Never Gwingwidza v The State

### Preamble
1
HH434-13
CA 185/12
NEVER GWINGWIDZA
versus
---------


==============================

NEVER GWINGWIDZA
versus
THE STATE

HIGH COURT OF ZIMBABWE
HUNGWE & MAVANGIRA JJ
HARARE, 19 March &12 July 2013

S Mushonga, for the appellant
R Chikosha, for the respondent

Criminal Appeal

HUNGWE J Introduction

This appeal raises the question whether by remaining with possession of progeny of stray beasts such a possessor commits stock theft.

Background

The appellant was convicted of stock theft as defined in s 114 (2) (a) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] and sentenced to 9 years imprisonment. During his trial, the following facts were established. Three stray cattle wandered into his herd. He reported this fact to the authorities who registered the same. The stray cattle were eventually collected by the pounds-master 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 the Bindura Rural District Council authorities approached the appellant to collect the stray cow. He did not disclose that the cow had dropped a calf/bullock whilst under his care. Someone in the community who was aware of the fact alerted the police and the appellant was charged with stock theft. The appellant appeals against conviction as well as sentence.

**The evidence**

These facts are common cause or are not in serious dispute. The question is whether the appellant had the necessary *mens rea* to commit the crime of stock theft.

During trial the appellant gave the following defence. When the cow joined his herd, he had notified the authorities as he had previously done. Later after the cow dropped a bullock, he had notified the village head and the dip tank attendant of the fact. When the police and council officials came to collect the cow, he had not advised them of the existence of the calf as he had not yet registered the calf. The village head and the dip tank attendant who were familiar with the issue were not present. 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 trial court convicted the appellant on the basis that he had no defence as he ought to have known better by virtue of the fact that he was a police special constabulary. The court reasoned thus:

“It is also clear that accused did not disclose to the police who came together with the officials from council to collect the stray cow, that the stray cow had an offspring. Evidence was led to the effect that he was asked to collect his beasts from the grazing area and place them in his cattle pen before pointing at the stray beast to the police and the council officials. He could not give a reasonable explanation as to why that offspring remained behind when the stray cow was collected. Accused is not an ordinary person, he is a member of the special constabulary, he is someone who is expected to know better. He was given his share from the proceeds of the sale of the stray cow. The only reasonable and plausible conclusion is that his failure to disclose this was motivated by an intention to deprive the State of this offspring….”

The court concluded 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. It is now trite that the averment that the calf/bullock belonged to the State is fatal to the charge. 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 the prosecutor, unknown. See: S v Machokoto 1996 (2) ZLR 190 (HC). The calf, dropped by the cow which was in his lawful
 possession, could not be treated in the same way as the stray cow since the owner must have, to his knowledge, lost and written off only the cow. The cow was now in appellant’s lawful possession but registered as stray with the authorities. What is the status of its progeny? The answer to this question is by no means an easy one. The facts in *Machokoto*, supra, do not provide an answer to this question.

The old authorities shed some light as to what the correct position at law may be.

That an error of fact is a complete defence where a person, as in the case of a man who fondles a woman with the bona fide but mistaken belief that he was doing so on the woman who had earlier on accepted his proposition and who had invited him to her house, cannot be doubted. In *S v Lungu* 1989 (3) ZLR 27 the former Chief Justice DUMBUTSHENA CJ discussed the issue at length. He cited with approval the remarks by MYBURGH J in *S v Sam* 1980 (4) SA 289 (T) where, having reviewed authorities on the defence of an error of fact or an error of law and the requirement of *mens rea* he went on:

“I need not repeat all the cases reviewed in that judgment. It will, for present purposes, suffice to repeat what the learned judge said at 293F-294B. The judgment is in Afrikaans. The official translation reads:

‘The subjective concept in a case of offences for which dolus is required has now already been totally accepted. (See further *R v Ndara* 1955 (4) SA 182 (A) at 184; *R v De Ruiter* 1957 (3) SA 361 (A) at 364; *R v Churchill* 1959 (2) SA 575 (A) at 581; *S v Griffin* 1962 (4) SA 495 (EC); *R v Geddes* 1964 (4) SA 48 (SRA); *S v Fouche* 1974 (1) SA 96 (A); the article by A Levin 'Die Bewyslas met Be trekking tot Mens Rea by Statutere Misdrywe' De Rebus June 1980.)

