S v MUTERO

1999 (2) ZLR 73 (H)

Division: High Court, Harare
Judges: Garwe J
Subject Area: Criminal review
Date: 21 July 1999
Judgment Number: HH-138-99

Criminal procedure — charge — wrong charge preferred — charge of contravening s 12

of Miscellaneous Offences Act — facts showing that theft had been committed — on
plea of guilty magistrate canvassing essential elements of theft — whether conviction
should be upheld
The accused were charged with contravening s 12 of the Miscellaneous Offences Act
[Chapter 9:15], namely, that they were in possession of property in circumstances giving
rise to a reasonable suspicion that the property was stolen and were unable to give a
satisfactory account of their possession. They pleaded guilty, but the magistrate, instead
of canvassing the essential elements of this statutory offence, canvassed the essential
elements of theft. He then proceeded to convict the accused of contravening s 12 of the
Miscellaneous Offences Act. The trial magistrate sought to justify his actions by saying
that although the accused should more properly have been charged with theft, he had
convicted the accused of contravening s 12 as this offence was a competent verdict on a
charge of theft.
Held, that the trial magistrate had seriously misdirected himself. Although, on a charge of
theft, a contravention of s 12 is a competent verdict, theft is not a competent verdict on a
charge of contravening s 12 and the penalties which may be imposed for these two
offences can be different.
Held, further, that where there is certain knowledge that the goods were stolen, it is not
proper to charge the offence of contravening s 12.
Held, further, that although on the facts the accused should have been charged with theft,
the conviction for contravening s 12 should be upheld, relying on s 224 of the Criminal
Procedure and Evidence Act [Chapter 9:07] which provision allows the court to convict
the accused of another offence than the one with which he has been charged, provided
that the latter offence forms a constituent part of the crime charged.
Cases cited:
S v Chitsinde 1982 (2) ZLR 91 (S)
GARWE J: The accused persons in this case were charged with contravening s 12 of the
Miscellaneous Offences Act [Chapter 9:15]. It was alleged that they had been found in
possession of six bags of green mealie cobs in circumstances which gave rise at the time
of such possession to a reasonable suspicion that the maize cobs had been stolen and
were unable to give a satisfactory account of such possession.
Page 74 of 1999 (2) ZLR 73 (H)
The facts of this case are that the accused persons proceeded to a maize field near
Ridgeview suburb. They found other persons in the act of stealing green mealie cobs
from the field. Pretending to be owners of the field, they chased these persons away.
They came back to the field and helped themselves to the mealie cobs that had been
plucked off. They took these and some more cobs until they filled a total of six bags. On
their way, they were arrested by the police and the maize was recovered.
In canvassing, the essential elements of the offence, the trial magistrate put the following
questions:
“Q. Do you agree with the facts?
A. Yes (all).
Q. Anything to add?
A. No (all).
Q. Admit that on the day in question you were in Ridgeview?
A. Yes (all).
Q. You admit that you took maize without the consent of the owner?
A. Yes (all).
Q. You admit that you had the intention to steal the maize?
A. Yes (all).
Q. You also admit you had the intention to permanently deprive the owner of his
property?
A. Yes (all).
Q. And that it was unlawful?
A. Yes (all).
Q. Any lawful right?
A. No (all).
Q. Any defence to offer?
A. No (all).
Verdict: All three Guilty as charged.”
It is clear from the above exchange that the trial magistrate canvassed the essential
elements of the crime of theft and not of contravening s 12 of the Miscellaneous Offences
Act [Chapter 9:15]. When asked by the scrutinizing regional magistrate whether the
accused had been properly convicted the trial magistrate acknowledged that the essential
elements canvassed were for theft. He further accepted that accused persons should more
properly have been charged with theft, but went on to explain that he convicted the
accused persons of the offence of contravening s 12 of the Miscellaneous Offences Act
“in view of the fact that it is a competent verdict for the offence of theft and sentences
imposed are similar”.
There can be no doubt that the trial magistrate has seriously misdirected himself in this
