S v SMITH 1997 (1) ZLR 274 (S)
Citation | 1997 (1) ZLR 274 (S) |
Case No | Judgment No. S-27-97 |
Court | Supreme Court, Harare |
Judge | Korsah JA, Ebrahim JA & Muchechetere JA |
Heard | 17 February 1997 |
Judgment | 5 March 1997 |
Counsel | R M Fitches, for the appellant |
Case Type | Criminal appeal |
Annotations | Link to case annotations |
Flynote
Criminal law — statutory offences — Miscellaneous Offences Act [Chapter 9:15] — s 3(2) — allowing unmuzzled ferocious dogs to be at large — meaning of "at large" — distinction between "allowing" and "permitting" a thing to be done — whether knowledge of dogs' ferociousness is essential
A woman who was crossing through the appellant's farm was attacked and severely injured by the appellant's dogs. The dogs normally lived in the yard at the appellant's house, but had been known to roam around the farm. They had previously shown no tendency to act ferociously. The appellant was convicted in the magistrates court of allowing unmuzzled ferocious dogs to be at large, in contravention of s 3(2) of the Miscellaneous Offences Act [Chapter 9:15]. The main issues on appeal were whether the dogs were "at large"; if so, whether the appellant had allowed them to be at large; and if he had, whether it was necessary for him to know that they were ferocious.
Held, that although a dog roaming freely within enclosed private premises is not at large, these dogs were wandering freely on a farm which would be a large area and not likely to be fenced in such a way as to prevent them crossing the boundaries. Consequently, they were "at large".
Held, further, that for the appellant to have allowed the dogs to be at large, he must have had knowledge that they were at large. He must have consented to and sanctioned their being at large. The concept of "allowing" is different from "permitting". One may "permit" an act without meaning to sanction
Korsah JA
it, but one cannot "allow" an act unless one means to sanction it. Failure to prevent an act may result in one being regarded as having permitted it, but more than mere failure to prevent it is necessary before one can be regarded as having allowed it.
Held, further, that even if the appellant could be held to have allowed the dogs to be at large, it must also be proven that the appellant was aware that they were ferocious. The very fact that they were ferocious would help establish that awareness, but if there was a doubt about the appellant's awareness, the State would not have proved its case. The evidence led was that the dogs' behaviour was out of character and thus the appellant was able to rebut the prima facie presumption that would have been raised.
Cases cited
Cole v Union Govt 1910 AD 263
R v Feltham 1930 TPD 45
R v Greenspan 1956 R & N 319; 1956 (2) SA 192 (SR)
R v Hopkins 1931 CPD 278
S v Huizamen 1974 (3) SA 224 (NC)
R v Khwaza 1954 (3) SA 253 (E)
S v Kritzinger en 'n Ander 1973 (1) SA 596 (C)
The court considered the following statutory provisions
Miscellaneous Offences Act [Chapter 9:15], s 3(2)
Case information
R M Fitches, for the appellant
Miss B Hammond, for the respondent
Judgment
Ebrahim JA: The appellant was convicted of contravening s 3(2)(v) of the Miscellaneous Offences Act [Chapter 9:15], it being alleged that he allowed to be at large unmuzzled ferocious dogs. The charge further alleged that he let the dogs bite the complainant, Morleen Murimwa, though letting dogs bite someone is not an element of the offence. He pleaded not guilty but was convicted and fined $50, which is the maximum fine for the offence.
I pause to note that the incident giving rise to the charge took place in August 1990. The summons was for 9 September 1993, but the trial only took place on 19 November 1993. Judgment was given on 21 January 1994. A notice of appeal was filed on 29 January 1994. Why this simple case took so long to get to court is not explained.
The dates of the subsequent events are not at all clear as the record is most
Korsah JA
confusing. There appear to be pages out of order. However, some time after conviction - it is not clear from the record when - an application was made in terms of what is now s 363 of the Criminal Procedure and Evidence Act [Chapter 9:07] for compensation for the injuries the complainant sustained. Evidence was led from the complainant and from a doctor. The prosecutor and defence counsel addressed the court on this subject on 31 March 1994. It appears, from the notice of appeal dated 20 June 1994, that an order for compensation was made on 10 June 1994. The record does not state the amount (yet another defect in this record) but it appears from the supplementary heads of argument for the appellant and the State that the sum awarded was $50 000.
