CRIMES

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Crimes Against the State

 

Sections 19 to 34 are concerned with crimes against the State. Except for the common law crime of treason and the statutory crime of unlawful possession or wearing of camouflage uniforms, the other crimes against the State have been taken from the Public Order and Security Act (“POSA”) and incorporated with certain modifications. (The public order offences in POSA, such as public violence and other crimes relating to public gatherings, are incorporated into the Code as public order offences.)

Definition of terms relating to crimes against the State [s 19]

Word or phrase

Meaning

act of insurgency, banditry, sabotage or terrorism

An act committed by a person the purpose of¾

  • causing or furthering an insurrection in Zimbabwe; or
  • causing the forcible resistance to the Government or the Defence Forces or any law enforcement agency; or
  • procuring by force the alteration of any law or policy of the Government;

which act is accompanied by the use or threatened use of weaponry with the intention or realising that there is a real risk or possibility of¾

  • killing or injuring any other person; or
  • damaging or destroying any property; or
  • inflicting substantial financial loss upon any other person; or
  • obstructing or endangering the free movement in Zimbabwe of any traffic on land or water or in the air; or
  • disrupting or interfering with an essential service.

 

bomb

 

  • 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
  • any other device capable of causing an explosion;

essential service

 

  • any service relating to the generation, supply or distribution of electricity;
  • any fire brigade or fire service;
  • any health, hospital or ambulance service;
  • any service relating to the production, supply, delivery or distribution of fuel;
  • any service relating to the supply or distribution of water;
  • any communications service;
  • any transport service;
  • 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

 

a person who¾

  • is about to commit, is committing or has committed an act of insurgency, banditry, sabotage or terrorism; or;
  • has attended a course or undergone training, is about to attend a course or undergo training or is attending a course or undergoing training as an insurgent, bandit, saboteur or terrorist.

law enforcement agency

 

  • the Police Force (including a member of the Police Constabulary as defined in section 2 of the Police Act; or
  • an intelligence service maintained by the Government; or
  • any agency assigned by an enactment to maintain and enforce the law.

offensive material

 

any inflammable, dangerous, noxious, or deleterious substance, material or thing capable of killing or injuring persons, including¾

  • low or high explosives and the ingredients thereof;
  • all types of fuse used in the ignition of explosives;
  •  
  • timing devices, especially time pencils;
  • wire cutters;
  • concentrated or other harmful acids;
  • ammunition as defined in the Firearms Act;
  • biological or chemical warfare agents;
  • 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

 

  • a member of any law enforcement agency;
  • an ancillary member of the Police Force as defined in section 2 of the Police Act;
  • a member of the Defence Forces;
  • 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

 

any expression of fact or opinion, whether made orally, in writing, electronically or by visual images.

weaponry

 

any of the following kinds of offensive material¾

  • artillery of all kinds;
  • 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;
  • a flame-thrower;
  • 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;
  • biological or chemical warfare agents;
  • 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.

 

 

Treason

[s 20]

This provides for a simple definition of treason that avoids the complexity that arises from using the concept of majestas. (For a state to have majestas it must not just have the trappings of statehood; the state must be independent and sovereign.)

Ingredients [s 20(1)]

Physical ingredients

Mental ingredient

X, who is a citizen or person ordinarily resident in Zimbabwe;

  • inside or outside Zimbabwe;
  • does any act or
  • incites such an act or
  • conspires with one or more other people to commit such an act

Does act, or incites or conspires to do act with the intention of overthrowing the Government.

 

 

Acts of treason [s 20(2)]

The Code provides a non-exhaustive list of acts constituting treason. These are–

  • preparing or endeavouring to carry out by force any enterprise which usurps the executive power of the President or the State in any matter;
  • in times 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.

Lawful acts not constituting treason [s 20(3)]

It is further provided, however, that it is legally permissible (and cannot constitute treason) for a person to do any thing by lawful constitutional means that is directed at–

  • correcting an error or defect in the system of Government or Constitution; or
  • replacing the Government or President;
  • achieving the adoption or abandonment of policies or legislation; or
  • altering of any matter established by the law of Zimbabwe.

Penalty [s 20(1)]

Death or imprisonment for life.

The maximum penalty for treason of death or life imprisonment reflects the gravity of this crime. However, section 48(2) of the 2013 Constitution now allows the death penalty only to be imposed for murder committed in aggravating circumstances and thus the provision in the Criminal Law Code providing for the death penalty to be imposed for treason is unconstitutional and will have to be amended to set the maximum penalty for treason at life imprisonment.

Case

The case of S v Tsvangirai & Ors 2004 (2) ZLR 210 (H) is the leading case on treason. This case was decided on the basis of the common law crime of treason.

Two witness rule

This rule is contained in s 269 of the Criminal Procedure and Evidence Act which provides that it is not lawful for a court to convict a person charged with treason “except upon the evidence of two witnesses where one overt act is charged in the indictment or, where two or more such overt acts are so charged, upon the evidence of one witness to each such overt act.”

This rule is a safeguard against false accusations of treason.

In S v Tsvangirai & Ors 2003 (2) ZLR 88 (H) Garwe JP set out the special evidential rules relating to treason as follows–

It is not competent for a court to convict a person of treason except on the evidence of two witnesses for each “overt act” charged or, where two or more overt acts are charged, one witness for each overt act. There would be no compliance with the Act if, in a case where more than one overt act is charged and there is only one witness, the same witness were to give evidence on each of the overt acts. Where one overt act is charged at least two witnesses must give evidence on the overt act, although the evidence need not overlap. Where the court is relying on the evidence of only two witnesses to prove the whole overt act, the evidence of each of those witnesses must be such that, standing alone, it would, if believed, be adequate to establish that the accused committed the overt act of treason with which he is charged.

An overt act is any act manifesting the criminal intention and tending towards the accomplishment of the criminal object. It is generally a composite thing, passing through distinct stages and made up of various circumstances. Several witnesses speaking to those different stages and circumstances may be necessary.

 

Competent verdicts on charge of treason [s 275 read with 4th Schedule]

  • Attempted murder;
  • Concealing treason;
  • Subverting constitutional government;
  • Insurgency, banditry, sabotage or terrorism;
  • Possessing weaponry for insurgency, banditry, sabotage or terrorism;
  • Any crime of which a person might be convicted if he or she were charged with any of the crimes above.

 

Concealing treason

[s 21]

Under the common law concealing treason was chargeable as treason. In the Code it has been made a crime separate from treason because almost invariably concealing treason attracts a lesser penalty than treason.

Ingredients

X commits this crime if–

  • X is a citizen or is ordinarily resident in Zimbabwe;
  • X knowing that another person, inside or outside Zimbabwe, has committed, is committing, is attempting to commit treason or intends to commit treason;
  • fails to

Penalty

Fine

Prison

Both

Up to or exceeding level 14

Up to 20years

Both

 

Competent verdicts on charge of concealing treason [s 275 read with 4th Schedule]

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

 

Subverting constitutional government

[s 22]

This re-enacts s 5 of POSA which section had re-enacted the provision for the preservation of constitutional government previously contained in the repealed Preservation of Constitutional Government Act. This provision was originally passed in 1963 and its terms and the penalty are identical to those that were applicable in 1963.

 

Definitions [s 22(1)]

Words

Meaning

coercing

 

 

 

 

 

 

 

 

means constraining, compelling or restraining by–

  • physical force or violence or, if accompanied by physical force or violence or thethreat thereof, , civil disobedience or resistance to any law, whether such resistance is active or passive; or
  • threats to apply or any of the means above.

 

unconstitutional means

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

 

Ingredients [s 22(2)]

X commits this crime if X–

  • or outside Zimbabwe;
  • 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 body¾
    • overthrowing or to overthrow the Government by unconstitutional means; or
    • taking over or attempting to take over Government by unconstitutional means or the functions of the Government; or
    • coercing or to coerce the Government.

X also commits this crime if X supports or assists any group or body in doing or attempting to do any of these things.

Penalty [s 22(2)]

Imprisonment for up to 20 years without option of fine.

Competent verdicts on charge of subverting constitutional government [s 275 read with 4th Schedule]

  • Causing disaffection among Police Force or Defence Forces.

 

In S v Mawarire HH-802-17 the accused was acquitted on two charges of subverting constitutional government and two counts of inciting public violence.

Constitutionality

This constitutionality of this offence is very questionable. The broad wording of the offence is indicative of the paranoia of the Rhodesian regime in the face of a rising tide of black nationalism. For instance where accompanied by physical violence, civil disobedience or resistance to any law, whether such resistance is active or passive falls foul of this law.

It overlaps with treason and where it does not, it is vague and also unduly infringes the constitutional right to freedom of assembly and the right to protest, even though the Constitution emphasises that these rights must be exercised peacefully. Protests can be taken over by violent elements who turn them violent even thought this was not intended by the organisers. The penalty for this offence is draconian, namely, imprisonment up to 20 years and the court may only impose a term of imprisonment and not a fine. It would be far more appropriate to deal with violent protestors under offences such as public violence, assault and malicious damage to property

 

Insurgency, banditry, sabotage or terrorism

[s 23]

This re-enacts s 6 of POSA.

Ingredients [s 23(1)]

Physical ingredients

Mental ingredient

X commits act accompanied by use or threatened use of violence

For purpose of

  • causing or furthering an insurrection in Zimbabwe; or
  • causing the forcible resistance to the Government or the Defence Forces or any law enforcement agency; or
  • procuring by force the alteration of any law or policy of the Government

Does act with the intention or realising that there is a real risk or possibility of¾

  • killing or injuring any other person; or
  • damaging or destroying any property; or
  • inflicting substantial financial loss upon any other person; or
  • obstructing or endangering the free movement in Zimbabwe of any traffic on land or water or in the air; or
  • disrupting or interfering with an essential service.

 

Penalty [s 23(1)]

Where the act of insurgency, banditry, sabotage or terrorism results in the death of a person

Any other case

 

death or to imprisonment for life

imprisonment for life or any definite period of imprisonment.

 

Competent charge [s 23(2)]

Where any act of insurgency, banditry, sabotage or terrorism does not result in any of these consequences the competent charge will be one of attempting to commit an act of insurgency, banditry, sabotage or terrorism.

Competent verdict on this charge [s 275 read with 4th Schedule]

  • Possessing weaponry for insurgency, banditry, sabotage or terrorism;
  • Recruiting or training insurgents, bandits, saboteurs or terrorists;
  •  
  • Attempted murder;
  •  
  •  
  •  
  • Public violence;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

Case

In S v Bennet HH-79-2010 X was charged with possession of weaponry for insurgency, banditry, sabotage or terrorism and incitement to commit in insurgency. The charges were brought under the Public Order and Security Act as the Criminal Law Code was not yet in operation. X was acquitted.

 

Recruiting or training insurgents, bandits, saboteurs or terrorists

[s 24]

This re-enacts s 7 of POSA.

Ingredients

This crime is committed where X intentionally¾

  • recruits, assists or encourages another to undergo training inside or outside Zimbabwe in order to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe;or
  • provides training to a person, whether inside or outside Zimbabwe, in order to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe.

Penalty

Imprisonment for life or any definite period of imprisonment.

Competent verdicts on this charge [s 275 read with 4th Schedule]

  • Training as insurgent, bandit, saboteur or terrorist;
  • Supplying weaponry to insurgents, bandits, saboteurs or terrorists;
  • Harbouring, concealing or failing to report insurgent, bandit, saboteur or terrorist;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

 

Training as insurgent, bandit, saboteur or terrorist

[s 25]

This re-enacts s 8 of POSA.

Ingredients [s 25(1)]

X commits this crime if X–

  • attends or undergoes any course of training inside or outside Zimbabwe;
  • for the purpose of enabling X to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe.

Presumption [s 25(2)]

If the prosecution proves that–

  • X attended or underwent a course of training the effect of which was to enable that person to commit an act of insurgency, banditry, sabotage or terrorism in Zimbabwe,

it will be presumed, unless the contrary is proved, that he or she did so for that purpose.

Penalty [s 25(1)]

Imprisonment for life or any definite period of imprisonment.

Competent verdicts on this charge [s 275 read with 4th Schedule]

  • Recruiting or training insurgents, bandits, saboteurs or terrorists;
  • Any crime of which a person might be convicted if charged with the crime above.

 

Supplying weapons to insurgents, bandits, saboteurs or terrorists

[s 26]

This re-enacts s 9 of POSA.

Ingredients

Physical ingredients

Mental ingredient

Inside or outside Zimbabwe;

supplies weaponry to an insurgent, bandit, saboteur or terrorist.

Supplies weapons knowing that 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 used for this purpose

 

Penalty

Imprisonment for life or any definite period of imprisonment.

Competent verdicts on this charge [s 275 read with 4th Schedule]

  • Possessing weaponry for insurgency, banditry, sabotage or terrorism;
  • Any crime of which a person might be convicted if charged with the crime above.

 

Possessing weaponry for insurgency, banditry, sabotage or terrorism

[s 27]

This re-enacts s 10 of POSA.

Ingredients [s 27(1)]

Physical ingredients

Mental ingredient

Has any weaponry in his or her possession or under his or her control

Possesses weapons with the intention that such weaponry will be used in the commission of an act of insurgency, banditry, sabotage or terrorism.

 

Presumption [s 27(2)]

Facts proven by prosecution

Presumption

  • X was in
  • the weaponry consists of any weapon, firearm or ammunition¾
    • referred to in s 24 of the Firearms Act; or
    • for the purchase, acquisition or possession of which the accused has no good ostensible reason; or
    • 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.

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

 

 

Penalty [s 27(1)]

Imprisonment for life or any definite period of imprisonment.

 

Competent verdicts on this charge [s 275 read with 4th Schedule]

  • Supplying weaponry to insurgents, bandits, saboteurs or terrorists;
  • Possessing dangerous weapons;
  • Possessing firearms or ammunition without a certificate in contravention of section 4 of the Firearms Act;]
  • Any crime of which a person might be convicted if charged with any of the crimes above.

 

Possessing dangerous weapon

[s 28]

This re-enacts s 13 of POSA.

Ingredients [s 28(1)]

X commits this crime if X has unlawful possession of–

  • artillery of any kind or any shell or other ammunition therefor; or
  • a flame thrower; or
  • 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
  • a machine-gun or sub-machine-gun; or
  • 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.

Penalty [s 28(1)]

Fine

Prison

Both

Up to level 12

Up to 10 years

Both

 

Defence [s 28(2)]

It is a defence for X to prove that–

  • X held a certificate or permit issued under any enactment authorising his or her possession of the weapon concerned; or
  • X 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.

Charge under Firearms Act [s 28(3)]

X should be charged with contravening s 4 of the Firearms Act if a firearm certificate could have been issued for the firearm or ammunition under the Firearms Act and it is found in the possession of X who did not have the requisite firearms certificate.

Competent verdict [s 275 read with 4th Schedule]

A person charged with possessing a dangerous weapon may be found guilty of contravening s 4 of the Firearms Act if such are the facts proved.

 

Harbouring or concealing insurgent, bandit, saboteur or terrorist

[s 29(1)]

This re-enacts s 11 of POSA.

Ingredients [s 29(1)]

X commits this crime if X intentionally harbours or conceals another knowing that this person is an insurgent, bandit, saboteur or terrorist.

Penalty [s 29(1)]

Fine

Prison

Both

Up to level 12

Up to 10 years

Both

 

Competent verdicts on this charge [s 275 read with 4th Schedule]

  • Defeating or obstructing the course of justice;
  • Assisting the perpetrator of a crime;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

 

Failing to report insurgent, bandit, saboteur or terrorist

[s 29(2) and (3)]

This re-enacts s 11 of POSA.

Ingredients [s 29(2)]

X commits this crime if–

  • X becomes aware of the presence in Zimbabwe of another whom X knows
  • fails as soon as is reasonably practicable after becoming 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, 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
  • upon being questioned by an official, intentionally¾
    • 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
    • gives the official false information in relation to that other person.

Penalty

Fine

Prison

Both

Up to level 10

Up to 5 years

Both

 

Persons granted pardon or amnesty [s 29(4)]

The obligation to report does not apply to bandits and insurgents who have been granted an amnesty or a pardon.

Competent verdicts on this charge [s 275 read with 4th Schedule]

  • Defeating or obstructing the course of justice;
  • Assisting the perpetrator of a crime;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

 

Causing disaffection among Police Force or Defence Forces

[s 30]

This re-enacts s 12 of POSA.

Ingredients

Physical ingredients

Mental ingredient

X induces or attempts to induce any member of the Police Force or Defence Forces to withhold his or her services, loyalty or allegiance or to commit breaches of discipline.

X intends to induce the Police Force or Defence Forces member to withhold his or her services, loyalty or allegiance or to commit breaches of discipline or realising that there is a real risk of so inducing the member.

 

Penalty

Fine

Prison

Both

Up to level 7

Up to 2 years

Both

 

Publishing or communicating false statements prejudicial to State

[s 31]

This re-enacts s 15 of POSA.

Ingredients

The prejudicial consequences to the State with which this crime deals are–

  • inciting or promoting public disorder or public violence or endangering public safety; or
  • adversely affecting the defence or economic interests of Zimbabwe; or
  • undermining public confidence in a law enforcement agency, the Prisons and Correctional Service or the Defence Forces of Zimbabwe; or
  • interfering with, disrupting or interrupting any essential service.

There are two subspecies of this crime–

First sub-species [s 31(a)]

Physical ingredients

Mental ingredient

X, inside or outside Zimbabwe, publishes or communicates to any other person a statement which is wholly or materially false

X intends or realises that there is real possibility of the prejudicial consequences occurring.

 

 

This sub-species of this crime is committed whether or not the publication or communication actually results in the prejudicial consequences.

 

 

Second subspecies [s 31(b)]

Physical ingredients

Mental ingredient

X, inside or outside Zimbabwe, publishes or communicates to any other person a wholly or materially false statement

And the publication or communication of the statement actually results in the prejudicial consequences.

X knows that the statement is false or does not have reasonable grounds to believe that it is true.

 

 

 

This sub-species of this crime is committed whether or not X intended or realised that that there is a real risk of the prejudicial consequences occurring.

 

Penalty

Fine

Prison

Both

Up to level 14

Up to 20 years

Both

 

Competent verdicts on this charge [s 275 read with 4th Schedule]

  • Incitement to commit murder;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

Comment

This is a very nebulous offence and the penalty of up to 20 years imprisonment for it can only be described as savage. A person can commit this offence even though the prejudicial effects do not actually occur or, if they do occur, even if the accused did not intend the harmful effects. The prejudicial consequences to the State with which this crime deals are very wide and vague. This applies particularly to prejudicial consequences such as adversely affecting the defence or economic interests of Zimbabwe or undermining public confidence in a law enforcement agency.

 

Constitutional ruling

In the case of Chimakire & Ors v The Attorney-General of Zimbabwe 2013 (2) ZLR 466 (S) declared section 31(a)(iii) of the Criminal Law Code to be unconstitutional and null and void. This provision deals with publishing a false statement which is wholly or materially false with the intention of undermining public confidence in a law enforcement agency, the Prison Service or the Defence Forces of Zimbabwe. The challenge to the constitutionality of this provision was made under the constitution that was in effect prior to the new 2013 constitution. The Constitutional Court decided that this provision violated section 20(1) of the pre-2013 constitution. The effect of this ruling is that no prosecutions can now be brought under section 31(a)(iii) as currently worded. The court decided that the restrictions that this provision imposed on freedom of expression were not reasonably justifiable in a democratic society. It decided that section 31(a)(iii) went beyond what was necessary and proportionate to the achievement of its legitimate objective. Several factors prompted this conclusion, including the overbroad scope of the provision, its “chilling effect” on legitimate speech and the draconian punishment of up to twenty years imprisonment. Clearly the same ruling would have been made had the constitutional challenge been made under section 61 of the 2013 Constitution.

 

Although the Constitutional Court only struck down section 31(a)(iii), at least some of the reasons given for the declaration of unconstitutionality of this provision would also be application to many if not all of the other provisions in section 31 and persons prosecuted under any of the other provision of section 31 would be able to challenge the constitutionality of the provisions under which they are being charged.

 

See “Chilling freedom of expression to the bone with a chilling offence: Case note on Chimakure & Others v Attorney-General 2013 (2) ZLR 466 (S)” published in the Zimbabwe Rule of Law Journal Volume 1, Issue 1 February 2017. (available on the websites of Zimlii and the Centre for Applied Legal Research.)

 

Below is at attempt to re-shape this offence to make it more compatible with the constitutional provisions and taking into account the comments on this offence by the court.

31. Publishing or communicating false statements prejudicial to the State

Any person who, whether inside or outside Zimbabwe, publishes or communicates to any other person a statement which he or she knows is wholly false which causes any of the following consequences-

  • causes serious public disorder or the endangering of public safety;
  • seriously undermines the defence interests of Zimbabwe;
  • causes significant economic prejudice to Zimbabwe;
  • seriously undermines public confidence in the lawful activities of a law enforcement agency, the Prison Service or the Defence Forces of Zimbabwe thereby weakening the capacity of these services to perform their lawful functions;

shall be guilty of publishing or communicating a false statement prejudicial to the State and liable to a fine up to level five or imprisonment for a period not exceeding one year or both.

 

Unlawful possession or wearing of camouflage uniforms

[s 32]

This re-enacts s 9 of the Miscellaneous Offences Act.

Ingredients [s 32(2)]

X commits this crime if he or she unlawfully possesses or wears any camouflage uniform.

Crime not committed by authorised persons [s 32(3) read with s 32(1)]

This crime is not committed by authorised persons such as members of the Defence Forces and other uniformed force of the State.

Penalty [s 32(2)]

     

      Unlawful possession of a camouflage uniform

Fine

Prison

Both

Up to level 5

Up to 6 months

Both

     

      Unlawful wearing of a camouflage uniform

Fine

Prison

Both

Up to level 6

Up to 1 year

Both

 

Undermining the authority of or insulting President

[s 33]

This re-enacts s 16 of POSA.

Ingredients [s 33(2)]

Physical ingredients

Mental ingredient

X publicly makes a statement (by words, by an act or by a gesture)

 

Publicly making a statement means–

  • making the statement in a public place or any place to which the public or any section of the public have access;
  • publishing it in any printed or electronic medium for reception by the public

X intentionally makes the statement–

  • knowing or
  • knowing or realising the real risk that it may–
  • engender feelings of hostility towards the President or an acting President whether in person or in respect of the President’s office; or
  • cause hatred, contempt or ridicule of the President or an acting President whether in person or in respect of the President’s office.

 

Penalty [s 33(2)]

Fine

Prison

Both

Up to level 6

Up to 1 year

Both

 

Comment

This offence may be appropriate to protect the dignity of the office of ceremonial President. But an executive President who is actively involved in political activities should surely not be above criticism. The problem with this offence is that is can, and often is, used to stifle criticism of executive President.

It is arguable that this offence is an undue restriction upon freedom of speech and should either be abolished or its ambit restricted to protecting only the dignity of the office itself against scurrilous attacks.

There have been several cases in which persons accused of this offence have sought to challenge the constitutionality of this offence. In a number of instances, the court has thrown out the cases on the basis either that the indictment was defective or that the facts did not disclose the offence. The Constitutional Court has also indicated that it will only deal with the constitutional issues if the facts disclose that the offence has been committed.

There are a number of cases in which the constitutional issue has been raised but as yet there has not been any clear constitutional ruling, although the Chief Justice has made some remarks that indicate that the court has doubts as to the constitutionality of this offence. For instance in the prosecution in which Mwonzora is alleged to have called the President “a goblin” the Chief Justice asked: “If somebody calls the president a weevil or gamatox, are you going to prosecute that person?’’

 

 

 

Leave of Attorney-General

[s 34]

This provides that the leave of the Attorney-General is required before criminal proceedings can be taken for any of these crimes against the State 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.

