Criminal Law (Codification and Reform) Act

Chapter 9:23

This Act has not yet come into force in full. See the Document detail tab for more information.

This is the version of this Act as it was from 23 March 2017 to 19 February 2019. Read the latest available version.

Citation

Chapter 9:23

Date

Language

English

Type

Act

Criminal Law (Codification and Reform) Act

Chapter 9:23

Published in Government Gazette
There are multiple commencements

Provisions	Status
Unknown provisions	commenced on 3 February 2006.
Unknown provisions	commenced on 1 July 2006.
Chapter I (section 1–5); Chapter II (section 6–18); Chapter III (section 19–34); Chapter IV (section 35–46); Chapter V (section 47–111); Chapter VI (section 112–154A); Chapter VII (section 155–161); Chapter VIII (section 162–168); Chapter IX (section 169–174); Chapter X (section 175–180); Chapter XI (section 181–185); Chapter XII (section 186–194); Chapter XIII (section 195–212); Chapter XIV (section 213–272); Chapter XV (section 273–276); Chapter XVI (section 277–284)	not yet commenced.

[This is the version of this document as it was at 23 March 2017 to 19 February 2019.]
[Note: This version of the Act was revised and consolidated by the Law Development Commission of Zimbabwe]

[Act 23/2004, 6/2005 (s. 11), 9/2006 (s. 31), 3/2009, 4/2014 (s. 11), 5/2014 (s. 33), 3/2016 (Part XX), 2/2017 (s 35) SIs 30A/2007, 134/2007, 51A/2008, 109/2008]An Act to consolidate and amend the criminal law of Zimbabwe; to amend the Interpretation Act [Chapter 1:01], the Burial and Cremation Act [Chapter 5:03], the Customary Marriages Act [Chapter 5:07], the Marriage Act [Chapter 5:11], the Magistrates Court Act [Chapter 7:10], and the Prisons Act [Chapter 7:11]; to repeal the Aircraft (Offences) Act [Chapter 9:01] and the Concealment of Birth Act [Chapter 9:04]; to amend the Criminal Procedure and Evidence Act [Chapter 9:07]; to repeal Infanticide Act [[Chapter 9:12] and the Miscellaneous Offences Act [Chapter 9:15]; to amend the Prevention of Corruption Act [Chapter 9:16], and the Stock Theft Act [Chapter 9:18]; to repeal the Witchcraft Suppression Act [Chapter 9:19] and the Sexual Offences Act [Chapter 9:21]; to amend the Anti-Corruption Commission Act [Chapter 9:22], the Public Order and Security Act [Chapter 11:17], the Police Act [Chapter 11:10], the Inland Waters Shipping Act [Chapter 13:06], the Tourism Act [Chapter 14:20], the Dangerous Drugs Act [Chapter 15:02], to amend the Medicines and Allied Substances Control Act [Chapter 15:03]; the Public Health Act [Chapter 15:09], the Termination of Pregnancy Act [Chapter 15:10], the Housing and Building Act [Chapter 22:07] and the Mental Health Act, 1996; and to provide for matters connected with or incidental to the foregoing.

WHEREAS section 18 of the Constitution provides for certain fundamental principles of our criminal justice system including, in particular, the following:-“18.(2) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.(3) Every person who is charged with a criminal offence-(a) shall be presumed to be innocent until he is proved or has pleaded guilty;(b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence charged;and, except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence.(5) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.(6) No person who shows that he has been tried by a competent court for a criminal offence upon a good indictment, summons or charge upon which a valid judgment could be entered and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence…(8) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.”;AND WHEREAS it is desirable to codify and, where necessary, reform the common criminal law of Zimbabwe-(a) in conformity with the fundamental principles set out in the Constitution and other fundamental principles developed over time by our criminal justice system; and(b) in order to set out in a concise and accessible form what conduct our criminal justice system forbids and punishes and what defences can be raised to criminal charges;NOW, THEREFORE, be it enacted by the President and the Parliament of Zimbabwe as follows:-

Chapter I
Preliminary

1. Short title

(1)Subject to subsection (2), this Act may be cited as the Criminal Law (Codification and Reform) Act [Chapter 9:23].[section amended by section 31 of Act 9 of 2006]

(2)References in this Act to “this Code” and in any other enactment to “the Criminal Law Code” shall be construed as references to this Act.

2. Interpretation

(1)In this Code—“accessory”, when used in relation to a crime, has the meaning given to it by section two hundred and five;“alternatively” and “concurrently”, in relation to the charging of a person with two or more crimes, shall be construed in accordance with section two hundred and seventy-nine;“accomplice”, when used in relation to a crime, has the meaning given to it by section one hundred and ninety-five;“accused” means a person accused of committing a crime;“actual perpetrator” has the meaning given to it by section one hundred and ninety-five;“cause”, when used in relation to a consequence ensuing from conduct, means that the conduct has caused the consequence as provided in section eleven;“conduct” includes an act or omission;“court” means—(a)the Supreme Court; or(b)the High Court; or(c)a magistrates court; or(d)a local court constituted in terms of the Customary Law and Local Courts Act [Chapter 7:05]; or(e)any other court or tribunal;whichever is hearing or has jurisdiction to hear the matter concerned;“crime” means any conduct punishable by this Code or as a criminal offence in any other enactment;“fixed date” means the date fixed in terms of subsection (3) of section one as the date of commencement of this Code;“intend”, when used in relation to any crime or conduct, means that intention is an essential element of that crime or conduct as provided in section thirteen;“judicial officer” means a judge, president, magistrate, presiding officer or other person presiding over a court or tribunal;“know”, when used in relation to any crime or conduct, means that knowledge of the relevant fact or circumstance is an essential element of that crime or conduct as provided in section fourteen;“level”, when used in relation to a fine, means the appropriate level on the standard scale;“Minister” means the Minister of Justice, Legal and Parliamentary Affairs or any other Minister to whom the President may, from time to time, assign the administration of this Code;“marriage” means a marriage solemnised under the Marriage Act [Chapter 5:11] or the Customary Marriages Act [Chapter 5:07], or an unregistered customary law marriage, and the words “husband”, “spouse” and “wife” shall be construed accordingly;“person”, in relation to a person against whose property or other interests a crime is committed, includes the State;“police” means the Police Force or a police officer;“police officer” includes a Police Constabulary member or a special constable as defined in section 2 of the Police Act [Chapter 11:10];“realise”, when used in connection with the existence or otherwise of a real risk or possibility in relation to any crime or conduct, means that realisation of a real risk or possibility is an essential element of that crime or conduct, as provided in section fifteen;“standard scale” means the standard scale of fines referred to in section two hundred and eighty and the First Schedule;“unregistered customary law marriage” means a marriage celebrated according to customary law but not solemnised in terms of the Customary Marriages Act [Chapter 5:07].

(2)A reference in this Code or any other enactment to any of the crimes mentioned in the first column of the Second Schedule shall be construed as referring to those crimes as defined in the provisions of this Code mentioned opposite thereto in the second column.

(3)Where the determination of the age of a person is relevant for the purposes of this Code, a person shall be deemed to have attained a specified age on the commencement of the relevant anniversary of the day of his or her birth.

3. Roman-Dutch criminal law no longer to apply

(1)The non-statutory Roman-Dutch criminal law in force in the Colony of the Cape of Good Hope on the 10th June, 1891, as subsequently modified in Zimbabwe, shall no longer apply within Zimbabwe to the extent that this Code expressly or impliedly enacts, re-enacts, amends, modifies or repeals that law.

(2)Subsection (1) shall not prevent a court, when interpreting any provision of this Code, from obtaining guidance from judicial decisions and legal writings on relevant aspects of—

(a)the criminal law referred to in subsection (1); or

(b)the criminal law that is or was in force in any country other than Zimbabwe.

4. Application of Code to other enactments

(1)Subject to subsection (2), nothing in this Code shall affect the liability, trial and punishment of any person for a crime in terms of any other enactment.

(2)Unless otherwise expressly provided in the enactment concerned, section five and Chapters II and XII to XVI of this Code shall apply to the determination of criminal liability of a person in terms of any other enactment.

5. Territoriality of crimes

(1)A person may be tried, convicted and punished for a crime, whether in terms of this Code or any other enactment, where the crime or an essential element of the crime was—

(a)committed wholly inside Zimbabwe; or

(b)committed partly outside Zimbabwe, if the conduct that completed the crime took place inside Zimbabwe; or

(c)committed wholly or partly outside Zimbabwe, if the crime—

(i)is a crime against public security in Zimbabwe or against the safety of the State of Zimbabwe; or

(ii)is a crime which—A. has produced a harmful effect in Zimbabwe; orB. was intended to produce a harmful effect in Zimbabwe; orC. was committed with the realisation that there was a real risk or possibility that it might produce a harmful effect in Zimbabwe.

(2)This section does not limit the effect of any enactment which—

(a)regulates the territorial jurisdiction of any court; or

(b)makes special provision for the trial, conviction or punishment of particular extra-territorial crimes.

Chapter II
Elements of criminal liability

Part I – Criminal capacity

6. Children under seven years of age not criminally liable

A child below the age of seven years shall be deemed to lack criminal capacity and shall not be tried for or convicted of any crime which he or she is alleged to have committed before attaining that age.

7. Criminal capacity of children between seven and fourteen years of age

A child who is of or over the age of seven years but below the age of fourteen years at the time of the conduct constituting any crime which he or she is alleged to have committed shall be presumed, unless the contrary is proved beyond a reasonable doubt—

(a)to lack the capacity to form the intention necessary to commit the crime; or

(b)where negligence is an element of the crime concerned, to lack the capacity to behave in the way that a reasonable adult would have behaved in the circumstances.

8. No presumption of criminal incapacity for persons over the age of fourteen years

For the avoidance of doubt it is declared that no person who is of or over the age of fourteen years shall be presumed to lack the capacity to form the necessary intention to commit any crime or, where negligence is an element of the crime concerned, to behave in the way that a reasonable person would have behaved in the circumstances of the crime.

Part II – Criminal conduct

9. Liability for criminal conduct

A person shall not be guilty of or liable to be punished for a crime unless—

(a)the crime is defined by this Code or any other enactment; and

(b)the person committed the crime or was a party to its commission as provided in this Code or in the enactment concerned; and

(c)his or her liability is based upon voluntary conduct; and

(d)subject to subsection (5) of section seventeen, the person engaged in the conduct constituting the crime with any of the blameworthy states of mind referred to in sections thirteen to sixteen, as this Code or any other enactment may require; and

(e)his or her liability is based upon unlawful conduct, that is, upon conduct for which there is no lawful excuse affording that person a complete defence to the criminal charge, whether in terms of Chapter XIV or otherwise.

10. Criminal conduct may consist of acts or omissions

(1)Criminal conduct may consist of either an act or an omission.

(2)A person shall not be held criminally liable for an omission nor shall he or she be guilty of the crime to which the omission relates unless—

(a)the crime for which the person is held liable is defined in such a way as to render criminal his or her failure to act; or

(b)the person had a legal duty to act positively arising from—

(i)the existence of a protective or family relationship between himself or herself and another person which required him or her to protect the life, safety or any legal interest of that other person; or

(ii)the creation by the person’s prior conduct of a situation in which another person’s life, safety or legal interest was or might be endangered; or

(iii)his or her assuming control, by contract or otherwise, over a situation, whether brought about by him or her or not, in which another person’s life, safety or legal interest was or might be endangered; or

(iv)his or her holding a public or like office.

11. Causation

(1)A person shall not be held criminally liable for a consequence unless the person’s conduct caused or substantially contributed to its occurrence.

(2)A person’s conduct shall be deemed to have caused or substantially contributed to a consequence for the purposes of subsection (1) if the conduct—

(a)is the factual cause of the consequence, that is, but for the conduct the consequence would not have occurred; and

(b)is the legal cause of the consequence, that is, the consequence—

(i)was a reasonably foreseeable consequence of his or her conduct; or

(ii)was brought about by a new cause supervening after his or her conduct, which cause was itself a reasonably foreseeable consequence of his or her conduct.

Part III – States of mind

12. Meaning of subjective state of mind

For the purposes of this Part, a subjective test for a state of mind is a test whereby a court decides whether or not the person concerned actually possessed that state of mind at the relevant time, taking into account all relevant factors that may have influenced that person’s state of mind.

13. Intention

(1)Where intention is an element of any crime, the test is subjective and is whether or not the person whose conduct is in issue intended to engage in the conduct or produce the consequence he or she did.

(2)Except as may be expressly provided in this Code or in the enactment concerned, the motive or underlying reason for a person’s doing or omitting to do any thing, or forming any intention, is immaterial to that person’s criminal liability in terms of this Code or any other enactment.

14. Knowledge

Where knowledge is an element of any crime, the test is subjective and is whether or not the person whose conduct is in issue had knowledge of the relevant fact or circumstance.

15. Realisation of real risk or possibility

(1)Where realisation of a real risk or possibility is an element of any crime, the test is subjective and consists of the following two components—

(a)a component of awareness, that is, whether or not the person whose conduct is in issue realised that there was a risk or possibility, other than a remote risk or possibility, that—

(i)his or her conduct might give rise to the relevant consequence; or

(ii)the relevant fact or circumstance existed when he or she engaged in the conduct;

and

(b)a component of recklessness, that is, whether, despite realising the risk or possibility referred to in paragraph (a), the person whose conduct is in issue continued to engage in that conduct.

(2)If a crime of which the realisation of a real risk or possibility is an element is so defined in this Code or any other enactment that—

(a)the words describing the component of awareness are omitted, the component of awareness shall be implicit in the word “recklessly” or any derivatives of that word; or

(b)the words describing the component of recklessness are omitted, the component of recklessness shall be implicit in the expression “realise a real risk or possibility” or any derivatives of that expression.

(3)Where, in a prosecution of a crime of which the realisation of a real risk or possibility is an element, the component of awareness is proved, the component of recklessness shall be inferred from the fact that—

(a)the relevant consequence actually ensued from the conduct of the accused; or

(b)the relevant fact or circumstance actually existed when the accused engaged in the conduct;

as the case may be.

(4)For the avoidance of doubt it is declared that the test for realisation of a real risk or possibility supersedes the common-law test for constructive or legal intention and its components of foresight of a possibility and recklessness wherever that test was formerly applicable.

16. Negligence

(1)Where negligence is an element of any crime—

(a)constituted by the performance of an act, the test is objective and consists of the inquiry whether the accused person’s performance of that act was blameworthy in that—

(i)a reasonable person in the same circumstances as the accused would not have performed that act; or

(ii)the accused failed to perform the act with the care and skill with which a reasonable person in the same circumstances would have performed that act;

whichever inquiry is appropriate to the crime in question; or

(b)constituted by the omission to perform an act, the test is objective and consists of the inquiry whether the accused person’s omission to perform that act was blameworthy in that a reasonable person in the same circumstances would not have omitted to perform the act; or

(c)constituted wholly or partly by a consequence resulting from the conduct of an accused person, or by the existence or absence of any circumstance in which such conduct occurred, the test is objective and falls into two parts—

(i)whether or not the accused person failed to realise that his or her conduct might produce the relevant consequence or that the relevant circumstance might exist or be absent; and

(ii)if the accused person did fail as provided in subparagraph (i), whether or not the person’s failure was blameworthy in that a reasonable person in the same circumstances—A. would have realised that the relevant consequence might be produced and would have guarded against it; orB. would have realised that the relevant fact or circumstance might exist or be absent and would have taken steps to ascertain whether or not it did exist;as the case may be.

[paragraph amended by section 31 of Act 9 of 2006]

(2)For the avoidance of doubt it is declared that paragraph (c) of subsection (1) shall apply to the determination of the criminal liability of any person accused of culpable homicide, negligently causing serious bodily harm or negligently causing serious damage to property.

17. References or absence of references to states of mind in statutory crimes

(1)In this section—“mental element”, in relation to a crime, means any intention, knowledge, realisation of a real risk or possibility, or negligence with which that crime is committed;“strict liability crime” means a crime for the commission of which no mental element is required to beproved in order to establish liability for that crime.

(2)Where in any enactment creating a crime—

(a)the word “corruptly”, “deliberately”, “dishonestly”, “fraudulently”, “indecently”, “intend”, “intentionally”, “maliciously”, “mischievously”, “purposely”, “wantonly” or “wilfully”, or phrase “with intent to” or “for the purpose of” or any related or derivative expression is used with respect to the commission by any person of the crime, section thirteen or (subject to subsection (3) of this section) section fifteen shall apply to the determination of the state of mind of the person accused of committing that crime;

(b)the word “knowing”, “knowingly” or any related or derivative expression is used with respect to the commission by any person of the crime, section fourteen or (subject to subsection (3) of this section) section fifteen shall apply to the determination of the state of mind of the person accused of committing it;

(c)the word “recklessly” or any related or derivative expression is used with respect to the commission by any person of the crime, section fifteen shall apply to the determination of the state of mind of the person accused of committing it;

(d)the word “negligently”, “carelessly”, “unskilfully” or any related or derivative expression is used with respect to the commission by any person of the crime, section sixteen shall apply to the determination of the state of mind of the person accused of committing it.

