S v MHARAPARA

1985 (2) ZLR 211 (SC)

Division: Supreme Court, Harare
Judges: Gubbay, Beck and McNally JJA
Subject Area: Criminal Appeal
Date: 24 July and 17 October 1985

International Law — jurisdiction of Zimbabwean courts in respect of criminal offences

committed outside of Zimbabwe.
Appellant was charged with the theft of the equivalent in Belgian francs of Z$30 499,82
whilst he was based in Belgium and attached to the Zimbabwe Representative Mission.
The theft was only discovered after the appellant had left Belgium and returned to
Zimbabwe.
On a charge of theft being put to the appellant on trial before the High Court of
Zimbabwe, an exception to the charge was taken on the grounds that the Zimbabwean
courts had no jurisdiction to deal with the matter. The exception having been dismissed,
the appellant appealed.
Held that there is no justification for a rigid adherence to the principle that with the
exception of treason only the common law crimes perpetrated within the borders of
Zimbabwe are punishable. That principle is becoming decreasingly appropriate to the
facts of international life. The inevitable consequence of the development of society
along sophisticated lines and the growth of technology have led crimes to become more
and more complex and their capacity for having victims even greater. A strict
interpretation of the principle of territoriality could create injustice where the constituent
elements of the crime occur in more than one state or where the locus criminis is
fortuitous so far as the harm flowing from the crime is concerned. A more flexible and
realistic approach based on the place of impact, or of intended impact, of the crime must
be favoured.
Page 212 of 1985 (2) ZLR 211 (SC)
Cases cited:
Paweni & Anor v Attorney General 1984 (2) ZLR 39 (SC); 1985 (3) SA 720 (ZSC)
Radwan v Radwan [1972] 3 All ER 967 (Fam D)
Cox v Army Council [1962] 1 All ER 880 (HL)
S v A 1979 RLR 69 (GD); 1979 (4) SA 51 (R)
Treacy v Director of Public Prosecutions [1971] 1 All ER 110 (HL)
R v Baxter [1971] 2 All ER 359 (CA)
Director of Public Prosecutions v Stonehouse [1977] 2 All ER 909 (HL)
Strassheim v Daly (1911) 221 US 280
K Laue for the appellant
I Chatikobo for the respondent
GUBBAY JA: On 3 June 1985 the appellant appeared before the High Court in answer to
an indictment alleging that during the period extending from 25 June 1984 to 6 July 1984,
and at the Zimbabwe Representative Mission in Brussels, Belgium, he had stolen money,
in the course of employment, amounting to 1 524 981 Belgian Francs (the equivalent of
Z$30 499,62), the property of the Zimbabwe Government. He did not plead but, in terms
of s 156(1) of the Criminal Procedure and Evidence Act [Chapter 59], excepted to the
indictment with a view to having it quashed, on the ground that the court had no
jurisdiction to try him upon an averment that the theft had been committed in Belgium.
For the purpose of ruling upon the exception it was agreed that the learned trial judge
(Mfalila J) should have regard to the facts contained in the written outline of the State’s
case, which reads:
1. The accused is aged about 30 years and is employed by the Ministry of
Foreign Affairs as an Executive Officer. At the time of the commission of his offence, he
was based abroad with the Zimbabwe Embassy in Brussels, Belgium. His duties involved
administration and the control of finance.
2. On the 12th June 1984 the accused received written notification from the
Ministry of Foreign Affairs’ Head Office in Harare that he was being recalled home for
re-assignment. He had been in Brussels since the 31st December 1981.
3. On several occasions over a period of two weeks, dating from about the
25th June 1984 to the 6th July 1984, the accused stole from the Zimbabwe Embassy in
Brussels money in the sum of 1 524 981 (one million five hundred and twenty-four
thousand nine hundred and eighty-one) Belgian Francs, (which is equivalent to Z$30
499,62).