 

 

 

Crimes Against Public Order

 

Sections 36 to 46 incorporate various crimes against the peace and good order of the community which do not, however, have an anti-State character.

Definitions in respect of crimes against public order [s 35]

Words

Meaning

offensive material

any inflammable, dangerous, noxious, or deleterious substance, material or thing capable of killing or injuring persons, including¾

  • low or high explosives and the ingredients thereof;
  • all types of fuse used in the ignition of explosives;
  •  
  • timing devices, especially time pencils;
  • wire cutters;
  • concentrated or other harmful acids;
  • ammunition as defined in the Firearms Act;
  • biological or chemical warfare agents;

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.

public demonstration

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

public meeting or a public demonstration

public meeting

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

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

weaponry

any of the following kinds of offensive material¾

  • artillery of all kinds;
  • 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;
  • a flame-thrower;
  • 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;
  • biological or chemical warfare agents;
  • 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.

 

 

Public violence

[s 36]

This codifies the common law crime of public violence.

Ingredients [s 36(1)]

Physical ingredients

Mental ingredient

X acts in concert with one or more others, and forcibly and to a serious extent¾

  • disturbs the peace, security or order of the public or any section of the public; or
  • invades the rights of other people;

X intends such disturbance or invasion or realises that there is a real risk or possibility that such disturbance or invasion may occur.

 

 

Factors to be taken into account to decide whether disturbance of peace, security or order or invasion of rights is sufficiently serious to constitute this crime [s 36 (2)]

A court must take into account all relevant factors, including ¾

  • the nature and duration of the disturbance or invasion;
  • the motive of the persons involved in the disturbance or invasion;
  • whether the disturbance or invasion occurred in a public place or on private property;
  • whether or not the persons involved in the disturbance or invasion were armed and, if so, the nature of their weapons;
  • whether or not bodily injury or damage to property occurred in the course of or as a result of the disturbance or invasion;
  • whether or not there was an attack on the police or on other persons in lawful authority;
  • the manner in which the disturbance or invasion came to an end.

Aggravating circumstances[s 36(3)]

It is an aggravating circumstance if, in the course of or as a result of the public violence¾

  • there was an attack on the police or on other persons in lawful authority;or
  • bodily injury or damage to property occurred;or
  • 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.

Penalty [s 36(1)]

Fine

Prison

Both

Up to level 12

Up to 10 years

Both

 

Competent verdicts on charge of public violence [s 275 read with 4th Schedule]

  • Attempted murder;
  •  
  • Malicious damage to property;
  • Disorderly conduct in public place;
  • Disrupting a public gathering;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

 

Participating in gathering with intent to promote public violence, breach of the peace or bigotry

[s 37]

This re-enacts, with modifications, s 19 of POSA.

Ingredients [s 37(1)]

The three species of this crime are as follows–

Physical ingredients

Mental ingredient

X acting together with one or more others present with X in any place or at any meeting

X intends or realises that there is a real risk of forcibly–

  • disturbing the peace, security or order of the public or any section of the public; or
  • invading the rights of other people.

 

Physical ingredients

Mental ingredient

X acting together with one or more others present with X 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.

 

X intends by this action to provoke a breach of the peace or realises that there is a risk or possibility that a breach of the peace may be provoked.

Physical ingredients

Mental ingredient

X acting together with one or more others present with X in any place or at any meeting

utters any words or distributes or displays any writing, sign or other visible representation–

 

X intends 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

realises that there is a risk or possibility that such behaviour might have such an effect.

 

 

Immaterial whether action planned or spontaneous [s 37(2)]

This crime is committed whether the action is spontaneous or planned in advance.

Immaterial whether private or public place [s 37(2)]

This crime is committed whether the place or meeting where action occurred is public or private.

Penalty [s 37(1)]

Fine

Prison

Both

Up to level 10

Up to 5 years

Both

 

Person acting alone in public place [s 37(3)]

If X would have committed this crime but for the fact that X acted alone in a public place, the competent charge against X will be either–

  • disorderly conduct in a public place; or
  • causing offence to persons of a particular race, tribe, place of origin, colour, creed or religion.

 

Obstructing or endangering free movement of persons or traffic

[s 38]

This re-enacts s 18 of POSA

Ingredients

The three species of this crime are as follows–

Physical ingredients

Mental ingredient

X throws or propels or prepares to throw or propel any missile, article or thing at any person, motor vehicle, boat, aircraft or building.

X intends to cause damage or injury or realises that there is a real risk of causing this.

 

Physical ingredients

Mental ingredient

X, overturns or attempts to overturn any motor vehicle, boat or aircraft

without lawful excuse, the proof of which lies on him or her.

 

 

Physical aspects

Mental aspect

X leaves or places on or over any road any thing otherwise than in accordance with any other enactment,

X intends to obstruct the road or endanger persons using it or realises that there is a real risk that X will do so.

 

Penalty

Fine

Prison

Both

Up to level 12

Up to 10 years

Both

 

Dealing in or possessing prohibited knives

[s 39]

This re-enacts s 8 of the Miscellaneous Offences Act.

Ingredients [s 39(3) read with 39(1) and (2)]

Physical ingredients

Mental ingredient

X has in his or her possession a prohibited knife

 

 

Physical ingredients

Mental ingredient

X deals in a prohibited knife.

To deal in means

  • to sell, hire or offer for sale;
  • to advertise for sale or hire;
  • to lend or give another

a prohibited knife.

 

For the purposes of this crime a prohibited knife means–

  • a knife with a blade –
  • that 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
  • that 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
  • a knife that is–
  • released from the handle or sheath of the knife manually; and
  • locked in the open position by means of a button, spring, lever or other device; and
  • released from the locked open position otherwise than solely by manual pressure on the blade.
  • A knife that is declared by the Minister to be a prohibited knife. (Where the Minister considers it necessary in the public interest to do so, her or she 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.)

 

But it does not include a trimming knife the blade of which does not exceed thirty millimetres in length.

 

 

Penalty [s 39(3)]

Fine

Prison

Both

Up to level 6

Up to one year

Both

 

Forfeiture of knife [s 39(4)]

The court convicting X may order the forfeiture to the State of the knife that formed the subject of the charge.

 

Possession of articles for criminal use

[s 40]

This re-enacts s 6(1)(a) of the Miscellaneous Offences Act.

Ingredients [s 40(1)]

Physical ingredients

Mental ingredient

X, without lawful excuse which X must prove, has in his or her custody or possession an article for use in unlawful entry into premises, theft, fraud or a contravention of s 57 of the Road Traffic Act

 

X knowingly has custody or possession of the  article.

 

Presumption [s 40(2)(b)]

Facts proven

Presumption

X 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 s 57 of the Road Traffic Act.

It will be presumed unless the contrary is proved that the person had it in his or her possession for such use.

 

Penalty [s 40(1)]

Fine

Prison

Both

Up to level 10

Up to 1 year

Both

 

Disorderly conduct in public place

[s 41]

This re-enacts and combines s 36 of the repealed Law and Order (Maintenance) Act and

s 7 of the Miscellaneous Offences Act.

Ingredients

X commits this crime if X, in a public place¾

  • intentionally engages in disorderly or riotous conduct; or
  • 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 of doing so.

Penalty

Fine

Prison

Both

Up to level 5

Up to 6 months

Both

 

 

Causing offence to persons of particular race, tribe, place of origin, colour, creed or religion

[s 42]

This re-enacts s 44 (1) (e) of the repealed Law and Order (Maintenance) Act, while at the same time updating that crime by reference to the grounds of unlawful discrimination mentioned in s 23 of the Constitution.

It does not, however, make it a criminal offence to utter abuse about persons of a particular description by “political opinion”. The reason why this is not made an offence is that to criminalise this may hinder ordinary political discourse and therefore constitute a breach of the right of free expression.

Ingredients [s 42(2)]

Term

Meaning

creed or religion

 

 

 

 

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, statue

 

These have the meanings assigned to those terms by section 2 of the Censorship and Entertainments Control Act

 

“publicly”, in relation to making a statement

Making the statement in a public place or any place to which the public or any section of the public have access;

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

 

Physical ingredients

Mental ingredient

X 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.

X intends to cause such offence or realises there is a real risk or possibility of doing so.

 

Penalty [s 42(2)]

Fine

Prison

Both

Up to level 6

Up to 1 year

Both

 

 

Possessing an offensive weapon at a public gathering

[s 43]

This re-enacts s 30 of POSA.

Ingredients [s 43(2)]

X commits this crime if, while present at a public gathering X has with him or her any offensive weapon except when X has the weapon in pursuance of lawful authority.

The term “offensive weapon” means–

  • any weaponry or offensive material; or
  • any object made or adapted to be used for causing injury to the person;or
  • any stone.

A person will 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 employee of the State or a local authority.[s 43(3)]

Penalty [s 43(2)]

Fine

Prison

Both

Up to level 10

Up to 5 years

Both

 

Disrupting public gathering

[s 44]

 

This re-enacts s 31 of POSA.

Ingredients

Physical ingredients

Mental ingredient

At a public gathering X

  • engages in disorderly or riotous conduct, or
  • uses threatening or insulting words, or
  • behaves in threatening, abusive or insulting manner

 

X intends to prevent the transaction of the business for which the gathering was called together, or realises that there is a real risk or possibility of this.

 

Penalty

Fine

Prison

Both

Up to level 5

Up to 6 months

Both

 

Intimidation

[s 45]

This re-enacts s 22 of POSA.

Ingredients

X commits this crime if–

  •  
  • to compel or induce another¾
    • to do something which that person is not legally obliged to do; or
    • to refrain from doing something which that person is legally entitled to do.

Penalty

Fine

Prison

Both

Up to level 10

Up to 5 years

Both

 

Criminal nuisance

[s 46]

This creates the new crime of “criminal nuisance”, which covers the numerous acts of public nuisance presently made criminally liable under s 3(2)(a) to (w) of the Miscellaneous Offences Act. These acts are specified in the Third Schedule to the Code. The inclusion in the Code of this and other crimes from the Miscellaneous Offences Act means that the Act can be repealed in its entirety.

Ingredients

X is guilty of this crime if X does any of the acts specified in the Third Schedule.

Penalty

Fine

Prison

Both

Up to level 5

Up to 6 months

Both

 

 

 

Crimes Against the Person

 

Homicide

 

Sections 47 to 58 deal with crimes involving the death of persons.

 

Murder

[s 47]

Ingredients [s 47(1)]

Physical ingredients

Mental ingredient

X unlawfully causes the death of Y

X intended to kill Y;or

X continued to engage in conduct after realising that there is a real risk that the conduct may cause death.

 

Where X intends to cause death, X is guilty on the basis of actual intention.

Actual intention is present when X set out to cause death and where X foresaw that the death was substantially certain to occur. See S v Mema HB-143-13.

Where X does not have actual intention to cause death, but X realises that there is a real risk that death would result, X is guilty on the basis of what used to be referred to as legal intention.

In S v Mhako 2012 (2) ZLR 73 (H) set out the requirements for legal intention. In this case the accused was charged with murder of his seven year old daughter. He has severely beaten her with a bamboo stick for a misdemeanour. She had managed to run away but had fallen down and injured herself whilst she was running away. He was convicted of murder because according to his confession and to the evidence of an eye witness, the accused must have realised that there was a real risk or possibility that his conduct might cause death but nonetheless he continued to engage in such conduct despite the real risk or possibility of death.

Borderline between murder and culpable homicide

It is often difficult to decide whether X is guilty of murder on the basis of legal intention or is only guilty of culpable homicide. If the court finds that X did realise that there was a risk of death arising out of his or her actions and X nonetheless persisted with the action X is guilty of murder. But if the court finds that X did not subjectively realise the risk of death but a reasonable person would have realised and guarded against this risk X is only guilty of culpable homicide. If X admits that he or she did appreciate the risk of death, there is no problem in determining that he or she is guilty of murder on the basis of legal intention. But the determination of the issue of legal intention is more difficult where X denies that he or she realised there was a risk of death arising out of what he or she was doing. Here the court has to apply inferential reasoning and the court will have to decide whether despite X’s denial only reasonable inference is that must have and therefore did realise that there was a risk of death. If the court decides that he did realise the risk of death, it is saying that X is lying when he or she claims he or she did not realise this risk.

In deciding this issue, the court must take cognisance of all subjective features that may have affected the mental capacity or ability of X to realise that there was a risk of death arising from his or her activity. The factors that may have affected the state of mind of X include provocation, intoxication, mental disorder or disability and youthfulness. The crucial question is whether the presence of one or more of these factors prevented X from realising that there was a risk of his action causing the death. For example, if X has been severely provoked and has completely lost his or her self-control, X may not have realised that death would result from his or her conduct. If X has consumed alcohol or drugs and this has impaired his or her mental faculties, X may not have appreciated that death would result from his or her actions. In both these situations the court will not convict X of murder if it finds that X lacked the legal intention to kill but X may still be guilty of culpable homicide.

A good case illustration of how on application of the subjective test X is not guilty of murder because of absence of legal intention, even though it would have been palpably obvious to any reasonable person in the same situation that death would result from X’s actions is the case of  S v P 1972 (2) SA 412 (A). In this case a youth who had run away from an institution where he was being held had been re-captured and was being transported back to the institution in a train. When he was escorted to the toilet by a guard, he had wrapped a metal chain around the guard’s neck and pulled the chain upwards until the guard was no longer resisting. The guard died. The trial court has convicted the youth of murder but on appeal the court decided he was only guilty of culpable homicide. The subjective factors that led the court to decide that he may have lacked legal intention were the age of X, the fact that he had a disturbed personality and had a tendency to use violence in an uncontrolled manner and that the institution in which he was being held the boys played a game in which one boy would render another unconscious by twisting a towel around his throat. The youth said that when he had applied the chain to the guard’s neck he was only trying to render him unconscious.

 

Similarly in the Zimbabwean case of S v Richards 2001 (1) ZLR 129 (S) a youth was found not guilty of murder when he had shot at bird near an inhabited farm compound and the bullet had ricocheted and killed a child hiding in a drum. When the youth had shot at the bird no person was visible to him. The court found him guilty only of culpable homicide as it found he did not realise that he end up killing a person, although any reasonable person would have appreciated that there was a risk of death to a person.

 

Thus where there are such subjective features, the court will take these into account when deciding whether X had legal intention. More difficult are cases where no special subjective features are present.

 

Take a situation where X is a sane adult and not drunk and was not provoked and there are no other special subjective features etc. If X says he did not realise risk of death, but the risk would have been obvious to a normal person it is likely that court will say that any normal person would have appreciated the risk, you are a normal person and you must have appreciated the risk. But this is tantamount to applying the objective test which is not the correct test for murder. For example, X shoots close to D to frighten him but aim poor and bullet hits and kills D. If court believes X that shooting to miss and he didn’t think he might miss, the court should acquit him or murder but it is far more likely to say that in shooting so close to D must have appreciated that might hit and kill him. Thus in the case of S v Henderson S-17-84 although X maintained that he had shot to miss the complainant, he was still found guilty of attempted murder when the bullet hit and injured the complainant.

 

There are a number of borderline cases where bullets fired by armed robbers have been found guilty of murder where they have ended up killing their fellow criminals in the process of trying to kill their victims. See for example in the cases of S v Mpala 1986 (2) ZLR 93 (S) and S v Nkombani 1963 (4) SA 877 (A). There is even one South African case, S v Nhlapo 1981 (2) SA 744 (A), in which robbers were convicted of murder where the robbers had fired on security guards and a security guard had been killed probably by mistake by a fellow security guard who was returning fire aimed at the robbers. The court found that the robbers must have known that during the robbery there could be a gun battle in which anyone in the vicinity could be killed including a guard, a robber and a bystander. This case was followed in the Zimbabwean case of S v Chauke & Anor 2000 (2) ZLR 494 (S). In this case dangerous prisoners attempted to escape by seizing weapons from prison guards. A gun battle ensued in which a prison guard was killed. The court found that even if the fatal bullets had been fired by fellow prison guards during the gun battle, the appellants must have foreseen a gun battle in which anyone in the vicinity might get killed as a result of the exchange of gun fire.

 

Murder during a robbery or housebreaking

 

When criminals acting with common purpose try to carry out a criminal enterprise like robbery or theft they may be faced with resistance. Quite often a person trying to stop the robbery or theft may end up being killed by one of the criminals. The question then arises as to whether not only the actual perpetrator of the killing but also the other criminals will be liable for murder.  If the other criminals know that the actual perpetrator was carrying a weapon which he was likely to use to overcome resistance, then the other criminals will be likely to be guilty of murder also on the basis of at least legal intention. The court is likely to find that knowing that the actual perpetrator was armed and was likely to use the weapon to overcome resistance, they must have realized the real risk that the actual perpetrator would kill any person who resisted and they nonetheless took part in the criminal enterprise.

 

In S v Ncube & Anor 2014 (2) ZLR 174 (S) X and Y went to a school to break in and steal property. Both X and Y were carrying knives as well as implements to use to break into the school. A teacher disturbed them and X ran off carrying some of the loot. The teacher ran after X and Y used the opportunity to run off. X drew a knife and killed the teacher who was trying to arrest him. On appeal the court found X had correctly been found guilty of murder on the basis of actual intent but that Y should have been found guilty of murder on the basis of legal intention. He was a co-perpetrator who had not dissociated from the criminal enterprise simply by running away. For there to be legally effective withdrawal Y had to do something to avert the risk of death by persuading Y to surrender or to take away his knife before he could kill the teacher.

 

In S v Ndebu & Anor 1986 (2) SA 133 (ZS) the appellants were convicted of murder and sentenced to death. During the course of housebreaking at a dwelling known to be occupied at the time, the appellants were surprised by the householder. The second appellant not in possession of a firearm, immediately fled and had already run some distance away before he heard the sound of gunshot fired by second appellant which killed the deceased. The unarmed second appellant was guilty of murder on the basis of common purpose, the court finding his running away in the circumstances did not constitute legally effective withdrawal.

 

In S v Chareka & Anor S-40-93 two accused acting in concert had a firearm in their possession. The second accused was found guilty of murder with constructive intent.

 

In S v Ngulube & Anor S-112-93 the Supreme Court held that the first appellant should have been found guilty of murder with constructive intent on the basis that being aware that his accomplice was armed with a lethal weapon he must have appreciated and foreseen the possibility of his colleague resorting to the use of the weapon to kill in furtherance of their common objective to effect the robbery.

 

Murder on the basis of common purpose

 

When a group of persons cause the death of a person, each member of the group is liable for the death provided that each member of the group acted with common purpose to cause the death. It is not enough that the person charged was present at the scene of the murder. It has to be proved for instance that he had conspired with the others to commit the murder and had gone to the scene of the murder with the intention of assisting that others to perpetrate the murder. In this regard see the case of S v Madzokere & Ors HH-37-14. However, in respect of one of the accused that because he had associated himself with the cause of the group suspected of having killed the deceased, he has the onus of proving that his association with the group was entirely innocent. This is questionable as surely the onus remains on the State to prove that the accused satisfies the requirements of common purpose, that is, that his association was not innocent but that he had made common purpose to participate in the killing.

 

Murder on the basis of circumstantial evidence

S v Mupayiki HH-199-16

 

Murder when there is no dead body

A person can be convicted of murder even if no body is found, on the basis of circumstantial evidence if that evidence is consistent with no other reasonable inference than that the victim is dead and was murdered by the accused. See S v Shonhiwa 1987 (1) ZLR 215 (S) and S v Masawi & Anor 1996 (2) ZLR 472 (S).

 

When death penalty imposable for murder [s 47]

 

Section 48(2) of the Constitution provides that a law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances but that law must permit the court a discretion whether or not to impose the penalty. It also provides that the death penalty may not be imposed:

 

  • on a woman;
  • on a man over the age of 70; and
  • on a male under the age of 21 at the time the offence was committed.

Sentence

 

A person convicted of murder is liable—

  • subject to sections 337 and 338 of the Criminal Procedure and Evidence Act, 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 provided above; or
  • in any other case to imprisonment for any definite period.

A person convicted of attempted murder or incitement or conspiracy to commit murder is liable to imprisonment for life or any definite period of imprisonment.

 

Aggravating circumstances [s 47(2) & 3)]

 

The Code provides that when a court is deciding the appropriate sentence for murder, it must regard as aggravating in case of murder although it may regard other factors other than those set out as aggravating. The factors which it must regard as aggravating as these:

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 must regard it as an aggravating circumstance if—

  • 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) —
    • an act of insurgency, banditry, sabotage or terrorism; or
    • the rape or other sexual assault of the victim; or
    • kidnapping or illegal detention, robbery, hijacking, piracy or escaping from lawful custody; or
    • 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; or
  • 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
  • the murder was preceded or accompanied by physical torture or mutilation inflicted by the accused on the victim; or
  • 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 means (such as fire, explosives or the indiscriminate firing of a weapon) that caused or involved a substantial risk of serious injury to bystanders.

 

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—

  • the murder was premeditated; or
  • 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.

 

These aggravating circumstances however are not exhaustive, and that a court may find other circumstances in which a murder is committed to be aggravating.

 

Comment

 

These provisions provide a non-exhaustive list of factors or circumstances which the court shall regard as aggravating circumstances such as when the murder was committed in the course of committing an act of terrorism, kidnapping or rape. It includes, however, situations where the murder was committed during the commission of any act constituting an essential element of any such crime (whether or not the accused was charged with or convicted of the listed crimes. This latter provision is too wide as it would allow the court to impose the death penalty where the State is only able to prove one element of the listed crimes even though it has seen fit to allege and prove that the listed crime in question has been committed.

 

By stating that the courts shall regard these circumstances as aggravating, the  impression might be created that the death penalty must be imposed where these circumstances are present. It must be made clear that the death penalty is not mandatory where these circumstances are present; the court must still take into account any mitigating circumstances that may exist and decide whether on balance the death penalty is justified. In other words, by providing in the Constitution that the death penalty should only be imposed where there are aggravating circumstances, it is envisaging that the death penalty will only be imposed where the murder is exceptionally grave or heinous. But even where the murder is exceptionally grave or heinous, there may still be significant mitigating circumstances that justify the court imposing a penalty other than the death penalty.

 

There should also have been provisions explicitly laying down that the onus is on the State to prove the presence of aggravating circumstances and to provide that the court must take account of all possible mitigating circumstances that have been pleaded or which have emerged from the evidence in the case.

 

The provision makes it clear that the death penalty must be not be imposed for attempted murder or incitement or conspiracy to commit murder. Here the penalty is imprisonment for life or imprisonment for any definite period.

 

Inciting or assisting a mother to kill her own child

The person inciting or assisting a mother to kill her own child can be found guilty of murder even when the mother herself is only guilty of infanticide. See below under the topic of infanticide.

 

Competent verdicts on charge of murder [s 275 read with 4th Schedule]

  •  
  • Culpable homicide;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

See Guide pp 101-107.

 

Charging murder when no body

In S v Shonhiwa 1987 (1) ZLR 215 (S) the court said that for a person to be convicted of murder where no body has been found, there must be sufficient evidence to establish the murder; the evidence can be wholly circumstantial provided it is consistent with no other reasonable inference than the victim is dead and was murdered by the accused.

Attempted murder

Section 192(2) of the Code provides that any defence that can be relied upon for the actual commission of a crime can be relied upon for attempt. Thus for attempted murder any full and partial defence that could be raised for murder can also be raised in respect of attempted murder.

 

Infanticide

[s 48]

 

Background

The offence of infanticide was first introduced into Zimbabwean law by the Infanticide Act. That Act created a special offence of infanticide, enabling cases of baby killing by mothers to be charged, not as murder, but as infanticide. This section substantially incorporates the provisions of the Infanticide Act.