(3)The test for realisation of a real risk or possibility contained in section fifteen shall only apply to a crime referred to in paragraph (a) or (b) of subsection (2)—

(a)if proof of intention as required by section thirteen or proof of knowledge as required by section fourteen is absent; and

(b)if the crime is of a kind described in paragraph (a) or (b) of subsection (4).

(4)The kinds of crime to which the test for realisation of a real risk or possibility contained in section fifteen can be applied are the following—

(a)a crime that is constituted not only by the conduct of the person accused of committing it but also by a consequence or potential consequence resulting from the conduct, in which event the test is applicable for the purpose of determining whether the accused realised that there was a real risk or possibility that the consequence might ensue; or

(b)a crime that is constituted not only by the conduct of the person accused of committing it but also by the existence or absence of any circumstance in which such conduct occurred, in which event the test is applicable for the purpose of determining whether the accused realised that there was a real risk or possibility that the circumstance existed or was absent.

(5)Where in any enactment creating a crime no expression specifying a state of mind is used with respect to the commission of that crime, section thirteen or fourteen, as may be appropriate to the crime in question, and (subject to subsection (3) of this section) section fifteen shall apply to the determination of the state of mind of the person accused of that crime, unless—

(a)the enactment expressly provides that the crime is a strict liability crime; or

(b)the legislature impliedly intended it to be a strict liability crime because—

(i)the requirement of proving a mental element would render the detection or prosecution of the crime impossible or practically impossible; or

(ii)the object of the enactment would be defeated if proof of a mental element is required to establish liability for the crime:

Provided that, notwithstanding subparagraph (i) or (ii), a court shall not hold that the legislature impliedly intended a crime to be a strict liability crime if the penalty for it is mandatory imprisonment or imprisonment without the option of a fine.

Part IV – proof of criminal liability

18. Degree and burden of proof in criminal cases

(1)Subject to subsection (2), no person shall be held to be guilty of a crime in terms of this Code or any other enactment unless each essential element of the crime is proved beyond a reasonable doubt.

(2)Subsection (1) shall not prevent any enactment from imposing upon a person charged with a crime the burden of proving any particular fact or circumstance.

(3)Where this Code or any other enactment imposes upon a person charged with a crime the burden of proving any particular fact or circumstance, the person may discharge the burden by proving that fact or circumstance on a balance of probabilities.

(4)Except where this Code or any other enactment expressly imposes the burden of proof of any particular fact or circumstance upon a person charged with a crime, once there is some evidence before the court which raises a defence to the charge, whether or not the evidence has been introduced by the accused, the burden shall rest upon the prosecution to prove beyond a reasonable doubt that the defence does not apply:Provided that where an accused pleads that, at the time of the commission of a crime, he or she was suffering from a mental disorder or defect as defined in section two hundred and twenty-six, or a partial mental disorder or defect as defined in section two hundred and seventeen, or acute mental or emotional stress, the burden shall rest upon the accused to prove, on a balance of probabilities, that he or she was suffering from such mental disorder or defect or acute mental or emotional stress.

Chapter III
Crimes against the State

19. Interpretation in chapter III

In this Chapter—“act of insurgency, banditry, sabotage or terrorism” means any act referred to in subparagraph (i), (ii), (iii), (iv) or (v) of subsection (1) of section twenty-three that is undertaken for a purpose referred to in paragraph (a), (b) or (c) of that subsection;“bomb” means—(a)any device consisting of or carrying an explosive charge or fused to detonate upon impact or percussion or through a timing contrivance or by an electrical or electronic device; or(b)any other device capable of causing an explosion;“essential service” means—(a)any service relating to the generation, supply or distribution of electricity; or(b)any fire brigade or fire service; or(c)any health, hospital or ambulance service; or(d)any service relating to the production, supply, delivery or distribution of fuel; or(e)any service relating to the supply or distribution of water; or(f)any communications service; or(g)any transport service; or(h)any other service or occupation whose interruption would endanger the life, health or safety of the whole or a part of the population and which the Minister may declare by notice in a statutory instrument to be an essential service;“insurgent, bandit, saboteur or terrorist” means a person who—(a)is about to commit, is committing or has committed an act of insurgency, banditry, sabotage or terrorism; or;(b)has attended a course or undergone training, is about to attend a course or undergo training or is attending a course or undergoing training referred to in subsection (1) of section twenty-five;“law enforcement agency” means the Police Force (including a member of the Police Constabulary as defined in section 2 of the Police Act [Chapter 11:10]) or an intelligence service maintained by the Government, or any agency assigned by an enactment to maintain and enforce the law;“offensive material” means any inflammable, dangerous, noxious, or deleterious substance, material or thing capable of killing or injuring persons, including-(a)low or high explosives and the ingredients thereof;(b)all types of fuse used in the ignition of explosives;(c)detonators;(d)timing devices, especially time pencils;(e)wire cutters;(f)concentrated or other harmful acids;(g)ammunition as defined in the Firearms Act [Chapter 10:09];(h)biological or chemical warfare agents;(i)any other substance, material or thing declared by the Minister, by notice in a statutory instrument, to be an offensive material for the purposes of this definition;“official” means—(a)a member of any law enforcement agency; or(b)an ancillary member of the Police Force as defined in section 2 of the Police Act [Chapter 11:10]; or(c)a member of the Defence Forces; or(d)a provincial or district administrator or an assistant provincial or district administrator or any other employee of the State acting in that capacity;“publication” includes a document, book, magazine, film, tape, disc, electronic publication or other material or thing whatsoever in which, on which or by means of which a statement may be made;“statement” means any expression of fact or opinion, whether made orally, in writing, electronically or by visual images;“weaponry” means any of the following kinds of offensive material(a)artillery of all kinds;(b)a firearm or other apparatus for the discharge of bullets or other kinds of projectiles which are designed to be lethal, whether solid, explosive or gas diffusing;(c)a flame-thrower;(d)high or low explosive, whether or not manufactured as a bomb, grenade or similar missile or device and whether capable of use with a firearm or not, including a fuse, detonator or timing device therefor;(e)biological or chemical warfare agents;(f)any other offensive material declared by the Minister, by notice in a statutory instrument, to be an offensive material for the purposes of this definition.

20. Treason

(1)Any person who is a citizen of or ordinarily resident in Zimbabwe and who—

(a)does any act, whether inside or outside Zimbabwe, with the intention of overthrowing the Government; or

(b)incites, conspires with or assists any other person to do any act, whether inside or outside Zimbabwe, with the intention of overthrowing the Government;

shall be guilty of treason and liable to be sentenced to death or to imprisonment for life.

(2)Without limiting subsection (1), the following may constitute acts of treason—

(a)preparing or endeavouring to carry out by force any enterprise which usurps the executive power of the President or the State in any matter;

(b)in time of war or during a period of public emergency, doing any thing which assists any other State to engage in hostile or belligerent action against Zimbabwe;

(c)instigating any other State or foreign person to invade Zimbabwe.

(3)For the avoidance of doubt, it is declared that nothing in this section shall prevent the doing of any thing by lawful constitutional means directed at—

(a)the correction of errors or defects in the system of Government or Constitution of Zimbabwe or the administration of justice in Zimbabwe; or

(b)the replacement of the Government or President of Zimbabwe; or

(c)the adoption or abandonment of policies or legislation; or

(d)the alteration of any matter established by law in Zimbabwe.

21. Concealing treason

Subject to subsection (3) of section twenty, any person who is a citizen of or ordinarily resident in Zimbabwe and who, knowing that any other person—

(a)has done or attempted to do; or

(b)is doing or is attempting to do; or

(c)intends to do;

whether inside or outside Zimbabwe, any act with the intention of overthrowing the Government, does not inform an official as soon as is reasonably possible after acquiring such knowledge, shall be guilty of concealing treason and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding twenty years or both.

22. Subverting constitutional government

(1)In this section—“coercing” means constraining, compelling or restraining by—

(a)physical force or violence or, if accompanied by physical force or violence or the threat thereof, boycott, civil disobedience or resistance to any law, whether such resistance is active or passive; or

(b)threats to apply or employ any of the means described in paragraph (a);

“unconstitutional means” means any process which is not a process provided for in the Constitution and the law.

(2)Any person who, whether inside or outside Zimbabwe—

(a)organises or sets up, or advocates, urges or suggests the organisation or setting up of, any group or body with a view to that group or body—

(i)overthrowing or attempting to overthrow the Government by unconstitutional means; or

(ii)taking over or attempting to take over the Government by unconstitutional means or usurping the functions of the Government; or

(iii)coercing or attempting to coerce the Government;

(b)supports or assists any group or body in doing or attempting to do any of the things described in subparagraph (i), (ii) or (iii) of paragraph (a);

shall be guilty of subverting constitutional government and liable to imprisonment for a period not exceeding twenty years without the option of a fine.

23. Insurgency, banditry, sabotage or terrorism

(1)Any person who, for the purpose of—

(a)causing or furthering an insurrection in Zimbabwe; or

(b)causing the forcible resistance to the Government or the Defence Forces or any law enforcement agency; or

(c)procuring by force the alteration of any law or policy of the Government;

commits any act accompanied by the use or threatened use of weaponry with the intention or realising that there is a real risk or possibility of—

(i)killing or injuring any other person; or

(ii)damaging or destroying any property; or

(iii)inflicting substantial financial loss upon any other person; or

(iv)obstructing or endangering the free movement in Zimbabwe of any traffic on land or water or in the air; or

(v)disrupting or interfering with an essential service;

shall be guilty of insurgency, banditry, sabotage or terrorism, whether or not any purpose referred to in paragraph (a), (b) or (c) is accomplished, and be liable—A. where the act of insurgency, banditry, sabotage or terrorism results in the death of a person, to be sentenced to death or to imprisonment for life;B. in any other case, to imprisonment for life or any definite period of imprisonment.[paragraph amended by Part XX of Act 3 of 2016]

(2)For the avoidance of doubt it is declared that where any act of insurgency, banditry, sabotage or terrorism does not result in any of the consequences referred to in subparagraph (i), (ii), (iii), (iv) or (v) of subsection (1), the competent charge shall be one of attempting to commit an act of insurgency, banditry, sabotage or terrorism.

24. Recruiting or training insurgents, bandits, saboteurs or terrorists

Any person who intentionally—

(a)recruits, assists or encourages any other person to undergo training inside or outside Zimbabwe in order to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe; or

(b)provides training to any person, whether inside or outside Zimbabwe, in order to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe;

shall be guilty of recruiting or training an insurgent, bandit, saboteur or terrorist and liable to imprisonment for life or any definite period of imprisonment.[section amended by Part XX of Act 3 of 2016]

25. Training as insurgent, bandit, saboteur or terrorist

(1)Any person who attends or undergoes any course of training, whether inside or outside Zimbabwe, for the purpose of enabling him or her to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe shall be guilty of training as an insurgent, bandit, saboteur or terrorist and liable to imprisonment for life or any definite period of imprisonment.[subsection amended by Part XX of Act 3 of 2016]

(2)If it is proved in a prosecution for training as an insurgent, bandit, saboteur or terrorist that the accused attended or underwent a course of training whose effect was to enable that person to commit an act of insurgency, banditry, sabotage or terrorism in Zimbabwe, it shall be presumed, unless the contrary is proved, that he or she did so for that purpose.

26. Supplying weaponry to insurgents, bandits, saboteurs or terrorists

Any person who, inside or outside Zimbabwe, supplies weaponry to an insurgent, bandit, saboteur or terrorist, knowing that the weaponry will be used in the commission of an act of insurgency, banditry, sabotage or terrorism or realising that there is a real risk or possibility that the weaponry will be so used, shall be guilty of supplying weaponry to an insurgent, bandit, saboteur or terrorist and liable to imprisonment for life or any definite period of imprisonment.[section amended by Part XX of Act 3 of 2016]

27. Possessing weaponry for insurgency, banditry, sabotage or terrorism

(1)Any person who has any weaponry in his or her possession or under his or her control with the intention that such weaponry will be used in the commission of an act of insurgency, banditry, sabotage or terrorism shall be guilty of possessing weaponry for insurgency, banditry, sabotage or terrorism and liable to imprisonment for life or any definite period of imprisonment.[subsection amended by Part XX of Act 3 of 2016]

(2)If it is proved in a prosecution for possessing weaponry for insurgency, banditry, sabotage or terrorism that—

(a)the accused was in unlawful possession of any weaponry; and

(b)the weaponry consists of any weapon, firearm or ammunition—

(i)referred to in section 24 of the Firearms Act [Chapter 10:09]; or

(ii)for the purchase, acquisition or possession of which the accused has no good ostensible reason; or

(iii)that was part of a cache or was found in the possession of the accused in such a quantity as cannot be accounted for by reason of personal use alone;

it shall be presumed, unless the contrary is proved, that the accused possessed the weaponry with the intention that it should be used in the commission of an act of insurgency, banditry, sabotage or terrorism.

(3)A person charged with possessing weaponry for insurgency, banditry, sabotage or terrorism may be found guilty of—

(a)contravening section 4 of the Firearms Act [Chapter 10:09]; or

(b)possessing a dangerous weapon;

if such are the facts proved.

28. Possession of dangerous weapons

(1)Any person who has unlawful possession of any of the following weapons—

(a)artillery of any kind or any shell or other ammunition therefor; or

(b)a flame thrower; or

(c)a bomb, grenade or similar missile or device, whether capable of use with a firearm or not, including any fuse, detonator or timing device therefor; or

(d)a machine-gun or sub-machine-gun; or

(e)any automatic or semi-automatic firearm, other than a pistol, that is or has been in use in the Defence Forces, the Police Force or the armed or police forces of any neighbouring State;

shall be guilty of possessing a dangerous weapon and liable to a fine not exceeding level twelve or imprisonment for a period not exceeding ten years or both.

(2)It shall be a defence to a charge of possessing a dangerous weapon for the accused to prove that—

(a)he or she was the holder of a certificate or permit issued under any enactment authorising his or her possession of the weapon concerned; or

(b)he or she possessed the weapon concerned in the course of his or her duties as a member of the Defence Forces or the Police Force, or as an employee of the State duly authorised to possess the weapon.

(3)Where any firearm or ammunition in respect of which a firearm certificate is capable of being granted in terms of the Firearms Act [Chapter 10:09] is found in the possession of any person who does not hold such certificate, the competent charge is contravening section 4 of the Firearms Act [Chapter 10:09] and not possessing a dangerous weapon.

(4)A person charged with possessing a dangerous weapon may be found guilty of contravening section 4 of the Firearms Act [Chapter 10:09] if such are the facts proved.

29. Harbouring, concealing or failing to report insurgent, bandit, saboteur or terrorist

(1)Any person who, knowing that another person is an insurgent, bandit, saboteur or terrorist, intentionally harbours or conceals that other person shall be guilty of harbouring or concealing an insurgent, bandit, saboteur or terrorist and liable to a fine not exceeding level twelve or imprisonment for a period not exceeding ten years or both.

(2)Any person who becomes aware of the presence in Zimbabwe of another person whom he or she knows to be an insurgent, bandit, saboteur or terrorist and who—

(a)fails, within the period prescribed in subsection (3), to report to an official the presence of that other person in Zimbabwe and any information it is in his or her power to give in relation to that other person; or

(b)upon being questioned by an official, intentionally—

(i)omits or refuses to disclose to the official any information it is in his or her power to give in relation to that other person; or

(ii)gives the official false information in relation to that other person;

shall be guilty of failing to report the presence of an insurgent, bandit, saboteur or terrorist and liable to a fine not exceeding level ten or imprisonment for a period not exceeding five years or both.

(3)A person shall make a report in terms of paragraph (a) of subsection (2) as soon as is reasonably practicable after he or she becomes aware of the presence in Zimbabwe of the insurgent, bandit, saboteur or terrorist concerned, and in any event within seventy-two hours of becoming so aware.

(4)For the avoidance of doubt it is declared that a person who—

(a)has committed an act of insurgency, banditry, sabotage or terrorism; or

(b)has attended a course or undergone training referred to in subsection (1) of section twenty-five;

for which he or she has been convicted and sentenced or granted a pardon or amnesty shall not be regarded as an insurgent, bandit, saboteur or terrorist in respect of that conduct.

30. Causing disaffection among Police Force or Defence Forces

If any person induces, or attempts to induce, or does any act with the intention or realising that there is a real risk or possibility of inducing or causing any member of the Police Force or Defence Forces to withhold his or her services, loyalty or allegiance or to commit breaches of discipline, he or she shall be guilty of causing disaffection among the Police Force or Defence Forces and liable to a fine not exceeding level seven or imprisonment for a period not exceeding two years or both.

