REGINA v NDHLOVU (1) 1980 ZLR 96 (G)

Author: Trodat Zimbabwe

REGINA v NDHLOVU (1) 1980 ZLR 96 (G)

1980 ZLR p96

Citation                 1980 ZLR 96 (G)

Case No                Details not supplied

Court                    General Division, Bulawayo

Judge                    Gubbay, J

Flynote

Criminal procedure — forfeiture of articles in terms of section 571(1) of C Criminal Procedure and Evidence Act [Chapter 59] ­ whether vehicles and containers may be forfeited in terms of section 571(1) (a) — nature of discretion conferred by section — when decision to make order in absence of owner of article and decision to order D forfeiture may be made.

Review — section 64 (4) of Magistrates Court Act [Chapter 18] — whether permits review of forfeiture order in terms of section 571 of Criminal Procedure and Evidence Act [Chapter 59] against third party. E

Interpretation of statutes — expression unius est exclusion alterius — nature and application of maxim.

Headnote

It is permissible to declare vehicles and containers forfeited to the State in terms of section 57I (1) (a) of the Criminal Procedure and Evidence Act [Chapter 59] _F notwithstanding their express mention in section 57I (1) (b).

An order of forfeiture in terms of section 57I (1) of the Act may be made in the absence of the owner of the article concerned only in exceptional circumstances, and the greater the potential financial loss to the owner the more exceptional the circumstances must be. _G

The discretion whether or not to order the forfeiture of an Particle in terms of section 571 (1) of the Act must be exercised judicially, taking into account the following factors:

(a)     the nature of the article?

(b)     the role played by it in the commission of the offence? _H

(c)     the possibility that it will be used again in the commission of the offence?

(d)     the effect of the forfeiture on the person or persons affected thereby?

(e)     whether, by virtue of its value, the forfeiture would be disproportionate to the gravity ofthe offence?

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Gubbay J

(f)      in the case of an article of considerable value, such as a motor­vehicle, whether or not ithas been used on any other occasion for a similar criminal purpose.

If _A the owner of an article elects to attend a hearing into the question of its forfeiture, it is desirable to invoke the procedure laid down in section 57I (6), which is not accusatorial in nature, and to pass sentence on the accused before the hearing.

Section 64 (4) of the Magistrates Court Act [Chapter 18] permits of a review of a forfeiture order in terms of section 57I of the Criminal Procedure Evidence _B Act [Chapter 59], even though made against a person other than the accused.

The maxim expressiouniusestexclusioalterius does not describe a rule of interpretation but merely an aid which must be applied with extreme caution.

Cases cited

S v Apostolides 1963 (4) SA 34 (O)?

S v Hove? S v Shumba 1979 RLR 374 (AD)? 1979 (4) SA 648 (ZRAD)? _C

S v Cocklin en ‘n Ander 1971 (3) SA 776 (AD)?

S v Masamvu, AD 143/79 (unreported)?

R  v Makhubu 1957 (4) SA 256 (C)?

Bhubezi Boerdery (Edms) Bpk v Minister of Justice and Another 1965 (1) SA 218 (T)? _D

S  v Nkepane 1973 (1) SA 331 (O)?

S v Noosi 1975 (3) SA 521 (O)?

Colquhoun v Brooks (1888) 21 QBD 52?

Dean v Wiesengrund [1955] 2 All ER 432 (CA)?

S v Matsane en ‘n Ander 1978 (3) SA 821 (T)?

S v Hlangothe en ‘n Ander 1979 (4) SA 199 (BH)? _E

S v Steenkamp 1955 (4) SA 375 (T)?

S v Mongale en ‘n Antler 1979 (3) SA 669 (BH)?

R v Elliott 1946 (2) PH H197?

R v Dawood 1947 (2) SA 1097 (T).