 

See 1992 Vol 4 No 4 Legal Forum p 22 for a critical examination of the original Infanticide Act. d

 

Ingredients [s 48(1)]

This crime can only be committed by a mother who causes the death of her own child within 6 months of giving birth to the child.

The elements of the offence are–

  • X must be a woman;
  • the victim must have been X’s own child;
  • X must have killed the child within 6 months of giving birth to the child;
  • the killing must have been either intentional or carried out by means which the accused realised involved a real risk to the child’s life;
  • at the time of the killing the balance of X’s mind must have been disturbed as a result of giving birth to the child.

 

Thus what makes this crime different from murder is that, although the woman killed her child intentionally, she was in a disturbed state of mind at the time she intentionally killed her child as a result of pressure and stress arising out of the birth.

In determining whether X’s balance of mind has been disturbed as a result of giving birth to the child the court can take into account not only the stress caused by the actual birth process but also the pressure and stress she suffered arising out of the following social, economic and psychological factors–

  • the effects which the birth had, or which she believed it would have, on her social, financial or marital situation;
  • the difficulties the woman would have, or she believed she would have, in caring for the child in her social, financial or marital situation or due to her inexperience or inability;
  • any other relevant considerations, whether based on the psychological effects on the woman’s mind arising out of the birth itself or otherwise.

 

Mother can be charged with murder [s 48(4)(a)]

The crime of infanticide only applies if the balance of the mother’s mind had been disturbed as a result of giving birth to the child. Where the mother’s mind was not disturbed, she should be charged with murder if she intentionally kills her own child. For instance, the charge of murder should be brought if the mother had the means to support the child, but did not want to be inconvenienced by having to look after the child.

 

Special verdict [s 48(4)(b)]

The offence of infanticide does not stop the court from returning, where appropriate, a special verdict of not guilty by reason of insanity. This verdict should be returned where, for instance, the woman was so mentally disturbed when she killed her child that she did not understand the nature of what she was doing.

 

Inciting or assisting mother to kill her own child

There has been a controversy as to whether a person who incites or assists a woman to kill her own child should be charged as an accomplice to infanticide or should be charged with murder. The person inciting or assisting may be her lover who has impregnated her or a relative, friend or employer.

There are various reasons why the inciter or assister should be charged with murder rather than as an accomplice to infanticide.

The offence of infanticide was created in order to allow mothers who kill their children in disturbed states of mind due to birth to be found guilty of a lesser offence than murder. This recognised the fact that the blameworthiness of the mother is far less than a murderer because the mother has killed in a disturbed state of mind brought about by the stress arising out of the giving of birth.

Only the mother of the child can commit infanticide and the mother is guilty only of infanticide and not murder if the mother was in a disturbed state of mind when she killed her own child. The person who incites or assists a mother who is in a disturbed state of mind to kill her child is not suffering from any disturbed state of mind. Take the situation where the boyfriend encourages his girlfriend to kill her newly born child because he does not want to have to support the child. The boyfriend is not in the predicament of the mother and is not under her stress. His motive in inciting her to kill was entirely selfish and his actions are very blameworthy. He is using his girlfriend whom he knows to be in an agitated mental state to kill her baby. To find him guilty as an accomplice to infanticide will mean that the maximum sentence that could be imposed upon him would be 5 years in prison, which would be completely inadequate.

This situation is similar to a situation where a person incites a mentally disturbed person to commit suicide. On the other hand, it is different from a case where a woman assists a man to rape a woman. The woman is guilty of rape as an accomplice although she cannot commit this crime as the actual perpetrator as only a man can commit rape. In this situation, the blameworthiness of the woman is great as she facilitated the rape by the man. Neither party is suffering from any mental disturbance.

Where the person inciting or assisting a young mother to kill her own child is an older relative or a person who has influence or authority over the mother, again the moral blameworthiness is very high if that person uses his or her influence or authority to persuade the mother to kill her own child.

Cases

In S v Kachipare 1998 (2) ZLR 271 (S) K, the employer of a 17-year-old domestic worker, persuaded the girl to kill her own child, telling her that she did not have the means to look after a baby and if she took the baby to the Kachipare household she would be chased away. K related how she herself had killed her own baby when she was at school and how a former housemaid of hers had also killed her baby. K was convicted of murder whereas the girl was convicted of infanticide. As no extenuating circumstances were found to exist, K was sentenced to death. The sentence imposed on girl for infanticide was 2 years wholly suspended. The Kachipare case has been criticised but it seems to be correctly decided.

In S v Kuyeri S-188-95 X, aged 45, who was a relative of a 16-year-old girl, impregnated the girl. After the baby was born the girl suggested to X that the baby should be killed. X strangled the baby and buried it. The girl was found guilty of infanticide and sentenced to three years’ imprisonment. X was found guilty of murder, and finding that there were no extenuating circumstances, the trial court sentenced him to death. On appeal the court said that although this was a borderline case, there was no basis for interfering with the finding by the trial court that there were no extenuating circumstances in respect of X. The appeal court agreed with the trial court that the disparity in sentences imposed on the girl and X could not be taken into account. The fact that a far less severe sentence was imposed on the girl in no way affected whether there were extenuating circumstances in relation to X. His moral blameworthiness was not reduced by the lesser sentence imposed on the girl.

Penalty [s 48(1)]

Imprisonment for up to 5 years.

See A. Armstrong “Sentencing for Infanticide in Zimbabwe” 1986 Zim Law Review 136.

Competent verdicts [s 275 read with 4th Schedule]

  • Culpable homicide;
  • Unlawful termination of pregnancy;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

Case

 

In S v Rwodzi 2001 (2) ZLR 127 (H) X pleaded guilty to infanticide and was sentenced to a partly suspended term of imprisonment. She admitted having given birth to a live baby, whom she took a few days after the birth, clothed and wrapped in a cloth, and put in a shallow pit not far from a road. When the police took her to the scene there was no sign of the baby, although the cloth was still there. There was thus no evidence that the child had died or of the cause of death. She admitted that she wanted to do away with the child and that through her actions the child would eventually die of exposure. The court held that X had undoubtedly abandoned her child, but the section under which she was charged spoke of unlawfully and intentionally causing the death of a child. The essential elements are the same as murder. There was, though, no evidence that the child had died, so she should have been convicted only of attempted infanticide.

 

Culpable homicide

[s 49]

This crime is aimed at trying to protect people against persons who act carelessly and cause other people’s deaths.

The Code provisions expand the ambit of this crime to cover a situation where X realises that there is a risk of death but does not take a conscious risk by continuing to act recklessly but instead simply fails to guard against the risk of death.

Ingredients

X can commit this crime if he or she causes the death of a person either–

  • negligently failing to realise that death may result from his or her conduct; or
  • realising that death may result from his or her conduct and negligently fails to guard against the possibility of death occurring.

As regards causation in S v Mukwambuwe 2014 (2) ZLR 115 (H)  the court pointed out that for a conviction for culpable homicide to be sustainable there must be two tests. The first test is the test for factual cause: there must be a causal link between the accused’s conduct and the consequence. The question is whether, but for the accused’s conduct, the consequence would have occurred. This is referred to as causa sine qua non. The second test is the test for legal cause. The question is whether it was reasonably foreseeable that accused’s conduct would lead to that consequence. The causal link would not be broken by a new cause that supervened after the accused had engaged in the conduct, provided it was reasonably foreseeable that the subsequent event would occur after the accused’s conduct.

 

Comment

Previously in our law culpable homicide was only committed when X negligently failed to foresee and guard against death. The Code has added a further type of culpable homicide which may be referred to as advertent or conscious negligence. Advertent negligence applies where X appreciates that there is risk of death, but rather than taking a conscious risk which would mean that he or she would have intention to kill, X negligently fails to guard against the risk.

It remains to be seen how often the second species of culpable homicide will apply. It is submitted that there will be considerable difficulty in deciding whether–

  • X should be found guilty of murder on the basis that X realised that there was a real risk that his or her conduct might result in death and X continued with his or her conduct taking a conscious risk.

or

  • X should be found guilty only of culpable homicide because although X realised that there was a risk that death would result from his or her conduct, X did not take a conscious risk but instead was negligent in failing to guard against the risk.

The distinction between conscious and inadvertent negligence will be inordinately difficult to maintain, but clearly where the State believes that X took a conscious risk of causing death, X should be charged with murder rather than culpable homicide.

In  S v Majarira 2003 (1) ZLR 606 (H) the court stated that the concept of negligence in culpable homicide cases has two components: (1) the issue of whether death was reasonably foreseeable in the circumstances; and (2) the issue of what steps a reasonable person would have taken to prevent death from occurring. Thus negligence consists of a failure to take the steps that a reasonable person would have taken to guard against death where death was reasonably foreseeable. In this case a woman was looking after a two year old child. The child had died as a result of falling into a tin of hot water that was in the house of the woman. The court found that the magistrate’s failure to investigate properly the facts and full circumstances of the case made it unsafe to uphold the conviction for culpable homicide.

In S v Tapera 2012 (2) ZLR 246 (H) the police intercepted a bus believing that a suspect was in the bus. They forced the bus driver to reverse the bus for a considerable distance to go back to the police station. The police accompanied the reversing bus with a police car parallel to the bus with its lights on full beam and with flashing blue lights on top of the police vehicle. A motor vehicle travelling in the same lane as the reversing bus rammed into the back of the bus and killed the driver and two other passengers. The court decided that the police officers were not guilty of culpable homicide as there was no causal link between the conduct of the police officers and the deaths of the three deceased. They had taken reasonable precautions and the evidence pointed ot the failure by the deceased driver to keep a proper look out and he was the proximate cause of the fatal crash.

Situations leading to charges of culpable homicide

There myriad situations in which negligent causing of death can arise. Some of the most common are the following:

  • Negligent driving leading to fatal accidents;
  • Negligent accidents in industries and mines causing death;
  • Negligent failure to prevent deaths from dangerous conditions on land and premises;
  • Negligent use of firearms;
  • Assaults leading to death where the perpetrators did not have actual of legal intention to cause death but where death was reasonably foreseeable.

 

Motor accidents

 

In the cases of S v Mudoti 1986 (4) SA 278 (ZS) and S v Mugwagwa S-24-88 the court dealt with whether the doctrine of res ipsa loquitur applies to criminal cases.

 

The case of S v Njara S-95-84 deals with what happens where there is joint and simultaneous negligence.

 

In S v Kurwakumire S-23-89 the court decided that contributory negligence has no application in criminal law.

 

In S v Manhondo HH-186-01 the court pointed out that where a person is pleads guilty to culpable homicide arising out of a motor accident, it is necessary for the facts to be fully canvassed, so that the degree of negligence can be clearly established and an appropriate sentence imposed.

 

In S v Bray 1966 RLR 255 (A) X had knocked down and killed a road worker. He was found guilty of culpable homicide.

 

In S v Ezekiel A-100-69 a bus driver took a corner too fast and wandered onto the wrong side of road. He was found guilty.

 

In S v Papenfus GS-116-70 X knocked down a motorcyclist. He had failed to see the motor cyclist because of the sun and because his vision had been obstructed by another car. He was found guilty.

 

In S v Tanengwa A-167-70 X had driven at a speed which meant that it was impossible for him to stop if the front vehicle braking suddenly. X braked to avoid hitting the front vehicle which had braked suddenly and he had veered onto the wrong side of the road and hit the oncoming car. X was found guilty.

 

In S v Zabron & Anor 1971 (3) SA 918 (RA) a bus driver had attempted to cross a causeway over a river in flood. He had not checked properly first. The bus had capsized and some passengers had drowned. X was found guilty.

 

In S v Tshuma A-17-74 X had veered onto the wrong side of the road and had collided with a heavy vehicle and a passenger had died. X was found guilty.

 

In S v Mbobola A-72-74 X went through a red robot and caused a fatal accident. X was found guilty.

 

In S v Schoeman 1974 (2) RLR 52 (A) a drunk driver’s vehicle had left the road and had hit a cyclist. He was found guilty.

 

In S v Gillespie A-188-74 X had turned right in front of an oncoming motor cyclist. He was found guilty.

 

In S v Gilbert A-204-74 X had gone through a red robot and caused a fatal accident. He was found guilty.

 

In S v Godwin A-44-75 an elderly driver had failed to keep a proper lookout and had caused a fatal accident. He was found guilty.

 

In S v Carnegie 1975 (1) RLR 171 (A) X had overtaken at an intersection. The vehicle being overtaken had tried to turn left without prior warning and there had been a fatal collision. X was found not guilty.

 

In S v Mazviwa A-301-77 X had knocked down a cyclist after failing to keep a proper lookout. He was found guilty.

 

In S v Rorewe A-49-78 X was responsible for a head-on fatal collision. He was found guilty.

 

In S v Tarmacadam Services A-64-78 a heavy vehicle with a bulldozer on top had parked at night in such a way that the bulldozer blade was protruding over the road. This created a hazard leading to a fatal accident. X was found guilty.

 

In S v Claasen 1979 RLR 323 (A) X allowed an unlicenced driver to drive his vehicle and failed to supervise that driver. An accident ensued resulting in death. X was found guilty.

 

In S v Tshuma A-202-79 a drunken driver had caused a fatal accident. He was found guilty of culpable homicide .

 

In S v Noah A-4-80 a bus driver had caused a fatal accident. He was found guilty.

fo

In S v Brannigan 1985 (1) ZLR 239 (S) X was found not guilty of negligently causing the death of a motor cyclist. He had entered an intersection believing that there was no oncoming traffic. He collided the evidence had not established that there was negligence.

 

In S v AG v Dzvatu S-26-85 X had entered a controlled intersection without stopping causing a collision killing two people. The court found that there had been gross negligence.

 

In S v Kashiri S-88-85 a lorry driver had left his lorry parked at night without lights, obstructing half of lane of tarred road. He should have foreseen that another driver, blinded by lights of oncoming vehicle, would collide with the parked lorry.

 

In S v Ndadzimudzwa S-19-92 X reversed into a minor road with his articulated horse and trailer. This manoeuvre took place in the evening. In carrying it out he had partially blocked the main carriageway for oncoming traffic. D, riding on a motor cycle, collided with the trailer and was killed. The motor cyclist was found to have a high blood alcohol count. The court held that X had been negligent in undertaking an inherently dangerous manoeuvre at night-time without being satisfied that he could complete the move before oncoming traffic arrived at the scene. It was particularly dangerous because oncoming traffic would be distracted by the headlights of the horse and would not see beyond and behind them. However, although D was also negligent, his negligence was not the proximate cause of his death.

 

In S v Finch S-101-90 X was driving at night in the centre of the carriageway with her lights dipped whilst negotiating a slight bend in an unlit narrow road. She collided with one of three oncoming cyclists who were cycling without lights. The court held that although the courts have tended to be indulgent towards motorists who face unexpected and unlighted obstacles in the road, X’s failure to see the cyclists at all was a result of her failure to keep a proper look-out. The presence of cyclists on the road was foreseeable, and headlamps on bicycles are a rarity in Zimbabwe.

 

In S v Wright S-184-89 X was driving along a wide, straight, well-lit road. For reasons not known, his vehicle swerved violently off the road and collided with the deceased. He thought he had run down a dog and did not at first stop or return to the site of the accident.  He was found to have been driving under the influence of alcohol and his manner of driving at the time indicated that he was incapable of having proper control over his vehicle or his faculties were impaired by the alcohol. He was found guilty.

 

Passengers on buses

In S v Zvimire & Anor HH-336-83 a driver of a bus started to move off after the inspector signalled that it was safe to so. He had looked in his rear view mirrors. A passenger who was embarking was killed. X was found not guilty as a reasonable bus driver would have relied on the signal of the senior person and would not have double checked.

 

In S v Jira S-108-83 after the bus had stopped a passenger who was disembarking was involved with an inspector about the transport costs for his bicycle. The inspector told the passenger to come and collect his bike at the police station. He pushed the passenger away and signalled to the driver to move away. The passenger grabbed at the door but could not get a grip so instead clutched at the fuel inlet pipe. He clung to the bus as it picked up speed. He lost his grip and fell under the bus and died. The court held that the moving off of the bus was the factual cause of the death but it was not the proximate cause because it was not reasonably foreseeable that the passenger would commit such a highly dangerous act.

 

The case of S v Chikandiwa & Ors HH-302-86 deals with the duty of the driver of a bus to ensure that passengers are safely on the bus before it starts off and whether this duty can be delegated.

 

In S v Kurwakumire S-23-89 a bus conductor, signalled to the driver of the bus to proceed whilst passengers were still trying to board. The bus started off with some passengers running alongside trying to get on; one of them fell and was run over and killed by the rear wheels of the bus. The bus conductor was found guilty. He owed a duty of care not only to the passengers already on his bus but also to those attempting to board it, and he exhibited culpable indifference by not going to the door to ascertain that the passengers were safely aboard before signalling to the driver to start. He should have foreseen that something untoward and unexpected but within the range of human experience might happen if he did not do so. Although deceased’s death might to some extent have been due to his own negligence, it did not exonerate him from the duty cast upon him by the law; contributory negligence has no application in criminal law.

 

In S v Musariri HH-473-88 after X had parked his motor-car in a street in a high-density suburb, the deceased crawled underneath it unnoticed. X drove off without checking underneath the vehicle and killed D. The court decided he was not guilty as that his failure to check underneath his vehicle had not been shown to be negligent. Very few, if any, ordinary people do so before getting into their vehicles and driving away, though it might be a wise precaution to do so if the vehicle has been parked in close proximity to a heavy congregation of young children.

 

In S v Dudzai S-3-91 a car was parked off the left side of the road, at night, with a tractor parked next to it with its lights on to illuminate the car. X saw the lights from some distance away on the straight road and mistook it to be oncoming traffic. He flashed his lights, slowed down and unintentionally putting himself on a collision course with the parked vehicles. At the last minute he realised his mistake and tried to swing right but could not avoid a glancing blow and killed someone standing beside a car in front of the tractor. The court held that he was negligent. A driver must continually reassess such a situation and slow down enough to give himself time to react. X should have slowed down even more to give himself a chance to establish what the light was and take evasive action.

 

In S v Kwangwari HH-244-88 X, acting in accordance with his employer’s instructions, was driving a flat-bed lorry and trailer loaded with fencing poles which workers were distributing to other workers on the ground whilst the lorry was moving slowly.  D was standing on the lorry unloading a pole when he lost balance and fell under the trailer’s wheels and was killed. The court held that driving slowly while passengers are not seated does not per se amount to negligent driving.  It was certainly not so in this case in view of the nature of the work X was doing on the instructions of his employer.

 

In S v Mandwe S-142-93 the court decided that a motorist should anticipate the folly of others. He must exercise special care in any area designated as a danger zone by speed humps. X was aware of a footpath crossing the road and speed humps designating a danger zone. Speed humps oblige a motorist to proceed with caution. He reduced speed but insufficiently, and drove with his head partially averted to oncoming headlights. He failed to see a cyclist without a light crossing from the right and appearing from behind the oncoming vehicle, until it was too late to avoid him. He was found guilty.

 

S v Beets S-90-93 – A motorist in a heavily populated area saw children walking on the edge of the main road, with their backs to him. It was not enough to slow down to 60 and move to the middle of the road. He should have slowed down considerably, and also hooted, had his foot ready to brake and watched the children carefully for the first sign of danger. He should have anticipated that a child may dash onto the road and taken appropriate action to avoid any accident. He was found guilty.

 

In S v Gardini HB-66-94 X’s vehicle struck a child. X found guilty of culpable homide.

 

In S v Dudzai S-571-91 X was confused by the strong light of a tractor parked on the left side of the road and thought it was an oncoming vehicle. He flicked his own lights a couple of times, slowed down from 80 kph to 60, and pulled off to the left.  At the last minute he realised his mistake and tried to swing right but could not avoid a glancing blow and killed someone standing beside a car in front of the tractor. A driver’s duty in such a situation is not merely to slow down and move left; this may not be enough. A driver facing an uncertain situation must undertake a continuous re-assessment of the situation, and X should have slowed down even more to give himself a chance to establish what the light was and take evasive action.

 

In S v Castedo S-77-94 X’s vehicle struck a pedestrian. He did not slow down until it was too late. He was guilty.

 

In S v McLean 2000 (2) ZLR 239 (S) X had hit a person who had disembarked from a stationary vehicle but who had walked round to the front of the bus and tried to cross the road without checking whether it was safe to do so. X’s conviction for culpable homicide was set aside on the basis that the reasonably cautious driver was not, without more, expect that with each and every stationary vehicle a pedestrian might emerge from the front of the vehicle without checking to see if there was oncoming traffic.

 

      Children running out onto the road

 

In S v Duri S-141-89 the court held that a motorist has a duty to reduce his speed and exercise caution whenever he observes animals or people, especially children, within the vicinity of the road ahead. Children have a propensity for impulsive and sometimes irrational action, and therefore greater care is demanded towards them than is otherwise necessary. X struck and killed with his motor vehicle a child who had run into the road unexpectedly to chase a goat he was herding. He was found guilty.

 

In S v Ferreira S-13-92 X knocked down and killed a seven-year-old boy who had dashed out in front of vehicle from the side of the road where he had been standing together with three other children and two male adults. The court held that a motorist must exercise special care and vigilance when he knows that there are young children in the vicinity of the road because young children are known to have a propensity for impulsive and sometimes irrational action.  Thus greater care is demanded of the motorist towards children than is necessary for the safety of adults. The motorist is not, however, obliged to take precautions against every possible manoeuvre that the child could imaginably perform, but only conduct falling within common experience. The fact that the child was in the company of two adults did not entitle X to assume that the adults would exercise sufficient control over the children to protect them from danger.  At very least it must be patent that the adults are in fact exercising effective control over the child by, for instance, holding the child’s hand before such an assumption can be made. X had been negligent in that, having seen the children, he had continued to drive at a speed, which in the circumstances was excessive, and by not significantly slowing down, he had prevented himself from taking effective evasive measures. The running out of the child was reasonably foreseeable and was not a novus actus interveniens.

 

In S v Bussman S-2-96 X saw several boys on each side of a tarred country road. She hooted 3 times to alert them of her approach and slowed down considerably to a speed that would enable her to stop in a few metres. One of the boys dashed across the road and joined his friends and then, without warning or apparent reason, dashed back across the road when X was only a few metres away. X braked and swerved but could not avoid hitting the boy. He was struck and killed by the edge of her car. As X had taken all reasonable precautions, the conviction for culpable homicide was not justified.

 

In S v Nortje 2003 (1) ZLR 255 (H) the court decided that the standard of care required of a driver who sees children ahead of him is much higher than that ordinarily required of a driver approaching adult pedestrians. Once a motorist becomes aware of the presence of a child on or near the road ahead of him, it is incumbent upon him to prepare for any eventuality, given that children are prone to sudden and unpredictable behaviour. The motorist then has a duty to ensure that he has anticipated that kind of behaviour and must be prepared if need be to stop.

 

      Sudden emergency

In S v Ruredzo 1982 (2) ZLR 181 (S) the court found that X was not guilty of culpable homicide after he had knocked down and caused the death of a pedestrian that suddenly and unexpectedly stepped out into his path. X had driven at a proper speed and had been in a proper position on the road. It is not reasonably foreseeable that a pedestrian whose actions give every appearance of a person who has seen the oncoming traffic and is waiting for it to pass, will suddenly step forward into the path of oncoming traffic.  

 

See also S v Fazakerly S-141-83 in which the court deals with the duty of a driver when faced with a sudden emergency. On the facts of that case the court found that there had been no negligence.

