S v MAPANZURE & ANOR 2011 (2) ZLR 43 (H)

Flynote

C Criminal procedure (sentence) “ offences under Criminal Law Code “ stock theft (s 114(2)(a)) “ penalties applicable “ mandatory minimum sentence in absence of special circumstances “ offence committed before mandatory minimum sentence introduced “ accused person convicted after penalty increased “ increased penalty not applicable

Headnote

The accused were convicted of stock theft, the offence having been committed before, but the convictions occurring after, an amendment to the Stock Theft Act [Chapter 9:18] came into operation in 2004. The Stock Theft Act itself was repealed by the Code in 2006, which re-enacted the provisions of that Act in s 114. That amendment had introduced a mandatory minimum sentence of imprisonment unless special circumstances were found. The magistrate based his various sentences on the assumption that the mandatory minimum sentence was applicable, having found no special circumstances to exist.

Held, that the general rule at common law is that statutes are not to operate retrospectively, unless it is expressly stated that an enactment shall be retrospective in its operation or it is a necessary implication from the language used. This was not the case here. If the legislature intended the section to have retroactive effect it would 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 in a 1976 decision to have no retrospective effect. The legislature is assumed to have been aware of that decision when it promulgated the present section in identical terms.

Editor's note: this decision is in accordance not only with principle but also with s 18(5) of the Constitution of Zimbabwe 1980, the relevant portion of which provides that "no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed" (emphasis supplied).