Page 213 of 1985 (2) ZLR 211 (SC)
The money was stolen in the following manner: 110 109 Belgian Francs
from cash receipts not deposited to the Embassy Account, 1 134 872 in the form of
cheques which he got by supplying false information to his superiors. These moneys
above were supposed to have been banked by the accused but the accused converted the
money to his own use. The accused also fraudulently got a member of the Embassy in
Brussels to countersign a requisition to transfer 280 000 Belgian Francs from the
Embassy Account. After withdrawing the money the accused converted it to his own use.
4. Of the Z$30 499,20 stolen, nothing has been recovered.
To this was added the further accepted fact that the appellant had departed from Belgium
prior to the alleged offence being discovered.
After hearing full argument Mfalila J dismissed the exception, holding that Zimbabwean
courts have jurisdiction over the appellant in accordance with the nationality or active
personality principle of international law. He rejected the main contention advanced by
the State that jurisdiction may be assumed where a person performs an act outside the
country which is a crime if performed inside the country and a harmful effect of the act is
felt by the victim there. In other words, that our courts should assume jurisdiction in
every case except where an act is performed wholly outside the country and no harmful
effect is felt inside the country.*
Following upon the ruling of the learned judge the appellant was not called upon to plead
to the indictment as an intention to appeal was intimated. The appeal was duly noted
pursuant to s 44(1) of the High Court of Zimbabwe Act 1981, which provides that “an
appeal in any criminal case shall lie to the Supreme Court from any judgment of the High
Court, whether in the exercise of its original or its appellate jurisdiction.”
Despite an initial argument to the contrary advanced by Mr Chatikobo, who appeared for
the respondent, there can be no question but that the appeal is properly before this court.
Although interlocutory in nature, the decision dismissing the exception was clearly a
judgment given in a “criminal case”, thereby affording an appeal as of right. See Paweni
& Anor v Attorney-General 1984 (2) ZLR 39 (SC) at 41D-42G; 1985 (3) SA 720 (ZSC)
at 722B-723A.
Page 214 of 1985 (2) ZLR 211 (SC)
At the outset it is as well to indicate that Mr Chatikobo conceded that the Zimbabwean
Embassy in Brussels is not a geographical extension of the physical terrain of Zimbabwe,
but forms part of the territory of Belgium. Consequently the clear implication that the
appellant stole at least some moneys while within the confines of the Embassy, is no
foundation upon which to assume jurisdiction against him. I am satisfied with the
correctness of that concession. I agree entirely with the submission made to, and accepted
by, Cumming-Bruce J (as he then was) in Radwan v Radwan [1972] 3 All ER 967 (Fam
D) at 971h that:
. . . the doctrine that an embassy or consulate is strictly the territory of the sending state is
now, and has for long, been regarded as a heresy by the unanimous opinion of those
academic authors who command respect in the exposition of international law.
The popular myth is firmly laid to rest in Satow’s Guide to Diplomatic Practice, 5th ed at
p 107, where it is stated:
The term ‘exterritoriality’, or ‘extraterritoriality’, is sometimes used to denote the totality
of privileges and immunities accorded to diplomatic agents, their families and
subordinate staff, or to describe the status of embassy premises. But it is now everywhere
accepted that it does not mean that the diplomat is not legally present in the receiving
state or that the embassy is deemed to be foreign territory. Marriages, or crimes,
occurring on diplomatic mission premises, are regarded in law as taking place in the
territory of the receiving state.
See further O’Connell, International Law 2nd ed vol 2 at p 903; Fawcett, The Law of
Nations (1971) at pp 64-65; O Oppenheim’s International Law 8th e, vol 1 para 390.