 

Boating accident

 

In S v Weale & Anor 2014 (2) ZLR 252 (H) a boat had capsized when on a lake cruise and 11 passengers had drowned. The boat had been overloaded with passengers and no life jackets has been provided for the passengers. The two appellants who worked for the owner of the boat had been convicted of culpable homicide. Neither was in command of the boat. One who was not on the boat was convicted on the basis that he had helped overload the boat before it had set out. The other was on the boat but was not the driver of the boat. Setting aside their convictions, the Appeal Court decided that under the Inland Waters Shipping Act [Chapter 13:06] or the regulations made thereunder the responsibility for compliance with safe loading capacity and the provision of lifejackets lay with the master or captain of the boat, as did the responsibility of properly controlling the boat. The appellants did not have that responsibility as merely crew members.

 

The court also found that the appellants could only have been liable if the court was satisfied that it was reasonably foreseeable to both appellants that their conduct would result in the death of the deceased persons. In other words, there had to be a causal connection between the acts or omissions of the appellants and the death of the deceased persons. The evidence was just not there to establish this in the present case.

 

Medical negligence

In S v McGown 1995 (1) ZLR 4 (H) an anaesthetist was found guilty of culpable homicide because it is generally the case that if a medical practitioner departs from approved practices for no good cause and death results, he is likely to be found to have been negligent.

 

In the civil case of Chibage v Ndawana 2009 (2) ZLR 387 (H) the court stated that the test to decide whether there has been professional negligence on part of medical practitioner is the  standard  average reasonable professional doctor. See also Thebe v Mbewe t/a Checkpoint Laboratory Services 2000 (1) ZLR 578 (S). 

 

In S v Mkwetshana 1965 (2) SA 493 (N) a junior doctor, administered the wrong dosage of a medicine. The patient died. The doctor found guilty of culpable homicide.

 

In S v Kramer & Anor 1987 (1) SA 887 (W) an anaesthetist was found guilty when the patient died after X had placed the breathing tube down the wrong passage and the patient had suffocated.

 

Persons with specialised knowledge

 

In S v Meyer 1971 (1) RLR 62 (G) the court dealt with the test for persons with specialised knowledge. Here an electrician had allowed a person to touch live wires leading to that person’s death. He was found guilty of culpable homicide.

 

Killing person in course of arresting him

In S v Sanyanga S-106-86 X exceeded the right to use moderate force. He was found guilty of culpable homicide.

 

The thin skull rule

In cases of culpable homicide the thin skull rule applies.

In R v John 1969 (2) RLR 23 (A); 1969 (2) SA 560 (RA) the court stated that

An accused who intentionally assaults his victim by striking him a moderate blow does not necessarily escape liability if death would not have resulted save for some exceptional physical peculiarity of his victim such as an eggshell skull or weak heart ... Eggshell skulls, weak hearts and other human ailments which may cause a man to die are well within the range of ordinary human experience.

The thin skull rule was applied in the following cases leading to the accused being convicted of culpable homicide when they had assaulted their victims and the victims had died.

 

In R v Dikwi 1940 SR 19 D had a thin skull. The blow to the head caused the death of D. This blow would not have killed a person with a normal skull. X was found guilty of culpable homicide.

 

In R v Mara 1965 RLR 494 (G) X assaulted D severely and this led, D, who had a weak heart to die of a heart attack. X was found guilty of culpable homicide.

 

In S v Chirau & Ors A-180-78 prior to the assault D had had a perforated bowel. A moderate blow to the stomach had caused death. The accused were found guilty of culpable homicide.

 

The thin skull does not, however, mean that X is automatically guilty of culpable homicide if he or she assaults a victim and death results. If the assault is a minor one, the end result of death may not be reasonably foreseeable.

For instance, in S v Ncube GB-47-80 during a minor tussle one of the people involved, D, suffered haemorrhaging into lung cavity probably precipitated by exertion of struggle combined with tubercular condition from which deceased suffered. The court held that the thin skull rule did not apply as death was not reasonably foreseeable in the circumstances.

In S v Van As 1976 (2) SA 921 (A) X was found not guilty of culpable homicide where he had slapped a fat man hard across the face and the man had fallen backwards, hitting his head on a concrete floor. The man had died from head injuries to his head caused by the fall onto the concrete floor. He was found not guilty as the death was not reasonably foreseeable in the circumstances. 

 

Whether there is a crime of attempted culpable homicide

 

In the case of R v Kadongoro 1980 ZLR 54 (G) the court decided that attempt requires intention whereas culpable homicide is the causing death as a result of a negligent failure to foresee death. Thus a person cannot be convicted of attempted culpable homicide. However, it would be possible to charge the accused with negligent causing of serious bodily harm in terms of section 90 of the Code.

 

Penalty

Fine

Prison

Both

Up to or exceeding level 14

Life imprisonment or any definite period of imprisonment

Both

 

The maximum penalty of life imprisonment provided for this offence would ordinarily only be imposed upon X in a case which bordered on murder but the State was not able to prove beyond reasonable doubt that X acted with actual intent or that he or she realised that there was a real risk of death and took a conscious risk of causing death.

Competent verdicts on charge of culpable homicide [s 275 read with 4th Schedule]

  • Inciting suicide;
  •  
  • Public violence;
  • Unlawful termination of pregnancy;
  •  
  • Threatening to commit murder;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

 

See Guide pp 82-85 and 192-202 for cases on culpable homicide.

 

Inciting or assisting suicide

[s 50]

Where a person encourages another to commit suicide or assists that person to commit suicide, it is theoretically possible to charge a person with murder or culpable homicide, but there may be problems in proving the required state of mind and the causation requirement. However, in South Africa, successful prosecutions for homicide have been brought. See for instance the case of S v Grotjohn 1970 (2) SA 355 (A).

To overcome these problems of proof of homicide, the Code creates the new crime of inciting or assisting suicide.

Ingredients

  • X knows that Y intends to commit suicide or realises that there a real risk that Y will do this; and
  • X incites, induces, aids, counsels, procures or provides the means for the person to commit suicide or attempt to do so.

Penalty

Fine

Prison

Both

Up to or exceeding level 14

For life or any definite period of imprisonment

Both

 

Competent verdicts on this charge [s 275 read with 4th Schedule]

  • Attempted murder;
  • Culpable homicide;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

 

When life starts and ends

[s 51]

This defines when life is deemed to commence or cease in cases of murder, infanticide, culpable homicide and inciting suicide.

Start of life [s 51(1)]

The definition of the commencement of life is taken from s 303 of the Criminal Procedure and Evidence Act. Life is 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.

End of life [s 51(2)]

The existing identification of the time of death with the cessation of the heart-lung functions is extended to brain death where a person is attached to a life-support system and is diagnosed and confirmed as having suffered brain death. (See also s 54(2) which deals with the circumstances in which the High Court, on application can order the removal of a person from a medical life support system.)

 

Causing death by accelerating death

[s 52]

This provides that accelerating someone’s death will be treated as causing that death.

 

Guidelines for causation where death results

[s 53]

This provides a non-exhaustive list of guidelines for the courts to follow when difficult questions of causation arise in cases where the death of a victim is in issue.

Abnormal event (unlikely from human experience to follow from conduct)

This will break the causal link unless X anticipated or planned this event.

Mortal or serious injury inflicted

Where X inflicts such an injury on Y and Y dies, X will normally be held causally responsible for the death.

Whether Y’s subsequent conduct voluntary

Where Y’s subsequent conduct is voluntary, this is more likely to break the causal link than forced and involuntary conduct on Y’s part.

Cases on the application of these guiding principles

See Guide pp 217-218 for cases dealing with the application of these guidelines in cases of murder. See also the South African case of S v Daniels 1983 (3) SA 275 (A). In that case the court had to deal with a situation where one person had shot and mortally wounded the deceased and a second person had then come and shot him in the head causing his immediate death. If the two assailants had not acted with common purpose but instead had acted independently of one another, the question then was which of the two was causally responsible for the death?

Thin skulls and special susceptibilities

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

 

Cases on the thin skull rule

 

In R v John 1969 (2) RLR 23; 1969 (2) SA 560 (RA) the court said–

An accused who intentionally assaults his victim by striking him a moderate blow does not necessarily escape liability if death would not have resulted save for some exceptional physical peculiarity of his victim such as an eggshell skull or weak heart ... Eggshell skulls, weak hearts and other human ailments which may cause a man to die from a trivial assault are well within the range of ordinary human experience.

 

Although the John case makes reference to trivial assaults, later case law stresses that if the assault is a very minor one the end result of death may not be reasonably foreseeable.

 

Thus in the case of S v Ncube GB-47-80 during a minor tussle one of the people involved, Y, suffered haemorrhaging into lung cavity probably precipitated by exertion of struggle combined with tubercular condition from which deceased suffered. The court held that the thin skull rule did not apply, as death was not reasonably foreseeable in the circumstances.

 

So too in the South African case of S v Van As 1976 (2) SA 921 (A) X was found not guilty of culpable homicide where he slapped a fat man hard across the face and the man fell backwards, hit his head on a concrete floor and died as a result.

 

Failure to discharge a legal duty [s 53(2)]

X is causally responsible for Y’s death if the death results from a failure by X to discharge a legal duty.

 

Mercy killing

[s 54(1)]

The Code retains the common law position that mercy killing is murder, but the fact that the killing was done at the request of the victim to relieve suffering can be taken into account in mitigation of sentence.

See Guide pp 101& 217.

Cases

In S v Hove 2009 (1) ZLR 68 (H) a young unmarried mother, killed her 5 month old baby. The child had been ill from birth, having been diagnosed with HIV, and had been hospitalized in various health institutions for a period of 5 months. The child had experienced excruciating pain as a result of gaping wounds and open sores all over the body and was always crying uncontrollably due to the endless pain. The accused had been told by medical personnel that there was no help they could offer the child and that the child was facing imminent death.

 

The court held that the circumstances surrounding the commission of this offence cumulatively amount to extenuating circumstances. The concept of mercy killing cannot escape the attention of the court in certain circumstances and as such will play a determining factor in sentencing. While murder per se is reprehensible, this case called for mercy and therefore the accused’s moral blameworthiness was lower. While we are all responsible for our actions, sight should not be lost of the fact that society has a duty to accommodate and counsel wrongdoers, thereby preventing the resultant fatal consequences which may flow from those who are mentally and physical distressed. Such persons should receive the court’s sympathy rather than further condemnation. The accused would be detained until the rising of the court.

 

In S v Mayer 1985 (4) SA 332 (ZH) an elderly couple decided to commit suicide because they felt that they were destitute. X, the husband, killed his wife and tried to kill himself. He survived but he blinded himself in the suicide attempt. He was found guilty of murder but the circumstances were taken into account in mitigation of sentence.

In S v Hartmann 1975 (3) SA 332 (C) a doctor ended the life of his terminally ill father who had pleaded for him to do so. He was found guilty of murder but the circumstances were taken into account for the purposes of sentence.

In South Africa in the case of Stransham-Ford v Minister of Justice And Correctional Services and Others 2015 (4) SA 50 (GP); [2015] 3 All SA 109 (GP) the court authorised a terminally ill person to end his own life by being assisted by a medical practitioner either by the administration of a lethal agent or by providing the applicant with the necessary lethal agent to administer himself. However, this decision was later overturned on 6 December 2016 by a decision of the Supreme Court of Appeal.

 

Removal of person from life support system

[s 54(2)]

This is a new provision that allows the High Court, on application from a person such as a spouse or close relative, to order the removal of a person from a heart-lung or ventilator machine or other life support system in certain circumstances. The High Court can so order on the basis of evidence by a medical practitioner other than the patient’s doctor that–

  • the patient is unconscious and there is no reasonable prospect of that person regaining consciousness; and
  • although the patient’s brain functions may not have entirely ceased, that person’s life is being artificially sustained by the life support system and there is no reasonable prospect that the patient will ever be able to survive without being on the life support system.

Case

In Clarke v Hurst NO & Ors 1992 (4) SA 630 (D) upon receiving evidence that a person had been in an irreversible vegetative state for a long period, kept alive by artificial feeding, the court appointed his wife as curatrix personae with power to authorise the discontinuance of the feeding, notwithstanding that it might hasten the patient’s death. Before the heart-attack which had brought about his present condition, the patient (who was a medical practitioner with strong views on an individual’s right to die with dignity) had signed a “living will” in which he directed that in the event of there being no reasonable expectation of his recovery from extreme physical or mental disability, he should be allowed to die and not be kept alive by artificial means and “heroic” measures. The court held that if she authorised the discontinuance of the feeding the wife would not be acting unlawfully, viewed in the light of society’s boni mores. Nor would her action be the legal cause of the patient’s death.

 

Causing death by disposal of body

[s 55]

Murder or infanticide [s 55(1) & (2)]

This lays down that a person can be convicted of murder or infanticide where–

  • X, intending to kill Y, tries to kill Y; and,
  • mistakenly thinking that Y has died, disposes of body; and
  • Y dies as a result of X disposing of the body.

Thus if X attacks Y intending to kill Y and thinking that Y is dead buries him or throws him into a river with weights attached to his body and Y dies from suffocation or drowning, X is still guilty of murder. This applies whether X formed the intention to dispose of Y’s body before X attacked him or during or after the attack.

Other crimes [s 55(3)]

Where X attacked Y but did not intend to kill him and X, mistakenly thinking that Y is dead disposes of Y’s body and causes his death, X can be convicted of culpable homicide or any other crime arising out of the disposal or attempted disposal of Y’s body.

See Guide p 105.

 

Mistaking identity of murder victim

[s 56]

This section restates the current law that mistaking the identity of the victim is no defence to a charge of murder. In addition, this defence will not avail against a charge of infanticide or culpable homicide.

Thus if X, with intent to kill, attacks and kills Y thinking that Y is Z, X is guilty of murder.

See Guide p 105 & p 222.

 

 

 

Causing death of person by blow intended for another (Deflected blow or blow that goes astray)

[s 57]

This section deals with the following situation: X attacks Y intending to kill him or her but the blow misses or is deflected and ends up causing the death of Z or injuring Z.

This section provides as follows–

X’s liability towards Y –

  • if Y dies, X is liable for murder, infanticide or culpable homicide;
  • if Y does not die, X is liable for attempted murder, attempted infanticide or assault.

X’s liability towards Z –

  • if Z dies, murder or infanticide if he or she realised that there was a real risk or possibility that the “bystander” might be killed;
  • if Z dies, culpable homicide if X did not realise that there was a real risk or possibility of Z dying but a reasonable person would have realised this.

See Guide 105-106.

See also S v Ncube 1983 (2) ZLR 111 (S) which overrules the earlier case of R v Mabena 1967 1968 1 RLR 1 (A)

In S v Richards 2001 (1) ZLR 129 (S) a youth, aged 16, had fired a .22 rifle at a bird which was near an inhabited farm compound. No person was visible to the youth who fired the weapon but the bullet ricocheted and killed a child who was hiding in a drum nearby. The youth was acquitted on the charge of murder but was found guilty of culpable homicide.

In S v Tissen 1979 (4) SA 293 (T) in a crowded street X fired several shots at S one of which hit and killed a bystander, D. X was found guilty of murder, the court finding that in shooting at the intended victim in a crowded street X must have foreseen the possibility of hitting and killing of a bystander and X had continued to shoot recklessly. 

 

Joining in attack after fatal blow inflicted

[s 58]

This clarifies the existing law on the question of the appropriate charge for an accused who joins an attack upon a person who is already mortally injured by others.

If the intervention of the accused accelerated the death of the victim, the competent charge would (according to the circumstances of the case and the state of mind of the accused) be murder, infanticide or culpable homicide, even if the accused did not strike the initial fatal blow.

See Guide pp 103-104.

 

Unlawful Termination of Pregnancy

[ss 59 and 60]

 

Ingredients [s 60(1)]

Physical ingredients

Mental ingredient

X unlawfully terminates a pregnancy

X intends to terminate the pregnancy;

                         or

X engages in conduct that X realises involves a real risk of terminating the pregnancy.

 

“Terminate” in relation to a pregnancy means to cause the death of an embryo or foetus.

“embryo or foetus” means a live embryo or foetus.

“womb” does not include the fallopian tubes.

This provision does not set out the circumstances in which a termination of pregnancy is unlawful. The Termination of Pregnancy Act provides for the circumstances in which a pregnancy is lawful and section 3 of this Act provides that it is an offence for anyone to terminate a pregnancy otherwise than in accordance with this Act. In other words any termination of pregnancy is unlawful if it may not be carried out lawfully in terms of the Termination of Pregnancy Act.

Defences [s 60(2)]

It is a defence to this charge for X to prove that–

  • the termination occurred in the course of a Caesarian section, that is, while delivering a foetus through the incised abdomen and womb of the mother in accordance with medically recognised procedures; or
  • the pregnancy was terminated in accordance with the Termination of Pregnancy Act.

A termination of a pregnancy is lawful if carried out by a medical practitioner in terms of the Termination of Pregnancy Act. Under this Act the grounds upon which a medical practitioner may lawfully terminate pregnancy are these–

  • The pregnancy constitutes a threat to the life of mother;
  • There is a serious threat of permanent impairment of mother’s physical health;
  • There is a serious risk that child will be born with a physical or mental defect which will permanently and seriously handicap him or her;
  • There is a reasonable possibility that pregnancy resulted from unlawful intercourse (i.e. rape, other than rape within marriage, or sexual intercourse within a prohibited degree of relationship, other than sexual intercourse between cousins or between an ascendant or descendant of that person’s spouse.)

 

Termination of ectopic pregnancy [s 59(1)]

“Womb” is defined so as to exclude fallopian tubes. This is intended to exclude from the scope of this crime the termination of an “ectopic pregnancy”, which has no possibility of resulting in a live birth. An ectopic pregnancy is an abnormal pregnancy that occurs outside the womb, usually in the fallopian tube.

Attempted abortion

In the case of S v Nhidza 1996 (1) ZLR 204 (H) X took four ‘norolon’ tablets in order to terminate her pregnancy. She subsequently aborted the foetus but the offence came to light and she was charged with abortion. At her trial she pleaded guilty and admitted that the abortion was caused by the tablets she had taken. She was convicted as charged. On review the court held that there should have been evidence of a medical or scientific nature to show that `norolon' tablets could induce an abortion; as she was a lay person X’s admission did not constitute proof that the expulsion of the foetus was not spontaneous.

 

Penalty [s 60(1)]

Fine

Prison

Both

Up to level 10

Up to 5 years

Both

 

It is arguable that the maximum sentence of five years in prison is inadequate for a situation in which a backstreet abortionist causes very nearly kills the female in the process of carrying out the abortion or causes grave injuries to her the same time as killing the foetus or where he has previous convictions for abortion.

Charge under Termination of Pregnancy Act

Section 3 of the Termination of Pregnancy Act provides that no person may terminate a pregnancy otherwise than in accordance with this Act. A person who contravenes this provision is guilty of an offence, the penalty for which is a fine not exceeding level ten or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

It would seem that instead of charging this offence, the perpetrator of an unlawful abortion should be charged under the s 60 of the Codification and Reform Act. However, the person charged must be able to rely upon the defence that he or she lawfully terminated the pregnancy in accordance with the provisions of the Termination of Pregnancy Act.

Competent verdicts on charge under section 60 [s 275 read with 4th Schedule]

  •  
  • Indecent assault;
  • Concealing birth of child;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

Case

In S v Banda 2001 (1) ZLR 219 (H) X, who admitted to being pregnant, took a concoction of traditional herbs with intent to procure an abortion. The foetus was expelled from her uterus, but there was no evidence or admission that the foetus was alive. The court held, that since the section requires, for conviction, that the foetus be alive, X could be convicted only of an attempt to procure an abortion.

Comment

In terms of the Code Roman-Dutch common law no longer apply within Zimbabwe to the extent that this Code expressly or impliedly enacts, re-enacts, amends, modifies or repeals that law.

 

Previously according to a number of High Court cases, namely S v Mapuranga HB-242-86; S v Makoni HH-320-87 and S v Ncube HB-148-88, the common law offence of abortion was entirely replaced by the offence under the Termination of Pregnancy Act and therefore persons who would previously have been charged with abortion should now be charged with contravening s 3 as read with s 12(1)(a) of that Act. These cases follow a South African judgment in S v Kruger1976 (3) SA 290 (O) in which it was decided that the South African legislation on termination of pregnancy had impliedly abolished the common law offence. In that case it was reasoned that if the common law were to co-exist with the legislation, there would be an anomaly as if charged under the common law X the only defence he could raise would be necessity, whereas if X is charged under the statutory offence he could rely on a number of defences set out in the Act. The legislature could not have intended this anomaly.

 

However, in the case of S v Nhidza 1996 (1) ZLR 204 (H) disagrees with the earlier judgments and decided that the common law on abortion had not been replaced by the Termination of Pregnancy Act

 

Post-coital contraceptives

 

There are some problems with post-coital contraceptives such as the so-called “day-after” contraceptive pill or post-coital insertion of an IUD in order to prevent implantation of a fertilized ovum in the womb. Implantation of the fertilized egg normally occurs after six days. If these devices are used before six days have elapsed they can prevent implantation.

 

If these techniques amount to termination of pregnancy because the fertilized ovum constitutes a foetus or embryo for the purposes of the Act, then these techniques could only be lawfully employed if one of the lawful grounds for termination is present. The better view is that the use of contraceptive techniques that prevent implantation do not amount to unlawful termination of pregnancy. This question is left unanswered in the case of S v Nhidza 1996 (1) ZLR 204 (H)

 

Can a mother who is HIV positive have a lawful abortion?

 

One question that still remains to be settled is whether a mother who is HIV positive may obtain a lawful termination of her pregnancy. It is clear that if she already has full blown AIDS, the pregnancy would pose a threat to her physical health and she would be entitled to have the pregnancy terminated on this ground. If, however, she has not yet developed full-blown AIDS, there is no convincing evidence that in her HIV positive condition the continuation of the pregnancy will have adverse effects on her physical health. Thus the only ground upon which she could seek to rely for having a lawful termination of her pregnancy is that there is a serious risk that child will be born with a physical defect which will permanently and seriously handicap him or her. As there is a significant risk that the mother will transmit HIV to her unborn child, it is arguable that the eugenic ground covers this situation, although there are drugs that are available that would reduce this risk. The legal position is not, however, entirely clear. See 1989 Vol 1 No 6 Legal Forum 23. However, the Zimbabwean College of Obstetricians firmly believes that this situation is covered by the eugenic clause and this view is shared by the Ministry of Health.

 

There can be no doubt that the mother should definitely be entitled to have her pregnancy terminated in these circumstances if she so wishes. She herself is infected with this fatal virus and it would be extremely cruel to oblige her to carry her pregnancy to term knowing that there is a significant chance that her child will be born HIV positive and will suffer grievously before dying within a few years of birth.

 

Estimated incidence of illegal abortions in Zimbabwe

 

UNICEF estimates that 70,000 illegal abortions take place in the country every year. According to a UNICEF report, illegal, self-inflicted abortion methods are thought to include the consumption of detergents, strong tea, alcohol mixes and malaria tablets; other methods include the use of knitting needles, sharpened reeds and hangers.

The Health and Child Care Ministry has said abortions among young women and girls are now the main cause of maternal deaths. Appearing before the Parliamentary Portfolio Committee on Health and Child Care, the ministry’s permanent secretary, Gerald Gwinji, said 20% of maternal deaths were due to abortion. On average, Zimbabwe record between 500 000 and 700 000 pregnancies per year, and in 2016, 514 women died while giving birth. Although this was a reduction from 656 maternal deaths in 2014, and 575 in 2015, maternal mortality rates were reportedly still very high at 651 per 100 000 births. “Our 2015 study showed that almost 20% of maternal deaths were due to abortions and they were mainly happening in young girls below the age of 24. They die because of septic infections, haemorrhage through bleeding of a fractured uterus, septic abortions, and hypertension in pregnancy,” he said. (Newsday report 17 February 2017)

Sexual Crimes and Crimes Against Morality

 

Sections 61 to 87 consolidate and to some extent reform the existing law with respect to sexual offences and offences against morality generally.

