rights of obligations unless such a construction appears clearly from the language used or arises by necessary implication.  For instance, where it is expressly retrospective, or deals with past events, or concerns a matter of procedure, practice or evidence.  The supposition is that the legislature intends to deal only with future events and circumstances.’

See also Bater & Anor vMuchengeti 1995(1) ZLR 80(S) at 84G-H and Nkomo & Anor vA-G & Ors 1993 ZLR 422(S) at 428H-429B.

In casuthere is nothing to suggest that the provisions of s 12 inserted by the Stock Theft Amendment Act No. 6 of 2004 were to be applied in retrospect.  Neither can it be said that there is a necessary implication from the language used that the legislature intended the said section to operate retrospectively.  There was, therefore, no basis for the trial court to have had recourse to s 12 of the Stock Theft Act [Cap 9:18] as amended when sentencing the accused.  He should have exercised the jurisdiction conferred on him by the Stock Theft Act prior to the amendment”.

The views expressed by KAMOCHA J find further support in the case of S vMutandwa and Another 1973 (3) SA 391 (R). In that case two accused persons were convicted of stock theft on 29 September 1976 and sentenced to the mandatory minimum sentence promulgated in the Stock Theft Amendment Act, 10 of 1976. At 391E DAVIES J with whom WHITETAKER J agreed with, set aside the mandatory minimum sentences because the trial magistrate overlooked the fact that the Stock Theft Amendment Act was not operative at the time of the commission of the offence.

The 1976 Amendment Act was couched in identical terms as the present s 114 (2) (a). It read:

           “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 of the foregoing offences shall, if these are no special circumstances in the particular case as”

In my view, the distinction sought to be drawn by NDOU J in the wording of the present section does not confer retroactive effect to the section. If the legislature intended the section to have retroactive effect it should have expressly said so. It did not. After all it was radically increasing the punishment for the theft of a bovine or equine animal.  In addition, the legislature repeated the same wording which was held had no retrospective effect in 1976. The legislature is assumed to have been aware of that decision when it promulgated the present section in identical terms.

Accordingly, I would, with respect, differ with the conclusion reached in Mzanywa’s case. I find myself in agreement with the decisions which hold that it has no retroactive effect.

Accordingly, the two accused persons should have been sentenced to sentences that were appropriate before the promulgation of s 114 (2) (a) in its present format.

The mandatory minimum sentence imposed by the trial magistrate is set aside and is substituted by the following:

Each accused: 3 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition he does not within that period commit any offence involving dishonesty for which he is sentenced to a term of imprisonment without the option of a fine.

CHITAKUNYE J: agrees ......................................