Judgment

Gubbay J: On the 9th October, 1979, the accused left Bulawayo _F in a Bedford five­tonne lorry, number 148­586, hired for reward from the owner, EnockMoyo. He was bound for his kraal in the Mahongola area of the Gwanda Tribal Trust Land, in order to collect animals and transport them to Bulawayo for the purpose of sale. He was aware that the Gwanda district had been declared a footand­mouth area and that _G without a permit, the movement of animals therefrom was prohibited On the morning of the 11th October, 1979, the accused loaded 69 goats and 10 sheep into the lorry and departed from the Mahongola area for Bulawayo. When driving through the Tuli­Makwe area of the Gwanda Tribal Trust Land, he was stopped by a police patrol and arrested. The _H lorry was seized and the animals impounded.

The accused was convicted, on a plea of guilty, of contravening section 4 (1) (c) of the Animal Health (Foot and Mouth) Regulations, 1971. In his judgment, the trial magistrate commented upon the prevalence with

1980 ZLR p98

Gubbay J which animals are being moved unlawfully, both from one place to another within a designated footand­mouth area and from such areas, and stressed that a spread of foot ­and­mouth disease to Bulawayo would _A seriously affect not only local ranchers but the earning of foreign exchange through the exportation of beef. He referred to the Court’s recent warning to the public that if the common practice of moving animals by means of a motor­vehicle were to continue, consideration would be given to ordering its forfeiture. He sentenced the accused, who _B was a first offender, to a fine of $100 or, in default of payment, 50 days’ imprisonment with labour and, acting upon the latter’s unsworn and uncorroborated assertion that the owner was aware of the unlawful use to which the lorry was to be put, declared it forfeited to the State in terms of section 57I (1) (a) of the Criminal Procedure and Evidence Act _C [Chapter 59]. Nothing turns on the conviction and sentence, which are in order.

The regional magistrate before whom the proceedings were laid for scrutiny, forwarded them on review as he considered that the provisions _D of section 57I (1) (a) do not allow of the forfeiture of a vehicle. On the assumption the power is available, he submitted that in the particular circumstances its application caused manifest injustice, in that the principal offender received a punishment of a fine of $100, whereas the owner of the lorry, who was not even charged as a sociuscriminis,was _E penalized in its value, estimated to be $1500. Being satisfied that section 64 (4) of the Magistrates Court Act [Chapter 18] permits of a review of a forfeiture order, even though made against a person other than an accused (as to which, see S v Apostolides, 1963 (4) SA 34 (O), I sought the assistance of the Director of Public Prosecutions on the points _F raised by the regional magistrate. He duly advised me in a detailed memorandum that he did not support the order. I am indebted to him for his industry. As his view confirmed my own and that of my brother NEWHAM with whom I had consulted, I set aside the order, intimating that I would give my reasons for so doing at a later date. These reasons _G now follow.

At the outset it is as well to quote section 57I (1) in its entirety. It reads:

“(1) A Court convicting any person of any offence may, without notice H to any other person, declare forfeited to the State ­

(a)      any weapon, instrument or other article by means whereof the offence in question was committedor which was used in the commission of such offence? or

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Gubbay J

(b)      if the conviction is in respect of an offence specified in the Seventh Schedule, any vehicle, containeror other article which was used for the purpose of or in connexion with the commission of the offence in A question or, in the case of a conviction relating to the theft of any goods, for the conveyance or removal of the stolen property?

and which was seized in terms of this Part:

Provided that such forfeiture shall not affect any right referred to in para graph (a) or (b) of subsection (4) if it is proved that the person who claims B such right did not know that the weapon, instrument, vehicle, container or other article was being used or would be used for the purpose of or in connexion with the commission of the offence in question or, as the case may be, for the conveyance or removal of the stolen property in question, or that he could not prevent such use, and that he may lawfully possess such weapon, instrument, vehicle, container or other article, as the case C may be.”

Broadly, the offences listed in the Seventh Schedule are those involving habit­forming drugs or harmful liquids, precious metals or precious stones, theft, and breaking and entering with intent to commit an offence. Obviously paragraph (b) is of no application to the accused’s _D offence.

