REGINA v NYAKUWA AND ANOTHER 1980 ZLR 19 (A)

REGINA v NYAKUWA AND ANOTHER 1980 ZLR 19 (A)

Citation 1980 ZLR 19 (A)

Case No Details not supplied

Court Appellate Division, Salisbury

Judge Macdonald, CJ, Lewis, JP, and Davies, JA

Heard 23rd January, 1980; 6th February, 1980

Judgment 6th February, 1980

Counsel C J Glaum S C with him M J Gillespie, for the Crown.

W R Sandura for the accused.

Case Type Question Reserved on Criminal Trial

Annotations Link to case annotations

Flynote

Amnesty Ordinance, 1979 — section 2 — scope and purpose of Ordinance — onus of proof that conduct is amnestied — how discharged D — meaning of “in good faith” in section 2 (2) (b) of Ordinance.

Headnote

The clear intention of section 2 (2) (b) of the Amnesty Ordinance, 1979, is to extend an amnesty to

all acts without exception committed during the period covered by the Ordinance, provided only

that the person seeking its protection can establish on a balance of probability that his true E

purpose was resistance to or frustration of the previous Government. The words “in good faith”

do not restrict the amnesty to particular acts but merely emphasize that the purpose mentioned

in the section must be genuinely entertained. F

C J Glaum S C with him M J Gillespie, for the Crown. It seems clear that the accused’s acts were

done in the furtherance of the purpose “of resisting or frustrating the administration ...”

The words “in good faith” in section 2 (2) (b) of the Amnesty G Ordinance, 1979, merely serve to

accentuate the need for honesty and an absence of an ulterior motive on the part of the person

performing the act in question. This meaning was given to the expression in the context of the

Indemnity and Compensation Act, 1975 (which is legislation of a kindred nature to that of the

Amnesty Ordinance), in S v Gwevera and Others, H 1978 RLR 466 (GD). No other meaning can be

given to the expression. The need for good faith will be particularly important in cases where a

person acts out of a dual motive or seeks to hide his real motive behind the cloak of “resisting or

frustrating the administration”. It will be necessary in such cases to ascertain the perpetrator’s

real motive. Even though

1980 ZLR p20

MacDonald CJ

the acts done may have had the effect of resisting or frustrating the administration this would not

assist the perpetrator if his true motive was, say, the satisfaction of a personal grudge or the

attainment of personal A enrichment. The question of good faith would also be of particular

importance in cases where “mistake of fact” is raised by the perpetrator of an act. See the

remarks at page 253 of Burchell and Hunt, South African Criminal Law and Procedure, volume I,

under the heading “Genuine Ignorance or Mistake”. The same meaning was given to the

expression B by the Court a quo in the instant case and it is conceded that it was correct in so

doing. In Gwevera’s case (supra) BECK J emphasized the need for an absence of “wanton or

capricious oppression” but this was considered by the Court a quo. The Court a quo’s conclusion

that “BRISTOWE J used the words ‘wanton or capricious oppression’ (in Dedlow v Minister C of

Defence and Provost Marshal 1915 TPD 543 at 562) as being very much eiusdem generis in

meaning with the words ulterior motive” is correct.

In interpreting these words sight should not be lost of the purpose D behind the legislation in which

they are used. The purpose of the legislation is to make the amnesty effective by protecting each

party to the conflict against reprisals by the other party. It is surely envisaged that guerillas who,

in the prosecution of their fight against the administration, have committed the most heinous

atrocities imaginable can come forward E without fear of court action being taken against them.

The nature of their acts cannot therefore be the yardstick against which the protection of the

Ordinance is measured. As pointed out by the Court a quo “The yardstick is the purpose for which

the acts were committed, not the nature of the acts themselves nor the likelihood of those acts

achieving F their objective. The nature of the acts is only a relevant consideration in determining

what their purpose was, and once it is accepted . . that the sole purpose of committing these acts

was to frustrate the administration purporting to be the Government, these acts must fall within

the ambit of the Amnesty Ordinance, 1979”. G

It is respectfully submitted that precisely the same considerations apply to the protection afforded

by section 2 (2) (a) of the Ordinance.

W R Sandura for the accused. The alleged acts of the accusedswere H committed in good faith within

the meaning of section (2) (b) of the Ordinance. An act is done in good faith when it is done

honestly without any ulterior motive. The phrase “good faith” has been defined in certain English

statutes. See Words and Phrases Legally Defined, Second Edi-

1980 ZLR p21

MacDonald CJ

tion, volume 2 at page 324. In terms of the Bills of Exchange Act, 1882, a thing is deemed to be

done in good faith where it is in fact done A honestly, whether it is done negligently or not. In

Central Estates (Belgravia) Ltd v Woolgar [1971] 3 All ER 647 at 649 GH, LORD DENNING said,

“To my mind, under this Act [The Leasehold Reform Act 1967] a claim is made in good faith when

it is made honestly and with no ulterior motive”. In Dedlow v Minister of Defence and Provost

Marshal B 1915 TPD 543 at 562, BRISTOWE, J, used the words “wanton or capricious oppression”

to convey the meaning of ulterior motive. Furthermore, the facts in Dedlow’s case bear no

resemblance to the facts of the present case.

