S v DYER 1988 (2) ZLR 395 (SC)

Flynote

Criminal law — theft — of stock — Stock Theft Act [Chapter 72] — s 3(1)(b) — non-application of Act to "carcass not in lawful possession" of person from whom stolen — meaning of.

Criminal procedure (sentence) — theft of stock — farmer unknowingly slaughtering stolen ox but after discovering theft deciding to keep meat — appropriate sentence.

Headnote

The appellant, a farmer, had killed and then butchered an ox which, unbeknown to him, his employees had stolen from a neighbour. He had instructed them to find one of his own slaughter stock which had gone missing. It was only after he had shot and butchered the animal that he noticed that its hide bore his neighbour's brand. In spite of this, he sold the meat for his own benefit in his butchery. He was convicted of stock theft and sentenced to nine months' imprisonment, of which four months were suspended. He appealed against conviction and sentence.

Section 3(1)(b) of Stock Theft Act [Chapter 72] provides that the Act does not apply to the carcasses of animals which at the time of slaughter were not in the lawful possession of the person from whom such carcasses were stolen.

Held, that the section was intended to mean that one who stole meat from a stock thief was not himself a stock thief, merely a thief.

Held, further, that although the owner of the beast had ceased to have physical possession of it when it was stolen from him, he retained what Voet Commentary on the Pandects 41.2.5 called "civil" or "lawful"

possession. Section 3(1)(b) therefore did not apply to take this case out of the purview of the Act.

Held, further, that given that the appellant's crime was technically stock theft but in essence theft of property - meat - worth about $300, and given that he was an employer of labour whose incarceration might jeopardize the jobs of many employees, a fine of $2000 would be appropriate, bearing in mind the limits of jurisdiction of the provincial magistrate who tried the case.