In his discussion on the principle of nationality the learned judge a quo said* :
Under this principle in International Law, a State has jurisdiction with respect to any
crime committed outside its territory by a person or persons who is or are its nationals at
the time when the offence was committed or when he is or they are prosecuted and
punished. So long as there is no conflict with the territorial principle and the rights of
other States, there can be no breach of International Law in a State assuming
Page 215 of 1985 (2) ZLR 211 (SC)
such jurisdiction. It is, however, a principle which should not lightly be applied in view
of the possible conflict with the legitimate rights of other States; . . . But a case such as
the present, involving as it does a member of the country’s Diplomatic Service abroad, is
a fit case for the application of the principle. The accused could not be tried in Belgium
unless Zimbabwe lifted his diplomatic immunity there, and since he was no longer within
the Belgian jurisdiction by the time the offence came to light, there is no way in which
Zimbabwe could send him back to Belgium to stand trial. The situation, therefore, would
amount to a non-trial of the accused and this I am satisfied would amount to a grave
injustice.
That exposé does not, I venture to think, accurately reflect upon the nationality or active
personality principle. As I perceive the position, there is no rule of international law
directing or obliging states to exercise criminal jurisdiction over their nationals for
offences committed abroad. International law merely permits every state to apply its
jurisdiction against its own citizens even when they are situate outside its boundaries. See
O’Connell op cit at p 823; Oppenheim op cit at p 330. Thus the fact that customary
international law is part of the municipal law of a state does not assist, because there is
only a permissive principle involved and not a mandatory rule. The permissibility under
international law for a state to exercise jurisdiction is not a sufficient basis for the
exercise of jurisdiction by a municipal court of that state. A municipal court must be
satisfied in addition that the municipal law itself authorises the trial of a national for an
offence committed abroad which would be punishable if committed at home. The matter
is concisely put by O’Connell op cit at pp 824-825 in this way:
There is no restriction on the competence in international law of a State to prosecute its
own nationals for acts done on foreign territory. Whether or not a prosecution can be
sustained is entirely a matter of municipal law, which may choose to disinterest itself in
the activities of its nationals extraterritorially. Until the middle of the nineteenth century
there was a tendency to think that international law allowed no jurisdiction over either
nationals or aliens in respect of acts committed on alien territory, and the maxim of
Paulus ‘extra territiorium jus dicenti impune non paretur’ was frequently quoted in
support of this view. However, English and American courts have held that there is no
restriction on the competence of the legislature to extend the criminal law to cover the
acts of nationals abroad, and that it is entirely a question of construction to what extent it
has done so. . . .
Page 216 of 1985 (2) ZLR 211 (SC)
In the absence of statute, however, Anglo-American jurisdiction is, as a matter of
common law, territorial.
See also Cox v Army Council [1962] 1 All ER 880 (HL); Joubert The Law of South
Africa, vol 5, para 569; Lansdown and Campbell South African Criminal Law and
Procedure, vol 5 at p 8. It is therefore essential that there be in existence some rule of
municipal law, either in statute or common law, which provides for the exercise of
jurisdiction in such a case.
In this country there is no legislation giving extraterritorial jurisdiction to the courts
where nationals commit thefts abroad. It would be very much a new departure,
unsupported by authority, for the courts to assume jurisdiction simply because of the
inability of bringing the appellant to trial in Belgium or because his prosecution here
would not involve any interference with Belgium’s legitimate affairs.
While accepting the proposition that the alleged theft in Brussels may have harmed the
Zimbabwe Government at home, Mfalila J declined to exercise jurisdiction on that
ground. It is apparent that he was influenced greatly by the judgment in S v A 1979 RLR
69 (GD); 1979(4) SA 51 (R). In that case I had occasion to examine the English decisions
in Treacy v Director of Public Prosecutions [1971] 1 All ER 110 (HL), R v Baxter
[1971] 2 All ER 359 (CA) and Director of Public Prosecutions v Stonehouse [1977] 2 All
ER 909 (HL), which were relied upon by State counsel in support of the submission that
the narrow ground upon which jurisdiction was assumed in the past, where a theft is
committed entirely outside the territorial boundaries, had been developed and extended.