 

Defence of marriage

[s 62]

This re-enacts s 20 of the Sexual Offences Act.

Where X is accused of committing offences involving extra-marital sexual intercourse and X pleads the defence that he or she was married to the person concerned, X bears the onus of proving that they were married to the alleged victim at the time of the alleged offence.

 

Boys under 12 and boys over 12 but under 14

[s 63]

This re-enacts s 22 of the Sexual Offences Act.

It provides that boys under the age of 12 are presumed to be incapable of sexual intercourse. (Previously the presumption applied to boys under the age of 14.) Thus a boy under the age of 12 cannot commit the crime of rape.

A boy over 12 but under 14 is rebuttably presumed to be incapable of committing rape – he can be convicted of rape if the presumption of incapacity is rebutted.

 

 

Presumptions relating to capacity to consent to sexual acts

[s 64]

Boys and girls under 12 [s 64(1)]

This substantially re-enacts in s 23(1) of the Sexual Offences Act.

Both girls and boys of or below the age of 12 are irrebuttably presumed to be incapable of consenting to sexual intercourse. (Previously under the common law this presumption applied only to girls.)

Girls and boys of or below the age of 12 are also irrebuttably presumed to be incapable of consenting to anal intercourse and other indecent acts. Thus X cannot plead the defence of consent where the girl or boy in under 12. If X pleads that he genuinely thought the girl was over 12, the rebuttable presumption that girls between 12 and 14 are incapable of consenting would still apply. See  R v Z 1960 (1) SA 739 (A)

 

Comment

Regarding the age of consent for the purposes of rape, aggravated indecent assault and indecent assault, presently for these crimes the law provides that a victim below the age of 12 is irrefutably presumed to lack the capacity to consent to the sexual act in question. Thus a male who has sexual intercourse with a girl under the age of 12 commits rape or a female who has sexual intercourse with a boy under 12 commits aggravated indecent assault The law also provides that if the girl or boy is above the age of 12 but is 14 or below, the person charged will be guilty of rape or aggravated indecent assault unless there is evidence that the girl or boy was capable of giving consent to the sexual intercourse or the penetrative sexual conduct.

There is a strong argument for raising the age of consent for these crimes. One suggestion is to raise the age to 14 so that a girl or boy below this age will then be presumed irrefutably to be incapable of giving consent for the purposes of the crimes of rape and aggravated indecent assault. The upper age could also be raised from 16 to 18.

Some would argue that the age of consent should be set at 18. They argue that the constitution says persons under 18 are children and children must be protected against sexual exploitation or abuse. Also now persons are prohibited to marry when under the age of 18.

But if we set the age at 18 any person who engages in sexual activity with a girl or boy below 18 would automatically be guilty of rape or aggravated indecent assault as the law would have deemed that a child under 18 is irrefutably incapable of giving consent.

Statutory rape would thus fall away as all cases of sexual activity with children under 18 would then constitute rape or aggravated indecent assault. This would apply both to a 40 year-old man who brutally assaults and violently rapes girl of 13, and to a 19-year-old male has sex with a girl who is a willing party.

It would be confusing to put together under rape, both teenage sexual experimentation and violent sexual attacks. Rape has always been regarded as sex without the consent of the victim. If teenage sex is treated as rape, a crime that has a maximum penalty of life imprisonment, the court may end up imposing a disproportionately severe sentence for it.

Differentiating between these different types cases for purposes of punishment will be even more difficult if we introduce mandatory minimum sentences for rape, even if leeway is given not to impose the mandatory sentence where there are special circumstances. The desirability of sending a 19-year-old to prison for a very long time needs to be considered.

 

Boys and girls between 12 and 14 [s 64(2)]

This introduces a rebuttable presumption that young persons above the age of 12 but of or below the age of 14 are incapable of giving consent to sexual acts. The presumption can be rebutted by evidence showing that the girl or boy in question was capable of giving consent and did actually give consent.

Mentally incompetent persons [s 64(3)]

This replaces s 4 of the Sexual Offences Act, which rendered criminal all sexual acts with mentally incompetent persons. The new provision in the Code renders such conduct criminal only if it is shown that the person was mentally incapable of consenting to such acts, or, if capable, did not consent to such acts.

Medical evidence of the mental incompetence of the victim must be produced.

In S v Machona 2015 (1) ZLR 665 (H) there was an appeal against a conviction for rape. At the trial there had been a medical affidavit stating that the complainant was not capable of giving evidence in court and that she could not consent. Nonetheless, she gave evidence through victim-friendly close circuit television and was found to be a competent and credible witness.

 

There are always difficulties encountered in dealing with mentally retarded persons, whether as witnesses or accused persons. Different pieces of legislation do not always appear to be synchronous in the terms used to refer to mental illness or retardation. As such, the legislation is consequently not in harmony with the scientific terms used by medical professionals or clinicians who are required to provide expert evidence in such cases. The Mental Health Act [Chapter 15:12], which governs mental health, makes no mention of the term “mental retardation”. The closest reference to the term is the term “arrested or incomplete development of mind”, which is found in the definition of “mentally disordered or intellectually handicapped”. Section 64 of Criminal Law Code [Chapter 9:23] uses the term “mentally incompetent” in reference to a victim of sex-related offences. The term “incompetent” is not defined, so the assumption must be that it relates to “legal competency to give informed consent”. The use of such broad and undefined terms is unhelpful, as it removes certainty from the statute. The question regarding a rape victim’s ability to consent to sexual intercourse is a fairly complex matter. Recent research found that people with mental retardation are not able to consent to sexual interaction, regardless of the degree of impairment. The level of their intellectual functioning is considered to be equivalent to that of minors. Evaluation of the complainant’s ability to consent should focus on the event in question, and include information on the individual’s understanding of sexual behaviour and the context of normal sexual relationships; knowledge of the consequences of sexual intercourse, for example, pregnancy and infections; ability to make an informed decision to engage in sexual intercourse, based on the above awareness and understanding of the right to say “no”; and the ability to resist or say “no” in context. The function of an expert is to assist the court to reach a conclusion on a matter on which the court itself does not have the necessary knowledge to decide.  It is not the mere opinion of the witness which is decisive but his ability to satisfy the court that, because of his special skill, training or experience, the reasons for the opinions he expresses are acceptable.  Any expert opinion which is expressed on an issue which the court can decide without receiving expert opinion is in principle inadmissible because of its irrelevance. The medical affidavit, in pointing out that the complainant was “slow” and going to a special school and was incapable of attending to her personal hygiene, was not expert evidence in the sense set out in s 278(1)(a) of the Criminal Procedure and Evidence Act [Chapter 9:07], nor could it be said that the doctor’s opinion that the complainant was not capable of giving evidence in court and that she could not consent covered matter for which the court could not, on its own, make a determination upon.

Every person not excluded from giving evidence in terms of the Criminal Procedure and Evidence Act shall be competent and compellable to give evidence in a criminal case in any court in Zimbabwe (s 245). Incompetence due to mental defects or illness is relative and only lasts as long as the mental illness lasts. Since 1851 the English law has been that a person who suffers delusions may give evidence on matters about which he is rational. In light of the present knowledge about mental conditions, there is no reason why a person who may be an imbecile should not be able to testify as long as he or she has demonstrable ability to do so. Similarly, the fact that the witness is deaf and dumb does not make him incompetent so long as communication can be made through an interpreter. The cost of expert witness evidence regarding intellectual and psychological disabilities of a relatively normal kind far outweighs the marginal benefit which may be gained in the administration of justice by the admission of such evidence. Such disabilities can be assessed reasonably adequately while the witness gives evidence. It is not necessary to hold a trial within a trial to determine whether a person is a competent witness.

Under s 64 of the Criminal Law Code, a person accused of having sexual intercourse with a mentally “incompetent” person be charged with rape. There is a legal assumption that such a person cannot give consent due to her condition. Where the defence is that she consented to the act, the section, by its wording, requires that the accused discharges what amounts to a reverse onus and prove that she was able to consent and that she consented.

 

See also S v Mbizi 1989 (3) ZLR 317 (S) and S v Chamukwanda 1990 (1) ZLR 172 (H) and but note that these cases dealt with the old offence of engaging in sexual conduct with “female idiot or imbecile.”

 

Rape

[s 65]

Rape continues to be a crime that is committed by a male on a female. Under the common law the crime of rape was committed when a male has vaginal sexual intercourse with a female without her consent. (Although a female who assists a man to rape a woman is guilty of the crime of rape as an accomplice). The crime of rape as codified has extended rape to cover a situation where the male has non-consensual anal intercourse with the female. [s 65(1)] (Previously under the common law where a male had anal intercourse with a woman without her consent, he would have to be charged with indecent assault because rape was not defined so as to encompass anal sexual intercourse.)

Ingredients [s 65(1)]

X, a male person,

  • knowingly has vaginal sexual intercourse or anal sexual intercourse with Y, a female person;
  • at the time of the sexual intercourse Y has not consented to sexual intercourse; and
  • X knows that Y has not consented or realises that there is a real risk that she may not have consented.

Thus the mental aspect of this crime involves knowingly having sexual intercourse knowing that Y has not consented or realising that there is a real risk that she may not have consented.

Penetration

 

Rape is committed if there is the slightest penetration of the female genitals or the anus. It is not necessary that there should be full penetration. The medical definition of what constitutes penetration does not accord with the legal requirement for the crime of rape. See S v Mhanje 2000 (2) ZLR 20 (H) and S v Banda (1) 2002 (1) ZLR 156 (H). In S v Tirivanhu 2010 (1) ZLR 361 (H) the court said although the slightest penetration suffices, there must be evidence of penetration otherwise X cannot be convicted of rape, Merely to touch the outside of female genitalia with the male organ does not constitute penetration, although here a verdict of attempted rape may be appropriate.

 

In S v Gibson S-16-14 the Appeal Court agreed with the rejection by the trial court of the appellant’s claim of impotence and sexual incapacity. Its reasoning was that it was not impossible for a non-erect penis to penetrate a woman’s vagina and that the slightest penetration is sufficient.

 

See also S v Sabawu & Anor 1999 (2) ZLR 314 (H) and S v Mwanakwaye HH-107-15

 

Attempted rape

S v Nyathi S-52-95

S v Kavizha HH-41-92

In S v Sabawu & Anor 1999 (2) ZLR 314 (H) the court stated that prosecutors must not charge attempted rape or indecent assault where a charge of rape is justified.

 

Evidence

 

In S v Musumhiri 2014 (2) ZLR 223 (H) the judge observed that in assessing the prospects of success on appeal in cases involving rape, it is necessary that such cases are looked at, not just from the perspective of the person who has been convicted of rape, but also from the lens of the complainant who has experienced the rape. This is even more so in cases where the alleged rape has taken place between parties who are known to each other, as it is precisely in such cases that the administration of justice can be hampered. In such situations, applicants for bail more often than not, when convicted, seek to take advantage of the fact that the two were known to each other: the conduct of their victims may generally fall short of the standard that society has so relentlessly crafted in terms of the expected behaviour of its ideal rape victim. She must scream – very loudly. She must show evidence of physical resistance. She must be battered and bruised if she is a genuine victim. If she knows her assailant she instantly loses credibility and the understanding is that she was not raped. It is the duty of the court to assess an application for bail pending appeal in rape cases unfettered by such dangerous myths which can clearly threaten the quest for substantive justice.

 

Research on cultural inhibitors to reporting gender-based violence and sexual assault indicates that silence cannot be equated with acquiescence. Fear of lack of support from the family, fear of the consequences that might befall the complainant, which may include being totally blamed for the event, being thrown out of the home, or being forced to marry the rapist are some of what keeps many women from not reporting. With women often held culturally as custodians of what is deemed to be appropriate sexual conduct, and with the responsibility for sexual restraint being placed on a woman’s shoulder, regardless of her age or power imbalances, it is understandable that a complainant may fail to report even when she was now free of the sexual assault.

 

The requirements to be met by a rape complainant should therefore not be divorced from the cultural context that might contribute heavily to swift action not being pursued. A young girl who has been raped may not make a voluntary report because her cultural context makes it difficult for her to do so without being re-victimised. She may fail to report without delay as expected by the law, because in her lived reality she has no idea if she will receive support or condemnation, if not eternal damnation. She may not report to the first person she could reasonably be expected to report for fear of being reduced to a liar and a tease. It is these realities that must therefore, with equal measure, inform the scrutiny of the likely prospects of an appeal in a rape case.

 

Husband can rape wife [s 68]

It is not a defence to a charge of rape that the person raped was the spouse of the accused person at the time of any sexual intercourse. However, it is further provided that no prosecution may be instituted against any husband for raping his wife in contravention unless the Attorney-General has authorised such a prosecution.

Rape by boys 

Previously a boy under 14 could not commit rape. Now a boy over 12 but under14 is rebuttably presumed to be incapable of committing rape – he can be convicted of rape if the presumption is rebutted. [s 63]

Where consent absent or vitiated [s 69]

See below for the circumstances under which consent to sexual intercourse or an indecent act is absent or is vitiated (invalidated).

Girl of or under 12 incapable of giving consent to sexual intercourse [s 64(1) and 70(4)]

In terms of section 64(1) a girl of or under the age of 12 is irrebuttably presumed to be incapable of giving her consent to sexual intercourse. Anyone who has sexual intercourse with such a girl commits rape as she cannot give consent and is treated as a non-consenting party.

Section 70(4) which deals with the offence of sexual intercourse with a young person provides “For the avoidance of doubt … the competent charge against a person who has sexual intercourse with a female person below the age of twelve years shall be rape … and not sexual intercourse with a young person” (emphasis added). This provision should have read “a female person of or below the age of 12 to be consistent with the previous section.

Thus if the young person has reached, but not passed, her 12th birthday, the charge must be one of rape, irrespective of whether there is evidence of consent.

 

Case

In S v Dube 2010 (2) ZLR 400 (H) the accused, allegedly aged 18 years, was charged with having extra-marital sexual intercourse with a young person, in contravention of s 70(1)(a) of the Criminal Law Code . The age of the girl was said in the charge sheet to be 12 years, but no evidence of her age was led. The accused pleaded guilty but denied knowing her age. When the accused was questioned about his understanding of the essential elements of the offence, he did not admit knowing that she was a “young person” as defined in the Code. Section 61 defines “young person” as a “boy or girl under the age of 16 years”. No minimum age is provided. The scrutinising regional magistrate was of the view that, in the light of s 64(1) of the Code, the accused should have been charged with rape.  It was held that it is always critical to determine the exact age of the complainant in cases involving the sexual abuse of children. This derives from the provisions of the Code which give rise to varying types of charges and the penalties to be meted out. What was placed before the court was patently incomplete, if not inaccurate, information. To say the complainant was aged 12 years was inaccurate and problematic, as it was not clear whether she was celebrating her 12th birthday on the day of the offence, or had already attained that age or was in her 12th year. It was therefore necessary to ascertain the exact age by means of her birth certificate and/or medical evidence as to her probable age if the date of birth was not known.  None of this was done. The Code restates the common law position that young persons of and under the age of 12 are incapable of consenting to sexual intercourse. Offenders against this group should not be charged under s 70(1), which relates to sexual intercourse with a young person. Section 70(4) buttresses this position.

 

Consent by girl over 12 but of or below 14 [s 64(2)]

For the purposes of rape a girl over 12 but of or below the age of 14 is rebuttably presumed to be incapable of giving consent to sexual intercourse. This presumption can be rebutted by evidence showing that the girl in question was capable of giving consent and did actually give consent.

X cannot be found guilty of rape of such a girl if the court finds that the presumption has been rebutted because the evidence shows that the girl had the capacity to consent and did in fact consent. However, X is still guilty of the crime of “sexual intercourse with young persons” in contravention of s 70 of the Code.

If on the other hand, the court finds that evidence shows that the girl in question lacked the capacity to consent, then for the purposes of a rape charge the sexual intercourse will be deemed to have been without the consent of the girl.

Consensual sexual intercourse with girls [s 70]

“Consensual” sexual intercourse with a girl of or above the of 12 but below the age of 14 (where the presumption of lack of capacity to consent has been rebutted) or of or above the age of 14 but below the age of 16, is punishable under the separate offence of sexual intercourse or performing indecent acts with a young person in s 70.

Penalty [s 65(1)]

Imprisonment for life or any definite period of imprisonment.

Factors in sentencing [s 65(2)]

In sentencing X for rape the court is required to have regard to all relevant factors including certain factors which may have aggravated the crime, such as the age of the victim, the extent of physical and psychological injury inflicted and whether the offender was infected with a sexually-transmitted disease at the time of the rape. The full list of factors is as follows–

  • the age of the person raped;
  • the degree of force or violence used in the rape;
  • the extent of physical and psychological injury inflicted upon the person raped;
  • the number of persons who took part in the rape;
  • the age of the person who committed the rape;
  • whether or not any weapon was used in the commission of the rape;
  • whether the person committing the rape was related to the person raped in any of the degrees mentioned in subsection (1) of section seventy-five;
  • whether the person committing the rape was the parent or guardian of, or in a position of authority over, the person raped;
  • whether the person committing the rape was infected with a sexually-transmitted disease at the time of the rape.

In S v Chirembwe 2015 (1) ZLR 211 (H) the judge pointed out that when sentencing in rape cases it not enough to compare with other offences against the person. Rape is a serious form of gender based violence against women, affecting their constitutional rights. Sexual violence is a deeply engrained societal problem and sentences for rape should acknowledge this fact.

Competent verdicts on charge of rape [s 275 read with 4th Schedule]

  • Aggravated indecent assault;
  • Indecent assault;
  • Sexual intercourse with or indecent assault of young person;
  • Sexual intercourse within a prohibited degree of relationship;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

 

 

Aggravated indecent assault

[s 66]

 

The crime of aggravated indecent assault involves the non-consensual penetration with indecent intent of any part of the body of the victim or perpetrator. It is more serious than the crime of indecent assault, which does not involve any such penetration.

Ingredients [s 66(1)]

This crime is committed as follows

By male on female

By male on male

By female on male

By female on female

 

By a non-consensual act other than sexual intercourse or anal sexual intercourse, involving penetration of any part of female’s body or male’s body.

This includes

  • insertion of penis into mouth of female;
  • insertion of man’s tongue or object into her vagina;
  • insertion of object other than penis into her anus.

 

By non-consensual anal sexual intercourse with male victim or any other act involving penetration of

  • any part of the male victim’s body; or
  • the body of the male assailant.

 

By non-consensual sexual intercourse with male or any other act with male involving penetration of

  • of any part of male person’s body; or
  • the body of female assailant.

 

 

By any non-consensual act involving penetration of

  • any part of female victim’s body; or
  • the body of the female assailant.

 

Cases

In S v Tapindwa 2009 (2) ZLR 190 (H) the appellant, a male aged 21 years, pleaded guilty to two counts of aggravated indecent assault, in contravention of s 66(1)(a) of the Criminal Law Code. The section penalises a male person who 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. The complainants were boys aged 9 and 10 years, respectively. The agreed facts were that the appellant took each of the complainants and made him lie facing downwards, with his trousers at knee level, and that the appellant inserted his penis between the complainant’s buttocks. In respect of one complainant, the appellant forced the boy to suck the appellant’s penis. It was argued on the appellant’s behalf that penetration had not been proved.

It was held that the appellant had inserted his penis into the complainant’s buttocks, thereby penetrating each complainant’s body. He had also penetrated the complainant’s mouth. The very fact that he inserted his penis into the complainant’s buttocks suffices to constitute the offence of aggravated indecent assault. It was immaterial whether or not he went through sexual motions and completed his purpose. It was also irrelevant whether or not penetration was vertical or horizontal. Similarly, it was also immaterial whether or not he went through sexual motions and completed his purpose when he penetrated the complainant’s mouth.

In S v Chikunguruse HH-205-2004 a woman inserted a 6 year old boy’s penis into her vagina and then got him to insert his finger into her vagina. She was found guilty of the then Sexual Offences Act. After the Code came into operation this would have constituted aggravated indecent assault. This case has some useful expert information on the adverse effects upon children of sexual abuse. According to the expert based upon a study of sexually abused girls and boys, the following short term effects are experienced:

  • The children became more aggressive;
  • They had a fear of women;
  • They had increased headaches and stomach aches;
  • Their academic performance deteriorated;
  • They engaged in increased masturbation;
  • They engaged in abnormal sexual practices.

 

The long terms generally observed were these:

  •  
  • Inability to have stable relationships;
  • They became sexually very aggressive.

 

In S v Mpande HB-43-11 the appellant raped a child aged 3 years and infected her with syphilis, a sexually transmitted infection. The child had been left in his care when he attacked her.  He had been employed as a herdboy. The trial court noted that what aggravated the appellant’s case was the fact that he was “in a protective relationship with complainant.”   The appellant therefore abused the trust of both the complainant and her grandmother who employed the appellant.  That together with the age of the child made this “a very bad case of sexual abuse.”

 

Husband can commit aggravated indecent assault on wife [s 68]

It is not a defence to a charge of aggravated assault that the person assaulted was his spouse of the accused at the time of the assault. However, it is further provided that no prosecution may be instituted against any husband for raping his wife in contravention unless the Attorney-General has authorised such a prosecution.

Competent verdicts on charge of aggravated indecent assault [s 275 read with 4th Schedule]

  • Indecent assault

 

 

Presumptions relating to capacity to consent to sexual acts

[s 64]

Boys and girls under 12 [s 64(1)]

Both girls and boys of or below the age of 12 are irrebuttably presumed to be incapable of consenting to sexual acts constituting aggravated indecent assault. Thus consent of a girl or boy under 12 cannot be pleaded as a defence to a charge of aggravated assault.

Boys and girls between 12 and 14 [s 64(2)]

There is now a rebuttable presumption that young persons over 12 but of or below the age of 14 are incapable of giving consent to sexual acts that would constitute aggravated indecent assault. The presumption can be rebutted by evidence showing that the girl or boy in question was capable of giving consent and did actually give consent.

Where consent absent or vitiated [s 69]

See later for the circumstances under which consent to sexual intercourse or an indecent act is absent or is vitiated (invalidated).

Penalty [s 66(1)]

A person found guilty of aggravated indecent assault is liable to the same punishment as for rape (imprisonment for life or any definite period of imprisonment).

The court must have regard to the same factors that under have to be taken into account when sentencing a person for rape. These factors are–

  • the age of the person indecently assaulted;
  • the degree of force or violence used in the indecent assault;
  • the extent of physical and psychological injury inflicted upon the person indecently assaulted;
  • the number of persons who took part in the indecent assault;
  • the age of the person who committed the indecent assault;
  • whether or not any weapon was used in the commission of the indecent assault;
  • whether the person committing the indecent was related within the prohibited degrees of relationship provided for in s 75;
  • whether the person committing the indecent assault was the parent or guardian of, or in a position of authority over, the person indecently assaulted;
  • whether the person committing the indecent assault was infected with a sexually transmitted disease at the time of the indecent assault.

Case

In S v Magwenzi 1994 (1) ZLR 442 (H) Chidyausiku J, as he then was, observed that where a man forcibly sodomises another, it is no different from rape. The act is as degrading, if not more so because it is unnatural. Where the complainant is of tender years, he is likely to be traumatised and corrupted. In this case, a 27-year-old man committed sodomy on his 8-year-old brother, who was entitled to his protection.

 

Indecent assault

[s 67]

 

This crime can be committed by a male on a female or a male or by a female on a male or a female.