regard. It is true that a conviction for contravening s 12(2) of the Act is a competent
verdict to a charge of theft — see s 218 of the Criminal Code. It is also correct that in
terms of s 12(3) of the Miscellaneous Offences
Page 75 of 1999 (2) ZLR 73 (H)
Act a person convicted of contravening that section is liable to the penalties which may
be imposed on a conviction for receiving stolen property knowing it to have been stolen.
It is, however, not correct that the penalties imposable for contravening s 12(2) of the
Miscellaneous Offences Act are the same as for the crime of theft. Under the old
Miscellaneous Offices Act [Chapter 68 of 1974], provision was made under s 14(1) for
any person convicted of this type of offence to be liable to the penalties which may be
imposed on a conviction for theft. By Act 29 of 1975, that provision was removed. A
person charged with contravening s 12(2) of the Act is therefore liable to a penalty which
the court considers appropriate in the circumstances and not necessarily to one imposed
on a conviction for theft.
Whilst it is correct that a conviction for contravening s 12(2) of the Miscellaneous
Offences Act is a competent verdict to a charge of theft, it must, however, be stressed that
theft is NOT a competent verdict to a charge of contravening s 12 of the Miscellaneous
Offences Act. Therefore, on a charge of contravening s 12(2) of the Act, the trial
magistrate should not have approached the matter on the basis that because the statutory
offence is a competent verdict to theft, canvassing the essential elements of the crime of
theft would be sufficient to establish the guilt of the accused on the charge preferred
against him of contravening s 12(2) of the Act. Such reasoning is fallacious and
untenable.
The facts of this case disclosed the offence of theft. The accused was charged with
contravening s 12(2) of the Act. The undesirability of preferring a charge of contravening
s 12(2) of the Miscellaneous Offences Act in circumstances where the accused would
have committed theft has been stressed in a number of review cases. In S v Chitsinde
1982 (2) ZLR 91 (S) at 99, Georges JA had occasion to remark:
“It appears to me as a matter of interpretation that the terms of the section cannot apply
where the property found in the possession of the accused person is proved to have been
stolen. It is difficult to assert in the words of the section that a person has been in
possession ‘of goods of any description in circumstances which give rise, either at the
time of the possession or at any time thereafter, to a reasonable suspicion that at the time
of such possession the goods were stolen’ when it is known shortly after the person has
been found in possession of the goods that they were in fact stolen. The certain
knowledge that the goods are stolen replaces reasonable suspicion which, as has been
said, is a basis for the application of the section …”
The charge preferred against the accused was, therefore, not proper. It is clear that they
should have been charged with and convicted of theft. The facts admitted by the accused,
however, also justify a conviction for contravening s 12 of the Act, which is a lesser
offence. The conviction must be allowed to stand. I am fortified in this conclusion by s
224 of the Criminal Code which provides that:
Page 76 of 1999 (2) ZLR 73 (H)
“If on the trial of a person charged with an offence the evidence established that he is
guilty of another offence of such a nature that, upon an indictment, summons or charge
alleging that he committed that other offence, he might have been convicted of the
offence with which he is actually charged, he may be convicted of the offence with which
he is so charged.”
The above section may be invoked when the evidence shows that the crime charged has
been committed, even though the evidence also proves the commission of a more
comprehensive offence of which the crime charged forms a constituent part. The section
is intended to provide for what might be called a “competent verdict in reverse”. Where,
for example, the accused is charged with indecent assault and the evidence discloses a
rape, the accused is not entitled to be acquitted but may nevertheless be convicted of
indecent assault: Criminal Procedure in Zimbabwe by John Reid-Rowland, 24-5.
Since the accused should more properly have been convicted of theft, I find myself
unable to certify the proceedings as being in accordance with real and substantial justice.
Chinhengo J agrees.