In S v Hove? S v Shumba, 1979 (4) SA 648 (ZRAD), ^* it was held that the phrase “or other article”, occurring in paragraph (a), was not to be construed eiusdem generis with the preceding words “any vehicle, _E container”, and was wide enough to include banknotes used for the purpose of or in connection with the commission of a Seventh Schedule offence. In support of this view, LEWIS, ACJ, quoted with approval passages from the judgment of VAN BLERK, JA, in S v Cocklin en ‘n

Ander, 1971 (3) SA 776 (AD) at 781 and 782, dealing with the substantially similar provision in the

South­West African Criminal Procedure _F Ordinance. Shortly thereafter, in S v Masamvu, AD 143/79 (not reported), MACDONALD, CJ, remarked that there is no reason why the word “article” in paragraph (b) should be given a different meaning where it occurs in paragraph (a). Accordingly, an amount of $6 used by the appellant in the commission of the offence of bribery was properly _G declared forfeited to the State. In the light of these three decisions, such cases as R v Makhubu, 1957 (4) SA 256 (A at 257H­258A, BhubeziBoerdery (Edms.) Minister of Justice and

Another, 1965 (1) SA 218 (T) and S v Nkepane, 1973 (1) SA 331 (O), which held that the word “article” in section 360 (2) of the former South African Criminal _H Procedure Act, 56 of 1955 materially similar in its provisions to paragraph (a) ­ was to be read eiusdem generis with the words “weapon” and “instrument” and so did not comprehend a motor­vehicle, must be

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Gubbay J

regarded as wrongly decided. (See also, S v Noosi, 1975 (3) SA 521 (O).)

The essential question, therefore, is whether the specific mention of _A “any vehicle” in paragraph (b) justifies the conclusion that the Legislature did not intend a vehicle to be included in the phrase “or other article” in paragraph (a). This involves the applicability of the maxim

expressiouniusestexclusioalterius. That maxim, aptly described as “a valuable servant but a dangerous master” (per LOPES, LJ, in Colquhoun v _BBrooks (1888) 21 QBD 52 at 65), is not a rule of interpretation. It serves merely as an aid and, depending on the words to be construed and the context in which they appear, may be of assistance. As a method of reasoning it is to be applied with extreme caution, and has little, if any, weight where it is possible to account for the expressiounius on grounds _C other than an intention to effect the exclusioalterius. (See Dean v Wiesengrund [1955] 2 All ER 432 (CA) at 438H­I.) The primary rule of interpretation remains: the words are to be given their ordinary meaning, and any maxim which operates so as to restrict such meaning or to _D deviate from it, may only be invoked where it is consistent with the clear intention of the lawmaker.

In the BhubeziBoerdery case , supra, at 219F, DE WET JP., sought to fortify his interpretation of the word “article” in section 360 (2) of Act 56 of 1955, on the additional ground that section 360 (3), which _E equates in its terms to paragraph (b):

“ . . . deals specifically with the forfeiture of motor and other vehicles and where forfeiture is provided for only in the case of certain specified offences and where only the rights of the accused can be forfeited unless the owner was F in effect a particepscriminis. It seems to me that if the Legislature had intended to include vehicles in sub­sec. (2) it would have said so in unambiguous language and then sub­sec. (3) would not only be superfluous but would be a restriction on the provisions of sub­sec. (2).”

I am in respectful disagreement with this dictum. As observed in S v _G Hove? S v Shumba, supra, at 652 fin ­ 653A, paragraphs (a) and (it) deal with two different situations. Paragraph (b) has a wider ambit than paragraph (a), but has no operation outside the Seventh Schedule offences. I am not able to discern any logical basis for limiting the ordinary meaning or “article” in paragraph (a) so as to exclude a vehicle. The arbitrariness _H of such an exclusion is underlined by considering the word “container” in paragraph (b). If a vehicle is not to be included in paragraph (a) by virtue of the expressiounius maxim, then by parity of reasoning a container likewise cannot be included in paragraph (a). It is inconceivable

1980 ZLR p101

Gubbay J that the Legislature should wish to exclude a commonplace article such as a box or tin (which are containers) from the scope of paragraph (a). _A To suggest otherwise would be to invite startling consequences. I shall illustrate what I mean. Public violence and attempted murder are not Offences within the Seventh Schedule. Can it be contended that a Court is not empowered to order the forfeiture of a motor­vehicle utilized to transport a gang of thugs from one scene of devastation to the next, _B or deliberately driven by an escaping offender at a police officer with the intention of running him down? I think not. I appreciate that on this interpretation a Court convicting a motorist of exceeding the speed­limit may declare his motor­car to be forfeited. See the BhubeziBoerdery case, supra, at 219E. But the protection exists in the grant of the discretion. _C An application of the power to such a trivial offence would be the clearest indication of a failure to exercise the discretion properly.