Ingredients [s 67 (1)]

By male on female

By male on male

By female on male

By female on female

 

A male with indecent intent and knowing or realising that there is a real risk that the female has not consented

 

 

commits on the female any indecent act involving physical contact, other than sexual intercourse or anal sexual intercourse or other act involving the penetration of any part of the female’s body or of his own body

A male with indecent intent and knowing or realising that there is a real risk that the male has not consented

 

 

commits on the male any indecent act involving physical contact, other than anal sexual intercourse or other act involving the penetration of any part of the other male’s body or of his own body

A female with indecent intent and knowing or realising that there is a real risk that the male has not consented

 

commits on the male any indecent act involving physical contact, other than sexual intercourse or other act involving the penetration of any part of the male’s body or her own body

A female with indecent intent and knowing or realising that there is a real risk that the female has not consented

commits on a female any indecent act involving physical contact, other than any act involving the penetration of any part of the other female’s body or of her own body.

An indecent act is any act that would be regarded by a reasonable person to be an indecent act. An example would be touching or fondling by a man of a woman’s breasts or buttocks.

 

Boys and girls under 12 [s 64(1)]

Both girls and boys or below the age of 12 are irrebuttably presumed to be incapable of consenting to sexual acts constituting indecent assault. Thus consent of a girl or boy under 12 cannot be pleaded as a defence to a charge of indecent assault.

Boys and girls between 12 and 14 [s 64(2)]

There is a now rebuttable presumption that young persons over 12 but of or below the age of 14 are incapable of giving consent to sexual acts that would constitute indecent assault. The presumption can be rebutted by evidence showing that the girl or boy in question was capable of giving consent and did actually give consent.

Where consent absent or vitiated [s 69]

See later for the circumstances under which consent to sexual intercourse or an indecent act is absent or is vitiated (invalidated).

Penalty [s 67(1)]

Fine

Prison

Both

Up to level 7

Up to 2 years

Both

 

Factors in sentencing [s 67(2)]

The court sentencing X for this crime must have regard to same factors as those that are taken into account in a case of rape.

  • the age of the person indecently assaulted;
  • the degree of force or violence used in the indecent assault;
  • the extent of physical and psychological injury inflicted upon the person indecently assaulted;
  • the number of persons who took part in the indecent assault;
  • the age of the person who committed the indecent assault;
  • whether or not any weapon was used in the commission of the indecent assault;
  • whether the person committing the indecent was related to the person raped within the prohibited degrees of relationship provided in s 75;
  • whether the person committing the indecent assault was the parent or guardian of, or in a position of authority over, the person indecently assaulted;
  • whether the person committing the indecent assault was infected with a sexually- transmitted disease at the time of the indecent assault.

Competent charges on charge of indecent assault

Attempted indecent assault [s 67(3)]

X is guilty of attempted indecent assault if X would have been guilty of indecent assault but for the fact that he or she failed to make the physical contact that he or she intended.

When guilty of criminal insult and not indecent assault [s 67(3)]

X is guilty of criminal insult if X would have been guilty of indecent assault but for the fact that indecent intent was absent.

Competent verdicts [s 275 read with 4th Schedule]

  • Sexual intercourse with or performing an indecent act with a young person;
  • Criminal insult;
  • Any crime of which a person might be convicted if he or she were charged with sexual intercourse with or performing an indecent act with a young person.

 

Unavailable defences to rape, aggravated indecent assault and indecent assault

[s 68]

This abolishes or reiterates the abolition of certain archaic common law presumptions applicable to the offence of rape and indecent assault. These are the presumptions–

  • that a husband cannot rape his wife (a presumption originated from the outmoded notion of the wife’s legal subjection to her husband)
  • that a boy under the age of 14 years is incapable of sexual intercourse.

However, no proceedings may be taken against any person accused of raping or indecently assaulting his or her spouse except with the leave of the Attorney-General.

 

Guide to correct charges in cases involving young persons

Section 70(4) gives guidance as to the correct charges in various situations as follows–

Person upon whom act committed

Accused person

Sexual act

Whether consent

Correct charge

Reason

Girl below 12

Male over 12

Vaginal or anal sexual intercourse

Irrelevant as girls below 12 incapable of consenting

Rape

Girls of or below 12 irrebuttably presumed to be incapable of consenting to sexual intercourse

Girl of or over the age of 12 but under 16

Male over 12

Vaginal or anal sexual intercourse without consent of girl

No consent

Rape

Girl was not consenting party

Girl or boy below 12

Male or female over 12

Penetration of body of girl or boy or of body of accused other than vaginal or anal sexual intercourse

Irrelevant as girls or boys below 12 are incapable of consenting

Aggravated indecent assault

Girls and boys below 12 are irrebuttably presumed to be incapable of consenting to sexual act

Girl or boy below 12

Male or female over 12

Act involving physical contact of indecent nature

Irrelevant as girls below 12 incapable of consenting

Indecent assault

Girls and boys below 12 irrebuttably presumed to be incapable of consenting to sexual act

Girl or boy of or over the age of 12 but below 16

Male or female over 12

Penetration of body of girl or boy or of body of accused

No consent

Aggravated indecent assault

Girl or boy was not consenting party

Girl or boy of or over the age of 12 but below 16

Male or female over 12

Act involving physical contact of indecent nature

No consent

Indecent assault

Girl or boy was not consenting party

 

 

Where consent absent or vitiated

[s 69]

This sets out the circumstances under which consent to sexual intercourse or an indecent act is absent or is vitiated (invalidated) for the purpose of establishing whether rape, aggravated indecent assault or indecent assault was committed. These are where the person charged–

  • has used violence, threats of violence or intimidation or unlawful pressure to induce the other person to submit;
  • has used a fraudulent misrepresentation to induce the other person to believe that something other than sexual intercourse or an indecent act is taking place;
  • by impersonating someone’s spouse or lover, induces the other person to have sexual intercourse or to submit to the performance of an indecent act;
  • has sexual intercourse or performs an indecent act upon a sleeping person who has not given consent thereto prior to falling asleep;
  • has sexual intercourse with or performs an indecent act upon a person who is under hypnosis or is so intoxicated that the person is incapable of giving consent and that person has not given consent before being hypnotised or becoming intoxicated.

Unlawful pressure

This would include:

  • a threat by a male employer to dismiss a female employee unless she agrees to have sexual intercourse with him;
  • a threat by a police officer to arrest a woman for a crime unless she has sexual intercourse with him;
  • a threat by a male teacher or lecturer to fail a female student unless she has sexual intercourse with him;
  • a threat by a person in charge of distribution of food supplies to displaced persons to withhold food relief to a woman unless she has sexual intercourse with him;
  • a threat by a person in charge of allocation of houses to ensure that a woman will be evicted from her house unless she has sexual intercourse with him.

Cases

In S v Volschenk 1968 (2) PH H 283 (D) a policeman induced consent by threatening an arrested woman with prosecution. The policeman was found guilty of rape.

In S v S 1971 (2) SA 591 (A) a constable arrested a young woman and placed her in a car. He ordered her to lie on the back seat. When he went to have sex with her she said she was ill. Nonetheless he had sex with her. No force was used but the sexual intercourse was against her will and desire. She simply complied as she was afraid. The constable used his authority to overbear her lack of consent and he was thus guilty of rape.

Comment

It seems that other types of pressure could also vitiate consent as, for instance, where a housing officer induces consent to sexual intercourse or other forms of sexual conduct by threatening a woman with eviction from her house unless she has sexual intercourse with him.

Fraudulent misrepresentation vitiating consent

In R v Flattery [1877] 2 QB 410 X told a girl who was ill that he would cure her. The girl was unaware that she was having sexual intercourse. X was guilty.

In R v Williams [1923] 1 KB 340 X told a girl that he was performing an operation on her to improve her voice. She did not realise that sexual intercourse was taking place. He was guilty.

Fraudulent misrepresentation that does not vitiate consent

X will not be guilty of rape if Y consents to sexual intercourse, but X, by using a fraudulent misrepresentation has induced in Y a belief that certain consequences will follow upon the act of sexual intercourse e.g. that the act will cure her barrenness or that X will marry her if she gives her consent.

In R v Williams 1931(1) PH H 38 Y consented to sexual intercourse because X had told her that this would remedy a displacement of the womb. X was not guilty of rape.

In R v K 1965 RLR 571 (A) X led Y to believe that sexual intercourse was part of the cure for barrenness. As the misrepresentation related only to the results of the act and not its nature, X was not guilty of rape.

 

Use of religious indoctrination to extract consent

 

In S v Gumbura 2014 (2) ZLR 539 (S) a pastor convicted of four counts of rape applied for bail pending appeal. The rape victims had been members of the pastor’s church. The complainants had been subjected to frequent indoctrination in the notions of total separation and submission to authority. They were not allowed to fraternise with their relatives and were conditioned to believe that matters of church should not be discussed with outsiders. The applicant displayed a pattern of predatory behaviour, characterised by rampant sexual perversion, manipulating and luring the complainants to accept and endure his deceptively benign patriarchal authority. The applicant argued that the complainants had consented to intercourse with him. The complainants had not reported the rapes until a considerable time afterwards.

 

The court held that religious doctrines and beliefs cannot be subjected to the rigours of legal proof. In the circumstances presented by this case, the quasi-mystical force of religious dogma might overwhelm its conscripts and devotees to the point where it operated to vitiate and negate any meaningful consent to sexual abuse and exploitation by their spiritual masters. The complainants, having been enmeshed within the overpowering cocoon woven by the pastor, unwittingly succumbed to his sexual advances and predations. Thereafter, constrained by fear and misconception, they remained taciturn for several years and only reported their respective ordeals after appreciating the full nature of their sexual bondage.

 

 

Unlawful sexual intercourse or indecent acts with young person

[s 70]

This section re-enacts s 4 of the Sexual Offences Act.

A young person is a male or female under the age of 16 [s 61].

This crime is committed when, with the consent of young person, a person over the age of 16 performs various sexual acts with the young person.

The reason why this crime is committed despite the fact that the young person has given consent is that the law seeks to protect young persons from sexual exploitation by older persons and to protect young persons against the harmful consequences that can emanate from early sexuality such as early pregnancies and contracting of sexually-transmitted diseases. The crime is thus committed even though the young person has consented to the sexual act. If the young person has not consented then the correct crime to charge is rape, sodomy, aggravated indecent assault or indecent assault.

In S v Tshuma HB-70-13 the court said the rationale behind punishing unlawful sexual intercourse with girls under 16 years is the protection of immature females from voluntarily engaging in sexual intercourse on account of a lack of capacity to appreciate the implications involved and the possibility of mental or physical injury.  

In S v Mbulawa HB-62-06 X was convicted of committing an immoral or indecent act with or upon a young person. He was aged 30 and the female complainant was aged 12. He had fondled her breasts, kissed her and fondled her private parts on a number of occasions over a period of a month. The court held that sexual abuse of children is viewed by the courts in a serious light. Paedophilia has to be dealt with effectively. The courts have to drive home the message that such conduct will not be tolerated as it has grave consequences on the youth. Self-gratification of adults should not be at expense of debauching young persons. X had offended against morality by not only gratifying his own sensualities, but by also exciting, encouraging and facilitating the illicit gratification of the 12 year old complainant. The sentence should not be such that it gives the impression that the court is condoning sexual abuse of children. X’s moral blameworthiness was so high that an effective sentence in the region of two years was called for.

S v Muwombi HH-164-16 that this crime seeks to protect young persons from sexual exploitation by older persons. The law also seeks to protect young persons against the harmful consequences of early sexual activity, such as early pregnancies and the contracting of sexually transmitted diseases.

When incest should be charged

 

S v Muwombi HH-164-16 X was the father of the complainant, a 15 year old girl. He and his daughter had consensual sexual intercourse on several occasions. He was charged with, and pleaded guilty to, two counts. The first was having sexual intercourse with a young person, in contravention of s 70 of the Criminal Law Code [Chapter 9:23]; the second was having sexual intercourse within a prohibited degree of relationship, in contravention of s 75 of the Code. The court decided that the correct charge in this situation is incest not “statutory rape.”

 

Ingredients [s 70(1)]

This crime is committed if–

  • a male has extra-marital sexual intercourse or performs indecent acts with a female under the age of 16 with her consent;
  • a male performs an indecent act on a male person under the age of 16 with his consent;
  • a female has extra-marital sexual intercourse or performs indecent acts with a male under the age of 16 with his consent;
  • a female performs an indecent act with a female under the age of 16 with her consent.

This crime is not committed if the acts are committed between married persons. (Section 61 defines “extra-marital sexual intercourse” as “sexual intercourse otherwise than between spouses.”)

Comment

That this offence is not committed where the parties are married in effect condones child marriages. However, in the case of Mudzuru & Anor v Minister of Justice, Legal and Parliamentary Affairs & Ors CC-12-2015 the Constitutional Court prohibited marriages to children under the age of 18 as from 20 January 2015. This means that as from 20 January 2013 anyone who has consensual sexual relations with a girl or boy between 12 and 16 may not be able to plead the defence of marriage. This provision needs to be amended to remove the term “extra-marital”.

 

Consent of young person no defence [s 70(2)]

It is no defence to this charge to prove that the young person consented to sexual intercourse or to the indecent act.

Sexual intercourse between persons over 12 but under 16 [70(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 will be charged with sexual intercourse or performing an indecent act with a young person unless a report of a probation officer appointed in terms of the Children's Act shows that it is appropriate to charge one of them with that crime.

 

Defence [s 70(3)]

It is a defence to this charge for X to show that he or she had reasonable cause to believe that the young person with whom he or she had sexual intercourse or engaged in an indecent act was over the age of 16. However, the apparent physical maturity of the young person concerned will not, on its own, constitute a reasonable cause for X to believe that the young person was 16 or over.

Penalty

Fine

Prison

Both

Up to level 12

Up to 10 years

Both

 

Competent verdicts on a charge of unlawful sexual intercourse or indecent acts with young person [s 275 read with 4th Schedule]

  • Indecent assault;
  • Sexual intercourse within a prohibited degree of relationship;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

Cases

When rape and not unlawful sexual intercourse:

In S v Dube 2010 (2) ZLR 400 (H) the court set out when X should be charged with rape rather than unlawful sexual intercourse or indecent acts with a young person. X, allegedly aged 18 years, was charged with having extra-marital sexual intercourse with a young person, in contravention of s 70(1)(a) of the Criminal Law Code. The age of the girl was said in the charge sheet to be 12 years, but no evidence of her age was led. The accused pleaded guilty but denied knowing her age. When the accused was questioned about his understanding of the essential elements of the offence, he did not admit knowing that she was a “young person” as defined in the Code. Section 61 defines “young person” as a “boy or girl under the age of 16 years”. No minimum age is provided. The scrutinising regional magistrate was of the view that, in the light of s 64(1) of the Code, the accused should have been charged with rape. This section provides that “A person accused of engaging in sexual intercourse … with a young person of or under the age of 12 years shall be charged with rape … and not with sexual intercourse … with a young person”. The trial magistrate was of the view that s 70(4) of the Act was permissive in that it provides that rape is a competent charge for intercourse with a female person below the age of 12 years. Because the complainant was aged 12 years and not below the age of 12 years, the magistrate considered that a charge under s 70(1) was competent.

 

It was held that it is always critical to determine the exact age of the complainant in cases involving the sexual abuse of children. This derives from the provisions of the Code which give rise to varying types of charges and the penalties to be meted out. What was placed before the court was patently incomplete, if not inaccurate, information. To say the complainant was aged 12 years was inaccurate and problematic, as it was not clear whether she was celebrating her 12th birthday on the day of the offence, or had already attained that age or was in her 12th year. It was therefore necessary to ascertain the exact age by means of her birth certificate and/or medical evidence as to her probable age if the date of birth was not known.  None of this was done. The same applied to the age of the accused. The Code restates the common law position that young persons of and under the age of 12 are incapable of consenting to sexual intercourse. Offenders against this group should not be charged under s 70(1), which relates to sexual intercourse with a young person. Section 70(4) buttresses this position.

 

                   Comment on this case

Section 64(2) of the Criminal Law Code provides–

     “A person accused of engaging in sexual intercourse … with a young person above the age of 12 years but of or below the age of 14 years shall be charged with rape … and not with sexual intercourse … with a young person … unless there is evidence that the young person … was capable of giving consent to the sexual intercourse … and gave his or her consent thereto”.

This subsection allows the prosecution to bring a charge other than rape, if there is evidence of consent, where the complainant is “above the age of 12 years but of or below the age of 14 years”. Section 64(1) is misquoted in the judgment; consent is not mentioned. 

The exact wording of s 70(4) is: “For the avoidance of doubt … the competent charge against a person who has sexual intercourse with a female person below the age of twelve years shall be rape … and not sexual intercourse with a young person” (emphasis added).

Thus, under s 64, if the young person has reached, but not passed, her 12th birthday, the charge must be one of rape, irrespective of whether there is evidence of consent. If she has passed her 12th birthday but has not passed her 14th birthday, the charge need not be one of rape if there is evidence of consent.

 

Both the boy and the girl under 16

 

In S v CF (a juvenile) 2011 (2) ZLR 48 (H) the court pointed out that section 61 of the Criminal Law Code  defines “young person” as “a boy or girl under the age of sixteen years.” The offence in s 70(1)(a) of the Code (having extra-marital sexual intercourse with a young person) seeks to protect young persons from adults who take advantage of their immaturity by engaging with them in extra marital sexual activities. It is envisaged that young persons are not mature enough to appreciate the consequences of such activities. It is clear from the wording of the legislation that not only are girls protected, but young male persons are protected as well. The result is that no offence is created where a young male person engages a young female person in any consensual sexual act.

 

Section 70 has been amended by the insertion of a new sub-section (2a) the effect of which is that if a boy and girl have sexual relations and both are under 16 years of age, neither will be charged with sexual intercourse with a young person unless a probation officer reports that it is appropriate that one of them with the crime.

 

The probation officer will, presumably not often report that one of the two parties should be prosecuted but he or she might do so if, for instance, a boy aged 15 years who is mature for his age has sexual intercourse with a girl aged 13 years.

 

Factors in sentencing

In S v Mutowo 1997 (1) ZLR 87 (H) the court pointed out that sentencing in cases of statutory rape is a difficult matter because of the wide range of differing circumstances surrounding this crime.

In S v Tshuma HB-70-13 the court pointed out that a wide range of differing circumstances can attend this crime. The factors that should be considered include, inter alia, the age, appearance and character of the complainant, the age of the accused and the circumstances of the offence. The complainant’s age is relevant because, the younger she is, the more seriously will the court regard the exploitation of her youth, while the closer she is to 16 the less justified will be any presumption of her incapacity to make an informed decision about sexual intercourse. Her appearance is important because the moral blameworthiness of the man will be less if he wrongly believes, from her appearance, that she is older than she actually is. Similarly, the girl’s character – whether she be a virgin or promiscuous, a flirt or demure – must have a like bearing on whether the accused was knowingly preying on the innocent or merely risking lying with an underage but worldly-wise girl. In no case, though, can the girl’s sexual experience be a defence. The accused’s age is important because of the relevance to his moral blameworthiness of his own experience or lack of it and of any disparity in the ages of the parties. Apart from the accused’s age, it is also important to determine whether the accused was in a position of responsibility in relation to the girl. A careful investigation of these and other relevant factors by the trial court is essential. The offence is mitigated where, for instance, (a) the complainant is of loose morals; or (b) she enticed the accused to have intercourse; or (c) the accused and complainant were genuinely in love; or (d) she was nearly 16 years old; or (e) the accused is a simple and unsophisticated person from a community in which this law is not well known; or (f) he is a youth; or (g) he bona fide believed the complainant to be of age. On the other hand, the offence is aggravated where (a) the accused is much older and more mature than the complainant; or (b) she is just above the legal age of consent; or (c) the accused has relevant previous convictions.

 

In S v Nyamande HH-719-14 X who was aged 54 years, pleaded guilty to a charge of having sexual relations with a young person. The girl was aged 14 years and became pregnant as a result of the liaison, which took place over a period of 6 months. He was sentenced to a wholly suspended term of imprisonment. The accused said in mitigation that at his church they are allowed to marry as many wives as they want. He wanted the complainant to be his third wife. He had been shown by the Spirit that the complainant was going to be his third wife.

 

The court held that the offence was so bad that it warranted the imposition of a longer prison term and an effective custodial sentence. In Zimbabwe, there are churches, especially apostolic sects, which have religious practices that encourage members to marry young girls. They continue to do so regardless of laws which outlaw child sexual abuse such as the section of the Criminal Law Code the accused was charged with. That section attracts a maximum penalty of 10 years’ imprisonment. Despite the heavy penalty that is prescribed by statute, these churches continue with their practices. It seems that they listen to the Spirit which leads them more than they listen to the law of the land. There also seems to be a conflict between what the Spirit tells them and what the law says.

 

Child sexual abuse has effects such as pregnancy, girls dropping out of school and the risk of contracting HIV/AIDS and other sexually transmitted diseases. Early marriages deny girls educational opportunities, lead to poverty and economic insecurity. Because of lack of education, the capacity of these girls to make decisions is negatively affected. Other forms of gender-based violence and problems such as physical and sexual abuse are reinforced against them. Adults who engage in child sexual abuse and marry young girls show a complete disregard of the rights of children in spite of the protection s 81(1) of the Constitution gives to those rights. In addition, Zimbabwe has ratified various international conventions which prohibit child sexual exploitation and abuse and child marriages: the Convention on the Rights of the Child; the Convention on the Elimination of all forms of Discrimination against Women; and the African Charter on the Rights and Welfare of the Child.

 

What made the complainant vulnerable was her young age and her church practice which brain-washed her. Adults who take advantage of such children ought to be seriously punished. They must be sentenced to imprisonment, not only to punish them but also in an endeavour to deter others who might have similar inclinations. Heavy custodial sentences are essential if the courts are to play their role in protecting children or young people from sexual abuse by adults. If the accused had been sentenced to effective imprisonment that would have sent a clear message to his church mates that child sexual abuse and child marriages are not tolerated by the courts and as a result other would be offenders would have been deterred from committing such crimes in future. A sentence in the region of 4-5 years’ imprisonment with a portion suspended on condition of good behaviour would have met the justice of the case.

 

In S v Banda & Anor HH-47-16 the accused both over 30 and were married with children. Both had sexual intercourse with girls aged 15 years by paying them a very small sum of money. They both impregnated the young girls. One accused married the girl, which the court held was an aggravating rather than a mitigatory factor. The impregnation of the girls was an aggravating factor because early pregnancy carried an added risk to their health as that maternal mortality rates in young persons are higher than in mature women and there was also other health risks.

The prevalence of these type of offences, the consequential incalculable damage they cause in preventing young persons from attaining their full potential, the damage to the social fabric, coupled with its impact on national development and the need to conform to international standards in the protection of children ought to be additional grounds for handing down deterrent sentences. Severe deterrent sentences are required where older men prey off young girls. An effective sentence of not less than three years should be imposed, on an incremental basis for those accused who are twice the victims’ ages, are married with children of their own, and impregnate the young persons or infect them with sexually transmitted diseases other than HIV.

 

 

Sexual crimes committed against young or mentally incompetent persons outside Zimbabwe

[s 71]

This re-enacts s 5 of the Sexual Offences Act.

Ingredients [s 71(1)]

X who is a citizen of or ordinarily resident of Zimbabwe does anything outside Zimbabwe to, with or against a young or mentally incompetent person that, if it were done inside this country, would constitute–

  •  
  • aggravated indecent assault;
  • indecent assault;
  • sexual intercourse or performing indecent act with young person;
  •  
  • an attempt, conspiracy or incitement to commit any of these crimes.

X is guilty of this crime whether or not the act in question was a crime in the place where it was committed. [s 71(3)]

Penalty [s 71(1)]

X is liable to the penalty that would have applied if the crime had been committed in Zimbabwe.

Person in Zimbabwe conspiring with or inciting person outside Zimbabwe [s 71(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 to commit the appropriate crime.

 

Conspiracy or incitement outside Zimbabwe to commit in Zimbabwe sexual crimes against young or mentally incompetent persons

[s 72]

This re-enacts s 6 of the Sexual Offences Act.

It provides for the converse of the situation described in s 71.

