PRELIMINARY MATTERS

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Interpretation of terms

[s 2]

This section provides definitions of various terms used in the Code. These definitions will be referred to when dealing with the relevant specific topics in the Commentary.

Replacement of Roman-Dutch law

[s 3(1)]

Previously the criminal law of Zimbabwe comprised the non-statutory (common law) Roman-Dutch criminal law in force in the Colony of the Cape of Good Hope on the 10 June 1891, as subsequently added to or amended by legislation.

Section 3(1) of the Code provides that Roman-Dutch criminal law as subsequently modified in Zimbabwe, no longer applies within Zimbabwe where the Code has expressly or impliedly

  • enacted the common law in the Code;
  • re-enacted statutory provisions in the Code;
  • repealed aspects of the previous law;
  • amended or modified aspects of the previous law.

It should be noted that the Code codifies the main aspects of the Criminal Law.

 

Interpretation of Code provisions

[s 3(2)]

Our courts will still need to interpret particular aspects of the codified law, fill in its finer details and decide how that law applies to concrete situations.

Guidance from judicial decisions and legal writings

The Code provides that when interpreting any provision of this Code a court may still continue to obtain guidance from judicial decisions and legal writings on relevant aspects of¾

  • the criminal law that applied in Zimbabwe before the Criminal Code came into operation and still apply in the Code; or
  • the criminal law that is or was in force in other countries.

Where Code incorporates the existing law without alteration, or only modifies some aspects of existing law

The Code often incorporates the existing law without alteration or only modifies some aspects of the existing law and leaves intact others. The Zimbabwean courts will continue to be able to refer to previous Zimbabwean case decisions interpreting and applying the pre-existing and unaltered portions of the law to specific situations. That whole body of precedent will obviously still be of importance. This applies both to the common law and statutory crimes. Thus if the Code has simply incorporated a common law or statutory crime without alteration, the courts will continue to be guided by all the previous case law pertaining to that crime. If certain changes have been made to a common law or statutory crime incorporated into the Code, the courts can still refer to the case law relating to the aspects of those crimes that have not changed when incorporated into the Code.

As they have done in the past, our courts will also be able to refer to appropriate case law from South Africa and other countries interpreting such unaltered law.

As they have done in the past, the courts will also be able to refer to the writings of legal writers, both Zimbabwean and foreign writers, commenting upon the law and interpreting how it should be applied in concrete situations.

Where Code changes pre-existing law

Especially where the new law has been drawn from the criminal law of another country, such as South Africa, the Zimbabwean courts will be able to refer to appropriate case law from this other country.

The Zimbabwean courts will also be able to refer to appropriate legal writings, by Zimbabwean and foreign writers, commenting upon the new law.

 

 

 

Criminal provisions contained in other legislation

[s 4]

This provides that, while crimes contained in statutes other than the Code will continue to be enforced in terms of those statutes, certain important matters, such as the determination of an offender’s state of mind, will be resolved by reference to the applicable provisions of this Code.

More specifically this section provides that that Code does not affect the liability, trial and punishment of a person for a crime in terms of enactments other than the Code.

 

However, unless such enactments expressly provide otherwise, the following provisions of the Code will apply to enactments other than the Code–

  • those dealing with the issue of territoriality for jurisdiction purposes;
  • those relating to the elements of criminal liability;
  • those dealing with threats, incitement, conspiracy and attempt;
  • those dealing with participation or assistance in the commission of crimes;
  • those dealing with general defences and mitigatory factors;
  • those dealing with competent verdicts;
  • those dealing with criminal liability of companies and associations and their members, employees and agents;
  • those providing that conviction or acquittal is no bar to civil or disciplinary proceedings;
  • those dealing with concurrent or alternative charges;
  • those dealing with the standard scale of fines.

 

Jurisdiction for crimes committed inside and outside Zimbabwe (Territoriality)

[s 5]

 

Crimes committed inside Zimbabwe

A Zimbabwean court has jurisdiction to try a crime that was committed wholly inside Zimbabwe.

Crimes committed partly outside Zimbabwe

A Zimbabwean court has jurisdiction to try a crime committed partly outside Zimbabwe if the conduct that completed the crime took place inside Zimbabwe.

Cases

In S v Mharapara 1985 (2) ZLR 211 (S) M was charged with the theft of the equivalent in Zimbabwe dollars of the foreign money he stole whilst he was based in Belgium and attached to the Zimbabwe Representative Mission. The theft was only discovered after M had left Belgium and returned to Zimbabwe. On the issue of jurisdiction the Supreme Court 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 place of the crime 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 intended impact, of the crime must be favoured. The court held 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.