In the well known case about the dead pig, *S v Modise* 1966 (4) SA 680 (GW), JACOBS J approached the matter as follows:

‘It is clear that the accused did not deny that he had taken the dead pig, but it is also clear that, by pleading not guilty, he placed at issue the question whether he had taken it with the intent to steal and the State therefore had to prove that intent beyond reasonable doubt. If it is reasonably possible that the accused had bona fide believed that the carcass was res derelicta, then he could not have been convicted of theft. It is true that in *S v Griffin* 1962 (4) SA 495 (EC) DE VILLIERS JP decided that on a charge of theft a belief that a thing was *res nullius* must not only be bona fide but also reasonable before it can serve as a defence. The learned JUDGE PRESIDENT, however, unwillingly came to that conclusion, but he felt himself bound by dicta in certain Appeal Court decisions such as *S*
 v Mbombela 1933 AD 269; R v Ndara 1955 (4) SA 182 (A); R v Churchill 1959 (2) SA 575 (A); as well as Voet 22.6.6, where reasonableness is laid down as a requirement for a defence of mistake. I must immediately say that, just as DE VILLIERS JP, I find it difficult to see how an objective factor, such as the reasonableness of a perpetrator's attitude, can play any role where his actual mental attitude is investigated except that the unreasonableness of the attitude can of course be such that it reflects upon his bona fides. (See also R v Geddes 1964 (4) SA 48 (SRA). I am, however, in respectful agreement with the writer of the article which appears in 80 SALJ at 46 et seq that the dicta to the Appeal Court in the cases referred to by DE VILLIERS JP and to which he felt himself bound, must be regarded as obiter. In my opinion it is in fact the only basis on which the decision in R v Mkize 1951 (3) SA 28 (A), in which reference is indeed made to Mbombela's case, can be reconciled with the last-mentioned case. It is also clear to me that in R v De Ruiter 1957 (3) SA 361 (A) HOEXTER JA did not answer the question whether a mistake must be bona fide as well as reasonable, because at 364 he says:

‘This approach excludes the legal question whether the appellant could have relied upon a belief which was only bona fide but not reasonable.’

I am also in respectful agreement with the writer of the said article in SA Law Journal that the view expressed in Voet 26.6.6. and 7, in so far as it requires a mistake of fact to be reasonable before it can serve as a defence in a criminal case, cannot hold good today where intent is accepted as a subjective inclination of the perpetrator.'" (@ p 29 to 31).

The present matter can be distinguished from Machokoto’s case in that in the present case the appellant was in lawful possession of the res unlike in that case. In my view this strengthens the argument that appellant laboured under a genuine and reasonable mistake of fact regarding his ownership of the calf. This argument will be even more forceful if judicial notice is 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. This defence amounts to a claim of right. Mr Mushonga, for the appellant, urged this court to hold that since the appellant dealt with the other stray animals in a manner consistent with accepted practice regarding stray cattle, he could not have decided to deal with this calf differently but for the unclear status of the progeny of a stray cow at law. The trial court dismissed the defence of a claim of right without realising that this was the defence relied upon by the appellant.


From the evidence on the record it seems to me that 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 trial court did not apply its mind to the defence apparent from the evidence tendered. It decided the matter purely on the basis that as a special constabulary member, the appellant ought to have known better. What he ought to have known and known better is not made clear as is the basis for this conclusion. The fact that the appellant had openly possessed the bullock must, in my view, negative any intention to deprive the owner permanently of his ownership of the bullock. Whether the magistrate implied that special constabulary has special knowledge regarding the issue is not clear but he did not investigate the question himself. There is a body of evidence pointing to the existence of a claim of right reposing in a person in the appellant’s position. What would have been regarded as res derelicta would have been the cow but if the cow is bullied by the appellant’s bull then he has a claim to the calf as the possessor of both the cow and the bull.