Why it took from June 1994 until June 1996 for a copy of the record to be compiled and sent to the Supreme Court is unexplained. In view of the shortness of the record, the delay is unacceptable.
COMPENSATION ORDER
The appeal against the compensation order can be disposed of readily. I will assume that the court complied with the requirement, imposed by s 363, to make the award of compensation "forthwith". As I say, the record does not make it clear when the application for compensation was made or when the evidence was led. Assuming the application was made immediately after conviction, as it should have been, s 369 allows the court to receive further evidence, whether documentary or verbal, for the purpose of determining the question of compensation. If such evidence was not available at the time of conviction (though, given the inordinate time since the alleged offence took place, it should have been available long before the trial), it would have been permissible, in my view, to remand the case for a reasonable period to obtain such further evidence without derogating from the requirement to make the award "forthwith".
Miss Hammond, for the State, conceded nonetheless that the magistrate erred in making the order. The compensation award was made up of:
(a) special damages $5 500;
(b) pain and suffering and loss of amenities $20 000; and
(c) loss of future earnings $24 500.
She relied on s 366(1)(b)(i), which provides that compensation shall not be
Korsah JA
awarded in respect of any personal injury where the amount of compensation due to the injured party is not readily ascertainable. Damages for pain and suffering are clearly by definition not "readily ascertainable". The evidence with regard to special damages and for loss of future earnings was also conceded to be unreliable. She relied on subpara (iii), which precludes the grant of compensation "unless the court is satisfied that the convicted person will suffer no prejudice as a result of the claim for compensation ... being dealt with in terms of this Part". I am satisfied that Miss Hammond's concession was properly made and that the magistrate should not have made an order for compensation.
THE FACTS
The facts were that Mrs Murimwa, who lived in the Madziwa Communal Land near Bindura, was making her way early one morning, through the farm on which the appellant was employed as manager, to another farm, where she intended to catch a bus. She had often used the route previously. While on the appellant's farm, about one kilometre from the appellant's house, she was set on by three dogs which it is now not disputed belonged to the appellant. They severely mauled her and caused considerable injuries to her head and arms. She also received injuries, though minor ones, to her legs and genital area. The baby she was carrying on her back was fortunately unharmed. She had seen the dogs on previous occasions, near the appellant's house, but they had never behaved in such a way before.
One of the appellant's former employees, who was present on the day, said that until this event he had regarded the dogs as friendly. The attack surprised him. He had previously seen no reason why the dogs should have been muzzled. The dogs usually were kept in the appellant's yard. Two other former employees of the appellant gave similar evidence about the dogs' previous friendly nature within the yard.
The appellant did not see the attack on the complainant, but when it was reported to him he went to the scene and ferried the complainant to Bindura Hospital. He put his dogs down. Having had a report that one had been bitten by a jackal, he suspected it of having rabies. Subsequent tests showed that it did not. The dogs had never shown aggression before although he knew that they roamed around.
THE LEGAL ISSUES
Section 3(2) of the Miscellaneous Offences Act provides:
Korsah JA
"Any person who allows to be at large an unmuzzled ferocious dog shall be guilty of an offence."
There are several aspects to this charge, accepting, as one must, that on that occasion at least the dogs were ferocious.
1. Were the dogs "at large"?
The phrase "at large" is defined as follows: Oxford Reference Dictionary: "at liberty". Webster's Third International Dictionary: "without restraint or confinement".
It was held in R v Orton 1961 (2) SA 408 (C) that a dog roaming freely within enclosed private premises was not "at large". The dogs in this case were roaming freely on the farm, but a farm is usually a large area and seldom fenced in such a way as to prevent small animals crossing the farm boundaries. Even though the farm is private property and even though the complainant was probably trespassing, I would conclude that the dogs were "at large".
2. Did the appellant allow them to be at large?
The only evidence about where the dogs were normally kept was to the effect that they stayed in the yard at the appellant's house. The record does not show whether that yard is fenced and gated and, if so, whether the gate is normally kept shut so as to keep the dogs in. The evidence does not show whether anyone is responsible for keeping the gate (if there is one) shut.