There is a further way of testing the matter. If the ordinary meaning of “article” in paragraph (a) is to be limited by paragraph (b), then the _D converse must hold good, that is to say, weapons and instruments specified in paragraph (a), would have to be excluded from the phrase “or other article” in paragraph (b). This would lead to very strange and illogical results. For instance, it would mean that an instrument such as a jemmy which was used in the commission of a housebreaking venture, E and thus a Seventh Schedule offence, could not be deemed an article and declared forfeited.

It seems to me that the words “vehicle” and “container” were expressly mentioned in paragraph (b) merely for the purpose of emphasis. Vehicles _F and containers have particular relevance to the concluding part of that paragraph, which lays stress on the “conveyance or removal of” stolen property.

It follows that it is clearly possible to account for the expressiounius _G on grounds other than an intention to effect the exclusioalterius. It was thus competent to declare the Bedford lorry forfeited to the State.

That, however, is not an end to the problem. Section 57I (1) of the Act does not oblige the Court to order forfeiture. Nor is it obligatory to _H proceed without notice to any other person who has a right of ownership in the article. What is conferred is a double discretion.

Firstly, the Court must decide whether if will proceed to consider the making of an order without affording the third party­owner an oppor­

1980 ZLR p102

Gubbay J tunity to be heard in connection with the forfeiture of the article. Only exceptional circumstances will justify that course being adopted, for so to act is contrary to the principles of natural justice.

See S v Matsaneen _A‘n Ander, 1978 (3) SA 821 (T) at 828B, S v Hlangothe en ‘n Ander 1979 (4) A 199 (BH) at 202B. The greater the potential financial loss to the third party, the more exceptional the circumstances must be. Any attempt to exhaustively define such circumstances is inadvisable, but some of the situations which come to mind are where it is shown conclusively that the third party has used the article frequently in the past _B for a similar criminal purpose, where his whereabouts are unknown? where he is resident in a foreign country and the intrinsic value of the article is so insignificant as to make it unlikely that its loss would be a cause for complaint. _C

The trial magistrate decided to proceed without notice so as not to create what he believed would be the anomaly of EnockMoyo appearing at the trial of the accused and being cross­examined as if charged with the offence. He considered that the power vested in a Court by section 57I (4) of the Act to refer to the record of the criminal proceedings in _D which an order of forfeiture was made, when determining an application by a third party for rescission of that order, evidences an intention on the part of the lawmaker to avert such an occurrence. I am unable to agree with him. I do not think there is anything whatsoever anomalous in a court which has convicted an offender, giving a third party­owner notice _E of its intention to consider declaring the article concerned to be forfeited. The third party may not wish to make any representations and decline to attend the proposed hearing. If he does attend, then in my view, the procedure laid down in section 57I (6) of the Act should be invoked. _F The court would have regard to the record of the criminal proceedings and give the third party the opportunity of adducing evidence, whether by affidavit or orally, whichever it deemed the more appropriate. The State, too, would have the right to place additional evidence before the Court. But this does not mean that the hearing would be accusatorial in nature. It would simply be an inquiry to establish all the relevant facts _G and so enable the Court to exercise a judicial discretion. There would appear to be no advantage in delaying the passing of sentence upon the accused until the issue of the forfeiture of the article owned by the third party had been determined. In fact it seems to me preferable not to do so, for the nature of punishment would then be known to the _H third party and the State and, depending on its measure, favour one or the other in the presentation of their respective contentions.