**Were the essential elements of the offence of theft met?**

I have already dealt with the fatal defect regarding the averment of the ownership of the calf as reposing the State. The State did not own or possess the calf otherwise it would not be classifies as stray. A stray animal is one whose owner is, to the prosecutor unknown, although he is there somewhere. That is not all. The court had to be satisfied that the accused took or somehow effected contractacio sufficient to meet the requirement of the element of taking. The evidence does not show how the appellant “took” or otherwise effected removal or contractacio. The calf is progeny of stock within his herd. In other words, he viewed it as a natural increment of his herd through the stray cow in his lawful possession.

There is a suggestion in the heads of argument that the appellant was asked by a police officer in the presence of Ashby Kambamura whether the stray cow had a calf after he noted its agitated behaviour which behaviour indicated that it had been separated from its offspring. The suggestion is that by concealing the fact that the stray cow had a calf, the appellant had constructive intention to steal. The evidence on the record is that Ashby Kambamura overheard the police officer make inquiry regarding whether the cow had offspring for which it was mooing. When the response he got was that it was mooing as it had been separated from the other part of the herd, the police officer did not bother himself with his unanswered query regarding the existence or otherwise of the calf. With hindsight, the State witnesses now infer that his lack of honesty at the opportunity to come clean on the issue ought to be regarded as evidence of intention to conceal the calf and therefore steal it. That may be a reasonable inference to be drawn from these facts but it is by no means the only reasonable inference which a reasonable person can draw from the same facts. As I pointed out above, the appellant believed he was entitled to the offspring and felt under no obligation to reveal the fact of the progeny of the stray calf to the authorities. This inference is a reasonable one given the background that the calf was not stray. Further, the Stock Trespass Act, [Chapter 19:14] which the pound master Ashby Kambamura was well versed with, is silent on this issue. Ashby Kambamura being the interested party in this whole affair would have closely followed up the unanswered question regarding the existence or otherwise of the calf if the law on the subject was as clear as he pretended it to be in the court a quo. The police officer, James Makuvatsine, was allowed by the court to lead inadmissible evidence regarding what other villagers told him about the calf and the appellant. That evidence should not have been allowed in the record. It does not add any probative value to the issues to be decided. The matter ought to have been decided in terms of the Stock Trespass Act, [Chapter 19:14]. Had the pound master acted within the time limits set out in the Act, the situation in which a stray cow dropped a calf whilst held on behalf of the pound master would not have arisen. The Act requires a person in charge of land on which a stray stock has trespassed to send such trespassing stock to the pound within a week. (s 17). The Act does not specifically deal with the situation under discussion for which the appellant has been convicted of stock theft. It seems to me that since the calf was dropped by a stray cow, the State ought to have restricted its treatment of the appellant within the four corners of the Act rather than prefer a more serious charge when the law was silent on the issue. In charging the appellant for theft, the State chose to pitch its onus so high that it needed to prove the essential elements for theft or risk an acquittal. In my respectful view, there was no proof beyond a reasonable doubt that the appellant acted with intent to steal.

The mental element, 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 first the cow and later the calf. He believed he was entitled to some benefit of his agency for the pound master. I say so for the following reasons.

Section 114(2) (a) of the *Criminal Law (Codification and Reform) Act, [Chapter 9:23]* which creates the statutory offence of “stock theft states:

“Any person who;
(a) takes livestock or its produce:
(i) knowing that another person is entitled to own, possess or control the livestock or its produce or realising that there is a real risk or possibility that another person may be so entitled; and
(ii) intending to deprive the other person permanently of his or her ownership, possession or control, or realising that there is a real risk or possibility that he or she may so deprive the other person of his or her ownership, possession or control; shall be guilty of stock theft.”

Clearly the charge preferred indicates that the State intended to prove each and every element of the crime of theft. The essential elements of this offence are set out in the section. They follow very closely their common law cousin “theft”. Put in another way, in order to prove theft of stock, one has to prove the following essential elements:

(a) Contractatio.
(b) Unlawfulness.
(c) Intent to steal and
(d) Property capable of being stolen.