31. Publishing or communicating false statements prejudicial to the State

Any person who, whether inside or outside Zimbabwe—

(a)publishes or communicates to any other person a statement which is wholly or materially false with the intention or realising that there is a real risk or possibility of—

(i)inciting or promoting public disorder or public violence or endangering public safety; or

(ii)adversely affecting the defence or economic interests of Zimbabwe; or

(iii)undermining public confidence in a law enforcement agency, the Prisons and Correctional Service or the Defence Forces of Zimbabwe; or

(iv)interfering with, disrupting or interrupting any essential service;

shall, whether or not the publication or communication results in a consequence referred to in subparagraph (i), (ii), (iii) or (iv); or

(b)with or without the intention or realisation referred to in paragraph (a), publishes or communicates to any other person a statement which is wholly or materially false and which—

(i)he or she knows to be false; or

(ii)he or she does not have reasonable grounds for believing to be true;

shall, if the publication or communication of the statement—A. promotes public disorder or public violence or endangers public safety; orB. adversely affects the defence or economic interests of Zimbabwe; orC. undermines public confidence in a law enforcement agency, the Prison Service or the Defence Forces of Zimbabwe; orD. interferes with, disrupts or interrupts any essential service;be guilty of publishing or communicating a false statement prejudicial to the State and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding twenty years or both.[section amended by Part XX of Act 3 of 2016]

32. Unlawful possession or wearing of camouflage uniforms

(1)In this section—“authorised person” means—

(a)a member of the Defence Forces, the Police Force, the Prisons and Correctional Service or any other uniformed force of the State;

(b)a member of a military force of a foreign State who is—

(i)on attachment to any force referred to in paragraph (a) under an arrangement made between the Government and the government of that foreign State; or

(ii)present in Zimbabwe, with the approval of the Government, in the course of his or her official duties;

“camouflage uniform” means any article of wearing apparel made of material carrying military-style camouflage markings.[subsection amended by Part XX of Act 3 of 2016]

(2)Subject to subsection (3), any person who unlawfully possesses or wears any camouflage uniform shall be guilty of unlawfully possessing or wearing a camouflage uniform, as the case may be, and liable—

(a)to a fine not exceeding level five or imprisonment for a period not exceeding six months or both, in the case of unlawful possession of a camouflage uniform; or

(b)to a fine not exceeding level six or imprisonment for a period not exceeding one year or both, in the case of unlawful wearing of any camouflage uniform.

(3)Subsection (2) shall not apply in relation to—

(a)an authorised person to the extent that the person possesses or wears a camouflage uniform that has, on or after the 18th April, 1980, been supplied to him or her, or authorised for his or her use, by the force of which he or she is a member or to which he or she is attached; or

(b)the possession of a camouflage uniform as an exhibit in a museum administered by the State or in terms of the National Museums and Monuments Act [Chapter 25:11]; or

(c)any person or member of a class of persons exempted from this section by the Minister by notice in writing to that person or by notice in the Gazette, as the Minister thinks fit, to the extent that such person or member possesses or wears camouflage uniform in accordance with the terms and conditions of such exemption.

33. Undermining authority of or insulting President

(1)In this section—“publicly”, in relation to making a statement, means—

(a)making the statement in a public place or any place to which the public or any section of the public have access;

(b)publishing it in any printed or electronic medium for reception by the public;

“statement” includes any act or gesture.

(2)Any person who publicly, unlawfully and intentionally—

(a)makes any statement about or concerning the President or an acting President with the knowledge or realising that there is a real risk or possibility that the statement is false and that it may—

(i)engender feelings of hostility towards; or

(ii)cause hatred, contempt or ridicule of;

the President or an acting President, whether in person or in respect of the President’s office; or

(b)makes any abusive, indecent or obscene statement about or concerning the President or an acting President, whether in respect of the President personally or the President’s office;

shall be guilty of undermining the authority of or insulting the President and liable to a fine not exceeding level six or imprisonment for a period not exceeding one year or both.

34. Prosecutor-General to authorise prosecutions under Chapter III

No proceedings shall be instituted or continued against any person in respect of a crime in terms of this Chapter, other than proceedings in respect of the crime of possessing a dangerous weapon or unlawfully possessing or wearing a camouflage uniform or for the purposes of remand, without the authority of the Prosecutor-General.

Chapter IV
Crimes against public order

35. Interpretation in Chapter IV

In this Chapter—“offensive material” and “weaponry” have the meanings given to those terms in section nineteen;“public demonstration” means a procession, gathering or assembly in a public place of persons and additionally, or alternatively, of vehicles, where the gathering is in pursuit of a common purpose of demonstrating support for, or opposition to, any person, matter or thing, whether or not the gathering is spontaneous or is confined to persons who are members of a particular organisation, association or other body or to persons who have been invited to attend;“public gathering” means a public meeting or a public demonstration;“public meeting” means any meeting which is held in a public place or to which the public or any section of the public have access, whether on payment or otherwise;“public place” means any thoroughfare, building, open space or other place of any description to which the public or any section of the public have access, whether on payment or otherwise and whether or not the right of admission thereto is reserved.

36. Public violence

(1)Any person who, acting in concert with one or more other persons, forcibly and to a serious extent—

(a)disturbs the peace, security or order of the public or any section of the public; or

(b)invades the rights of other people;

intending such disturbance or invasion or realising that there is a real risk or possibility that such disturbance or invasion may occur, shall be guilty of public violence and liable to a fine not exceeding level twelve or imprisonment for a period not exceeding ten years or both.

(2)In determining whether or not a disturbance of peace, security or order or an invasion of rights is sufficiently serious to constitute the crime of public violence, a court shall take into account all relevant factors, including the following—

(a)the nature and duration of the disturbance or invasion;

(b)the motive of the persons involved in the disturbance or invasion;

(c)whether the disturbance or invasion occurred in a public place or on private property;

(d)whether or not the persons involved in the disturbance or invasion were armed and, if so, the nature of their weapons;

(e)whether or not bodily injury or damage to property occurred in the course of or as a result of the disturbance or invasion;

(f)whether or not there was an attack on the police or on other persons in lawful authority;

(g)the manner in which the disturbance or invasion came to an end.

(3)It shall be an aggravating circumstance if, in the course of or as a result of the public violence—

(a)there was an attack on the police or on other persons in lawful authority; or

(b)bodily injury or damage to property occurred; or

(c)the person who has been convicted of the crime instigated an attack on the police or other persons in lawful authority or instigated the infliction of bodily injury or the causing of damage to property.

37. Participating in gathering with intent to promote public violence, breaches of the peace or bigotry

(1)Any person who—

(a)acts together with one or more other persons present with him or her in any place or at any meeting with the intention or realising that there is a real risk or possibility of forcibly—

(i)disturbing the peace, security or order of the public or any section of the public; or

(ii)invading the rights of other people;

(b)acting together with one or more other persons present with him or her in any place or at any meeting performs any action, utters any words or distributes or displays any writing, sign or other visible representation that is obscene, threatening, abusive or insulting, intending thereby to provoke a breach of the peace or realising that there is a risk or possibility that a breach of the peace may be provoked; or

(c)acting together with one or more other persons present with him or her in any place or at any meeting utters any words or distributes or displays any writing, sign or other visible representation—

(i)with the intention to engender, promote or expose to hatred, contempt or ridicule any group, section or class of persons in Zimbabwe solely on account of the race, tribe, nationality, place of origin, national or ethnic origin, colour, religion or gender of such group, section or class of persons; or

(ii)realising that there is a risk or possibility that such behaviour might have an effect referred to in subparagraph (i);

shall be guilty of participating in a gathering with intent to promote public violence, a breach of the peace or bigotry, as the case may be, and be liable to a fine not exceeding level ten or imprisonment for a period not exceeding five years or both.

(2)The crime of participating in a gathering with intent to promote public violence, a breach of the peace or bigotry is committed whether the action constituting it is spontaneous or planned in advance, and whether the place or meeting where it occurred is public or private.

(3)For the avoidance of doubt it is declared that where a person would be liable for contravening—

(a)paragraph (a) or (b); or

(b)paragraph (c);

of subsection (1), but for the fact that the person acted alone in a public place, the competent charge is disorderly conduct in a public place or causing offence to persons of a particular race, tribe, place of origin, colour, creed or religion, as the case may be, and not a contravention of a provision referred to in paragraph (a) or (b).

38. Obstructing or endangering free movement of persons or traffic

Any person who—

(a)throws or propels or prepares to throw or propel any missile, article or thing at any person, motor vehicle, boat, aircraft or building with the intention or realising that there is a real risk or possibility of causing damage or injury; or

(b)without lawful excuse, the proof whereof lies on him or her, overturns or attempts to overturn any motor vehicle, boat or aircraft; or

(c)otherwise than under and in accordance with any other enactment, leaves or places on or over any road any thing with the intention or realising that there is a real risk or possibility of obstructing such road or endangering persons using it;

shall be guilty of obstructing or endangering the free movement of persons or traffic and liable to a fine not exceeding level twelve or imprisonment for a period not exceeding ten years or both.

39. Dealing in or possession of prohibited knives

(1)In this section—“deal in”, in relation to a prohibited knife, means sell, hire or offer, or display or advertise for sale or hire, or lend or give to any other person, a prohibited knife;“prohibited knife” means a knife—

(a)which has a blade—

(i)which opens automatically by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, sometimes known as a “flick knife”; or

(ii)which is released from the handle or sheath of the knife by the force of gravity or the application of centrifugal force and which, when released, is locked in place by means of a button, spring, lever or other device, sometimes known as a “gravity knife”; or

(iii)which is—A. released from the handle or sheath of the knife manually; andB. locked in the open position by means of a button, spring, lever or other device; andC. released from the locked open position otherwise than solely by manual pressure on the blade;

other than a trimming knife the blade of which does not exceed thirty millimetres in length; or

(b)which is declared in terms of subsection (2) to be a prohibited knife.

(2)Where the Minister considers it necessary in the public interest to do so, the Minister may, by notice in a statutory instrument, declare any knife or class of knife to be a prohibited knife for the purposes of this section and may, in like manner, withdraw any such declaration.

(3)Any person who deals in, or has in his or her possession, any prohibited knife shall be guilty of dealing in or possessing a prohibited knife, as the case may be, and liable to a fine not exceeding level six or imprisonment for a period not exceeding one year or both.

(4)The court convicting any person of a contravention of subsection (3) may order that any knife which formed the subject of the charge shall be forfeited to the State.

40. Possession of articles for criminal use

(1)Any person who, without lawful excuse, knowingly has in his or her custody or possession any article for use in unlawful entry into premises, theft, fraud or a contravention of section 57 of the Road Traffic Act [Chapter 13:11] shall be guilty of possessing an article for criminal use and liable to a fine not exceeding level ten or imprisonment for a period not exceeding one year or both.

(2)In a prosecution for possessing an article for criminal use—

(a)the onus of proving a lawful excuse for the custody or possession of an article referred to in subsection (1) shall lie on the person charged with the crime;

(b)if it is proved that the person charged with the crime had in his or her custody or possession an article made or adapted for use in unlawful entry into premises, theft, fraud or a contravention of section 57 of the Road Traffic Act [Chapter 13:11] it shall be presumed unless the contrary is proved that the person had it in his or her possession for such use.

41. Disorderly conduct in public place

Any person who, in a public place—

(a)intentionally engages in disorderly or riotous conduct; or

(b)uses threatening, abusive or insulting words or behaves in a threatening, abusive or insulting manner, intending to provoke a breach of the peace or realising that there is a real risk or possibility that a breach of the peace may be provoked;

shall be guilty of disorderly conduct in a public place and liable to a fine not exceeding level five or imprisonment for a period not exceeding six months or both.

42. Causing offence to persons of a particular race, religion, etc.

(1)In this section—“creed or religion” means any system of beliefs associated with practices of worship that is adhered to by any significant body of persons in Zimbabwe or any other country;“film”, “picture”, “publication”, “record” and “statue” have the meanings assigned to those terms by section 2 of the Censorship and Entertainments Control Act [Chapter 10:04];“publicly”, in relation to making a statement, means—

(a)making the statement in a public place or any place to which the public or any section of the public have access;

(b)publishing it in any printed or electronic medium for reception by the public;

“statement” includes any act, gesture or form of expression, whether verbal, written or visual, but does not include any film, picture, publication, statue or record that is of a bona fide literary or artistic character.

(2)Any person who publicly makes any insulting or otherwise grossly provocative statement that causes offence to persons of a particular race, tribe, place of origin, colour, creed or religion, intending to cause such offence or realising there is a real risk or possibility of doing so, shall be guilty of causing offence to persons of a particular race, tribe, place of origin, colour, creed or religion, as the case may be, and liable to a fine not exceeding level six or imprisonment for a period not exceeding one year or both.

43. Possession of offensive weapons at public gatherings

(1)In this section— “offensive weapon” means—

(a)any weaponry or offensive material; or

(b)any object made or adapted to be used for causing injury to the person; or

(c)any stone.

(2)Any person who, while present at a public gathering, has with him or her any offensive weapon, otherwise than in pursuance of lawful authority, shall be guilty of possessing an offensive weapon at a public gathering and liable to a fine not exceeding level ten or imprisonment for a period not exceeding five years or both.

(3)For the purposes of subsection (2), a person shall be deemed to be acting in pursuance of lawful authority only if the person is acting in his or her capacity as a police officer, a member of the Defence Forces or an em ployee of the State or a local authority.

44. Disrupting a public gathering

Any person who, at a public gathering—

(a)engages in disorderly or riotous conduct; or

(b)uses threatening, abusive or insulting words or behaves in a threatening, abusive or insulting manner;

intending to prevent the transaction of the business for which the gathering was called together, or realising that there is a real risk or possibility that the transaction of business may be prevented, shall be guilty of disrupting a public gathering and liable to a fine not exceeding level five or imprisonment for a period not exceeding six months or both.

45. Intimidation

Any person who, intentionally and by means of an express or implied threat of unlawfully inflicted harm, compels or induces another person—

(a)to do something which that person is not legally obliged to do; or

(b)to refrain from doing something which that person is legally entitled to do;

shall be guilty of intimidation and liable to a fine not exceeding level ten or imprisonment for a period not exceeding five years or both.

46. Criminal nuisance

Any person who does any of the acts specified in the Third Schedule shall be guilty of criminal nuisance and liable to a fine not exceeding level five or imprisonment for a period not exceeding six months or both.

Chapter V
Crimes against the person

47. Murder

(1)Any person who causes the death of another person—

(a)intending to kill the other person; or

(b)realising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility;

shall be guilty of murder.

(2)In determining an appropriate sentence to be imposed upon a person convicted of murder, and without limitation on any other factors or circumstances which a court may take into account, a court shall regard it as an aggravating circumstance if—

(a)the murder was committed by the accused in the course of, or in connection with, or as the result of, the commission of any one or more of the following crimes, or of any act constituting an essential element of any such crime (whether or not the accused was also charged with or convicted of such crime)—

(i)an act of insurgency, banditry, sabotage or terrorism; or

(ii)the rape or other sexual assault of the victim; or

(iii)kidnapping or illegal detention, robbery, hijacking, piracy or escaping from lawful custody; or

(iv)unlawful entry into a dwelling house, or malicious damage to property if the property in question was a dwelling house and the damage was effected by the use of fire or explosives;

(b)the murder was one of two or more murders committed by the accused during the same episode, or was one of a series of two or more murders committed by the accused over any period of time; or

(c)the murder was preceded or accompanied by physical torture or mutilation inflicted by the accused on the victim; or

(d)the victim was murdered in a public place or in an aircraft, public passenger transport vehicle or vessel, railway car or other public conveyance by the use of means (such as fire, explosives or the indiscriminate firing of a weapon) that caused or involved a substantial risk of serious injury to bystanders.

[subsection substituted by Part XX of Act 3 of 2016]

(3)A court may also, in the absence of other circumstances of a mitigating nature, or together with other circumstances of an aggravating nature, regard as an aggravating circumstance the fact that—

(a)the murder was premeditated; or

(b)the murder victim was a police officer or prison officer, a minor, or was pregnant, or was of or over the age of seventy years, or was physically disabled.

[subsection substituted by Part XX of Act 3 of 2016]

(4)A person convicted of murder shall be liable—

(a)subject to sections 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9:07], to death, imprisonment for life or imprisonment for any definite period of not less than twenty years, if the crime was committed in aggravating circumstances as provided in subsection (2) or(3); or

(b)in any other case to imprisonment for any definite period.