My analysis of those judgments led me to express the following view at 80D-F and 81D-
F (57F-G and 58E-F respectively of the South African report):
I have quoted at length from the speeches of the learned Law Lords because in my
opinion Mr Oshry is correct in saying that their remarks were not intended to go beyond a
situation where the harmful effect to the victim in England is the actual obtaining of his
property there, or an attempt to obtain it there. It is a ‘result-crime’, as Lord Diplock put
it, the result being the harmful effect to the victim in England by unlawfully obtaining his
property from him there, or attempting to do so. I can find nothing in the speeches which
implies that, if the victim, while physically in England, has his property stolen abroad,
and all the physical acts in pursuance of such theft were committed abroad, the offence
would nonetheless be triable in England because of the harm the offence caused the
victim in England.
Page 217 of 1985 (2) ZLR 211 (SC)
And:
. . . the principle laid down in the Baxter and Stonehouse cases . . . relates to offences
such as fraud or theft by false pretences where the false representation in its entirety is
made by the offender out of the country but is directed at the obtaining of property within
it. Where the physical acts take place outside the country, the subject-matter must always
be within it in order for the offender to be amenable to the local jurisdiction.
Having carefully re-read the English trilogy I am now firmly of the opinion that the
reasoning therein does not entirely support the principle I have sought to enunciate. It
would seem to be too restrictive. While it may be that on the facts of two of those cases
the deception was aimed at obtaining the property of a victim in England, and in that
sense its impact could have been felt there, the underlying ratio was that a court may
exercise jurisdiction where either a substantial element of the offence or the harmful
effect thereof occurred within its territorial boundaries. It was not, as I understand it, that
in the absence of an attempt to abstract or the actual abstraction of the property in
England where the victim resided, no harmful effect could possibly be felt by him there. I
shall illustrate this by reference to the three cases.
In Treacy v Director of Public Prosecutions, supra, Lord Diplock was the only member of
the House to approach the problem along unconventional lines. He considered that the
presumption against extra-territorial jurisdiction was based in international rules of
comity and said that there was no reason in comity why persons who did physical acts
outside England which had harmful consequences inside the country should not be liable
to punishment if they subsequently came to England. He expressed himself thus at 122a-
c:
Nor . . . can I see any reason in comity to prevent Parliament from rendering liable to
punishment, if they subsequently come to England, persons who have done outside the
United Kingdom physical acts which have had harmful consequences on victims in
England. The State is under a correlative duty to those who owe obedience to its laws to
protect their interests and one of the purposes of criminal law is to afford such protection
by deterring, by threat of punishment, conduct by other persons which is calculated to
harm those interests. Comity gives no right to a State to insist that any person may with
impunity do physical acts in its own territory which have harmful consequences to
persons within the territory of another State. It may be under no obligation in
Page 218 of 1985 (2) ZLR 211 (SC)
comity to punish those acts itself, but it has no ground for complaint in international law
if the State in which the harmful consequences had their effect punishes, when they do
enter its territories, persons who did such acts.
The unanimous judgment of the Court of Appeal in R v Baxter, supra, was delivered by
Sachs LJ. In essence it was that the English courts had jurisdiction to try a charge of
attempting to obtain property by deception where letters claiming moneys from two
football pools companies on a false pretence were posted in Northern Ireland and arrived
in England where they were read by but did not deceive the management of either
company. It was relevant that from the moment of dispatch until the moment the claims
finally failed, the appellant had never left Northern Ireland. The object of sending the
letters was to get the pools companies to dispatch money from England, and an actual
claim to the money was communicated there. If the attempt had succeeded, the money
would have been obtained within the jurisdiction. Clearly the deception was aimed at the
property of victims within the jurisdiction. It was said at 362a-b:
The older authorities deal inter alia with the origin of the rule relating to jurisdiction; they
underline as Lord Diplock pointed out in Treacy v Director of Public Prosecutions, that in
modern times its only substantial foundation is based on internal comity which leans
against the courts of this country punishing those who in another country have done
something which neither has caused nor could cause injury to persons or property here.