Gardner and Lansdown defines common law theft in a manner which, by design, is meant to exclude all possible defences. They write thus:

“Theft is committed when a person fraudulently and without a claim of right made in good faith, takes or converts to his use anything capable of being stolen, with intent to deprive the owner thereof of his ownership or any person having any special property or interest therein of such property or interest.” *R v Sibiya 1955 (4) SA 247 @ 250-1.*

Whether one can say appellant effected *contractatio* by merely assuming control of the newly-born calf, is debatable. Our law recognises assumption of control as sufficient indication of the element of *contractatio* required for theft. In *R v Ncube 1968 (2) SA 476 (R)* this court (per YOUNG J) held that although failure to report the presence of the animal to someone in authority would be a suspicious feature if the accused’s conduct had been in any way secretive, but where this was not the case, it is no basis to infer *animus furandi*. Further it is to be observed that an accused has no intention to steal unless the State proves that he knew (or foresaw the possibility) that he was not lawfully entitled to effect *contractatio*. Generally speaking, there are four circumstances where an accused can escape conviction because of his bona fide belief that he was entitled to act in the way he did. These are;

(i) where he erroneously supposed the property to be *res nullius* on the ground that it was abandoned; *R v Geddes* 1964 (4) SA 48;

(ii) where the accused erroneously supposed the thing to be his own or free from *ius in re aliena*.

(iii) where he erroneously thought that the owner had consented or else would have consented had he known what was being done. *S v Banet* 1973 (4) SA 430 (RAD); or cases in which even though the owner had not consented or would not have consented, he thought he had the legal right to effect *contractatio*. *R v Geddes*, supra @ 49.

In the fourth category the accused’s error precludes intent to steal. Such are cases where an accused acts under a mistake of fact or (since the decision in *S v Blom* 1977 (3) SA 513 (AD) @ 529) one of law.

Whether the accused’s belief must be not only bona fide but also reasonable has long been a vexed question. From my reading of the case law it would appear that those cases which have insisted on reasonableness appeared to have misunderstood the effect of certain South African Appellate Division dicta, to have overlooked the Appellate division dicta to the opposite effect, and to have ignored the fact that the vast majority of theft judgments in our courts have only looked for bona fides. In my view the proper approach, which approach has found consistency in our courts is that approach which confirms the principle that there should be no criminal liability without fault which in turn insists that an accused must be measured only against a standard that was practically within his reach. The test for foreseeability generally in offences requiring *mens rea* becomes a subjective one especially in those offences where the punishment is undoubtedly severe. In the line of theft cases where the accused raised a defence of a claim of right in our jurisdiction, there has been a recognition that reasonableness is not required. (*S v Machokoto* supra).


The fact that a belief is unreasonable is no more than evidence of the lack of good faith. (See: S v Banet, supra).

Even if I were wrong in concluding that this appeal must succeed for lack of proof of intent to steal, I still would have come the same conclusion on the basis that there was no proof that the subject matter was property capable of being stolen in the particular circumstances of this case. I come to this conclusion on the following basis. Our law recognises that res nullius are things unowned but capable of ownership. They may be acquired by occupatio. Two categories come to mind for the present purpose, viz; res derelicta and wild animals. It is trite that abandoned property (res derelicta) cannot be stolen. However in order to qualify as 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, being capable of being stolen, the critical question is always whether the accused effected contractatio with the intention to steal it in two aspects; i.e

(i) did he intend to deprive the owner of the full benefit of his ownership or merely to look after the res pending enquiries;

(ii) did he genuinely believe it to have been abandoned?

The facts which the trial court found proved indicate that the appellant kept a stray cow and reported to the authorities about the cow. He kept it after notifying the village head, the cattle dip attendant as well as his neighbours. By the time police and the rural district council officials came to collect the stray cow it had dropped a calf. He did not notify these same officials of the existence of the progeny. His reason for this was that since the cow, the only subject of the collection had been registered and calf had not been registered, it was not subject to the same treatment as the cow. In other words, the appellant was saying he was not aware as to whether he was obliged by law to register the calf and therefore to surrender it together with its fore-bearer. In my view this was clearly a plea of mistake of fact as well as mistake of law.