[subsection inserted by Part XX of Act 3 of 2016]

(5)For the avoidance of doubt, it is declared that the circumstances enumerated in subsections (2) and (3) as being aggravating are not exhaustive, and that a court may find other circumstances in which a murder is committed to be aggravating for the purposes of subsection (4)(a).[subsection inserted by Part XX of Act 3 of 2016]

(6)A person convicted of attempted murder or of incitement or conspiracy to commit murder shall be liable to be sentenced to imprisonment for life or any definite period of imprisonment.[subsection inserted by Part XX of Act 3 of 2016]

48. Infanticide

(1)Any woman who, within six months of the birth of her child, causes its death—

(a)intentionally; or

(b)by conduct which she realises involves a real risk to the child’s life;

at a time when the balance of her mind is disturbed as a result of giving birth to the child, shall be guilty of infanticide and liable to imprisonment for a period not exceeding five years.

(2)Where a woman is charged with the murder of her child committed within six months of the child’s birth and it is proved that she caused the child’s death at a time when the balance of her mind was disturbed as a result of giving birth to the child, she shall not be found guilty of murder but may be found guilty of infanticide if the evidence establishes that she committed that crime.

(3)For the purposes of this section, in determining whether or not the balance of a woman’s mind was disturbed as a result of giving birth to a child, regard shall be taken to any pressure or stress from which she suffered arising out of any one or more of the following circumstances or considerations—

(a)the effects which the birth had, or which she believed it would have, on her social, financial or marital situation;

(b)the difficulties which were created, or which she believed would be created, in caring for the child in the social, financial or marital situation in which the child was born;

(c)the difficulties which she had, or which she believed she would have, in caring for the child due to her inexperience or incapacity;

(d)any other relevant circumstance or consideration, whether based on the psychological effects on the woman's mind arising from the birth itself, or otherwise.

(4)For the avoidance of doubt it is declared that nothing in this section precludes—

(a)a woman from being charged with the murder of her child and, subject to subsection (2), from being convicted of and punished for that crime; or

(b)a court from returning a special verdict in terms of section 29 of the Mental Health Act [Chapter 15:12] (No. 15 of 1996) in respect of a woman charged with causing the death of her child.

49. Culpable homicide

Any person who causes the death of another person—

(a)negligently failing to realise that death may result from his or her conduct; or

(b)realising that death may result from his or her conduct and negligently failing to guard against that possibility;

shall be guilty of culpable homicide and liable to imprisonment for life or any definite period of imprisonment or a fine up to or exceeding level fourteen or both.[section amended by Part XX of Act 3 of 2016]

50. Inciting or assisting suicide

Any person who incites, induces, aids, counsels, procures or provides the means for the suicide or attempted suicide of another person, knowing that the other person intends to commit suicide or realising that there is a real risk or possibility that the other person may commit suicide, shall be guilty of inciting or assisting suicide and liable to a fine up to or exceeding level fourteen, or imprisonment for life or any definite period of imprisonment, or both such fine and such imprisonment.[section amended by Part XX of Act 3 of 2016]

51. Time of commencement of life and time of death

(1)For the purposes of this Part, life shall be deemed to have commenced when a newly-born child has breathed, whether or not it has an independent circulation at that time and whether or not it is entirely separated from the body of its mother.

(2)For the purposes of this Part, the time of a person’s death shall be deemed to be—

(a)except in the case referred to in paragraph (b), when there has been an irreversible cessation of the person’s heart-lung functions; or

(b)where the person has been installed on a heart-lung or ventilator machine or other life-support system, when a competent medical practitioner, after carrying out appropriate tests, diagnoses and confirms that brain death has occurred.

52. Accelerating death equivalent to causing it

For the purposes of this Part, a person shall be deemed to have caused the death of another person if he or she accelerates a death that would have occurred as a result of other independent causes.

53. Causing death: guidelines

(1)In deciding whether or not there is a causal link between a person’s conduct and the death of another person, a court shall be guided by the following factors in addition to any others that are relevant in the particular case—

(a)a subsequent event which is abnormal, that is to say, which is unlikely in the light of human experience to follow the conduct, may be regarded as breaking the causal link unless it was planned or anticipated by the person responsible for the conduct;

(b)where the result of the conduct was to inflict a mortal or serious injury upon the other person, there is normally a causal link between the conduct and the other person’s death;

(c)voluntary conduct on the part of the person who subsequently dies is more likely than involuntary subsequent conduct on the part of that person to break the causal link between the conduct and his or her death;

(d)it is within the range of ordinary human experience that particular persons may suffer from ailments or physical susceptibilities which make them more liable than other persons to die from assaults or from other unlawful conduct.

(2)For the avoidance of doubt it is declared that a person will be held to have caused the death of another person if death results from a failure to discharge a legal duty owed by the first-mentioned person to the secondmentioned person.

54. Mercy killing and removal of persons from life-support systems

(1)Subject to this section, it shall be no defence to a charge of murder, infanticide, culpable homicide or inciting or assisting suicide that—

(a)the person charged with the crime acted or omitted to act, as the case may be, in order to relieve suffering; or

(b)the deceased person requested that his or her life should be ended;

but a court may take any such factor into account in deciding upon an appropriate sentence.

(2)The High Court may, on application, order that a person be removed from a heart-lung or ventilator machine or other life-support system, if the court is satisfied, from the evidence of at least one medical practitioner, other than any medical practitioner who has been treating the person, that—

(a)the person is unconscious and there is no reasonable prospect of his or her regaining consciousness; and

(b)although the person’s brain functions may not have entirely ceased, his or her life is being artificially sustained by the machine or system and there is no reasonable prospect that he or she will ever be able to survive without being on the machine or system.

(3)An application in terms of subsection (2) may be made—

(a)by a spouse, brother, sister, parent, guardian, curator or tutor of the person referred to in subsection (2); or

(b)by the person in charge of the hospital or other institution in which the person referred to in subsection (2) is being kept.

(4)In an application in terms of subsection (2), the court—

(a)may appoint a curator ad litem to represent the interests of the person referred to in subsection (2); and

(b)shall ensure that, where practicable, every person who has an interest in the matter has been given notice of the application and has been afforded a reasonable opportunity of being heard therein.

(5)No criminal liability shall attach to—

(a)any person who terminates the life of another person pursuant to an order under subsection (2); or

(b)an applicant referred to in subsection (3); or

(c)the curator ad litem referred to in subsection (4).

(6)An order granted in terms of subsection (2) shall cease to be valid after eighteen months have elapsed from the date on which it was granted.

55. Killing while disposing of victim’s body

(1)If any person—

(a)does or omits to do any thing in relation to another person which, if it caused that other person’s death, would constitute murder or infanticide; and

(b)thinking that by such conduct he or she has killed the other person, disposes or attempts to dispose of the other person’s body;

he or she shall be guilty of murder or infanticide, as the case may be, if, when he or she engages in the disposal, the other person is not dead but dies as a result of the disposal or attempted disposal.

(2)Subsection (1) shall apply whether the person concerned formed the intention to dispose of the other person's body before, during or after he or she does or omits to do the thing referred to in paragraph (a) of that subsection.

(3)Nothing in this section shall prevent a person being convicted of culpable homicide or any other crime arising out of the disposal or attempted disposal of another person’s body.

56. Error as to identity

The fact that a person charged with murder, infanticide or culpable homicide mistakenly believed that the person whose death he or she caused was someone else, shall not constitute a defence to the charge.

57. Deflected blow in homicide cases

If any person—

(a)does or omits to do anything in relation to another person which, if it caused that other person’s death, would constitute murder, infanticide or culpable homicide; and

(b)by the conduct referred to in paragraph (a), causes the death of someone other than his or her intended victim;he or she shall be guilty of the following crimes—

(i)in respect of the intended victim—A. murder, infanticide or culpable homicide, as the case may be, if the intended victim dies; orB. attempted murder, attempted infanticide or assault, as may be appropriate, if the intended victim does not die;and

(ii)in respect of the person whose death he or she has actually caused—A. murder or infanticide, as the case may be, if he or she realised that his or her conduct involved a real risk or possibility of causing the death of someone other than his intended victim; orB. culpable homicide, if the requisites of that crime are satisfied.

58. Joining in after fatal injury inflicted

If—

(a)a person does or omits to do anything in relation to another person which, if it caused that other person's death, would constitute murder, infanticide or culpable homicide; and

(b)before he or she does or omits to do the thing referred to in paragraph (a), and independently of that act or omission, his or her victim has received injuries, whether in a fatal attack or otherwise, which subsequently cause the victim’s death;

he or she shall be guilty of—

(i)murder, infanticide or culpable homicide, as the case may be, if his or her conduct accelerated the death of his or her victim; or

(ii)attempted murder, attempted infanticide or assault, as may be appropriate, if his or her conduct did not accelerate the death of his or her victim.

Part II – Unlawful termination of pregnancy

59. Interpretation in Part II of Chapter V

In this Part—“embryo or foetus” means a live human embryo or foetus;“terminate”, in relation to a pregnancy, means to cause the death of an embryo or foetus—(a)while it is growing in a female person’s womb; or(b)by its expulsion from a female person’s womb;“womb” does not include the fallopian tubes.

60. Unlawful termination of pregnancy

(1)Any person who—

(a)intentionally terminates a pregnancy; or

(b)terminates a pregnancy by conduct which he or she realises involves a real risk or possibility of terminating the pregnancy;

shall be guilty of unlawful termination of pregnancy and liable to a fine not exceeding level ten or imprisonment for a period not exceeding five years or both.

(2)It shall be a defence to a charge of unlawful termination of pregnancy for the accused to prove that-

(a)the termination of the pregnancy occurred in the course of a “Caesarean section”, that is, while delivering a foetus through the incised abdomen and womb of the mother in accordance with medically recognised procedures; or

(b)the pregnancy in question was terminated in accordance with the Termination of Pregnancy Act [Chapter 15:10].

Part III – Sexual crimes and crimes against morality

Division A: Preliminary

61. Interpretation in Part III of Chapter V

(1)In this Part—“anal sexual intercourse” means penetration of the anus by the penis;“brothel” means any place which is occupied or used for the purposes of prostitution or for persons to visit for the purpose of having extra-marital sexual intercourse for money or reward;“extra-marital sexual intercourse” means sexual intercourse otherwise than between spouses;“HIV” means the human immuno-deficiency virus;“keep”, in relation to a brothel, has the meaning set out in subsection (2);“mentally incompetent person” means a person who is mentally disordered or intellectually handicapped, as defined in section 2 of the Mental Health Act [Chapter 15:12] (No. 15 of 1996);“owner”, in relation to any place, includes a person who lets or sublets or permits the occupation of the place, whether in his or her own right or on behalf of another person;“place” includes any premises, enclosure, vehicle or boat or any part thereof;“prostitute” means a male or female person who for money or reward—(a)allows other persons to have anal or extra-marital sexual intercourse or engage in other sexual conduct with him or her; or(b)solicits other persons to have anal or extra-marital sexual intercourse or engage in other sexual conduct with him or her;and the word “prostitution” shall be construed accordingly;“public place” means any road, building, open space or other place of any description to which the public or any section of the public have access, whether on payment or otherwise and whether or not the right of admission thereto is reserved;“sexual intercourse” means vaginal sexual intercourse between a male person and a female person involving the total penetration or penetration to the slightest degree of the vagina by the penis;“sexually-transmitted disease” includes any disease commonly transmitted by sexual intercourse or anal sexual intercourse;“unlawful sexual conduct” means any act the commission of which constitutes the crime of rape, aggravated indecent assault, indecent assault, sexual intercourse or performing an indecent act with a young person or sodomy;“young person” means a boy or girl under the age of sixteen years.

(2)The following persons shall be deemed for the purposes of this Part to keep a brothel—

(a)any person who manages the brothel or assists in its management;

(b)the owner of the brothel, if he or she uses the place as a brothel or knowingly allows it to be so used;

(c)any person who knowingly receives the whole or any part of any money taken in the brothel;

(d)any person who resides in the brothel, unless he or she proves that he or she was ignorant of the character of the place;

(e)any person found in the brothel who wilfully refuses to disclose the name and identity of the keeper or owner thereof.

62. Presumption regarding marriage

Whenever in any prosecution under this Part the question is in issue whether any sexual intercourse between two persons was extra-marital, the persons shall be deemed not to have been spouses at the time of such intercourse, unless the contrary is proved.

63. Amendment of presumption that boys under 14 incapable of sexual intercourse

(1)The irrebuttable presumption or rule of law that a boy under the age of fourteen years is incapable of sexual intercourse shall not apply in Zimbabwe in relation to boys who have reached the age of twelve years.

(2)A boy over the age of twelve years but below the age of fourteen years shall be presumed incapable of performing sexual intercourse unless the contrary is shown on a balance of probabilities.

(3)Subsections (1) and (2) shall not affect any presumption or rule of law relating generally to the criminal capacity of children under the age of fourteen years.

64. Competent charges in cases of unlawful sexual conduct involving young or mentally incompetent persons

(1)A person accused of engaging in sexual intercourse, anal sexual intercourse or other sexual conduct with a young person of or under the age of twelve years shall be charged with rape, aggravated indecent assault or indecent assault, as the case may be, and not with sexual intercourse or performing an indecent act with a young person, or sodomy.

(2)A person accused of engaging in sexual intercourse, anal sexual intercourse or other sexual conduct with a young person above the age of twelve years but of or below the age of fourteen years shall be charged with rape, aggravated indecent assault or indecent assault, as the case may be, and not with sexual intercourse or performing an indecent act with a young person or sodomy, unless there is evidence that the young person—

(a)was capable of giving consent to the sexual intercourse, anal sexual intercourse or other sexual conduct; and

(b)gave his or her consent thereto.

(3)A person who engages in sexual intercourse, anal sexual intercourse or other sexual conduct with a mentally incompetent adult person shall be charged with rape, aggravated indecent assault or indecent assault, as the case may be, unless there is evidence that the mentally incompetent person—

(a)was capable of giving consent to the sexual intercourse, anal sexual intercourse or other sexual conduct, and

(b)gave his or her consent thereto.

(4)If, in the case of a male person who engages in anal sexual intercourse or other sexual conduct with a young male person of or below the age of fourteen years, or with a mentally incompetent adult male person, there is evidence that the young or mentally incompetent person—

(a)was capable of giving consent to the anal sexual intercourse or other sexual conduct, and

(b)gave his consent thereto;

the first-mentioned male person alone shall be charged with sodomy.

Division B: Sexual crimes

65. Rape

(1)If a male person knowingly has sexual intercourse or anal sexual intercourse with a female person and, at the time of the intercourse—

(a)the female person has not consented to it; and

(b)he knows that she has not consented to it or realises that there is a real risk or possibility that she may not have consented to it;

he shall be guilty of rape and liable to imprisonment for life or any definite period of imprisonment.[subsection amended by Part XX of Act 3 of 2016]

(2)For the purpose of determining the sentence to be imposed upon a person convicted of rape, a court shall have regard to the following factors, in addition to any other relevant factors and circumstances—

(a)the age of the person raped;

(b)the degree of force or violence used in the rape;

(c)the extent of physical and psychological injury inflicted upon the person raped;

(d)the number of persons who took part in the rape;

(e)the age of the person who committed the rape;

(f)whether or not any weapon was used in the commission of the rape;

(g)whether the person committing the rape was related to the person raped in any of the degrees mentioned in subsection (2) of section seventy—five;

(h)whether the person committing the rape was the parent or guardian of, or in a position of authority over, the person raped;

(i)whether the person committing the rape was infected with a sexually transmitted disease at the time of the rape.

66. Aggravated indecent assault

(1)Any person who—

(a)being a male person—

(i)commits upon a female person any act, other than sexual intercourse or anal sexual intercourse, involving the penetration of any part of the female person’s body or of his own body; or

(ii)commits upon a male person anal sexual intercourse or any other act involving the penetration of any part of the other male person’s body or of his own body;

(b)being a female person—

(i)has sexual intercourse with or commits upon a male person any other act involving the penetration of any part of the male person’s body or of her own body; or

(ii)commits upon a female person any act involving the penetration of any part of the other female person’s body or of her own body;

with indecent intent and knowing that the other person has not consented to it or realising that there is a real risk or possibility that the other person may not have consented to it, shall be guilty of aggravated indecent assault and liable to the same penalty as is provided for rape.

(2)For the purpose of determining the sentence to be imposed upon a person convicted of aggravated indecent assault, a court shall have regard to the same factors as are mentioned in connection with determining the sentence to be imposed upon a person convicted of rape in subsection (2) of section sixty-five, in addition to any other relevant factors and circumstances.

67. Indecent assault

(1)A person who—

(a)being a male person—

(i)commits upon a female person any act involving physical contact that would be regarded by a reasonable person to be an indecent act, other than sexual intercourse or anal sexual intercourse or other act involving the penetration of any part of the female person’s body or of his own body; or

(ii)commits upon a male person any act involving physical contact that would be regarded by a reasonable person to be an indecent act, other than anal sexual intercourse or other act involving the penetration of any part of the male person’s body or of his own body; or

(b)being a female person—

(i)commits upon a male person any act involving physical contact that would be regarded by a reasonable person to be an indecent act, other than sexual intercourse or any other act involving the penetration of any part of the male person’s body or of her own body; or

(ii)commits upon a female person any act involving physical contact that would be regarded by a reasonable person to be an indecent act, other than any act involving the penetration of any part of the other female person’s body or of her own body;

with indecent intent and knowing that the other person has not consented to it or realising that there is a real risk or possibility that the other person may not have consented to it, shall be guilty of indecent assault and liable to a fine not exceeding level seven or imprisonment for a period not exceeding two years or both.