Judgment

Macdonald CJ: The two accused were charged in the General C Division of this Court with murder,

alternatively with contravening section 50 (1) of the Law and Order (Maintenance) Act [Chapter 65]

and on a second count with contravening section 50 (1) of the same Act.

The trial Court held that the acts alleged to have been committed by the D accused fell within the

ambit of section 2 (2) (b) of the Amnesty Ordinance, 1979, and accordingly upheld the objection to

the indictment.

Acting under the provisions of section 42 of the High Court Act [Chapter 14] the learned trial Judge

reserved the following question for decision by this Court: “Does the Amnesty Ordinance apply to

the offences set E out in the indictment in the instant case?”

The relevant facts were summarised in the judgment of the Court a quo as follows:

“The acts alleged against the accused in the indictment as supplemented by the facts set out in the

summary of the Crown case and by F the facts set out in the outline of the case for the defence, which

appear to be common cause, are these. The Accused No. 1 was a ZANLA terrorist. The Court takes judicial

notice of the fact that ZANLA is a military wing of a political organization of the type commonly known

locally as a terrorist organization whose objectives were to overthrow the government which existed in this

country before the 11th December, 1979, and to instal a different form of government in the G country;

an organization which has sought to attain its objectives through violence. Accused No. 2 was a mill owner

who owned a motorcar. The accused No. 1, together with another member of the ZANLA forces,

constructed a time bomb. The bomb was taken by Accused No. 2 in his motorcar and deposited at Macey’s

Supermarket Store, Salisbury, at a H place that is used for the storage of waste paper. The tomb there

exploded, killed the deceased and did considerable damage to property. On count 2 it is alleged that the

first accused, assisted by another ZANLA member, constructed a time bomb which was subsequently

placed by others on the verandah of the Sunray Store, Mrewatownship. There it detonated caused

considerable damage, but apparently did not injure anyone.”

1980 ZLR p22

MacDonald CJ

The relevant portions of the Ordinance read:

“2. (1) No legal proceedings whatsoever, whether civil or criminal, shall be instituted in any Court of law in

respect of any act to which this section applies, done within Southern Rhodesia or elsewhere, before the

appointed A day.

(2) The acts to which this section applies are

(a) ...

(b) the establishment of, membership of, support of or adherence B to any organisation having the

purpose of resisting or frustrating the administration purporting to be the government of the

territory of Southern Rhodesia established under any of the instruments styling themselves

respectively ‘The Constitution of Rhodesia, 1965’, ‘The Constitution of Rhodesia, 1969’, and ‘The

Constitution of Zimbabwe Rhodesia, 1979’, and any acts done between 11 November, 1965,

and the C appointed day (whether or not done on the orders of any such organization) which were

dole in good faith in furtherance of that purpose or with a view to assisting any pension acting in

furtherance of that purpose;

aforesaid acts.”

Two questions arise for consideration:

(1) Were the acts alleged done in furtherance of the purpose of “resisting or frustrating the

administration”? and (2) were they done “in E good faith”? The trial Court in effect answered both

these questions in the affirmative and Mr Glaum, who appears for the Crown, has not challenged the

correctness of the trial Court’s conclusions.

I agree that the facts clearly established that the acts alleged were, F having regard to the

admissions made by the Crown, done with the purpose of frustrating the administration previously

responsible for the government of this country and were not done with a purpose not covered by the

Ordinance. It is unnecessary to add anything to what was said in the Court below on this aspect of

the case. G

The question of whether the acts were done “in good faith” occasions greater difficulty. The onus of

showing that an act otherwise criminal is covered by the Ordinance is clearly upon the person

claiming its protection and there can be no doubt that it is necessary for such a person in the H

discharge of the onus to establish on a balance of probability that his true purpose in committing the

act was to resist or frustrate the previous administration. It is not sufficient that this was or was

likely to be the result of what was done since purpose and result are different conceptions

1980 ZLR p23

MacDonald CJ

and the perpetrator may have been motivated by considerations other than resistance to or

frustration of the administration. The result, A however, more often than not will be circumstantial

evidence of the purpose with which the act was carried out.

In the context of the terrorism to which the people of this country have been habitually subjected

for many years, the use of the words “in B good faith” is wholly inappropriate. A civilized person will

not readily understand how an act of terrorism such as the indiscriminate murder of women and

children can fittingly be described as having been done “in good faith”. Once terrorism is adopted as

the means of achieving a political result, it necessarily follows that the more barbaric and cruel the

C acts of terrorism are the greater their anticipated political effect may be expected to be. The clear

intention of the Ordinance is to extend the amnesty to all acts of terrorism without exception

committed during the period covered by the Ordinance, provided only that it can be established on a

balance of probability by the person seeking its protection that he D had as his true purpose

resistance to or frustration of the previous administration. It follows that the unhappy use of the

words “in good faith” does not restrict the amnesty granted by the Ordinance to particular acts of

terrorism. Those words must necessarily be interpreted as doing no more than emphasize that the

purpose mentioned in section 2 (2) of the Ordinance as the reason for the amnesty must be

genuinely entertained. E

The question reserved for decision by this Court is answered in the affirmative. F

Lewis JP: I agree.

Davies JA: I agree. G

Winterton, Holmes and Hill, attorneys for the defence.