Evidence led during trial indicates that appellant had notified the village head and the dip tank attendant of the calf’s existence soon after it was dropped. In other words appellant had openly possessed the calf. He did not procure its presence amongst his herd by covert methods nor did he attempt to hide it from public knowledge. As the cow which had dropped the calf was in his lawful possession, the calf’s fortuitous presence presented a real conundrum as to its status. He was in a practical dilemma as regarding the calf. If he had contrived the dropping of the calf into his herd before the cow was collected, then his possession or control of it might have, in those circumstances, in my view, required a convincing explanation. I venture here to express the view that, if regard is had to civil law of property, it is arguable that the appellant had by the time the cow was collected, acquired ownership of the calf by *occupatio* following his open and innocent possession of the cow. Put in another way, the appellant raised a defense that he erroneously believed that since he was in lawful possession of the stray cow, he was entitled to ownership, or, at the very least, possession of its progeny. He never claimed ownership of the cow, nor did he claim ownership of the calf. In this regard it is difficult to infer, as the trial court did, that he had intention to deprive the owner permanently of the calf. The owner must have written the cow off. In other words he had erased it from all memory. However the owner never lost a calf. He never possessed it by any stretch of reasoning. The calf was dropped years after by an abandoned cow in the lawful possession of the appellant. Although by *accessio*, the calf accrues, as fruit, to the owner of the cow, I am constrained to distinguish the applicability of this principle in that there was no owner of the cow at the time of the coming into being of the fruit and, therefore, in my respectful view, the lawful possessor of the cow at the time, became the legal owner of the fruit by *occupatio*. If this reasoning is as sound as I make it to be, then the appellant could not have been charged with theft of the property as it was incapable of being stolen in these circumstances.

Even if I am wrong in my reasoning, I am constrained to come to the same conclusion that the appellant’s assumption of control of the calf, at the time it was dropped, was an under the erroneous but bona fide belief that he was entitled to own or possess it. The calf was progeny of *res derelict*, the cow, which was subsequently registered with the authorities. The Rural District Council assumed ownership of just the cow through registration. As with the original owner, council could only own that which at law was in its register and about which it was mentally aware of. As the calf was not so registered with council at the time the cow was collected by council officials in terms of the *Stock Trespass Act [Chapter 19:14]*, these officials could not have lawfully driven the calf away as it was not registered as council property. Legally, it did not belong to council. They did not enquire as to whether it had calved whilst in his possession. They could have done so if there were signs that it had recently dropped a calf. Since they did not, it must be assumed, at the risk of speculation and in appellant’s favour, that there was a reason. It could be that there was no basis to treat the non-disclosure of the calf by the appellant, which was fending for itself, as giving rise to an inference of *animus furandi*. Cattle which attach themselves to other herd are known to resist any attempt to separate them from that newly-found herd. As such nothing could be inferred from a mooing cow in the circumstances where the stray cow was being separated from appellant’s herd.

In all the circumstances of this case therefore the appellant ought not to have been convicted for stock theft.

Had the conviction been proper I would have been constrained to interfere with the sentence as the trial court approached the subject on a wrong principle. I say this for the following reasons. The record of proceedings indicates that appellant’s counsel submitted, when addressing the court in mitigation, that there were no special circumstances in this case. This constitutes a serious error of judgment by appellant’s counsel. The facts of the case show that the appellant did not go out of his way to plan theft of a bovine. He had found a stray cow and reported the fact to authorities like every good citizen ought to. That stray cow later dropped a calf whilst moving with his herd. It was not a stray calf nor was his possession of both the cow as well as the calf covert. As he was in lawful possession of the cow the facts required that argument for the finding of the existence of special circumstances be made in favour of the appellant. It was not. The court should have raised the issue with the legal practitioner appearing for the appellant. A serious miscarriage of justice occurred in that appellant, if he was guilty, ought to have benefited from a more discretionary sentencing open to the court in terms of s 114(3) of the *Criminal Law Codification and Reform Act*, [Chapter 9:23]. He would have escaped the minimum sentence set out in s 114(2) (e).

However, in light of the above I find that the conviction is unsafe. The appeal against both conviction and sentence succeeds.

In the result the appeal against both conviction and sentence is allowed. The appellant’s conviction is quashed and the sentence imposed in the court a quo is set aside.


Mavangira J agrees.

Mushonga & Associates, appellant’s legal practitioners
Attorney-General’s Office, respondent’s legal practitioners
--- END OCR FALLBACK ---