(2)For the purpose of determining the sentence to be imposed upon a person convicted of indecent assault, a court shall have regard to the same factors as are mentioned in connection with determining the sentence to be imposed upon a person convicted of rape in subsection (2) of section sixty-five, in addition to any other relevant factors and circumstances.

(3)For the avoidance of doubt it is declared that where a person would be liable for contravening subsection (1) but for the fact that—

(a)physical contact was absent, the competent charge shall be criminal insult or, if the person intended but failed to engage in physical contact, attempted indecent assault;

(b)indecent intent was absent, the competent charge shall be criminal insult.

68. Unavailable defences to rape, aggravated indecent assault and indecent assault

It shall not be a defence to a charge of rape, aggravated indecent assault or indecent assault—

(a)that the female person was the spouse of the accused person at the time of any sexual intercourse or other act that forms the subject of the charge:Provided that no prosecution shall be instituted against any husband for raping or indecently assaulting his wife in contravention of section sixty-six or sixty-seven unless the Prosecutor-General has authorised such a prosecution; or

(b)subject to sections six, seven and sixty-three, that the accused person was a male person below the age of fourteen years at the time of the sexual intercourse or other act that forms the subject of the charge.

69. Cases where consent absent or vitiated

(1)Without limiting Part XII of Chapter XIV, a person shall be deemed not to have consented to sexual intercourse or any other act that forms the subject of a charge of rape, aggravated indecent assault or indecent assault, where the person charged with the crime—

(a)uses violence or threats of violence or intimidation or unlawful pressure to induce the other person to submit; or

(b)by means of a fraudulent misrepresentation induces the other person to believe that something other than sexual intercourse or an indecent act, as the case may be, is taking place; or

(c)induces the other person to have sexual intercourse or to submit to the performance of the indecent act, as the case may be, by impersonating that other person’s spouse, or lover; or

(d)has sexual intercourse or performs an indecent act upon the other person while that other person is asleep, and that other person has not consented to the sexual intercourse or the performance of the act before falling asleep; or

(e)has sexual intercourse or performs an indecent act upon the other person while that other person is hypnotised or intoxicated from the consumption of drugs or alcohol so as to be incapable of giving consent to the sexual intercourse or the performance of the act, and that other person has not consented to the sexual intercourse or the performance of the act before becoming so hypnotised or intoxicated.

(2)The burden of proving that a person referred to in paragraph (d) or (e) of subsection (1) gave consent to sexual intercourse or the performance of an indecent act before falling asleep or becoming hypnotised or intoxicated, as the case may be, shall lie with the person charged.

70. Sexual intercourse or performing indecent acts with young persons

(1)Subject to subsection (2), any person who—

(a)has extra-marital sexual intercourse with a young person; or

(b)commits upon a young person any act involving physical contact that would be regarded by a reasonable person to be an indecent act; or

(c)solicits or entices a young person to have extra-marital sexual intercourse with him or her or to commit any act with him or her involving physical contact that would be regarded by a reasonable person to be an indecent act;

shall be guilty of sexual intercourse or performing an indecent act with a young person, as the case may be, and liable to a fine not exceeding level twelve or imprisonment for a period not exceeding ten years or both.

(2)It shall be no defence to a charge of sexual intercourse or performing an indecent act with a young person to prove that he or she consented to such sexual intercourse or indecent act.

(2a)Where extra-marital sexual intercourse or an indecent act occurs between young persons who are both over the age of twelve years but below the age of sixteen years at the time of the sexual intercourse or the indecent act, neither of them shall be charged with sexual intercourse or performing an indecent act with a young person except upon a report of a probation officer appointed in terms of the Children’s Act [Chapter 5:06] showing that it is appropriate to charge one of them with that crime.[subsection inserted by Part XX of Act 3 of 2016]

(3)It shall be a defence to a charge under subsection (1) for the accused person to satisfy the court that he or she had reasonable cause to believe that the young person concerned was of or over the age of sixteen years at the time of the alleged crime:Provided that the apparent physical maturity of the young person concerned shall not, on its own, constitute reasonable cause for the purposes of this subsection.

(4)For the avoidance of doubt—

(a)the competent charge against a person who—

(i)has sexual intercourse with a female person below the age of twelve years, shall be rape; or

(ii)commits upon a female or male person below the age of twelve years any act referred to in subsection (1) of section sixty-six, shall be aggravated indecent assault;

(iii)commits upon a female or male person below the age of twelve years any act involving physical contact (other than an act referred to in subsection (1) of section sixty-six) that would be regarded by a reasonable person to be an indecent act, shall be indecent assault;

(iv)without the consent of a female person of or above the age of twelve years but below the age of sixteen years, has sexual intercourse with that female person, shall be rape; or

(v)without the consent of a female or male person of or above the age of twelve years but below the age of sixteen years, commits upon that female or male person any act referred to in subsection (1) of section sixty-six, shall be aggravated indecent assault;

(vi)without the consent of a female or male person of or above the age of twelve years but below the age of sixteen years, commits upon that female or male person any act involving physical contact (other than an act referred to in subsection (1) of section sixty-six) that would be regarded by a reasonable person to be an indecent act, shall be indecent assault;

and not sexual intercourse or performing an indecent act with a young person;

(b)a young person shall be deemed not to have consented to sexual intercourse, or to any act involving physical contact that would be regarded by a reasonable person to be an indecent act, in any of the circumstances referred to in section sixty-nine, in which event the person accused of having sexual intercourse or performing an indecent act with the young person shall be charged with rape, aggravated indecent assault or indecent assault, as the case may be.

71. Sexual crimes committed against young or mentally incompetent persons outside Zimbabwe

(1)Any person who is a citizen of Zimbabwe or ordinarily resident therein and who does anything outside Zimbabwe to, with or against a young or mentally incompetent adult person which, if it were done in Zimbabwe, would constitute—

(a)the crime of rape, aggravated indecent assault, indecent assault, sexual intercourse or performing an indecent act with a young person or sodomy; or

(b)an attempt, conspiracy or incitement to commit a crime referred to in paragraph (a);

shall be guilty of the appropriate crime referred to in paragraph (a) or (b) and liable to be sentenced accordingly.

(2)Any person who, in Zimbabwe, conspires with or incites another person to do anything outside Zimbabwe to, with or against a young or mentally incompetent adult person which, if it were done in Zimbabwe, would constitute the crime of rape, aggravated indecent assault, indecent assault, sexual intercourse or performing an indecent act with a young person or sodomy, shall be guilty of conspiracy or incitement, as the case may be, to commit the appropriate crime and liable to be sentenced accordingly.

(3)Subsections (1) and (2) shall apply whether or not the act which the person is alleged to have committed or which was the subject of his or her alleged conspiracy or incitement, as the case may be, was a crime in the place where it was committed.

72. Prevention of conspiracy or incitement abroad to commit sexual crimes against young or mentally incompetent persons in Zimbabwe

(1)Any person who, outside Zimbabwe, conspires with or incites another person to commit the crime of rape, aggravated indecent assault, indecent assault, sexual intercourse or performing an indecent act or sodomy in Zimbabwe with or against a young or mentally incompetent adult person shall be guilty of conspiracy or incitement, as the case may be, to commit the appropriate crime and liable to be sentenced accordingly.

(2)Subsection (1) shall apply whether or not conspiracy or incitement to commit the crime concerned is a crime in the place where the alleged conspiracy or incitement took place.

73. Sodomy

(1)Any male person who, with the consent of another male person, knowingly performs with that other person anal sexual intercourse, or any act involving physical contact other than anal sexual intercourse that would be regarded by a reasonable person to be an indecent act, shall be guilty of sodomy and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding one year or both.

(2)Subject to subsection (3), both parties to the performance of an act referred to in subsection (1) may be charged with and convicted of sodomy.

(3)For the avoidance of doubt it is declared that the competent charge against a male person who performs anal sexual intercourse with or commits an indecent act upon a young male person—

(a)who is below the age of twelve years, shall be aggravated indecent assault or indecent assault, as the case may be; or

(b)who is of or above the age of twelve years but below the age of sixteen years and without the consent of such young male person, shall be aggravated indecent assault or indecent assault, as the case may be; or

(c)who is of or above the age of twelve years but below the age of sixteen years and with the consent of such young male person, shall be performing an indecent act with a young person.

74. Bestiality

Any person who knowingly commits any sexual act with an animal or bird shall be guilty of bestiality and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding one year or both.

75. Sexual intercourse within a prohibited degree of relationship

(1)In this section—“first cousin”, in relation to any person, means the child or any descendant of the child of the uncle or aunt of such person;“second cousin”, in relation to any person, means the child or any descendant of the child of the great-uncle or great-aunt of such person.

(2)Where sexual intercourse takes place between—

(a)a parent and his or her natural child, whether born in or out of wedlock, or adopted child, whether the child is under the age of eighteen years or not; or

(b)a step-parent and his or her step-child, whether the step-child’s parent and step-parent are married under the Marriage Act [Chapter 5:11] or the Customary Marriages Act [Chapter 5:07], or are parties to an unregistered customary law marriage, and whether or not the child was over the age of eighteen years at the time of the marriage; or

(c)a brother and sister, whether of whole or half blood; or

(d)an uncle and his niece; or

(e)a grand-uncle and his grand-niece; or

(f)an aunt and her nephew; or

(g)a grand-aunt and her grand-nephew; or

(h)a grandparent and his or her grandchild; or

(i)subject to subsection (3), any person and his or her first or second cousin; or

(j)any person and an ascendant or descendant of his or her spouse or former spouse, whether the person and his or her spouse or former spouse are or were married under the Marriage Act [Chapter 5:11] or the Customary Marriages Act [Chapter 5:07], or are or were parties to an unregistered customary law marriage; or

(k)any person and his or her ascendant or descendant in any degree; or

(l)any person and a descendant of a brother or sister, whether of whole or half blood;

and either or both of the parties know or realise that there is a real risk or possibility that they are related to each other in any of the foregoing degrees of relationship, either or both parties to the intercourse, as the case may be, shall be guilty of sexual intercourse within a prohibited degree of relationship and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding five years or both.

(3)It shall be a defence to a charge of sexual intercourse within a prohibited degree of relationship as between first or second cousins for the accused to prove-

(a)in the case of a person who is not a member of a community governed by customary law, that the cultural or religious customs or traditions of the community to which he or she belongs do not prohibit marriage between first or second cousins; or

(b)in the case of a person who is a member of a community governed by customary law, that the cultural or religious customs or traditions of the particular community to which he or she belongs do not prohibit marriage between first or second cousins.

(4)In determining for the purposes of subsection (3) whether or not a person is a member of a community—

(a)whose cultural or religious customs or traditions do not prohibit marriage between first or second cousins, a court shall have regard to the evidence of any person who, in its opinion, is suitably qualified by reason of his or her knowledge to give evidence as to the cultural or religious customs or traditions of the community concerned; or

(b)governed by customary law, regard shall be had to all the circumstances of the person’s life, including—

(i)whether or not the natural parents of the person were married under the Customary Marriages Act [Chapter 5:07] or were parties to an unregistered customary law marriage;

(ii)whether or not the person lives among other members of such a community and is regarded by such other members as belonging to that community, notwithstanding that the person’s natural parents were not married to each other, or were married exclusively under the Marriage Act [Chapter 5:11];

(iii)where the person does not live among members of such a community, whether he or she has ties to such a community by reason of his or her natural parents belonging to such a community.

(5)For the avoidance of doubt it is declared that—

(a)the competent charge against—

(i)a male person who has sexual intercourse with a female person without her consent who is related to him in any degree of relationship specified in subsection (2), shall be rape and not sexual intercourse within a prohibited degree of relationship;

(ii)a female person who has sexual intercourse with a male person without his consent who is related to her in any degree of relationship specified in subsection (2), shall be aggravated indecent assault and not sexual intercourse within a prohibited degree of relationship;

(b)paragraph (i) of subsection (2) shall not apply to persons who—

(i)on the fixed date are married to each other under the Marriage Act [Chapter 5:11] or the Customary Marriages Act [Chapter 5:07] or are parties to an unregistered customary law marriage; or

(ii)on or after the fixed date are married to each other under any foreign law.

76. Complicity in sexual crimes

For the avoidance of doubt it is declared that any person who—

(a)being the owner or occupier of any premises, knowingly permits another person on the premises to commit rape, aggravated indecent assault, indecent assault, sexual intercourse or performing an indecent act with a young person, sodomy, bestiality or sexual intercourse within a prohibited degree of relationship; or

(b)detains a person with the intention that a crime referred to in paragraph (a) should be committed by another person against the person so detained;

may be charged with being an accomplice or accessory to the commission of the crime concerned, or with kidnapping or unlawful detention, or both.

Division C: Indecent or sexual conduct harmful to public morals or public health

77. Public indecency

(1)Any person who—

(a)indecently exposes himself or herself or engages in any other indecent conduct which causes offence to any other person in or near a public place, or in or near a private place within the view of such other person; or

(b)knowing or realising that there is a real risk or possibility that he or she will be heard, utters or makes use of indecent or obscene language in or near a public place, or in or near a private place within the hearing of another person; or

(c)sings any indecent or obscene song in or near a public place, or in or near a private place within the hearing of another person, knowing or realising that there is a real risk or possibility that he or she will be heard; or

(d)writes or draws any indecent or obscene word, figure or representation in or near a public place, or in or near a private place in the view of another person, knowing or realising that there is a real risk or possibility that such writing or drawing will be seen;

shall be guilty of public indecency and liable to a fine not exceeding level nine or imprisonment for a period not exceeding six months or both.

(2)No person shall be convicted of public indecency unless the words or conduct in question are sufficiently serious to warrant punishment, for which purpose a court shall take into account the following factors in addition to any others that are relevant in the particular case—

(a)the nature of the words or conduct;

(b)the extent to which the words were repeated or the conduct was persisted in, as the case may be;

(c)the age and gender of the person who heard the words or witnessed the conduct;

(d)any previous relationship between the parties;

(e)the degree of offence caused to the person who heard the words or witnessed the conduct.

78. Deliberate infection of another with a sexually-transmitted disease

(1)In this section—“sexually-transmitted disease” includes syphilis, gonorrhea, herpes, and all other forms of sexuallytransmitted diseases except, for the purposes of this section, HIV.

(2)Any person who—

(a)knowing that he or she is suffering from a sexually-transmitted disease; or

(b)realising that there is a real risk or possibility that he or she is suffering from a sexually-transmitted disease;

intentionally infects any other person with the disease, or does anything or causes or permits anything to be done with the intention or realising that there is a real risk or possibility of infecting any other person with the disease, shall be guilty of deliberately infecting that other person with a sexually-transmitted disease and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding five years or both.

(3)If it is proved in a prosecution for spreading a sexually-transmitted disease that the person charged was suffering from a sexually-transmitted disease at the time of the crime, it shall be presumed, unless the contrary is proved, that he or she knew or realised that there was a real risk or possibility that he or she was suffering from it.

(4)It shall be a defence to a charge under subsection (1) for the accused to prove that the other person concerned—

(a)knew that the accused was suffering from a sexually-transmitted disease; and

(b)consented to the act in question, appreciating the nature of the sexually-transmitted disease and the possibility of becoming infected with it.

Division D: Transmitting HIV deliberately or in the course of committing sexual crimes

79. Deliberate transmission of HIV

(1)Any person who—

(a)knowing that he or she is infected with HIV; or

(b)realising that there is a real risk or possibility that he or she is infected with HIV;

intentionally does anything or permits the doing of anything which he or she knows will infect, or does anything which he or she realises involves a real risk or possibility of infecting another person with HIV, shall be guilty of deliberate transmission of HIV, whether or not he or she is married to that other person, and shall be liable to imprisonment for a period not exceeding twenty years.

(2)It shall be a defence to a charge under subsection (1) for the accused to prove that the other person concerned—

(a)knew that the accused was infected with HIV; and

(b)consented to the act in question, appreciating the nature of HIV and the possibility of becoming infected with it.

80. Sentence for certain crimes where accused is infected with HIV

(1)Where a person is convicted of—

(a)rape; or

(b)aggravated indecent assault; or

(c)sexual intercourse or performing an indecent act with a young person, involving any penetration of any part of his or her or another person’s body that incurs a risk of transmission of HIV;

and it is proved that, at the time of the commission of the crime, the convicted person was infected with HIV, whether or not he or she was aware of his or her infection, he or she shall be sentenced to imprisonment for a period of not less than ten years:Provided that—

(i)notwithstanding section 192, this subsection shall not apply to an incitement or conspiracy to commit any crime referred to in paragraph (a), (b) or (c), nor to an attempt to commit any such crime unless the attempt involved any penetration of any part of the body of the convicted person or of another person’s body that incurs a risk of transmission of HIV;

(ii)if a person convicted of any crime referred to in paragraph (a), (b) or (c) satisfies the court that there are special circumstances peculiar to the case, which circumstances shall be recorded by the court, why the penalty provided under this subsection should not be imposed, the convicted person shall be liable to the penalty provided under section 65, 66 or 70, as the case may be.