It is necessary to consider whether the word "allow" indicates that mens rea is required. This much is conceded by Miss Hammond, rightly in my view. There is ample authority to that effect. I need only refer to R v Greenspan 1956 R & N 319 (SR); 1956 (2) SA 194 (SR), where Beadle J (as he then was), said that the word "allow" connotes mens rea:
"To allow a thing, the accused must have had knowledge that it has happened; he must have consented to and sanctioned its happening."
It was held there that the mere fact that cattle of one owner are found on the ranch of another is not conclusive evidence that the owner allowed them to stray, especially if there are other explanations of how they may have strayed without his knowledge or consent.
The word "allow", though similar to, is not the same as "permit". One may
Korsah JA
permit an act without meaning to sanction it, but one cannot allow an act unless one means to sanction it. Failure to prevent an act may result in one being regarded as "permitting" it, but more than mere failure to prevent is necessary before one can be held to have "allowed" it: R v Khwaza 1954 (3) SA 253 (E) at 254G per Jennett J (as he then was). See also Cole v Union Government 1910 AD 263 and R v Feltham 1930 TPD 45 at 48.
In this case, there is no evidence at all as to how the dogs came to be running free outside the yard and thus there is no evidence that the appellant had "allowed" the dogs to be at large. The remark by the appellant that he knew the dogs roamed around is too vague to rely on.
It is unnecessary to deal with the numerous cases which deal with the meaning of the word "permit", though it might be mentioned that the word "permit" has been held to indicate that mens rea, in the form of knowledge and consent on the part of the accused, must be shown. It is sufficient, though, if the accused ought to have known, but in fact did not know, because he closed his eyes to the obvious, or permitted his servant to do something in circumstances where an offence would probably arise, reckless as to whether it would be committed or not: S v Kritzinger en 'n Ander 1973 (1) SA 596 (C) at 598 per Baker AJ (as he then was). If "allow" can be regarded as synonymous with "permit", it might be possible to have found that the appellant had "allowed" the dogs to be at large, in the sense that he failed to prevent them from being at large. In this event, there is another question to consider.
3. Assuming that he did allow them to be at large, was it necessary that he should know that they were ferocious?
Miss Hammond submitted that the act constituting the offence is allow a dog to be at large and that the mens rea must be in respect of the dog being at large, not in respect of it being a ferocious dog. I do not follow this submission. If mens rea is required in respect of the dog being at large, it seems entirely logical that there must also be mens rea in respect of the ferocity of the dog. Gardiner and Lansdown SA Criminal Law and Procedure 6 ed vol 2 p 1510 support this view, citing R v Hopkins 1931 CPD 278 and R v Feltham supra. The latter case does not deal directly with the question of mens rea in respect of the ferociousness, although it was raised by counsel for the appellant. I have some difficulty in understanding the learned judge's reasoning on this point; but fortunately my difficulties are resolved by S v Huizamen 1974 (3) SA 224 (N), where the identical issue was raised. The appellant there was
Korsah JA
charged under a statute which penalised anyone who suffered to be at large any unmuzzled ferocious dog, van Rhyn J said at 225-226:
"I agree with this statement by the learned judge (Krause J, in Feltham supra) except that I think that it must also be proven that an accused was aware that the dog or dogs he suffered to be at large were ferocious. I think that the State will have gone a long way if it shows that the dogs were in fact dangerous - or ferocious; but if there is a reasonable doubt about this or about the accused's awareness of the nature of the dog, then the State will not have proved its case beyond a reasonable doubt" (official translation).
I respectfully agree with van Rhyn J. It seems to me entirely illogical to hold that the accused's knowledge of the dog's nature must be irrelevant.
In this case, the evidence of the appellant, as well as of both State and defence witnesses who had known the dogs for some time, was to the effect that they had always been placid and that this behaviour was out of character. It seems to me that, although the State clearly established that on this occasion the dogs were ferocious, the accused rebutted the prima facie presumption that would have been raised against him.
For these reasons, I would allow the appeal and set aside the conviction and sentence, as well as the compensation order.
KORSAH JA: I agree.
MUCHECHETERE JA: I agree.
McNaught Wickwar, appellant's legal practitioners
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