Ingredients [s 72(1)]

X outside Zimbabwe conspires with or incites another person to commit any of the following crimes against a young or mentally incompetent person in Zimbabwe

  •  
  • aggravated indecent assault;
  • indecent assault;
  • sexual intercourse or performing indecent act with young person;
  •  
  • an attempt, conspiracy or incitement to commit these crimes.

X is guilty of incitement or conspiracy to commit the crime incited or conspired, whether or not this crime is a crime in the county in which the alleged incitement or conspiracy took place.

Penalty [s 72(1)]

X is liable to the same penalty that would have applied if the incitement or conspiracy had taken place in Zimbabwe.

 

Sodomy

[s 73]

This section deals with the crime of sodomy, and combines the common law crimes of sodomy (that is, the performance of anal sexual intercourse between consenting male persons) and “offences against nature” (any other consensual physical contact of a sexual nature between male persons).

Case

In S v Banana 2000 (1) ZLR 607 (S) the Supreme Court held, by a majority, that the common law crime of sodomy is not unconstitutional on the grounds of discrimination.

On the other hand, in South Africa the crime of sodomy has been abolished. In the case of National Coalition for Gays and Lesbian Equality and Another v Minister of Justice & Others [1998] ZACC 15, 1999 (1) SA 6, 1998 (12) BCLR 1517 basing its decision on the Bill of Rights in the South African Constitution – and in particular its explicit prohibition of discrimination on the grounds of sexual orientation – the South African Constitutional Court unanimously ruled that the common law crime of sodomy, as well as various other related provisions of the criminal law, were unconstitutional and therefore invalid. In the case of Minister of Home Affairs & Anor v Fourie & Anor [2005] ZACC 19, 2006 (1) SA 524 (CC), 2006 (3) BCLR 355 (CC) the South African Constitutional Court handed down a judgment that that led to the legalisation of same sex marriages by the passing of the Civil Marriage Act, 2006.

In Africa, homosexuality is illegal for homosexual men in 29 countries and for lesbian women in 20 countries.

Between consenting adult males [s 73(1)]

The crime is committed by both males who, on a consensual basis, knowingly perform the following acts with one another–

  • anal sexual intercourse;
  • any act involving physical contact other than anal sexual intercourse, that would be regarded by a reasonable person to be an indecent act, such as masturbation of one male by another.

Between male and boy below 14 or with mentally incompetent person

A male person as anal sexual intercourse or engages in other sexual conduct with a boy of or below the age of 14 or with a mentally incompetent adult male and there is evidence that the boy or mentally incompetent person was capable of consenting and did consent to the sexual conduct.

Here only the first mentioned male person will be charged with sodomy.

Penalty [s 73(1)]

Fine

Prison

Both

Up to or exceeding level 14

Up to 1 year

Both

 

Case

In S v Roffey 1991 (2) ZLR 47 (H) the appellant pleaded guilty to one count of sodomy. He was sentenced to a period of ten months’ imprisonment with labour, of which four months was suspended on appropriate conditions. The evidence was that the complainant was both an adult and a willing party. No force or coercion had been used to persuade the complainant to submit to the appellant’s desires. The complainant had apparently committed similar acts in the past.

The court held that these factors make this case less serious than others of its genre. Accordingly, that the imposition of a fine was appropriate in the circumstances.

Not, however, that the Criminal Law Code now provides that a term of imprisonment for up to a year can be imposed for this offence.

Between an adult male and a young male person [s 73(3)]

This clarifies what crimes an adult male commits if he has sexual intercourse with or performs an indecent act upon male children under 12 and children between 12 and 16.

Age of boy

Whether consent

Crime

Below the age of 12

Boy deemed incapable of giving consent

Aggravated indecent assault or indecent assault

Of or above the age of 12-16

Boy has not consented

Aggravated indecent assault or indecent assault

12-16

Boy has consented

Performing indecent act with young person.

 

Boys under 14 and mentally incompetent persons not chargeable with sodomy [s 64(4)]

Where a male adult has anal intercourse with a boy of or below the age of 14, but of or above 12 years, or a mentally incompetent male person, and the evidence shows that the boy or mentally incompetent person was capable of consenting to anal sexual intercourse or other sexual conduct and did give such consent, the male adult alone will be charged with sodomy.

Competent verdicts [s 275 read with 4th Schedule]

  • Indecent assault;
  • Any crime of which a person might be convicted if he or she were charged with indecent assault.

 

Bestiality

[s 74]

This section codifies the common law crime of bestiality.

Ingredients

This crime is committed by anyone who knowingly commits any sexual act with an animal or a bird.

The person charged can be either male or female and the animal can be either male or female.

Penalty

Fine

Prison

Both

Up to level 14

Up to 1 year

Both

 

See Guide pp 72 & 186.

 

Sexual intercourse within a prohibited degree of relationship

(formerly called Incest)

[s 75]

The common law of incest covered only “western” notions relating to sexual intercourse within prohibited degrees of relationship. It did not encompass customary concepts of “incest”. This is unfair. Thus in the Code this crime now encompasses not only common law notions of incest (with some modifications) but also customary law notions of “incest”.

Because customary and common law concepts of “incest” do not coincide in every particular (being in some cases wider, in others narrower, than each other), this crime has been re-labelled “sexual intercourse within a prohibited degree of relationship”. One example where there is a difference between the common law and customary law is that under common law first or second cousins do not fall within the prohibited degrees of relationship whereas under customary law it usually does.

Ingredients

Physical ingredients

Mental ingredient

X and Y who are related within the prohibited degrees of relationship have sexual intercourse

Either or both parties know or realise that there is a real risk that they are related within the prohibited degrees of relationship s

 

Either or both X and Y will be guilty of this crime

The prohibited degrees of relationship are set out in the table below.

Relation

Relation

Further aspects

Parent

Natural child

This applies whether born in or out of wedlock

Adopting parent

Adopted child

This applies whether or not child was under 18

Step-parent

Step-child

This applies whether marriage between natural parent and step-parent under the Marriage Act or the Customary Marriages Act or unregistered customary law marriage;

This applies whether or not the child was over 18 at time of the marriage.

Grand-parent

Grand-child (the child of one’s child)

 

Brother

Sister

Whether of whole or half blood.

Uncle

Niece (brother’s or sister’s daughter)

 

Aunt

Nephew (brother’s or sister’s son)

 

Grand-uncle

Grand-niece (nephew’s or niece’s daughter)

 

Grand-aunt

Grand-nephew (nephew or niece’s son)

 

Ascendant

Descendant

In any degree

Person

Descendant of person’s brother or sister

This applies whether brother or sister is of whole or half blood

Person

First cousin (child or any descendant of child of uncle or aunt of such person)

 

Second cousin (child or any descendant of child of great-uncle or great-aunt of such person)

The following are the defences to charge arising out of sexual intercourse between first or second cousins [s 75(3) and (4)]–

 

If X not member of community governed by customary law

It is a defence for X to prove that cultural or religious customs or traditions of his or her community don’t prohibit marriage between first or second cousins (in other words, that the customary law of that community doesn’t prohibit the relationship.)

 

In determining this issue court must 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.

 

But complications could arise in a situation like that which follows. Two cousins who appear to belong to a community governed by customary law because they are Africans become Muslims and purport to marry, or have sexual relations with each other. They will still be guilty of this crime unless they can show that they do not, in fact, belong to a community governed by customary law or they belong to a customary law community that permits marriage between cousins.

 

If X member of community governed by customary law

It is a defence for X to prove that cultural or religious customs or traditions of the particular community to which he or she belongs don’t prohibit marriage between first or second cousins.

 

In determining this issue court must 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.

 

In determining whether or not a person is a member of a community governed by customary law the court must have regard to all the circumstances of the person’s life, including¾

  • whether or not the natural parents of the person
  • 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;
  • 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.

 

This provision will not apply to persons who–

  • on the date of commencement of this Code are married to each other under the Marriage Act or the Customary Marriages Act or are parties to an unregistered customary law marriage; or
  • on or after the date of commencement of this Code are married to each other under any foreign law.

[s 75(5)(b)]

Person

Ascendant or descendant of person’s spouse or former spouse

This applies whether married under Marriage Act, Customary Marriages Act or parties to unregistered customary law marriage.

 

In S v Muwombi HH-164-16 X was the father of the complainant, a 15 year old girl. He and his daughter had consensual sexual intercourse on several occasions. He was charged with, and pleaded guilty to, two counts. The first was having sexual intercourse with a young person, in contravention of s 70 of the Criminal Law Code [Chapter 9:23]; the second was having sexual intercourse within a prohibited degree of relationship, in contravention of s 75 of the Code. He was sentenced to 18 months’ imprisonment on each count, of which 3 months were suspended. The sentences were ordered to run concurrently. On review, the issue was what the appropriate charge should be, and whether both offences could be charged.

 

The court held the offence under s 70 is committed when, with the consent of a young person (that is, a male or female under age of 16 years), a person over the age of 16 performs various sexual acts with the young person. In making such conduct a crime, the law seeks to protect young persons from sexual exploitation by older persons. The law also seeks to protect young persons against the harmful consequences of early sexual activity, such as early pregnancies and the contracting of sexually transmitted diseases. The offence under s 75 was, before the codification of the common law, called incest. Incest is sexual deviation from the usual or accepted sexual behaviour or standards. It is regarded as sexual perversion because it is a departure from what is right, natural or acceptable. It is unacceptable sexual behaviour between a man and a woman who are related to each other in a degree of relationship within which marriage is prohibited by law. The relationship of parent and natural child is one such relationship. Sexual intercourse is prohibited because these people are regarded as being too closely related to marry each other. Father and daughter are closely linked by blood. Sexual intercourse is prohibited between them, even if there is consent by both parties. The rationale for this offence is that it is morally wrong for people who are closely related like this to have sexual relations. The other reason is genetic considerations: if such people are allowed to have sexual relations there is a danger or risk of proliferation of mental or physical weaknesses due to the joining of recessive family genes carrying such weaknesses.

What is common to both offences is that the sexual intercourse between the parties is by consent. In s 70, although the young consented to the sex, it is only the older person over the age of 16 who is charged. The young person is not charged because he or she is the one whom the law seeks to protect. In s 75, both parties involved in the incestuous relationship may be charged, or one of the two, but the sexual intercourse would have been by consent. It is no defence to either charge that the sex was by consent.

Where the parties are related in a prohibited degree of relationship, like in the present case, the appropriate charge is s 75, not s 70. What s 70 means is that when the young person reaches the age of 16, the parties involved will be allowed to engage in sexual relations. The relationship between the two parties is not an issue. To charge a father under this section is tantamount to saying, “You did wrong by having sexual intercourse with your under aged daughter. You should have waited until she had become of age”. Under s 75 the relationship between the two parties is very important and is an essential element or ingredient of the offence. The issue of age is immaterial. In the case involving a parent and a child, the offence is committed irrespective of the age of the child. The prime consideration is the relationship between the parties.

Although the penalty under s 75 is less than that under s 70, this is a matter for the legislature. It would be appropriate to have a penalty the same as, or greater than, that under s 70. In this case, the sentence imposed was shockingly lenient. The accused should have been sentenced to five years’ imprisonment, with one year suspended.

 

Penalty

Fine

Prison

Both

Up to level 14

Up to 5 years

Both

 

Competent charges [s 75(5)]

 

Conduct

Correct charge

A male has non-consensual sexual intercourse with a female to whom he is related within the prohibited degrees of relationship

Rape

A female has non-consensual sexual intercourse with man to whom she is related within prohibited degrees of relationship

Aggravated indecent assault

 

Competent verdicts [s 275 read with 4th Schedule]

  • Indecent assault;
  • Sexual intercourse or performing an indecent act with a young person;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

 

 

Complicity in sexual crimes

[s 76]

If X knowingly permits the commission upon his or her premises of - 

  •  
  • aggravated indecent assault;
  • indecent assault;
  • sexual intercourse or performing indecent acts with a young person;
  • sexual crimes with a young person or mentally incompetent person outside Zimbabwe;
  •  
  •  
  • sexual intercourse within the prohibited degree of relationship.

                                                       or

If X detains a person with the intention that another person will commit one of these crimes upon the detained person

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

 

Public indecency

[s 77]

This re-enacts and expands upon the crime of public indecency contained in s 3(a), (n) and (p) of the Miscellaneous Offences Act.

Ingredients [s 77(1)]

X engages in conduct which he or she knows will be seen or heard by another or realises that there is a real risk of this happening. The prohibited forms of conduct are these–

  • X indecently exposes himself or herself or engages in other indecent conduct which causes offence to another in or near a public place, or in or near a private place within the view of such other person; or
  • X, knowing or realising that there is a real risk 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;
  • X, knowing or realising that there is a real risk that he or she will be heard, 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;
  • X knowing or realising that there is a real risk that the writing or drawing will be seen, writes or draws any indecent or obscene word, figure or representation in or near a public place, or in or near a private place within the hearing of another person.

Seriousness [s 77(2)]

This provides that the court must not convict a person of this crime unless the words or conduct in question are sufficiently serious to warrant punishment. In deciding this, the court must take into account all relevant factors including the following–

  • the nature of the words or conduct;
  • the extent to which the words were repeated or the conduct was persisted in, as the case may be;
  • the age and gender of the person who heard the words or witnessed the conduct;
  • any previous relationship between the parties;
  • the degree of offence caused to the person who heard the words or witnessed the conduct.

Penalty [s 77(1)]

Fine

Prison

Both

Up to level 9

Up to 6 months

Both

 

Deliberate transmission of STD other than HIV

[s 78]

This re-enacts s 51 of the Public Health Act.

It deals with the crime of deliberately transmitting a sexually-transmitted disease other than HIV. It includes the transmission of STDs like syphilis, gonorrhea and herpes.

Ingredients [s 78(2)]

Either a male or a female can commit this crime.

X knows that he or she is infected with an STD or realises that there is a real risk of this and X

  • intentionally infects Y with the STD; or
  • does anything or causes or permits anything to be done with the intention of infecting Y or realising that there is a real risk that Y will be infected.

Presumption [s 78(3)]

If the prosecution proves that X was suffering from an STD at the time of the crime, it is presumed, unless the contrary is proven, that X knew he or she was infected with the STD or realised the real risk that he or she was infected.

Defences [s 78(4)]

It is a defence for X to prove that Y, knowing that X had an STD, consented to the act in question appreciating the nature of the STD and the possibility of becoming infected with it.

Penalty [s 78(2)]

Fine

Prison

Both

Up to level 14

Up to 5 years

Both

 

Deliberate transmission of HIV

[s 79]

Ingredients [s 79(1)

Either a male or a female can commit this crime.

This crime is committed if X knows that he or she is infected with HIV or realises that there is a real risk of this and X

  • intentionally does anything or permits the doing of anything which X knows will infect Y; or
  • does anything which X realises involves a real risk of infecting Y.

The act can be a sexual act or it can be some other act like a drug addict who knows he or she has HIV stabbing another with a needle contaminated with his or her HIV.

(The offence as worded does not seem to cover a situation where X, a nurse who is not himself or herself infected with HIV, stabs Y with a needle contaminated with the HIV of a patient. If it does not cover this situation, the nurse would have to be charged with assault.)

Defences [s 78(4)]

It is a defence for X to prove that Y, knowing that X had HIV, consented to the act in question appreciating the nature of HIV and the possibility of becoming infected with it.

Penalty [s 78(2)]

Imprisonment for up to 20 years.

Comment

In this situation we have a person who knows he or she is HIV positive. Knowing of his or her condition and knowing that if he or she has unprotected vaginal or anal sexual intercourse this will be likely to infect another, the person goes ahead and has sexual intercourse. Alternatively, a person deliberately plunges a needle into another which he or she knows to be contaminated with HIV.

 

Such a person is guilty of a criminal offence for which she or he can be imprisoned for up to twenty years. As the offence is formulated it does not have to be proven that the person actually infected the sexual partner with HIV. It is enough that the accused person, who knew or realised the real risk that he or she was infected did an act which carried with it the real risk that the act would result in infection.It is a defence to this crime for the accused to prove that the sexual partner knew the accused was infected with HIV and consented to the act knowing the nature of HIV and the possibility of becoming infected with it by the act. It is strongly arguable that this offence should be restricted to situations where the accused actually knew that he or she was infected and deliberately infected the complainant. However, it may often be difficult to prove that the complainant was infected by the accused in situations where the complainant might already have been infected.

 

Some would argue the victim is not entirely blameless. The victim has agreed to have unprotected sexual intercourse with the offender. Given the prevalence of HIV this is a risky thing to do, even if the offender gave the partner a categorical assurance that he or she was not infected with HIV. On the other hand, if the victim agreed to have unprotected sex knowing that the partner was infected with HIV, then the crime is not committed.

 

Nonetheless many would still argue that in the cases which can be proven it is appropriate to impose stern punishments to send a message to others in the society that such behaviour will not be tolerated, especially in cases where the State is able to establish that an uninfected person was infected as a result of the accused person’s irresponsibility. The incarceration of such offenders will also prevent them from infecting other persons, at least those outside prison.

 

There is also the problem that the category of offenders at which this offence is aimed is an abnormal group, that is, a group of people who know that they have a fatal infection. They are often angry and resentful and may also be fatalistic in their outlook. They may blame previous sexual partners for infecting them and may act out this anger and resentment by seeking to pass on the infection to others. As they know that they have only a limited time left to live, they may be little influenced by a threat of lengthy incarceration. Even if a lengthy prison term is imposed upon them they will know that they will die well before the end of such sentences.

 

It has also been argued that criminalisation may have the effect of driving the problem underground. Once the word gets around that if you know your HIV status as a result of being tested and that, if you continue to have unprotected sexual intercourse you could face serious criminal penalties, this might have the effect of discouraging some people from being tested for HIV on a voluntary basis.

 

The law should also seek to assist the infected persons to claim compensation from the culprits. This remedy would only be effectual where the culprits have reasonable financial means to pay compensation, but where they do have such resources the victims should be able to claim substantial damages and this may be a greater deterrent than a remote threat of incarceration. Another advantage of civil proceedings is that a lower standard of proof applies in such cases by comparison with criminal proceedings and so it would be easier to prove the case.

 

Constitutional challenge

 

In S v Mpofu & Anor CCZ-20-16 the Constitutional Court dismissed an application to have this crime declared to be unconstitutional under the pre-2013 Constitution. The court found that the crime was not worded in such a vague manner as to constitute a violation of the right to protection of the law in terms of s 18 of the previous constitution. Further it did not violate the anti-discrimination provision (s 23). It was a provision which was reasonably justifiable in a democratic society and given the seriousness of the consequences stemming from the offence the maximum sentence provided was not disproportionate.

 

For a critical note on this case see G. Feltoe “Constitutionality of the offence of deliberately transmitting HIV - Case note on the case of S v Mpofu & Anor CC-5-16Zimbabwe Electronic Law Review Vol 1 2017

 

Mandatory prison sentence where person committing sexual crime infected with HIV

[s 80]

Mandatory sentence [s 80(1)]

This provides for a mandatory prison sentence of at least 10 years imprisonment to be imposed upon a person who was infected with HIV when he or she commits certain sexual crimes. The crimes concerned are

  •  
  • aggravated indecent assault;
  • indecent assault;
  • sexual intercourse with a young person;
  • an indecent act with a young person involving penetration of the body which involves a risk of transmission of HIV.

If a person convicted of these crimes any of these crimes satisfies the court that there are special circumstances peculiar to the case, which circumstances must be recorded by the court, why the penalty provided under this subsection should not be imposed, the convicted person will be liable to the penalty provided for rape provided in s 65, the penalty for aggravated indecent assault provided in s 66 or the penalty for sexual intercourse or performing indecent acts with young persons provided for in 70, as the case may be.

A proviso to this subsection has been added that, notwithstanding s 192, the increased penalty will not apply to incitement or conspiracy to commit these crimes and will only apply to an attempt to commit them if the attempt involved any penetration of any part of the body of the convicted person or of another person’s body that carries the risk of transmission of HIV.

Proof of infection [s 80(2)]

The presence in X’s body of antibodies or antigens detected through the appropriate test is prima facie proof that X is infected with HIV.

Presumption [s 80(3)]

If it is proved that X was infected with HIV within 30 days after committing the sexual crime, it is presumed, until the contrary is proved, that X was infected when he or she committed the crime.

Comment

In clear-cut cases few would argue that HIV-positive sexual offenders deserve to receive extremely severe sentences. A clear-cut case would be one like this. A man who, to his own knowledge is HIV positive, rapes a young girl who is a virgin and is not infected with HIV. The man knows that in raping the girl he is likely to pass on his infection to her. As a result of the rape the young girl is in fact infected with HIV. This man obviously deserves a very harsh sentence because not only has he brutalised and traumatised the girl but also he has cut short her life and sentenced her to die a painful death.

 

Unfortunately most of the cases are not as straightforward as this. In many cases it may be impossible to prove that the accused knew he was infected when he raped a woman. In many cases it may not be possible to establish that the accused was HIV positive at the time of the rape. In a case where the victim is a sexually active woman, if it can be established that the accused was HIV positive when he raped his victim, there will still be reasonable doubt as to whether the victim was infected by the accused or by some other sexual partner.

 

The lawmakers in Zimbabwe have tried to overcome some of these difficulties in these provisions but they have not succeeded in overcoming all of the difficulties. The provision lays down that the accused can be sentenced to not less than ten years in prison if it is proved that at the time of the offence he was infected with HIV, whether or not he was aware of his infection. In the way in which this is formulated the clear message to all rapists is that if you rape a woman and it turns out that you were HIV-infected when you did so, we will send you to prison for the rest of your life. Even if you did not know you were infected, you are highly culpable as you raped a woman when you were infected with HIV and you should have known that you might already be infected.

 

The major problem is to establish on a reliable basis that the rapist had HIV at the time of the rape. Again, hardly any accused persons will admit that they were infected when they perpetrated their rapes. The Zimbabwean legislation tries to overcome the difficulty of proving such infection by empowering the magistrate to order, when the accused first appears in court in connection with the offence, that the accused undergo an HIV test. If this test is positive, and provided that it is proved that the accused was infected with HIV within thirty days after the offence, it is presumed that he was infected when he committed the offence unless he proves otherwise. There are various practical problems arising out of this provision.

 

Firstly, the testing method is not infallible and can lead to false positive and false negative results. In the case of a false positive result a rapist who was not positive could end up being given a disproportionate sentence. In the case of a false negative result a rapist will avoid receiving the sentence he deserves.

 

Secondly, the tests that are commonly used do not detect the virus itself but discover the presence of the virus by establishing the presence of antibodies. However, when a person is infected with HIV it takes up to three or four months before antibodies are produced. This period during which there is infection but no production of antibodies is called the window phase. Thus if an accused has raped a woman soon after contracting the infection and the matter is brought to court speedily, when the court orders the accused person to be tested the accused could still be in the window period and there is thus a risk of a false negative result. On the other hand, the presumption that he was infected only applies if he tests positive within thirty days of the offence. It is usually pointless to order testing of an accused when more than thirty days have elapsed from the time when the offence was committed. It would now be too late to invoke the presumption that he was positive at the time of the offence and to prove that he was at that time without the assistance of the presumption would be nigh impossible. Thus the accused may end up benefiting from delays in dealing with the case. For example, the accused may benefit if the complainant is slow to report the matter because of threats made by the accused against her or the accused has managed to evade arrest for some time or the police were slow to complete the docket.

 

There are also some problems that could arise from the compulsory testing of the accused for HIV before conviction. If the accused is acquitted of the charge then he will have been forced to undergo a test which he did not want to have, presumably without any attendant counselling. Secondly, if the magistrate is told that the accused is infected with HIV before he is convicted this could possibly prejudice the magistrate against the accused and make him more inclined to convict him.