But the high water mark on the question of jurisdiction where all the physical acts are
perpetrated externally was reached by the House of Lords in Director of Public
Prosecutions v Stonehouse, supra. The facts were these: In July and September 1974,
Stonehouse, a man prominent in English politics, insured his life in England for the
benefit of his wife, for a total amount of £125 000. On 19 November 1974 he flew to
Florida, ostensibly for a business meeting. The next day he simulated his death by
drowning, stating that he was going for a swim and not returning to his hotel. In fact he
travelled to Australia under an assumed name. There he was recognised on 24 December
1974. No claim was ever made for the policy money though the news of his supposed
death had been published broadly in England, reaching both the insurance company and
his wife — the latter being an innocent party. He was tried at the Central Criminal Court
on a charge of attempting to obtain property by deception and the jury convicted him.
The Court of Appeal upheld the
Page 219 of 1985 (2) ZLR 211 (SC)
conviction. On a further appeal to the House of Lords the point of law certified was:
Whether the offence of attempting on 20 November 1974 to obtain property in England
by deception, the final act alleged to constitute the offence of attempt having occurred
outside the jurisdiction of the English courts, is triable in an English court, all the
remaining acts necessary to constitute the complete offence being intended to take place
in England.
In dismissing the appeal it was held that the principle that the English courts have
jurisdiction where what was done outside the country caused the obtaining of property by
deception in England from the person to whom it belongs, was sufficiently wide to cover
their jurisdiction to try the inchoate offence of an attempt to obtain it.
With the exception of Viscount Dilhorne, the other four members of the House followed
Lord Diplock’s approach in Treacy’s case, supra. Lord Diplock himself said at 916h-j:
Once it is appreciated that territorial jurisdiction over a ‘result-crime’ does not depend on
acts done by the offender in England but on consequences which he causes to occur in
England, I see no ground for holding that an attempt to commit a crime which, if the
attempt succeeded, would be justiciable in England does not also fall within the
jurisdiction of the English courts, notwithstanding that the physical acts intended to
produce the proscribed consequences in England were all of them done abroad.
Lord Keith of Kinkel observed at 937j-938a:
English criminal law has consistently adopted the approach, in cases involving a foreign
element, that, where an act done abroad has resulted in harmful consequences in England,
the actor may be tried by an English court.
He continued at 939h-940b:
In my opinion it is not the present law of England that an offence is committed if no
effect of an act done abroad is felt here, even though it was the intention that it should be.
Thus if a person on the Scottish bank
Page 220 of 1985 (2) ZLR 211 (SC)
of the Tweed, where it forms the border between Scotland and England, were to fire a
rifle at someone on the English bank, with intent to kill him, and actually did so, he
would be guilty of murder under English law. If he fired with similar intent but missed
his intended victim, he would be guilty of attempted murder under English law, because
the presence of the bullet in England would be an intended effect of his act. But if he
pressed the trigger and his weapon misfired, he would be guilty of no offence under the
law of England, provided at least that the intended victim was unaware of the attempt,
since no effect would have been felt there. If, however, the intended victim were aware of
the rifle being pointed at him, and was thus put into a state of alarm, an effect would have
been felt in England and a crime would have been committed there. The result may seem
illogical, and there would appear to be nothing contrary to international comity in holding
that an act done abroad intended to result in damage in England, but which for some
reason independent of the actor’s volition had no effect there, was justiciable in England.
But if that were to be the law, I consider that it would require to be enacted by
Parliament.
Consistent with what I comprehend as the broad principle laid down in the English cases
are the similar remarks of the legendary Mr Justice Oliver Wendell Holmes, when
delivering the unanimous opinion of the Supreme Court of the United States in
Strassheim v Daily (1911) 221 US 280 at 284-285:
If a jury should believe the evidence, and find that Daily did the acts that led Armstrong
to betray his trust, deceived the board of control, and induced by fraud the payment by
the state, the usage of the civilized world would warrant Michigan in punishing him,
although he never had set foot in the state until after the fraud was complete. Acts done
outside a jurisdiction, but intended to produce and producing detrimental effects within it,
justify a state in punishing the cause of the harm as if he had been present at the effect, if
the state should succeed in getting him within its power.