[proviso inserted by section 31 of Act 9 of 2006]

(2)For the purposes of this section—

(a)the presence in a person’s body of HIV antibodies or antigens, detected through an appropriate test, shall be prima facie proof that the person concerned is infected with HIV;

(b)if it is proved that a person was infected with HIV within thirty days after committing a crime referred to in those sections, it shall be presumed, unless the contrary is shown, that he or she was infected with HIV when he or she committed the crime.

Division E: Crimes relating to prostitution or the facilitation of sexual crimes

81. Soliciting

(1)In this section—“publicly solicits” means—

(a)solicits in a public place or any place to which the public or any section of the public have access; or

(b)solicits by publication of the solicitation in any printed or electronic medium for reception by the public.

(2)Any person who publicly solicits another person for the purposes of prostitution shall be guilty of soliciting and liable to a fine not exceeding level five or imprisonment for a period not exceeding six months or both.

82. Living off or facilitating prostitution

Any person who—

(a)keeps a brothel; or

(b)demands from a prostitute any payment or reward in consideration of the person—

(i)keeping, managing or assisting in the keeping of a brothel in which the prostitute is, or has been, living for immoral purposes; or

(ii)having solicited other persons for immoral purposes on behalf of the prostitute; or

(iii)having effected the prostitute’s entry into a brothel for the purpose of prostitution; or

(iv)having brought or assisted in bringing the prostitute into Zimbabwe for immoral purposes;

(c)demands from a prostitute any payment or reward in consideration for any present or past immoral connection with the prostitute;

shall be guilty of living off or facilitating prostitution and liable to a fine not exceeding level seven or imprisonment for a period not exceeding two years or both.

83. Procuring

Any person who procures any other person—

(a)for the purposes of engaging in unlawful sexual conduct with another person or with persons generally, whether inside or outside Zimbabwe; or

(b)to become a prostitute, whether inside or outside Zimbabwe; or

(c)to leave Zimbabwe with the intent that the other person may become a prostitute; or

(d)to leave his or her usual place of residence, not being a brothel, with the intent that he or she may become an inmate of or frequent a brothel elsewhere;

shall be guilty of procuring and liable to a fine up to or exceeding level fourteen or—

(i)in a case where the person procured is a young person, imprisonment for a period not exceeding ten years, or both such fine and imprisonment;

(ii)in any other case, imprisonment for a period not exceeding two years, or both such fine and imprisonment.

84. Coercing or inducing persons for purpose of engaging in sexual conduct

Any person who, to enable himself or herself or anyone else to engage in unlawful sexual conduct with another person—

(a)threatens or intimidates that other person; or

(b)applies or administers any intoxicating drug, liquor, matter or thing to that other person; or

(c)causes that other person to take any intoxicating drug, liquor, matter or thing;

shall be guilty of coercing or inducing a person for the purpose of engaging in sexual conduct and liable to a fine not exceeding level ten or imprisonment for a period not exceeding five years or both:Provided that nothing in this section precludes a person from being charged with or convicted of rape, attempted rape, being an accomplice to rape, or other unlawful sexual conduct if the facts support such a charge or conviction.

85. Detaining persons for purpose of engaging in unlawful sexual conduct

Any person who detains another person against his or her will in a brothel or any other premises whatsoever with the intention that the person detained should engage in unlawful sexual conduct with himself or herself or another person or with persons generally shall be guilty of detaining a person for the purpose of engaging in unlawful sexual conduct and liable to a fine not exceeding level six or imprisonment for a period not exceeding one year or both:Provided that nothing in this section precludes a person from being charged with or convicted of kidnapping or unlawful detention if the facts support such a charge or conviction.

86. Permitting young person to resort to place for purpose of engaging in unlawful sexual conduct

(1)If the owner of a place knowingly induces or allows a young person to enter or be in the place for the purpose of engaging in unlawful sexual conduct with another person or with other persons generally, the owner shall be guilty of permitting a young person to resort to a place for the purpose of engaging in unlawful sexual conduct and—

(a)if the young person is under the age of twelve years, liable to a fine not exceeding level eleven or imprisonment for a period not exceeding ten years or both;

(b)if the young person is over the age of twelve years, liable to a fine not exceeding level ten or imprisonment for a period not exceeding seven years or both.

(2)It shall be a defence to a charge under subsection (1) for the accused to prove that he or she had reasonable cause to believe that the young person was of or over the age of sixteen years:Provided that the apparent physical maturity of the young person concerned shall not, on its own, constitute reasonable cause for the purposes of this subsection.

87. Allowing child to become a prostitute

Any parent or guardian who causes or allows his or her child under the age of eighteen years to associate with prostitutes or to be employed by any prostitute as a prostitute or to reside in a brothel shall be guilty of allowing a child to become a prostitute and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding ten years or both.

Part IV – Crimes involving bodily injury

88. Interpretation in Part IV of Chapter V

In this Part—“assault” means—(a)any act by a person involving the application of force, directly or indirectly, to the body of another person, whereby bodily harm is caused to that other person; or(b)any act by a person that causes, directly or indirectly, the injection into or application to the body of another person of any substance without that person’s consent; or(c)any act by a person that causes any substance to be consumed by another person without that person’s consent;“bodily harm” means any harm causing pain or discomfort to the body, or any impairment of the body or its functions, whether temporary or permanent.

89. Assault

(1)Any person who—

(a)commits an assault upon another person intending to cause that other person bodily harm or realising that there is a real risk or possibility that bodily harm may result; or

(b)threatens, whether by words or gestures, to assault another person, intending to inspire, or realising that there is a real risk or possibility of inspiring, in the mind of the person threatened a reasonable fear or belief that force will immediately be used against him or her;

(b1)the extent of physical injury inflicted upon the person assaulted; or[paragraph inserted by Part XX of Act 3 of 2016]

shall be guilty of assault and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding ten years or both.

(2)It shall be no defence to a charge of assault that, at the time the fear or belief referred to in paragraph (b) of subsection (1) is inspired, the person inspiring such fear or belief lacks the ability to effect his or her purpose.

(3)In determining an appropriate sentence to be imposed upon a person convicted of assault, and without derogating from the court’s power to have regard to any other relevant considerations, a court shall have regard to the following—

(a)the age and physical condition of the person assaulted;

(b)the degree of force or violence used in the assault;

(c)whether or not any weapon was used to commit the assault;

(d)whether or not the person carrying out the assault intended to inflict serious bodily harm;

(e)whether or not the person carrying out the assault was in a position of authority over the person assaulted;

(f)in a case where the act constituting the assault was intended to cause any substance to be consumed by another person, the possibility that third persons might be harmed thereby, and whether such persons were so harmed.

90. Negligently causing serious bodily harm

Any person who by any act whatsoever causes serious bodily harm to another person negligently failing to realise that serious bodily harm may result from his or her conduct or negligently failing to guard against that possibility shall be guilty of negligently causing serious bodily harm and liable to a fine not exceeding level ten or imprisonment for a period not exceeding five years or both.

91. Assault of person other than intended victim

If a person commits or attempts to commit an assault upon a person and in so doing causes bodily harm to someone other than his or her intended victim, he or she shall be guilty of the following crimes—

(a)in respect of the person who was his or her intended victim, assault or attempted assault, whichever is appropriate in the circumstances;

(b)in respect of the person who was not his or her intended victim—

(i)assault, if he or she realised that there was a real risk or possibility that bodily harm might be caused to that person; or

(ii)negligently causing serious bodily harm, if he or she did not intend to cause that person such injury and did not realise that there was a real risk or possibility that such injury might be caused to that person, but was negligent in failing to realise it.

Part V – Crimes involving infringement of liberty, dignity, privacy, or reputation

92. Interpretation in Part V of Chapter V

In this Part—“adult” means a person who is of the age of eighteen years or above;“child” means a person who is under the age of eighteen years;“lawful custodian”, in relation to a child, means the child’s parent or lawful guardian or any person who has been given custody of the child by the child’s parent or legal guardian or by virtue of an order of a court;“parent” means a natural or adoptive parent;“publish”, in relation to a defamatory statement, means to make a statement to any person other than the person defamed or the spouse of the person who makes the statement.

93. Kidnapping or unlawful detention

(1)Any person who—

(a)deprives an adult of his or her freedom of bodily movement, intending to cause such deprivation or realising that there is a real risk or possibility that such deprivation may result; or

(b)not being the lawful custodian of the child concerned—

(i)deprives a child of his or her freedom of bodily movement, intending to cause such deprivation or realising that there is a real risk or possibility that such deprivation may result; or

(ii)detains or keeps a child, intending to deprive the child’s lawful custodian of his or her control over the child or realising that there is a real risk or possibility that such deprivation may result;

shall be guilty of kidnapping or unlawful detention and liable—A. to imprisonment for life or any definite period of imprisonment, except in a case referred to in subparagraph B; or[paragraph amended by Part XX of Act 3 of 2016]B. where the kidnapping or unlawful detention was committed in the mitigating circumstances referred to in paragraph (b) of subsection (3), to a fine not exceeding level seven or imprisonment for a period not exceeding two years or both.

(2)An accused may be convicted of kidnapping or unlawful detention—

(a)whatever the manner in which the accused deprived the adult or child of his or her freedom of bodily movement or the lawful custodian of his or her control, whether by the use of threats or force or by the use of fraudulent misrepresentation or otherwise; and

(b)whatever the period over which the accused deprived the adult or child of his or her freedom of bodily movement or the lawful custodian of his or her control.

(3)In determining an appropriate sentence to be imposed upon a person convicted of kidnapping or unlawful detention, and without limitation on any other factors or circumstances which a court may take into account—

(a)a court shall regard it as an aggravating circumstance if—

(i)the kidnapping or unlawful detention was accompanied or motivated by the demand of a ransom for the safe return of the adult or child; or

(ii)the kidnapping or unlawful detention was accompanied by violence or the threat of violence;

(b)a court shall regard it as a mitigating circumstance if, in the case of the kidnapping or unlawful detention of a child, the accused is a parent of or closely related to the child and the kidnapping or unlawful detention was not accompanied by violence or the threat of violence.

94. Pledging of female persons

(1)A lawful custodian or relative of a female person who—

(a)at a time when the female person is under the age of eighteen years, or without her consent, hands her over to another person as compensation for the death of a relative of that other person, or as compensation for any debt or obligation; or

(b)at a time when the female person is under the age of eighteen years, or without her consent, enters into an arrangement whereby the female person is promised in marriage to any man, whether for any consideration or not; or

(c)by force or intimidation compels or attempts to compel a female person to enter into a marriage against her will, whether in pursuance of an arrangement referred to in paragraph (a) or (b) or otherwise;

shall be guilty of pledging a female person and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding two years or both.

(2)Any party to an arrangement or marriage referred to in subsection (1) may be charged as an accomplice to pledging a female person.

95. Criminal insult

(1)Any person who, by words or conduct—

(a)seriously impairs the dignity of another person; or

(b)seriously invades the privacy of another person;

shall be guilty of criminal insult if he or she intended his or her words or conduct to have an effect referred to in paragraph (a) or (b) or if he or she realised that there was a real risk or possibility that his or her words or conduct might have such an effect, and shall be liable to a fine not exceeding level six or imprisonment for a period not exceeding one year or both.

(2)In deciding whether an impairment of dignity or invasion of privacy is sufficiently serious to constitute the crime of criminal insult, a court shall take into account the following factors in addition to any others that are relevant in the particular case—

(a)the nature of the words or conduct;

(b)the extent to which the words were repeated or the conduct was persisted in, as the case may be;

(c)the age and sex of the person whose dignity was impaired or privacy was invaded;

(d)any previous relationship between the parties;

(e)the degree of offence caused to the person whose dignity was impaired or privacy was invaded by the words or conduct.

(3)In order to establish a charge of criminal insult based upon an impairment of dignity, it shall be necessary to prove that the complainant felt insulted or degraded as a result of the words or conduct that form the subject of the charge:Provided that, where the complainant was, at the time of the commission of the crime—

(a)a child or mentally disordered or intellectually handicapped, as defined in section 2 of the Mental Health Act [Chapter 15:12] (No. 15 of 1996); or

(b)unable, through physical disability, to hear the words or see the conduct, as the case may be;

he or she shall be deemed to have felt insulted or degraded if a reasonable person would have felt insulted or degraded by the words or conduct concerned.

(4)In order to establish a charge of criminal insult based upon an invasion of privacy, in that the accused observed the complainant while the complainant was in a state of partial or complete undress, it shall not be necessary to prove that the complainant was aware of the invasion of privacy when it took place, if it is proved that when the complainant did become aware of it he or she felt insulted or degraded by it.

(5)It shall be a defence to a charge of criminal insult based upon an invasion of privacy for the person charged to prove that his or her conduct was motivated solely by the desire to obtain evidence of the commission of adultery by his or her spouse and that—

(a)he or she had reasonable grounds for believing that his or her spouse was committing or about to commit adultery; and

(b)he or she had reasonable grounds for believing that he or she was not invading the privacy of innocent persons; and

(c)the invasion of privacy that occurred was no more than was reasonably necessary for the purpose of obtaining evidence of his or her spouse’s adultery.

(6)The defence referred to in subsection (5) shall avail a person who is—

(a)licensed as a private investigator in terms of the Private Investigators and Security Guards (Control) Act [Chapter 27:10]; and

(b)engaged by a person to obtain evidence of the commission of adultery by the spouse of that person.

(7)For the avoidance of doubt it is declared that no person in Zimbabwe is devoid of dignity, whatever his or her occupation or mode of life, and that the dignity of all persons is entitled to the protection of the law.

96. ***

[section repealed by Part XX Act 3 of 2016].

Part VI – Witchcraft, witch-finding and crimes related thereto

97. Interpretation in Part VI of Chapter V

In this Part—“accuse a person of witchcraft” means to indicate that the person—(a)has used, is using or is likely or able to use non—natural means to cause—(i)death or injury to or disease or disability in any person; or(ii)destruction or loss of or damage to property of any description;or(b)is possessed by a spirit which has caused, is causing or is likely or able to cause—(a)death or injury to or disease or disability in any person; or(b)destruction or loss of or damage to property of any description;“non-natural means” includes the practice of witch-finding.

98. Engaging in practices commonly associated with witchcraft

(1)Any person who engages in any practice knowing that it is commonly associated with witchcraft shall be guilty of engaging in a practice commonly associated with witchcraft if, having intended thereby to cause harm to any person, such practice inspires in the person against whom it was directed a real fear or belief that harm will occur to that person or any member of his or her family, and be liable to a fine not exceeding level ten or imprisonment for a period not exceeding five years or both.

(2)Spoken or written words shall not in themselves constitute a practice commonly associated with witch-craft for the purpose of this section, unless accompanied by or used in connection with other conduct commonly associated with witchcraft.

(3)For the avoidance of doubt it is declared that any person who assists another person to commit the crime of engaging in a practice commonly associated with witchcraft by giving advice or providing any substance or article to enable that person to commit the crime shall be liable to be charged as an accomplice to the crime.

(4)A court shall not take judicial notice of any practice that is said to be commonly associated with witch-craft, but any person who, in the opinion of the court, is suitably qualified to do so on account of his or her knowledge, shall be competent to give expert evidence as to whether the practice that forms the subject of a charge under this section is a practice that is commonly associated with witchcraft, whether generally or in the particular area where the practice is alleged to have taken place.

99. Indicating witches and wizards

(1)Subject to this section, any person who groundlessly or by the purported use of non-natural means accuses another person of witchcraft shall be guilty of indicating a witch or wizard and liable—

(a)in a case of any purported use of any non-natural means, to a fine not exceeding level ten or imprisonment for a period not exceeding five years or both;

(b)in any other case, to a fine not exceeding level six or imprisonment for a period not exceeding one year or both.

(2)For the avoidance of doubt it is declared that no crime is committed by a person who, without the purported use of non-natural means and having reasonable grounds for suspecting another person of committing an offence referred to in section ninety-eight, accuses that person of committing that offence.

(3)It shall not be a defence to a contravention of subsection (1) involving the purported use of any non-natural means for the person charged to prove that the person he or she accused actually engaged in any practice commonly associated with witchcraft, but the court may regard such circumstance as mitigatory when assessing the sentence to be imposed.

