Bill Watch 03/2020 The New Standard Scale of Fines: 28 January 2020

A Fine Mess

BILL WATCH 3/2021

[28th January 2021]
The New Standard Scale of Fines : A Fine Mess
On Monday this week the Government published the Criminal Law
(Codification and Reform) (Standard Scale of Fines) Notice in a Gazette
Extraordinary [link]. It was not just the Gazette that was extraordinary – the
notice was too.
Background to the Notice
Statutes which create criminal offences usually specify the penalties that
courts may impose, and the penalties often consist of fines whether or not
coupled with terms of imprisonment. Before 2004 fines were expressed as
monetary amounts but inflation kept reducing their real value so that statutes
had to be amended constantly in order to keep the fines realistic. Hence
section 280 of the Criminal Law Code, enacted in 2004, provided that fines
were to be expressed as levels on a Standard Scale of Fines set out in the
First Schedule to the Code. According to this Standard Scale, a level 1 fine
was ZWL$200 [this was after the Schedule was amended in November
2020], a level 2 fine was ZWL$300, a level 3 fine was ZWL$500, and so on all
the way to level 14 which was ZWL$800 000. According to section 280 the
monetary amounts in the Standard Scale can be amended through a
statutory instrument, which is a much quicker process than amending
individual fines in each Act of Parliament. So if, for example, the Minister
publishes a statutory instrument stating that level 1 fines are to be increased
to $1 000, the amendment will automatically increase the amounts in every
statute that provides for a fine of level 1 to be imposed.
Contents of the New Notice
The Notice purports to be made by “the Minister” in terms of section 280 of
the Criminal Law Code. It does not specify which Minister made it, and that is
important because, as we shall explain presently, section 280 gives two
Ministers separate power to make notices amending the Standard Scale of
Fines.
The Notice sets out a new scale of fines, and increases them massively:
A level 1 fine, which was fixed at ZWL$200 in November last year, is now
ZWL$1 000, a fivefold increase
A level 2 fine, which was fixed at ZWL$300 last November, is now
ZWL$2 000, almost a sevenfold increase
A level 3 fine, which was ZWL$500, is now ZWL$5 000, a tenfold increase,
and the remaining fines have been doubled.
Invalidity of the Notice
Bill Watch 03/2020 The New Standard Scale of Fines: 28 January 2020
A Fine Mess

The Notice is invalid for at least two reasons, both of which are to be found in
the curious provisions of section 280 of the Criminal Law Code, the section
under which the Notice purported to be made.
Section 280, as we pointed out above, gives two Ministers power to amend
the Standard Scale of Fines:
1. The Minister of Finance and Economic Development can amend the
Scale in terms of subsection (4a) of the section, subject to the following
conditions:
 He must consult the Minister of Justice before doing so,
 He cannot amend the scale more than once a fortnight,
 The purpose of any amendment must be “to take into account the
decline in the purchasing power of the Zimbabwean dollar in relation to
the United States dollar”, and
 Any increase in the fines must be calculated by multiplying the US
dollar amounts in the third column of the scale by the current exchange
rate between the US and Zimbabwean dollar [There used to be a third
column specifying US dollar amounts, but there hasn’t been one for
many years].
2. The Minister of Justice, Legal and Parliamentary Affairs: He is given
an independent power to amend or replace the Scale by subsection (5) of
section 280 of the Code, and he can do so “whenever [he] considers such
an amendment or replacement to be necessary as a result of a change in
the purchasing-power of money or for any other reason”– so his power is a
very wide one, much wider than that of the Minister of Finance. It is
however subject to an important qualification under subsection (6) of the
section: he cannot publish a statutory instrument amending or replacing
the Scale “unless a draft has been laid before and approved by
Parliament”.
Why section 280 should give two Ministers power to amend the same scale of
fines, and why their separate powers are subject to such different conditions,
is beyond the wit of man to understand. Perhaps it made sense when
Zimbabwe had a multi-currency régime and US dollars were legal tender
alongside the Zimbabwe dollar. Be that as it may, whichever Minister
published the latest amendment, it is illegal because:
 If it was the Minister of Finance and Economic Development, the increases
in the level of fines are far greater than are permitted by section 280(4a),
which envisages adjusting the Zimbabwe dollar amounts to reflect
differences in the exchange rate between the Zimbabwe and US dollars.
The Zimbabwe dollar has not depreciated fivefold, sevenfold and tenfold
against the US dollar since November, when the scale of fines was last
Bill Watch 03/2020 The New Standard Scale of Fines: 28 January 2020
A Fine Mess

amended.
 If it was the Minister of Justice, Legal and Parliamentary Affairs, a draft of
the notice was never presented to, much less approved by, the National
Assembly or the Senate as required by section 280(6).
Either way, therefore, the notice is invalid.
The previous amendment of the Standard Scale, published in November last
year, was probably illegal for the same reasons, and likewise the amendment
it replaced, which was published in February 2020 – but perhaps we shouldn’t
delve too far into those amendments.
Failure to Specify Which Minister Made the Notice
The failure to specify which Minister was making the notice may not be
enough in itself to invalidate it, so long as one of the two possible Ministers is
prepared to stand up and identify himself as the guilty party.
Generally, statutory instruments are not invalid if they cite the wrong section
of the statute under which they were made, and the same must apply to the
wrong citation of the Minister who made them – for example, if the opening
paragraph of a statutory instrument says it was made by the Minister of Home
Affairs when it was really the Minister of Home Affairs and Cultural Heritage.
On the other hand, legislation of all kinds should contain enough information
to show readers, at least prima facie, that they were properly made. That is
why Acts of Parliament begin with the words:
“Enacted by the Parliament and the President of Zimbabwe”
and regulations and other statutory instruments begin with a paragraph
stating who made them and the Act of Parliament under which they were
made.
The Notice with which we are concerned does not state who made it, and
since there are two Ministers who might have done so the notice does not
give readers enough information to satisfy themselves that it was properly
made. Arguably therefore the notice is invalid on this ground as well.
Conclusion
Notices amending or replacing the standard scale of fines are important
because, as we pointed out at the beginning of this bulletin, they affect the
levels of fines that can be imposed for almost all statutory offences. They
affect the sentences that courts can impose on convicted criminals and the
deposit or “spot” fines that police officers can levy for traffic and other petty
offences. The notices therefore affect more people than almost any other
statutory instruments. Hence the utmost care should be taken when they are
issued to ensure they are correctly and validly made.
Insufficient care was taken when publishing the latest amendment notice, and
the consequences are potentially great. Courts which impose sentences
Bill Watch 03/2020 The New Standard Scale of Fines: 28 January 2020
A Fine Mess

based on the new fines may exceed their jurisdiction and the sentences will
have to be set aside on appeal or review. If the police issue traffic tickets for
the payment of the new fines, motorists who pay them will have to be
refunded. Many people will be put to inconvenience, some will even suffer
hardship.
And all because the Minister [whichever one it was] carelessly failed to
comply with section 280 of the Criminal Law Code.

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