That case is apposite because, like the present, the external commission of a common law
offence and the concept of an extension of territorial jurisdiction, were under
consideration. It appears that Daily, while in the state of Illinois, and with the connivance
of the prison warden Armstrong, perpetrated a fraud upon the board of control of the
Michigan state prison by representing that certain items of machinery sold and delivered
to the prison
Page 221 of 1985 (2) ZLR 211 (SC)
were new, when to his knowledge they were second-hand.
Significantly also the learned authors Lansdown and Campbell op cit at pp 9 and 11, in
their treatment of the English decisions, accept the applicability of the harmful effect
principle to the criminal common law in South Africa, and do not suggest that where
what is involved is an offence against property, its operation is confined to instances
where such property, as well as the victim, are within the jurisdiction. This is what they
say:
The general principle of the common law that jurisdiction does not extend to acts
committed abroad appears to be losing ground in the face of a trend indicating that where
the constituent elements of a crime occurred in different countries, the offence may be
tried in any jurisdiction where any of those elements, or their harmful effect, occurred.
And:
It is accordingly submitted that there may be circumstances where, in a case reflecting
foreign and domestic elements, it becomes irrelevant to ask where the crime was
committed or whether the last essential act occurred within the territory of the Republic.
Our courts may find themselves not compelled to disclaim jurisdiction if satisfied that
either a substantial element of the offence or the harmful effect thereof occurred within
the Republic. It is conceded that where the foreign elements in an offence predominate
the connection between the physical acts of the offender or their harmful effects, on the
one hand, and the Republic, on the other, may indeed be so tenuous that our courts will
hesitate to exercise criminal jurisdiction.
With regard to the law of Zimbabwe, I can see no justification for a rigid adherence to the
principle that, with the exception of treason, only those common law crimes perpetrated
within our borders are punishable. That principle is becoming decreasingly appropriate to
the facts of international life. The facility of communication and of movement from
country to country is no longer restricted or difficult. Both may be undertaken
expeditiously and at short notice. Past is the era when almost invariably the preparation
and completion of a crime and the presence of the criminal would coincide in one place,
with that place being the one most harmed by its commission. The inevitable
consequence of the development of society along sophisticated lines and the growth of
technology have led crimes to become more and more complex and their capacity for
harming victims even greater. They are no longer as simple in nature or as limited in their
effect as they used to be. Thus a strict interpretation of the principle of territoriality could
create injustice where the constituent elements of the crime occur in more than one state
or where the locus commissi is fortuitous so far as the harm flowing from the crime is
concerned. Any reluctance to liberalise the principle and adopt Anglo-American thinking,
could well result in the negation of the object of criminal law in protecting the public and
punishing the wrongdoer. A more flexible and realistic approach based on the place of
impact, or of intended impact, of the crime must be favoured.
Page 222 of 1985 (2) ZLR 211 (SC)
Accordingly, I am satisfied that although all the constituent elements of the theft occurred
in Belgium, in particular the obtaining of the money there, the State is nonetheless
entitled to proceed upon the present indictment and adduce evidence at the trial, if such is
available, to establish the fact that the harmful effect of the appellant’s crime was felt by
the Zimbabwe Government within this country.
Without intending in any way to influence the outcome of the necessary factual
determination by the trial court, I would merely point out that the theft is alleged to have
been committed within the precincts of the country’s Embassy in Brussels by one of its
nationals posted on official diplomatic duties; that the stolen money may have formed a
portion of funds remitted by Government to meet the cost of maintaining, administering
and operating its Embassy in Belgium; and that it may have been necessary to replace the
considerable amount of money stolen by the further transfer of foreign currency from
Zimbabwe, thereby depleting the country’s much needed external reserves.
For these reasons I would dismiss the appeal.
Beck JA: I agree.
McNally JA: I agree.
Kantor & Immerman, legal practitioners for appellant
Attorney-General, legal practitioners for respondent