100. Employing non-natural means to resolve crimes or delicts

(1)Any person who—

(a)by the purported use of non-natural means, intentionally indicates another person as the perpetrator of a crime or delict; or

(b)in the purported investigation by non-natural means of any crime or delict, requires, advises or incites another person to undergo any test or consume any substance;

shall be guilty of employing non-natural means to resolve a crime or delict and liable to a fine not exceeding level ten or imprisonment for a period not exceeding five years or both.

(2)For the avoidance of doubt it is declared that any person who procures the services of another person to do any act referred to in paragraph (a) or (b) of subsection (1) shall be liable to be charged as an accomplice to the crime of employing non-natural means to resolve a crime or delict.

(3)It shall not be a defence to a contravention of subparagraph (a) of subsection (1) for the person charged to prove that the person he or she indicated actually perpetrated a crime or delict, but the court may regard such circumstance as mitigatory when assessing the sentence to be imposed.

101. Belief in witchcraft to operate in mitigation and not as defence to crimes

It shall not be a defence to murder, assault or any other crime that the accused was actuated by a genuine belief that the victim was a witch or wizard, but a court convicting such person may take such belief into account when imposing sentence upon him or her for the crime.

102. Charges alternative to or concurrent with charges under Part VI of Chapter V

A person accused of engaging in a practice commonly associated with witchcraft, indicating a witch or wizard or employing non-natural means to resolve a crime or delict, involving conduct that is in itself otherwise unlawful—

(a)may be charged in the alternative with the crime constituted by that conduct if the punishment to which the person is liable for that crime is the same or less than that provided for under section ninety-eight, ninety-nine or one hundred, as the case may be; or

(b)shall be charged with the crime constituted by that conduct, whether or not concurrently with the crime of engaging in a practice commonly associated with witchcraft, indicating a witch or wizard or employing non-natural means to resolve a crime or delict, if the punishment to which the person is liable for that crime is greater than that provided for under section ninety-eight, ninety-nine or one hundred, as the case may be.

Part VII – Bigamy

103. Interpretation in Part VII of Chapter V

In this Part—“actually polygamous marriage” means a polygamous marriage consisting of a husband and two or more wives;“monogamous marriage” means—(a)a marriage celebrated in terms of the Marriage Act [Chapter 5:11] or any enactment repealed by that Act; or(b)any other marriage celebrated inside or outside Zimbabwe under a law which prohibits the parties from marrying anyone else whilst they remain married to each other;“polygamous marriage” means—(a)a marriage celebrated according to customary law and solemnised in terms of the Customary Marriages Act [Chapter 5:07]; or(b)an unregistered customary law marriage; or(c)any other marriage celebrated inside or outside Zimbabwe under a law which permits the husband to marry another woman while remaining married to the wife;“potentially polygamous marriage” means a polygamous marriage consisting of a husband and a single wife.

104. Bigamy

(1)Any person who, being a party to—

(a)a monogamous marriage and, knowing that the marriage still subsists, intentionally purports to enter into another marriage, whether monogamous or polygamous, with a person other than his or her spouse by the first-mentioned marriage; or

(b)an actually polygamous marriage and, knowing that the marriage still subsists, intentionally purports to enter into a monogamous marriage with any person; or

(c)a potentially polygamous marriage and, knowing that the marriage still subsists, intentionally purports to enter into a monogamous marriage with any person other than his or her spouse by the potentially polygamous marriage;

shall be guilty of bigamy and liable, if convicted in terms of—

(i)paragraph (a), to a fine not exceeding level six or imprisonment for a period not exceeding one year or both;

(ii)paragraph (b) or (c), to a fine not exceeding level five.

(2)Where a person is accused of bigamy in circumstances where he or she is alleged to have purportedly entered into a monogamous marriage while being a party to an unregistered customary law marriage with another person, and the accused denies that he or she is a party to the unregistered customary law marriage, the burden shall rest upon the prosecution to prove beyond a reasonable doubt that he or she is a party to the unregistered customary law marriage.

Part VIII – Concealment of births and exposure of infants

105. Interpretation in Part VIII of Chapter V

In this Part—“child” does not include a foetus which has issued forth from its mother before the twenty-eighth week of pregnancy;“infant” means a person under the age of seven years;“still-born’, in relation to a child, means a child which did not at any time after being expelled from its mother breathe or show any signs of life.

106. Concealing birth of child

(1)Any person who buries, abandons or disposes of the body of a child with the intention of concealing the fact of its birth, whether the child was still-born or died during or after its birth, shall be guilty of concealing the birth of a child and liable to a fine not exceeding level seven or imprisonment for a period not exceeding six months or both.

(2)A person may be convicted of concealing the birth of a child even though it has not been proved that the child died before its body was buried, abandoned or disposed of.

107. Presumptions relating to concealment of birth

(1)If it is proved, in any prosecution for concealing the birth of a child, that a person buried, abandoned or disposed of the body of a child otherwise than in accordance with the provisions of the Burial and Cremation Act [Chapter 5:03], it shall be presumed, unless the contrary is proved, that he or she buried, abandoned or disposed of the body with the intention of concealing the fact of its birth.

(2)If it is proved, in any prosecution for concealing the birth of a child, that a person buried, abandoned or disposed of any human remains, it shall be presumed, unless the contrary is proved, that he or she buried, abandoned or disposed of the body of a child.

108. Exposing an infant

(1)Any person who intentionally abandons an infant in such a place or in such circumstances that death may result from the exposure shall be guilty of exposing an infant and liable to a fine not exceeding level ten or imprisonment for a period not exceeding five years or both.

(2)Where the abandonment of an infant as described in subsection (1)—

(a)results in or was intended to cause the death of the infant, the person who abandoned the infant shall be charged with murder or attempted murder or infanticide or attempted infanticide, as the case may be, whether or not concurrently with exposing an infant in contravention of subsection (1);

(b)does not result in and was not intended to cause the death of the infant, the person who abandoned the infant may be charged concurrently or alternatively under subsection (1) of section 7 of the Children’s Act [Chapter 5:06].

(3)When assessing the sentence to be imposed upon a person accused of exposing an infant who is the mother of the infant, regard shall be had to any pressure or stress from which she suffered arising out of any one or more of the following circumstances or considerations—

(a)the effects which the birth had, or which she believed it would have, on her social, financial or marital situation;

(b)the difficulties which were created, or which she believed would be created, in caring for the infant in the social, financial or marital situation in which the infant was born;

(c)the difficulties which she had, or which she believed she would have, in caring for the infant due to her inexperience or incapacity;

(d)any other relevant circumstance or consideration.

Part IX – Crimes in relation to graves and corpses

109. Interpretation in Part IX of Chapter V

In this section—“grave” includes any monument, vault or tombstone, whether situated in a cemetery established in terms of the Cemeteries Act [Chapter 5:04] or not;“violate”, in relation to a grave, includes to destroy or damage the grave or the immediate surrounds of the grave, or take any article therefrom.

110. Violating graves

Any person who violates a grave in which human remains are situated, knowing that he or she is doing so or realising that there is a real risk or possibility that he or she may be doing so, shall be guilty of violating a grave and liable to a fine not exceeding level seven or imprisonment for a period not exceeding one year or both.

111. Violating corpses

(1)Any person who damages, mutilates, removes pieces from or otherwise violates a dead human body, knowing that he or she is doing so or realising that there is a real risk or possibility that he or she may be doing so, shall be guilty of violating a corpse and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding five years or both.

(2)Notwithstanding subsection (1), it shall be lawful for any person—

(a)to remove tissue from or carry out a post-mortem examination on or otherwise deal with a dead human body in accordance with the Inquests Act [Chapter 7:07], the Anatomical Donations and Post-mortem Examinations Act [Chapter 15:01], or any other enactment; or

(b)to do anything necessary for the purpose of embalming a dead human body or preparing it for burial, cremation or other lawful disposal.

Chapter VI
Property Crimes

Part I – Theft and related crimes

Division A: Preliminary

112. Interpretation in Part I of Chapter VI

In this Part—“property capable of being stolen” means any movable corporeal thing or object, or any incorporeal right vested in a person relating to movable or immovable property, and—(a)includes—(i)money, whether in the form of cash, specific notes or coins, an entry in an account or other abstract sum of money or claim to be paid an amount of money; and(ii)shares in any business undertaking;(iii)the following incorporeal things in so far as they may be illegally tapped or diverted from their intended destination—A. electricity; andB. electromagnetic waves emitted by a telecommunications or broadcasting system;(b)does not include any of the following things—(i)property that is common to everyone, such as water in a public stream or air in the atmosphere;(ii)wild animals, birds, insects and fish that have not been reduced to captivity;(iii)eggs, honey and other produce of wild animals, birds, insects and fish, which has not been taken into possession by anyone;(iv)property that has been finally and absolutely abandoned by its owner, that is, thrown away or otherwise disposed of by the owner with the intention of relinquishing all his or her rights to it;“steal” means to commit theft or stock theft, as the case may be;“take”, in relation to property capable of being stolen, means—(a)taking possession or control of a movable corporeal thing or object;(b)being in possession of a movable corporeal thing or object and assuming the rights of an owner in respect of it;(c)in relation to any incorporeal right vested in a person, exercising or assuming title to the right concerned;“trust property” means property held, whether under a deed of trust or by agreement or under any enactment, on terms requiring the holder to do any or all of the following—(a)hold the property on behalf of another person or account for it to another person; or(b)hand the property over to a specific person; or(c)deal with the property in a particular way;but does not include property received on terms expressly or impliedly stipulating that—(i)the recipient is entitled to use the property as his or her own; and(ii)there would only be a debtor and creditor relationship between the parties;“violence” means the direct or indirect application of force to a person’s body.

Division B: Theft, stock theft, unauthorised borrowing or use of property and making off without payment

113. Theft

(1)Any person who takes property capable of being stolen—

(a)knowing that another person is entitled to own, possess or control the property or realising that there is a real risk or possibility that another person may be so entitled; and

(b)intending to deprive the other person permanently of his or her ownership, possession or control, or realising that there is a real risk or possibility that he or she may so deprive the other person of his or her ownership, possession or control;

shall be guilty of theft and liable to either or both of the following—

(i)a fine not exceeding level fourteen or twice the value of the stolen property, whichever is the greater; or

(ii)imprisonment for a period not exceeding twenty-five years;

or both:Provided that a court may suspend the whole or any part of a sentence of imprisonment imposed for theft on condition that the convicted person restores any property stolen by him or her to the person deprived of it or compensates such person for its loss.

(2)Subject to subsection (3), a person shall also be guilty of theft if he or she holds trust property and, in breach of the terms under which it is so held, he or she intentionally—

(a)omits to account or accounts incorrectly for the property; or

(b)hands the property or part of it over to a person other than the person to whom he or she is obliged to hand it over; or

(c)uses the property or part of it for a purpose other than the purpose for which he or she is obliged to use it; or

(d)converts the property or part of it to his or her own use.

(3)Subsection (2) shall not apply if—

(a)the person holding or receiving the property has properly and transparently accounted for the property in accordance with the terms of the trust; or

(b)the person disposing of the property retains the equivalent value thereof for delivery to the person entitled thereto, unless the terms under which he or she holds or receives the property require him or her to hold and deliver back the specific property.

(4)For the avoidance of doubt it is declared that where a person, by means of a misrepresentation as defined in section one hundred and thirty—five, takes any property capable of being stolen, intending to deprive another person of the ownership, possession or control of the property, the competent charge is fraud and not theft.

114. Stock theft

(1)In this section— “livestock” means—

(a)any sheep, goat, pig, poultry, ostrich, pigeon, rabbit, or bovine or equine animal; or

(b)any domesticated game; or

(c)the carcass or any portion of a carcass of any slaughtered livestock as defined in paragraph (a) or (b);

“produce” includes the whole or any part of any skin, hide, horn or egg of livestock or any wool or mohair.

(2)Any person who—

(a)takes livestock or its produce—

(i)knowing that another person is entitled to own, possess or control the livestock or its produce or realising that there is a real risk or possibility that another person may be so entitled; and

(ii)intending to deprive the other person permanently of his or her ownership, possession or control, or realising that there is a real risk or possibility that he or she may so deprive the other person of his or her ownership, possession or control;

(b)takes possession of stolen livestock or its produce—

(i)knowing that it has been stolen; or

(ii)realising that there is a real risk or possibility that it has been stolen;

(c)is found in possession of, or has been in possession of, livestock or its produce in circumstances which give rise, either at the time of the possession or at any time thereafter, to a reasonable suspicion that at the time of such possession the livestock or its produce was stolen, and who is unable at any time to give a satisfactory explanation of his or her possession; or

(d)acquires or receives into his or her possession from any other person any stolen livestock or produce without reasonable cause (the proof whereof lies on him or her) for believing at the time of acquiring or receiving such livestock or produce that it was the property of the person from whom he or she acquired or received it or that such person was duly authorised by the owner thereof to deal with it or dispose of it;

shall be guilty of stock theft and liable—

(e)if the stock theft involved any bovine or equine animal stolen in the circumstances described in paragraph (a) or (b), and there are no special circumstances in the particular case as provided in subsection (3), to imprisonment for a period of not less than nine years or more than twenty-five years; or

(f)if the stock theft was committed in the circumstances described in paragraph (a) or (b) but did not involve any bovine or equine animal, or was committed in the circumstances described in paragraph (c) or (d)—

(i)to a fine not exceeding level fourteen or twice the value of the stolen property, whichever is the greater; or

(ii)to imprisonment for a period not exceeding twenty-five years;

or both.

(3)If a person convicted of stock theft involving any bovine or equine animal stolen in the circumstances described in paragraph (a) or (b) of subsection (2) satisfies the court that there are special circumstances peculiar to the case, which circumstances shall be recorded by the court, why the penalty provided under paragraph (e) of subsection (2) should not be imposed, the convicted person shall be liable to the penalty provided under paragraph (f) of subsection (2).

(4)A court sentencing a person under paragraph (e) of subsection (2)—

(a)to the minimum sentence of imprisonment of nine years, shall not order that the operation of the whole or any part of the sentence be suspended;

(b)to imprisonment in excess of the minimum sentence of imprisonment of nine years, may order that the operation of the whole or any part of the sentence exceeding nine years be suspended.

(5)Any person who enters any cattle kraal, stable, byre, fold, pen, sty, loft, coop, run, building or other enclosure with intent to steal any livestock or its produce therefrom shall be guilty of attempted stock theft and liable to a fine not exceeding level twelve or imprisonment for a period not exceeding two years or both.

(6)When any person is accused of a contravention of subsection (5), the onus shall be on such person to prove that he or she had no intention of stealing any livestock or its produce.

(7)A person accused of contravening—

(a)paragraph (a) or (b) of subsection (2) may be found guilty of theft or receiving stolen property knowing it to have been stolen, if such a conviction is the more appropriate on the evidence;

(b)paragraph (c) or (d) of subsection (2) may be found guilty of theft, receiving stolen property knowing it to have been stolen or possessing property reasonably suspected of being stolen, if such conviction is the more appropriate on the evidence;

(c)paragraph (c) or (d) of subsection (2) may be charged alternatively with theft, receiving stolen property knowing it to have been stolen or possessing property reasonably suspected of being stolen.[paragraph amended by section 31 of Act 9 of 2006]

(8)Any person charged with the stock theft involving livestock or its produce belonging to a particular person may be found guilty of stock theft, theft or any other crime of which he or she may be found guilty in terms of Chapter XV notwithstanding the fact that the prosecution has failed to prove that such livestock or produce actually did belong to such particular person.

115. When persons deemed to intend to deprive others permanently of property

Without limiting the expression in any way, a person shall be deemed for the purpose of sections one hundred and thirteen and one hundred and fourteen to intend to deprive another person permanently of that person’s ownership, possession or control of property if—

(a)having taken possession or assumed control of the property, he or she—

(i)abandons it without regard to whether or not it is restored to the other person; or

(ii)subjects it to a use which he or she realises will destroy it;

(b)he or she consumes the property, intending to return identical property to the other person; or

(c)the property being money, he or she spends it, intending to return the same amount to the other person.

116. Unauthorised borrowing or use of property

Any person who, knowing that another person is entitled to own, possess or control any property capable of being stolen or realising that there is a real risk or possibility that another person may be so entitled, takes possession or control of the property without the consent of that other person, intending to temporarily hold or make temporary use of it and then return it to that other person’s possession or control, shall be guilty of unauthorised borrowing or use of property, and liable to—

(a)a fine not exceeding level fourteen or not exceeding twice the value of the property which forms the subject of the charge, whichever is the greater; or

(b)imprisonment for a period not exceeding two years;

or both.

117. Making off without payment

(1)In this section—“payment on the spot” includes—

(a)in relation to the provision of a service, payment at the time of collecting goods on which work has been done or in respect of which a service has been provided;

(b)payment before leaving the premises in or upon which the service or goods were provided.

