S v Mzanywa, S v Chibharo and Ors; S v Mnyambo; S v Mashawina (HC 972 of 2005) [2006] ZWBHC 9 (22 February 2006)

Judgment No. HB 9/06 Case No. HC 972/05; 275/05; 1186/05 THE STATE Versus INNOCENT MZANYWA – CRB 3843/02 MAXWELL CHIBHARO & 2 OTHERS – CRB 3698-3700/04 MBUTHANELWA MNYAMBO – CRB MBE 262/05 MAKULASWI MASHAWINA – CRB ZVI 140/05 IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 23 FEBRUARY 2006 Criminal Review NDOU J: These matters were dealt with by different trial magistrates in the Midlands Province. I have dealt with them in this judgment because I am concerned by a problem common to all of them. The common feature is that in all these matters the accused were convicted of stock theft viz bovine. In all the convictions were after the Stock Theft Amendment Act [No. 6 of 2004] came into operation. The Act came into operation with effect from 27 August 2004. In all these matters the offences were committed well before the promulgation of the Act. In all these matters the trial magistrates held the view that the provisions of the amended section 12 (i.e. the provision which creates the minimum mandatory sentence of nine(9) years) do not apply. Section 12 (as inserted by section 4 of Act 6 or 2004) provides: “(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 of the foregoing offences shall, if these are no HB 9/06 special circumstances in 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”. (emphasis added) The issue here is whether the provisions of section 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 (12th Ed) 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 (2nd Ed) 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 section 12 should have retroactive operation. The date of conviction is the decisive date from the wording of section 12. The date of the commission of the offence is rendered irrelevant. HB 9/06 Accordingly, I confirm the conviction. However, all the sentences imposed on all these matters be and are hereby set aside. These matters are referred to the respective trial magistrates for fresh sentencing with due regard to the provisions of section 12 of the Act. Bere J …………………………….. I agree