S v GWINGWIDZA 2013 (2) ZLR 33 (H)

Flynote

Criminal law — offences under Criminal Law Code — theft — of stock — progeny of stray cow — stray cow duly registered and sent to pound but calf retained — whether calf capable of being stolen from original owner of cow — whether keeping calf constituted contrectatio — accused's belief that entitled to retain calf in return for looking after its mother — such belief negating animus furandi

Headnote

Three stray cattle wandered into the appellant's herd. He reported this fact to the authorities, who registered the cattle. The cattle were eventually collected by the poundmaster and auctioned in terms of the law. In September 2011, he again registered a stray cow which had joined his herd the previous year. On 10 December 2011 the police, together with district council officials, approached the appellant to collect the stray cow. He did not disclose that the cow had dropped a calf whilst underhis care. The calf remained in his possession.

The appellant was charged with stock theft, the charge averring that the calf was the property of the State. When asked about why he did not register the calf, he explained that the reason he had not registered it was that he did not know the procedure of dealing with the progeny of a stray beast. The magistrate convicted him, holding that the only reasonable and plausible explanation for his failure to disclose the calf to the authorities was the motivation to deprive the State permanently of the progeny of the stray cow.

Held, that the averment that the calf belonged to the State was fatal. Such an averment betrays the accepted status of the stray cow. If it belonged to the State it would not be classified as stray. The correct position is

that the calf belonged to the owner of the stray cow who was, to theprosecutor, unknown.

Held, further, that an error of fact may be a complete defence, negating mens rea. The appellant was in lawful possession of the res and laboured under a genuine and reasonable mistake of fact regarding his ownership of the calf. Judicial notice may be taken of the fact that, under customary law and practice, a person who has taken care of another's herd of cattle, whether under agreement or not, was entitled to a portion of the progeny, depending on the length of the period for which such care was undertaken. Such a defence amounts to a claim of right. The appellant had a bona fide belief that he was entitled to keep the calf, as that calf was not subject to the same status as the cow. His evidence in court was not shown to be false nor his belief to be dishonest. The fact that he had openly possessed the bullock must negative any intention to deprive the owner permanently of his ownership of the bullock.

Held, further, that the mental element for theft, animus furandi (the intention to steal), could not have been met in circumstances where the appellant had taken steps to notify several people of the existence of, firstly, the cow and, later, the calf. He believed he was entitled to some benefit of his agency for the pound master.

Held, further, that although our law recognises assumption of control as sufficient indication of the element of contrectatio required for theft, it was debatable whether the appellant effected contrectatio by merely assuming control of the newly-born calf.

Held, further, that an accused can, in various situations, escape conviction because of his bona fide belief that he was entitled to act in the way he did. The fact that a belief is unreasonable would no more than evidence of a lack of good faith.

Held, further, that there was no proof that the subject matter was property capable of being stolen in the particular circumstances of this case. Our law recognises that res nullius are things unowned but capable of ownership. They may be acquired by occupatio. Two categories relevant to this enquiry are res derelictae and wild animals. Res derelictae cannot be stolen. However, for a thing to be classed as a res derelicta, it must not merely have been lost to the owner, but the owner must have written it off or lost all hope of recovering it in every sense. Where, however, the property was merely lost and not abandoned, and thus capable of being stolen, the critical question is always whether the accused effected contrectatio with the intention to steal it in two aspects; i.e (a) did he intend to deprive the owner of the full benefit of his ownership or merely to look after the res pending enquiries; and (b) did he genuinely believe it to have been abandoned? The appellant was saying he was not aware whether he was obliged by law to register the calf and therefore to surrender it together with its dam. This was clearly a plea of mistake of fact as well as mistake of law.

Held, further, that although by accessio, the calf accrued, as fruit, to the owner of the cow, here there was no owner of the cow at the time of the coming into being of the "fruit" and, therefore the lawful possessor of the cow at the time became the legal owner of the fruit by occupatio. The appellant should not have been charged with theft of the property as it was incapable of being stolen in these circumstances.