I gain the distinct impression that the trial magistrate attached too

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Gubbay J little importance to the giving of notice because he considered that by virtue of the provisions of section 57I (4) it did not necessarily follow _A that the forfeiture order would be given effect to. It could be rescinded at a later hearing. However, the availability of this safeguard must not be regarded as justifying any less careful an approach to the exercise of the discretion. Why should a third party be involved in court proceedings with consequent inconvenience and perhaps expense, which could have _B been avoided by a proper exercise of the discretion in the first instance?

But quite apart from the misdirection in the trial magistrate’s approach, in my opinion there were no exceptional circumstances which warranted his proceeding to consider a forfeiture of the lorry without notice to its owner. It is apparent from the record that the whereabouts _C of Moyo were known to both the accused and the police. No difficulty would have been involved, and only the slightest inconvenience, in affording him an opportunity to be heard. Moreover, the trial magistrate ought to have been put on his guard by the failure to prosecute Moyo, who on the accused’s assertion was clearly a socius to the offence. _D Although the failure to take proceedings against him may be explicable on a ground other than his innocence, at the very least the trial magistrate should have inquired into the matter. If he were to be prosecuted, then as the lorry was under seizure, the issue of its forfeiture would be determinable more appropriately and fairly at that trial. If there were to be _E no prosecution because the police were convinced of his innocence, the question of forfeiture would have fallen away. Further, the value of the lorry was very considerable.

The second discretion is whether to make a declaration of forfeiture _F or not, and I shall consider its exercise by the trial magistrate on the assumption (contrary to the view expressed above) that he was justified in proceeding without notice to the owner of the lorry.

The discretion given is a wide one and is not to be lightly interfered with. Nonetheless it must be exercised reasonably and judicially. See R v _GSteenkamp, 1955 (4) SA 375 (1) at 377D. In Matsane’s case, supra, at 828D, VAN REENEN J, lists some of the more important factors to be borne in mind. These were approved of in S v Mongale en ‘n Ander, 1979 (3) S 669 (BH)) at 675, and are as follows ­ _H

(i)      the nature of the article?

(ii)     the role played by it in the commission of the offence,

(iii)    the possibility that it will be used again in the commission of the offence,

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Gubbay J

(iv)    theeffect of the forfeiture on the person or persons affected thereby.

I venture, with due deference, to add two further factors ­ _A

(v)     whether, by virtue of its value, the forfeiture of the article would be disproportionate to thegravity of the offence. See S v Hlangothe, supra, at 201H­ 202A,

(vi)    in the case of an article of considerable value, such as a motor vehicle, _B whether it has been used on any other occasion for a similar criminal purpose. See R v Elliott, 1946 (2) PH H197? R v Dawood, 1947 (2) SA 1097 (T). at 1101.

What immediately disturbs me, just as it did the regional magistrate, _C is that the accused, the principal offender, suffered a fine of $100, whereas Moyo ­ assuming he was a socius ­ received a financial punishment which is incomparably greater. It seems to me that as the maximum sentence for a first offender is a fine of $100 or, in default of payment, three months’ imprisonment, the trial magistrate took an _D exaggerated view of the gravity of the offence which gave rise to the prosecution. One cannot escape the fact that the loss of a lorry is an extremely heavy penalty to pay for an offence which is not regarded by the Legislature as particularly serious. In that regard, too, there is no indication that any thought was given to the effect of the forfeiture upon _E the financial position of the owner.

In addition, it was not proved that the lorry had been used on other occasions in contravention of the Animal Health (Foot and Mouth) Regulations or indeed, in the commission of any other offence, and the _F possibility of it being so used in the future was never investigated.

A close perusal of the trial magistrate’s judgment reveals that in making the order of forfeiture, he was influenced almost entirely by the general consideration that motor­ vehicles are being utilized with _G increasing frequency to move large numbers of animals out of foot­and mouth areas. An example had to made. That was not a proper approach to the exercise of the discretion. It obscured in his mind the weight to be accorded to the particular and more relevant factors I have referred to.

H

In the circumstances I am satisfied there was a failure to exercise the second discretion reasonably and judicially.

Newham J: has read this judgment and agrees with it.

     *   Also reported in 1979 RLR at 374.­Editor.