(2)Any person who benefits from a service or consumes any goods lawfully provided to him or her and, knowing that payment on the spot for the service or goods is required or expected from him or her, intentionally makes off without paying for the service or goods, shall be guilty of making off without payment, and liable to—

(a)a fine not exceeding level seven or not exceeding twice the value of the service or goods which form the subject of the charge, whichever is the greater; or

(b)imprisonment for a period not exceeding two years;

or both.

(3)If it is proved in a prosecution for making off without payment that a person, having benefited from a service or consumed any goods lawfully provided to him or her, absented himself or herself without paying for the service or goods, and that the service or goods are of a kind for which payment on the spot is ordinarily required, then it shall be presumed, unless the contrary is proved, that—

(a)he or she knew that payment on the spot for the service or goods was required or expected from him or her; and

(b)he or she intentionally made off without paying for the service or goods.

118. Mistake of fact in cases of theft, stock theft or unauthorised borrowing or use of property

(1)It shall be a defence to a charge of theft, stock theft or unauthorised borrowing or use of property that the accused took the property concerned, genuinely but mistakenly believing that—

(a)the owner of the property, or the person entitled to possess or control it, had consented to the taking or would have consented if he or she had known of the circumstances; or

(b)the property was his or her own property and no other person was entitled to possess or control it; or

(c)the property had been finally and absolutely abandoned, that is, that the owner had thrown it away or otherwise disposed of it intending to relinquish all his or her rights to it:Provided that such a belief shall not be a defence to a charge of theft of lost property unless—

(i)regard being had to the nature and value of the property and the circumstances of its finding, the belief was reasonable; or

(ii)the accused took all reasonable steps to find the owner of the property and reported his or her finding of it to the police or other appropriate authority.

(2)Subsection (1) shall not be construed as limiting or excluding the application of Chapter XIV in relation to theft, stock theft or unlawful borrowing or use of property.

(3)Where a person takes possession or control of any property with the mistaken consent or acquiescence of the person from whom he or she takes it, that consent shall not be a defence to a charge of theft, stock theft or unlawful borrowing or use of the property if the person who takes the property—

(a)knows of the mistake at the time he or she takes the property; or

(b)deals with or uses or keeps the property after he or she has become aware of the mistake.

119. Unavailable defences to charge of theft, stock theft or unauthorised borrowing or use of property

(1)It shall not be a defence to a charge of theft, stock theft or unauthorised borrowing or use of property that the person charged—

(a)took the property concerned in circumstances other than those described in subsection (1) of section one hundred and eighteen, genuinely but mistakenly believing—

(i)that he or she had a legal right to take the property on his or her own behalf or on behalf of someone else; and

(ii)in the case of a charge of theft, that he or she had a legal right permanently to deprive the person from whom he or she took the property of his or her ownership, possession or control of it;

(b)did not intend to gain any personal benefit from the property concerned; or

(c)needed the property concerned because he or she was suffering hardship; or

(d)believed that the person entitled to own, possess or control the property had more property than he or she needed for his or her own purposes; or

(e)did not intend to prejudice the person entitled to own, possess or control the property; or

(f)in the case of a charge of theft or stock theft, intended to return the property to the person entitled to own, possess or control it, having originally taken it with the intention of permanently depriving that person of his or her ownership, possession or control; or

(g)did not know the identity of the person entitled to own, possess or control the property.

(2)Where a person holds trust property it shall not be a defence to a charge of theft, stock theft or unlawful borrowing or use of the property that the person genuinely but mistakenly believed that the law, in the absence of an express stipulation to the contrary under the terms on which he or she holds the property, allowed him or her to spend, consume or dispose of that property provided that he or she replaced it.

(3)A court may regard the factors referred to in paragraphs (a), (b), (c) and (e) of subsection (1), and subsection (2), as mitigatory when assessing the sentence to be imposed upon a person convicted of theft, stock theft or unauthorised borrowing or use of property.

120. Joint ownership no defence

It shall not be a defence to a charge of theft, stock theft or unauthorised borrowing or use of property that the accused was a co-owner of the property that forms the subject of the charge, whether the co-ownership arises through marriage or a partnership or otherwise, if—

(a)the taking, dealing with or using of the property was not authorised by any agreement between the accused and his or her co-owner, spouse or partner; and

(b)in the case of a charge of theft or stock theft, the accused took, dealt with or used the property with the intention of depriving his or her co-owner, spouse or partner permanently of the ownership, possession or control of the property:

Provided that no prosecution shall be instituted against a spouse for stealing or unlawfully borrowing or using property belonging to the other spouse or that forms part of the spouses’ joint estate, unless the ProsecutorGeneral has authorised such a prosecution.

121. Theft and stock theft continuing crimes

(1)The crime of theft or stock theft continues to be committed by a thief even if the thief subsequently loses possession of the property he or she has stolen.

(2)Regardless of whether a thief remains in possession of the property he or she has stolen—

(a)he or she may be tried for the theft or stock theft by any court within whose area of jurisdiction he or she possessed the stolen property, even if he or she originally stole the property outside the court’s area of jurisdiction or outside Zimbabwe; and

(b)any person who assists him or her while he or she is in possession of the stolen property may be charged and convicted as an accomplice to the theft or stock theft.

122. Pledge-taking cases

(1)Where a person takes possession or control of property capable of being stolen which is owned, possessed or controlled by another person, intending to hold the property as a pledge or security pending the satisfaction of a debt owed by that other person, he or she shall not be chargeable with theft of the property or stock theft unless he or she intended to deprive the other person permanently of his or her ownership, possession or control of the property, but he or she may be charged with unauthorised borrowing or use of the property.

(2)A person who takes property capable of being stolen, intending to deprive the owner permanently of his or her ownership, contrary to the terms on which the person received possession or control of it from the owner as a pledge or security pending the satisfaction of a debt owed to him or her, shall be chargeable with theft or stock theft, as the case may be.

123. Recent possession of stolen property

(1)Subject to subsection (2), where a person is found in possession of property that has recently been stolen and the circumstances of the person’s possession are such that he or she may reasonably be expected to give an explanation for his or her possession, a court may infer that the person is guilty of either the theft of the property or stock theft, or of receiving it knowing it to have been stolen, whichever crime is the more appropriate on the evidence, if the person—

(a)cannot explain his or her possession; or

(b)gives an explanation of his or her possession which is false or unreasonable.

(2)A court shall not draw the inference referred to in subsection (1) unless the circumstances of the person’s possession of the property are such that, in the absence of an explanation from him or her, the only reasonable inference is that he or she is guilty of theft, stock theft or receiving stolen property knowing it to have been stolen, as the case may be.

Division C: Receiving or possessing stolen property

124. Receiving stolen property knowing it to have been stolen

(1)Any person who takes possession of stolen property—

(a)knowing that it has been stolen; or

(b)realising that there is a real risk or possibility that it has been stolen;

shall be guilty of receiving stolen property knowing it to have been stolen, and liable to—

(i)a fine not exceeding level fourteen or not exceeding twice the value of the property which forms the subject of the charge, whichever is the greater; or

(ii)imprisonment for a period not exceeding twenty-five years;

or both.

(2)If it is proved in a prosecution for receiving stolen property knowing it to have been stolen that, at the time the accused took possession of the property, he or she did not know that it had been stolen or did not realise that there was a real risk or possibility that it had been stolen, but acquired such knowledge or came to such a realisation afterwards, he or she may be convicted of theft or stock theft or of being found in possession of property reasonably suspected of being stolen, if the facts support such a conviction.

125. Possessing property reasonably suspected of being stolen

If any person—

(a)is or has been in possession of property capable of being stolen and the circumstances of his or her possession are such as to give rise, either at the time of his or her possession or at any time thereafter, to a reasonable suspicion that when he or she came into possession of the property it was stolen; and

(b)is unable at any time to give a satisfactory explanation for his or her possession of the property;

the person shall be guilty of possessing property reasonably suspected of being stolen, and liable to—

(i)a fine not exceeding level ten or not exceeding twice the value of the property which forms the subject of the charge, whichever is the greater; or

(ii)imprisonment for a period not exceeding five years;

or both.

Division D: Robbery

126. Robbery

(1)Any person who steals or does any act constituting the crime of unauthorised borrowing or use of property shall be guilty of robbery if he or she intentionally uses violence or the threat of immediate violence—

(a)immediately before or at the time he or she takes the property, in order to induce the person who has lawful control over the property to relinquish his or her control over it; or

(b)immediately after he or she takes the property, in order to prevent the person who had lawful control over the property from recovering his or her control over it.

(2)A person convicted of robbery shall be liable—

(a)to imprisonment for life or any definite period of imprisonment, if the crime was committed in aggravating circumstances as provided in subsection (3); or[paragraph amended by Part XX of Act 3 of 2016]

(b)in any other case—

(i)to a fine not exceeding level fourteen or not exceeding twice the value of the property that forms the subject of the charge, whichever is the greater; or

(ii)to imprisonment for a period not exceeding fifty years;

or both:Provided that a court may suspend the whole or any part of a sentence of imprisonment imposed for robbery on condition that the convicted person restores any property stolen by him or her to the person deprived of it or compensates such person for its loss.

(3)For the purposes of subsection (2), robbery is committed in aggravating circumstances if the convicted person or an accomplice of the convicted person—

(a)possessed a firearm or a dangerous weapon; or

(b)inflicted or threatened to inflict serious bodily injury upon any person; or

(c)killed a person;

on the occasion on which the crime was committed.

127. Robbery where complainant abandons control over property

It shall not be a defence to a charge of robbery that, when the accused took possession or control over the property, the person who had lawful control over it was no longer exercising such control, if—

(a)when the accused first used violence or the threat of violence, that other person was in control of the property; and

(b)the effect of the violence or threat of violence was to render that other person unconscious or to cause him or her to run away or abandon the property or otherwise to render him or her incapable of exercising control over it.

128. Defences to charge of robbery

A person accused of robbery shall be entitled to rely upon any defence that would have been available to the accused if he or she had been accused of theft of the property concerned.

129. Threat of future violence

(1)The taking, dealing with, using or keeping of property by means of a threat of violence shall not constitute robbery unless the threat is of immediate violence, that is to say, is a threat that violence will be used immediately if control over the property is not surrendered.

(2)Nothing in this section shall prevent a person who uses a threat of future violence to obtain control over property from being charged with extortion.

Part II – Crimes involving entering or being in or on premises or land

130. Interpretation in Part II of Chapter VI

In this Part—“enter”, in relation to any premises, land or enclosed area, includes—(a)for the purposes of sections one hundred and thirty-one and one hundred and thirty-two, to insert any part of one’s body or an instrument into the premises, land or enclosed area;(b)to open or break open a door, window or gate or otherwise to remove an obstacle to entry into the premises, land or enclosed area;(c)to enter the premises, land or enclosed area without having removed an obstacle, as where entry is effected through an open door, window or gate;“lawful occupier”, in relation to any land, enclosed area or premises, means any person who has lawful authority to control entry into or access to the land, area or premises;“premises” means any movable or immovable building or structure which is used for human habitation or for storage, and includes an outbuilding, a shed, a caravan, a boat or a tent.

131. Unlawful entry into premises

(1)Any person who, intentionally and without permission or authority from the lawful occupier of the premises concerned, or without other lawful authority, enters the premises shall be guilty of unlawful entry into premises and liable—

(a)to a fine not exceeding level thirteen or not exceeding twice the value of any property stolen, destroyed or damaged by the person as a result of the crime, whichever is the greater, or imprisonment for a period not exceeding fifteen years, or both, if the crime was committed in any one or more of the aggravating circumstances set out in subsection (2); or

(b)in any other case, to a fine not exceeding level ten or not exceeding twice the value of any property destroyed or damaged by the person as a result of the crime, whichever is the greater, or imprisonment for a period not exceeding ten years, or both.

(2)For the purposes of paragraph (a) of subsection (1), the crime of unlawful entry into premises is committed in aggravating circumstances if, on the occasion on which the crime was committed, the convicted person—

(a)entered a dwelling-house; or

(b)knew there were people present in the premises; or

(c)carried a weapon; or

(d)used violence against any person, or damaged or destroyed any property, in effecting the entry; or

(e)committed or intended to commit some other crime.

132. Criminal trespass

(1)Any person who—

(a)enters any land knowing or realising that there is a real risk or possibility that such entry is forbidden; or

(b)having entered any land, fails or refuses without lawful excuse to leave the land when called upon to do so by the lawful occupier or any other person with apparent authority to require him or her to leave;

shall be guilty of criminal trespass and liable to a fine not exceeding level five or imprisonment for a period not exceeding six months or both.

(2)It shall be presumed, unless the contrary is shown, that a person accused of criminal trespass knew or realised that there was a real risk or possibility that entry into the land in question was forbidden where the land was an enclosed area.

(3)For the purposes of subsection (2)—

(a)an “enclosed area” means an area of land the perimeter of which is enclosed by a sufficient wall, fence or hedge that is continuous except for one or more entrances that are barred or capable of being barred by a gate or other means; and

(b)in considering whether a wall, fence or hedge is “sufficient”, no regard shall be had to its design or state of repair as long as it is apparent to a reasonable person that the wall, fence or hedge was intended to enclose the area of land concerned.

Part III – Extortion

133. Interpretation in Part III of Chapter VI

In this Part—“advantage” means any right, interest, profit, indemnity, favour or advantage of any kind whatsoever which benefits a person, whether lawfully or otherwise, or which a person believes will so benefit him or her;“exert illegitimate pressure on a person” means to do anything whatsoever which is intended to and does intimidate that person and, without limiting this definition in any way, includes—(a)to threaten to do something that is lawful for the purpose of extracting an unlawful advantage from another person; and(b)to threaten to do something that is unlawful for the purpose of extracting a lawful advantage from another person.

134. Extortion

(1)Any person who—

Criminal Law (Codification and Reform) Act

Chapter 9:23

Related documents

Criminal Law (Codification and Reform) Act

Chapter 9:23

Chapter IPreliminary

1. Short title

2. Interpretation

3. Roman-Dutch criminal law no longer to apply

4. Application of Code to other enactments

5. Territoriality of crimes

Chapter IIElements of criminal liability

Part I – Criminal capacity

6. Children under seven years of age not criminally liable

7. Criminal capacity of children between seven and fourteen years of age

8. No presumption of criminal incapacity for persons over the age of fourteen years

Part II – Criminal conduct

9. Liability for criminal conduct

10. Criminal conduct may consist of acts or omissions

11. Causation

Part III – States of mind

12. Meaning of subjective state of mind

13. Intention

14. Knowledge

15. Realisation of real risk or possibility

16. Negligence

17. References or absence of references to states of mind in statutory crimes

Part IV – proof of criminal liability

18. Degree and burden of proof in criminal cases

Chapter IIICrimes against the State

19. Interpretation in chapter III

20. Treason

21. Concealing treason

22. Subverting constitutional government

23. Insurgency, banditry, sabotage or terrorism

24. Recruiting or training insurgents, bandits, saboteurs or terrorists

25. Training as insurgent, bandit, saboteur or terrorist

26. Supplying weaponry to insurgents, bandits, saboteurs or terrorists

27. Possessing weaponry for insurgency, banditry, sabotage or terrorism

28. Possession of dangerous weapons

29. Harbouring, concealing or failing to report insurgent, bandit, saboteur or terrorist

30. Causing disaffection among Police Force or Defence Forces

31. Publishing or communicating false statements prejudicial to the State

32. Unlawful possession or wearing of camouflage uniforms

33. Undermining authority of or insulting President

34. Prosecutor-General to authorise prosecutions under Chapter III

Chapter IVCrimes against public order

35. Interpretation in Chapter IV

36. Public violence

37. Participating in gathering with intent to promote public violence, breaches of the peace or bigotry

38. Obstructing or endangering free movement of persons or traffic

39. Dealing in or possession of prohibited knives

40. Possession of articles for criminal use

41. Disorderly conduct in public place

42. Causing offence to persons of a particular race, religion, etc.

43. Possession of offensive weapons at public gatherings

44. Disrupting a public gathering

45. Intimidation

46. Criminal nuisance

Chapter VCrimes against the person

47. Murder

48. Infanticide

49. Culpable homicide

50. Inciting or assisting suicide

51. Time of commencement of life and time of death

52. Accelerating death equivalent to causing it

53. Causing death: guidelines

54. Mercy killing and removal of persons from life-support systems

55. Killing while disposing of victim’s body

56. Error as to identity

57. Deflected blow in homicide cases

58. Joining in after fatal injury inflicted

Part II – Unlawful termination of pregnancy

59. Interpretation in Part II of Chapter V

60. Unlawful termination of pregnancy

Part III – Sexual crimes and crimes against morality

Division A: Preliminary

61. Interpretation in Part III of Chapter V

62. Presumption regarding marriage

63. Amendment of presumption that boys under 14 incapable of sexual intercourse

Chapter I
Preliminary

Chapter II
Elements of criminal liability

Chapter III
Crimes against the State

Chapter IV
Crimes against public order

Chapter V
Crimes against the person

Chapter VI
Property Crimes