 

In S v Kapurira 1992 (2) ZLR 17 (S) and X, who were both Zimbabwean citizens, had crossed into Mozambique in order to attend a beer drink there. K had allegedly attacked X and had fatally wounded him. X had been taken back to Zimbabwe where he died of bleeding from the wound. When K returned to Zimbabwe he was arrested and charged with murder. The High Court decided that it had jurisdiction to try this case and K appealed against this decision. On the issue of jurisdiction the Supreme Court held that generally the courts favoured the approach of basing jurisdiction upon place of impact or intended impact. The courts would not readily surrender their jurisdiction especially where the principles of comity and effectiveness were satisfied. The comity principle would be satisfied where there was no danger of offending another state by exercising jurisdiction in the matter and the effectiveness principle would be satisfied where the court is able to reach the people involved and so give effect to its judgment. In the present case jurisdiction had been properly assumed. Although the murderous attack had taken place in Mozambique, a substantial and essential element of the crime, namely the death of the victim, had taken place in Zimbabwe. Both parties involved were Zimbabweans so Zimbabwe was the country most interested in taking action. The principle of comity was satisfied, as there was no risk of offending the Mozambican authorities, courts or people as the crime was of minimal interest to them. The principle of effectiveness was also satisfied because the appellant was under arrest in Zimbabwe.

 

In S v Nkomo 2007 (1) ZLR 357 (S) the appellant, a Zimbabwean national, went to Botswana, taking a pistol with him. While there he robbed and murdered the owner of a restaurant, using the pistol. He fled to Zimbabwe, bringing with him some of the money he had stolen from the restaurant, as well as the pistol. He was convicted in the High Court. The High Court referred to the Supreme Court the question of whether it had jurisdiction to try the appellant for murder. The High Court also referred the question of whether it would have been competent for the Attorney-General to have charged the appellant with robbery, since the proceeds of the robbery were brought into Zimbabwe. The court held that there is a trend, followed in Zimbabwe as well as other countries, 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. A more flexible and realistic approach, based on the place of impact, or of intended impact, of the crime, is favoured. There was no basis for the assumption of jurisdiction on the facts of this case. The connection between the crime and Zimbabwe was far too tenuous to form a basis for assuming criminal jurisdiction by a Zimbabwean court. None of the essential elements of the offence were committed on Zimbabwean soil. There was no harmful impact or effect on Zimbabwe. The fact that the appellant was a Zimbabwean and that any order given by the court would be effective was not sufficient to found criminal jurisdiction in respect of an offence committed outside Zimbabwe’s borders and having no impact in Zimbabwe. The only link or connection with Zimbabwe was that the weapon used in the commission of the crime originated in Zimbabwe and was found in Zimbabwe after the offence. This, either alone or in conjunction with other factors of this case, was not sufficient to found jurisdiction in Zimbabwean courts for an offence that was committed outside its borders. The appellant was not charged with robbery or theft, so there was no basis for the High Court to refer that matter to the Supreme Court.

 

In S v Matunga HH-706-15 an application for bail pending appeal was instituted by a man who had been convicted of rape and sentenced to 18 years by the regional court.  The rape had taken place in South Africa, but had only been reported to the police in Zimbabwe, where the perpetrator was arrested, tried and convicted.  His application for bail pending appeal did not raise the issue of lack of jurisdiction by the Zimbabwean court. The court stated that it was not an issue to be determined by the appeal court, but then proceeded to address it in assessing whether the bail application was likely to succeed.  The court cited s 5 of the Criminal Law Code and concluded that a Zimbabwean court can have jurisdiction over a crime committed wholly outside the country which has produced harmful effect in Zimbabwe; a rape can have harmful effect even if it is committed outside Zimbabwe. There is no justification for rigid adherence to the principles of basing jurisdiction upon the place of impact or intended impact in a global village. The appeal court would not conclude there was lack of jurisdiction.

 

Whether “harmful effects” would include, for example, ongoing psychological trauma arising out a rape is yet to be decided by the Supreme Court.

 

Crimes committed wholly or partly outside Zimbabwe

A Zimbabwean court has jurisdiction to try a crime committed wholly or partly outside Zimbabwe if the crime–

  • is crime against public security in Zimbabwe or against the safety of the State of Zimbabwe;
  • is a crime that has produced a harmful effect in Zimbabwe;
  • is a crime that was intended to produce a harmful effect in Zimbabwe;
  • is a crime that was committed with the realisation that there was a real risk that it might produce a harmful effect in Zimbabwe.

 

Cases

Special provisions in enactment

Section 5(2) of the Code provides that s 5 does not limit the effect of any enactment which-

  • regulates the territorial jurisdiction of any court; or
  • makes special provision for the trial, conviction and punishment