 

In cases where these provisions can be successfully invoked and the accused are thus liable to sentences of not less than ten years in prison, again the question should be asked, will such sentences be likely to deter others? The answer again must be that it is very unlikely. Even without these provisions, sentences for rape have increased over the last few years and sentences of between 10 and 15years are now common. This does not seem to have had very much deterrent effect as these crimes are increasing at a fairly rapid rate. To increase the sentence in cases where the rapist is HIV at the time of the offence will be unlikely to have much additional deterrent effect especially where the rapists are aware that they are HIV positive and that they will die within a few years.

 

Again, one remedy that is little used is that of claiming civil damages. In many cases this remedy is not practically worth pursuing as the offenders often have little in the way of financial assets. But where the rapist has financial means, the victim should be assisted in pursuing this remedy.

 

Soliciting for purposes of prostitution

[s 81]

This substantially re-enacts s 4 of Miscellaneous Offences Act.

Ingredients [s 81(1) as read with s 81(2)]

X commits this crime when she or he publicly solicits Y for the purposes of prostitution. The solicitation can be by–

  • X soliciting Y in a public place or any place to which the public or any section of the public have access; or
  • X soliciting for custom in a print or electronic medium that is sent to the public.

Penalty [s 81(2)]

Fine

Prison

Both

Up to level 5

Up to 6 months

Both

 

 

Comment

 

In 2015 8 women brought a case before the Constitutional Court (Application 15 of 2015) pertaining to the offence of soliciting for prostitution. They had been arrested for this offence.

 

The argued that police were just arresting women in the Avenues area of Harare and other parts of the town without proof that they will be soliciting for the purposes of prostitution.  They also argued that the law infringes on the women’s freedom of movement and assembly as it restricts them from freely moving and associating with friends. Women are randomly arrested on mere subjective suspicion, which constitutes a violation of their right to personal security. The women’s right to human dignity is also being violated in that the police can search bags for condoms to try to establish a case of soliciting for prostitution.

 

The Constitutional Court granted by consent an order that the prosecution and remand of the 8 women on charge of soliciting was a violation of their rights to liberty and to protection of the law and the court. There was thus no full judgment in this matter.

 

It was incorrectly reported in the press that the court had ruled that the offence of soliciting for the purpose of prostitution was unconstitutional. What the court decided was that indiscriminate, dragnet arrests of women for soliciting was illegal and a violation of rights.

 

In effect the court decided that it was illegal to arrest of women on charges of soliciting for prostitution in the absence of male customers confirming they were offered the service for a fee.

 

 

 

 

Living off or facilitating prostitution

[s 82]

This re-enacts with modifications s 9 of the Sexual Offences Act, which made it a crime for anyone to be a keeper of a brothel, or solicit persons for prostitution or other immoral purposes, or demand money from a prostitute in consideration for managing her “business”.

However, the general crime contained in that Act of “living on the earnings of prostitution” (as opposed to the specific crime of demanding money from a prostitute in consideration for facilitating his or her activities) has been omitted because it is considered to be too broad in its potential application.

Ingredients

X commits this crime if X does any of the following–

keeps a brothel

demands from a prostitute any payment or reward in consideration for X

  • keeping, managing or assisting in the keeping of a brothel in which the prostitute is, or has been, living for immoral purposes; or
  • having solicited other persons for immoral purposes on behalf of the prostitute; or
  • having effected the prostitute’s entry into a brothel for the purpose of prostitution; or
  • having brought or assisted in bringing the prostitute into Zimbabwe for immoral purposes.

demands from a prostitute any payment or reward in consideration for any present or past immoral connection with the prostitute.

 

Penalty

Fine

Prison

Both

Up to level 7

Up to 2 years

Both

 

Competent verdict on this charge [s 275 as read with 4th Schedule]

  •  
  •  
  • Detaining a person for purpose of engaging in unlawful sexual conduct;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

 

Procuring

[s 83]

This re-enacts with modifications s 11 of the Sexual Offences Act, which made it a crime to procure another person for the purposes of engaging in unlawful sexual conduct, to become a prostitute or to enter a brothel.

Ingredients

X commits this crime if X procures another person–

  • for the purposes of engaging in unlawful sexual conduct with another person or with persons generally, whether inside or outside Zimbabwe;or
  • to become a prostitute, whether inside or outside Zimbabwe;or
  • to leave Zimbabwe with the intent that the other person may become a prostitute;or
  • 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.

Penalty

The procurement for sexual purposes of a young person under 16 will attract a more severe penalty than the procurement of an older person.

The fine for this crime is up to level 14

The term of imprisonment is as follows–

Where person procured is young person

If person procured not young person

Up to 10 years

Up to 2 years

 

 

Using threats or drugs to induce sexual conduct

[s 84]

This re-enacts s 12 of the Sexual Offences Act, which made it a crime to threaten a person or administer a drug or substance to a person in order to induce that person to engage in any sexual conduct.

Ingredients

X commits this crime if X does the following acts to enable X or someone else to engage in unlawful sexual conduct with another person–

  • threatens or intimidates that other person;or
  • applies or administers any intoxicating drug, liquor, matter or thing to that other person; or
  • causes that other person to take any intoxicating drug, liquor, matter or thing.

Penalty

Fine

Prison

Both

Up to level 10

Up to 5 years

Both

 

When rape or other sexual crime should be charged

If X actually engages in the sexual conduct, having induced the complainant to engage in the conduct by threatening or drugging that person, X should be charged with rape or whatever other specific sexual crime has been committed and not merely with inducing the conduct by threat or by administering drugs.

 

Detaining person for purpose of engaging in unlawful sexual conduct

[s 85]

This re-enacts s 10 of the Sexual Offences Act, which made it a crime to detain persons against their will in a brothel or in another place for the purposes of engaging in unlawful sexual conduct.

Ingredients

  • X 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.

Kidnapping

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.

Penalty

Fine

Prison

Both

Up to level 6

Up to 1 year

Both

 

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

[s 86]

This re-enacts s 7 of the Sexual Offences Act, which made it a crime for an owner or occupier of a place to permit young persons to resort to the place for the purpose of engaging in unlawful sexual conduct.

Ingredients [s 86(1)]

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.

Defence [s 86(2)]

It is a defence to this charge for X to prove that he or she had reasonable cause to believe that the young person was of or over the age of sixteen years.

But the apparent physical maturity of the young person concerned will not, on its own, constitute reasonable cause for the purposes of this crime.

Penalty [s 86(1)]

Age of person detained

Penalty

Under 12

Fine up to level 11

Prison up to 10 years

Both.

Over 12

Fine up to level 10

Prison up to 7 years.

Both.

 

Competent verdicts [s 275 as read with 4th Schedule]

  • Living off or facilitating prostitution;
  • Detaining person for purpose of engaging in unlawful sexual conduct;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

 

Allowing child to become prostitute

[s 87]

This crime of allowing a child to become a prostitute is taken from s 8 of the Children’s Act (formerly the “Children’s Protection and Adoption Act”).

Ingredients

A parent or guardian

  • causes or allows his or her child under the age of 18
  • to associate with prostitutes or to be employed by any prostitute as a prostitute or to reside in a brothel.

Penalty

Fine

Prison

Both

Up to or exceeding level 14

Up to 10 years

Both

 

 

 

Crimes Involving Bodily Injury

 

Sections 88 to 91 deal with crimes involving bodily injury.

Definitions [s 88]

Term

Meaning

assault

  • 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
  • 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
  • any act by a person that causes any substance to be consumed by another person without that person’s consent.

bodily harm

any harm causing pain or discomfort to the body, or any impairment of the body or its functions, whether temporary or permanent.

 

Assault

[s 89]

Under the common law there were two separate crimes of common assault and assault with intent to do grievous bodily harm. It was often very difficult to decide whether the assault in question constituted only common assault or whether it amounted to the more serious crime of assault with intent to do grievous bodily harm. There was much discussion in the case law about how to draw the distinction between the two crimes but the borderline between the two crimes remained problematical.

Section 89 abolishes the distinction between “common assault” and “assault with intent to inflict grievous bodily harm” and substitutes the single crime of assault. The seriousness of the assault will in future be a matter for sentence. In sentencing an offender for assault the court must have regard to certain factors which may aggravate the assault, such as the age of the person assaulted, the degree of force or violence used and whether or not X intended to inflict serious bodily harm. (Another factor not specifically mentioned, but which could be encompassed by the general provision allowing the court to take into account any other relevant consideration, is that serious injuries were actually inflicted.)

The crime of assault will continue to be able to be committed by a threat of assault. As read with the definition of the term “assault” in s 88, it also encompasses threats of assault which inspire a reasonable fear in the person threatened that he or she will suffer violence, and the deliberate administration of substances to another person without that person’s consent.

Ingredients [s 89(1)]

Physical ingredients

Mental ingredient

X commits an assault upon Y.

X does this–

  • intending to cause Y bodily harm; or
  • realising that there is a real risk such harm may result.

By words or gestures, X threatens to assault Y.

X does this

intending to inspire in Y’s mind a reasonable fear or belief that force will immediately be used against Y; or

realising that there is a real risk of inspiring such a fear.

 

Lack of ability to effect assault no defence to assault by threat [s 89(2)]

It is no defence to a charge of assault constituted by a threat of assault that, at the time the fear or belief is inspired, the person who inspired such fear or belief lacked the ability to effect his or her purpose

Administration of noxious substance [s 88]

Administration of a noxious substance causing harm will no longer be a separate offence but will simply be treated as a species of assault. The definition of assault in s 88 includes “any act by a person that causes any substance to be consumed by another person without that person’s consent.”

When assault constitutes domestic violence

S v David 2012 (2) ZLR 53 (H) the judge pointed out when an assault would constitute domestic violence and also said that if it did not constitute domestic violence it should be charged as assault.

Factors in sentencing [s 89(3)]

The court must look at all relevant considerations including the following¾

  • the age and physical condition of the person assaulted;
  • the degree of force or violence used in the assault;
  • the extent of physical injury inflicted upon the person assaulted; or
  • whether or not any weapon was used to commit the assault;
  • whether or not the person carrying out the assault intended to inflict serious bodily harm;
  • whether or not the person carrying out the assault was in a position of authority over the person assaulted;
  • 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.

Penalty [s 89(1)]

Fine

Prison

Both

Up to or exceeding level 14

Up to 10 years

Both

 

Competent verdicts [s 275 read with 4th Schedule]

  • Negligently causing serious bodily harm;
  • Disorderly conduct in public place;
  • Possessing a dangerous weapon;
  • Dealing in or possession of prohibited knives.
  • Any crime of which a person might be convicted if charged with any of the crimes above.

 

Negligent assault

[s 90]

This section creates the new crime of “negligently causing serious bodily harm”. The negligent infliction of death is already punishable under our law as culpable homicide.

It was felt that similarly the negligent infliction of serious bodily injury should also be punishable. This crime expresses society’s interest in upholding the physical safety of its members. Additionally at the end of a successful prosecution for this crime it would be possible for the court to award compensation to the victim in terms of Part XIX of the Criminal Procedure and Evidence Act. If the court can award compensation at the end of a successful prosecution of this crime, this would avoid the need for victims to bring separate civil actions for compensation, something that indigent (poor) victims will often be unable to do because of the expense of mounting such actions.

Ingredients

Physical ingredients

Mental ingredient

X causes serious bodily harm to another person by any act whatsoever

 

X negligently fails to realise that serious bodily harm may result from his or her conduct or negligently fails to guard against that possibility.

 

Comment

The courts will have to decide when bodily harm is serious for the purposes of this crime.

Case

In S v Rashamira HH-963-15 X was found guilty by the trial court of negligently causing serious injury to a young child. X tried to pour boiling water on her husband but she missed and the boiling water landed on the child instead. The review court decided that the injuries to the child may have been inflicted intentionally as the child was the subject of the altercation between the parties.

 

Penalty

Fine

Prison

Both

Up to level 10

Up to 5 years

Both

 

Assault of person other than the intended victim

[s 91]

This section deals with the situation in which X attacks Y intending to assault him or her but the blow misses or is deflected and ends up injuring Z.

 

Liability in relation to intended victim (Y)

Liability in relation to actual victim

(Z)

Assault

    or

attempted assault,

whichever is appropriate in the circumstances.

Assault

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

     or

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.

 

Depending upon the state of mind of mind of X in relation to Z, X can be charged with assault, attempted assault or negligently causing serious bodily harm in respect of the harm X causes to Z.

In S v Ncube 1983 (2) ZLR 111 (S) X aimed a blow with a spear at his uncle, intending to injure him grievously, but X’s brother tried to intervene and placed his body in the way and the brother accidentally received the blow aimed at the uncle with the blow hitting him in the face.  As regards the injury to the brother, X was found not guilty of assault with intent to do grievous bodily harm as the State had failed to prove that X foresaw that his brother would intrude and be struck instead of his uncle. X was therefore not guilty of assault with intent to do grievous bodily harm in respect of the injury to his brother but guilty of attempted assault with intent to grievous bodily harm in respect of his intended assault upon his uncle. (In terms of the Code X would have been guilty of negligent assault for wounding his brother and attempted assault (or assault by threatening gesture) in respect of his uncle.

In S v Raisa 1979 (4) SA 541 (O) X tried to stab a mother who warded off the blow by putting her child in front of her as a result of which the child was stabbed. The court held that X was not liable for assault with intent to do grievous bodily harm in respect of the child because he did not have the required intention to injure the child. (In Zimbabwe under the Code X probably would have been guilty of negligent assault in respect of the child.)

 

 

 

Crimes Involving Infringement of Liberty, Dignity, Privacy or Reputation of Individual

 

Sections 92 to 96 deal with crimes involving the infringement of the liberty, dignity, privacy or reputation of an individual.

 

Kidnapping or unlawful detention

[s 93]

This provides for the crime of kidnapping or unlawful detention, which combines the existing common law offences of plagium and abduction. For clarity, a distinction is made between cases where an adult or a child is kidnapped.

Rather confusingly this crime is given the double title of kidnapping or unlawful detention when in fact “unlawful detention” has in the past simply been treated as a sub-species of kidnapping. In this commentary on this crime the crime will simply be referred to as kidnapping.

 

Kidnapping of adult

[s 93(1)]

Ingredients [s 93(1)(a)]

Physical ingredients

Mental ingredient

X deprives an adult of freedom of bodily movement

X intends to do so or realises that there is a real risk of doing do.

 

Irrelevant factors [s 93(2)]

X may be convicted of this crime

  • whatever the manner in which X deprived the adult of his or her freedom of bodily movement, whether by the use of force or threats or force or by the use of fraudulent misrepresentation or otherwise;
  • whatever the duration of the deprivation of freedom of movement (that is the period of deprivation can short).

Penalty [s 93(1)]

Imprisonment for life or any definite period of imprisonment.

Competent verdict [s 275 as read with 4th Schedule]

  • Kidnapping or unlawful detention of a child.

 

Kidnapping of child (person under age of 18)

[s 93(1)]

 

Ingredients [s 93(1)(b)]

This crime can only be committed by a person other than the lawful custodian of the child. It is committed–

  • if X deprives a child of freedom of bodily movement intending to do so or realising that there is a real risk of doing do; or
  • X 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 of doing do.

Irrelevant factors [s 93(2)]

X may be convicted of this crime–

  • whatever the manner in which X deprived the child of his or her freedom of bodily movement or the lawful custodian of his or her control, whether by the use of force or threats or force or by the use of fraudulent misrepresentation or otherwise;
  • whatever the duration of the deprivation of freedom of movement (that is, the period of deprivation can short).

Mitigatory factor [s 93(b)]

It is a mitigating factor to this species of kidnapping that the accused is a parent of or closely related to the child and the kidnapping was not accompanied by violence or the threat of violence.

Cases

In S v Dhlamini HB-47-11  the two complainants aged 15 years and 17 years respectively ran away from their parents’ homes and went to stay with X pending transportation to South Africa. X took the two juveniles to South Africa.  He used a cross-border courier to smuggle the girls to South Africa.  The accused did not pay the latter for his services once the girls were in South Africa resulting in the latter detaining the girls pending payment.  When such payment was not forthcoming from accused the courier fortunately, smuggled the girls back to Zimbabwe

 

The juveniles did not go there against their will.  They went there of their own volition.  If they were adults, there would have been no offence. But X was guilty of kidnapping because he had deprived the lawful guardian of the control over the two juveniles.

 

In S v Chinounda 2013 (2) ZLR 62 (H) the appellant, a mother was found guilty of kidnapping after she hid her young daughter’s friend from her parents who had been frantically searching for her everywhere. The two young friends had left the complainant’s residence and had gone to the appellant’s residence. Although she was confronted by the complainant’s parents regarding their daughter’s whereabouts, the appellant denied sheltering and secreting the victim away.

Competent verdict [s 275 as read with 4th Schedule]

  • Kidnapping or unlawful detention of an adult.

Human Trafficking

The Trafficking in Persons Act [Chapter 9:25] has domesticated the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children Adopted by General Assembly and entered into force on 25 December 2003.  

 

In conformity to the Protocol, the Act provides for the prohibition, prevention and prosecution of the crime of trafficking in persons and the protection of victims of trafficking in persons. It also provides for the appointment of a Committee on Trafficking in Persons with a mandate to formulate and implement a national plan of action against trafficking in persons. It further provides an enabling framework for the establishment and operation of centres for victims of trafficking in persons. 

 

The criminal offence of human trafficking is set out in section 3 of the Act. The Act lists factors of aggravation which if present will result in a mandatory minimum sentence of imprisonment for 10 years and up to life imprisonment. These factors include:

  • the trafficked person is a child or disabled person;
  • the crime is committed by an organized criminal group;
  • the offender is parent or guardian of victim;or
  • the offender is a member of a law enforcement agency or the leader of a

 religious body

  • by reason of trafficking, the victim dies, becomes insane, suffers mutilation or is infected withHIV or a sexually transmitted infection; or
  • the trafficking is procured by violence, threats of violence, use of drugs, extortion or abuse of power.

 

Child Abduction Act

As regards the procedure for dealing with children abducted in other countries and brought to Zimbabwe, see the Child Abduction Act.

Penalty [s 93(1)]

Imprisonment for life or any definite period of imprisonment.

However, where a non-custodial parent kidnaps his or her child from the custodial parent or the kidnapping of the child is carried out by a close relative, and such kidnapping is not accompanied by violence or the threat of violence, the penalty is a fine up to level 7, prison for up to 2 years or both.

Aggravating circumstances [s 93(3)(a)]

The court may take into account in aggravation such factors as–

  • that the kidnapping was accompanied or motivated by the demand of a ransom for the safe return of the person kidnapped;
  • that the kidnapping was accompanied by violence or threats of violence.

 

Cases

In R v Long 1970 RLR 1; 1970 (2) SA 153 (RA) X enticed a young girl away for 14 hours. The court held that the shortness of the duration of the kidnapping was irrelevant. X was found guilty of kidnapping. (See casenote on this case in 1970 (1) Rhodesia Law Journal 15.)

 

In S v Mahuni & Ors HH-406-88 a police constable, C, remonstrated with Xs for urinating in a public place. The Xs who were bus employees forcibly took constable on their bus and drove some distance to police station where left C. In the course of the journey threatened Xs had threatened to assault C and throw him in a river. They were found guilty of kidnapping.

 

In S v Masuka & Anor 1989 (3) ZLR 33 (S) X gave a lift to some schoolgirls and made advances towards them. He carried them past their school (the agreed stopping place) towards communal lands. The girls threw themselves off the speeding truck. The court found X guilty. It found that there had been a substantial interference with personal liberty of the girls. It held that a seizure of a person with evil intent without his or her consent, however transient, is an interference with his personal liberty.

 

In S v Dzimuri & Ors 1997 (2) ZLR 27 (H) the questions of the length of time during which the victim was deprived of his liberty and the Xs’ intent were considered. Smith J held that the length of time for which a person is deprived of his liberty or removed from his parental control is immaterial. The only relevance it may have, apart from affecting sentence, is in distinguishing kidnapping from cases of assault involving only a transient and incidental seizure of a person for a short period, that is, where the principle of de minimis non curat lex (triviality) applies. In such cases, the court should have regard to Xs “evil intent”. If the “evil intent” was in order to extort a ransom or other benefit, a very short period would suffice. If there were no such “evil intent”, a longer period would be necessary. In this case, there was no evidence of how long it took for the driver to go the extra 20 km, though it would not have taken him long. But Xs had not carried off the driver or seized the bus with any “evil intent”. Their reasons for making the driver take them to Chereya were unclear. Consequently, the convictions for kidnapping should be set aside.

 

Gillespie J held that the use by Macdonald JA in R v Long of the term “evil intent” was not meant to elevate whatever varying motive there may be for the offence into an additional requirement of the necessary element of intention. It was rather an intimation that, although one may be unable in any particular case to ascertain an intention to deprive a person of his liberty for more than a short period of time, an offence will nevertheless be disclosed where the alleged wrong is committed in circumstances (which include consideration of the motive behind the restraint upon the victim) which ought in principle to be regarded as subject to penal sanction.

 

The application of the de minimis principle is a value judgment. Crimes affect the interests of the community as a whole, not merely those of the individual complainant. If the harm done is very trifling, the community is not really affected. In determining the application of the principle, the judicial officer is entrusted with a policy decision to be exercised according to all the relevant circumstances of the case. In the case of a charge of kidnapping, where all the circumstances, including the short period of time involved or the absence of any ulterior motive, are such that it might be considered as a matter of policy that the wrongdoing ought not to attract conviction as kidnapping, then an acquittal should follow.

 

In S v Chinounda 2013 (2) ZLR 62 (H) the court pointed out that the common law crime of kidnapping consists in unlawfully and intentionally depriving a person of liberty of movement and/or his custodians of control. The offence is thus an attack on, and the infringement of, the personal liberty of the individual. The law is concerned with two things: the protection of personal liberty (a) from any interference and (b) from any restraints on the freedom of movement, so that the relevant ingredient of the crime is the absence of consent of the person who is taken, even where that person is a child. The seizure of a person with evil intent without his consent, however transient, is an interference with his personal liberty. The length of time for which a child may be removed may be of importance as showing the intention of the parties. Even a very short time may be sufficient to show that there was the intention of removing the child out of the custody of his parents. The time would only become irrelevant in cases where the de minimis non curat lex principle is applicable. In this case a girl of 17 was kidnapped by a woman who committed an aggravated indecent assault upon her.

 

The intent involved in kidnapping may be said to differ according to whether the victim is an adult or a child. In the case of a child, the child’s consent is not relevant.  Section 93 of the Criminal Law Code has not in any way altered the common law position regarding the crime of kidnapping. Consistent with the common law position, the Code, in s 93(3), provides for distinct recognition of the offence as it relates to children and addresses its implication on parental authority. The fact that the child consents to her removal or spiriting away is not a defence. Parental control is specifically recognised where a child is involved. The statutory provisions are consistent with Zimbabwe’s regional as well as international treaty obligations.

 

In S v Hall 2014 (2) ZLR 278 (H) a security guard guarding company premises found a wallet that had been mislaid by a director of the company. When the wallet was given to the director, the director mistakenly thought money was missing from the wallet. The guard was accused of stealing the money and was subjected to a humiliating search and then, at the instigation of the director the security guard was locked up overnight in a workshop.

 

The court dismissed the company director’s appeal against convictions for kidnapping and assault. The Appeal Court held that deprivation of free bodily movement is at the heart of the crime of kidnapping or unlawful detention. The crime constitutes an attack on and an infringement of the personal liberty of the individual. By being confined inside a locked workshop overnight, the complainant suffered a serious deprivation of his liberty. Since the complainant was detained on the orders of the appellant, it was the appellant who is legally liable for any infringement of the complainant’s liberty. When performing his guard duties, the complainant exercised free will as to his movement on such duties. On the other hand, once confined to the locked workshop against his will, he clearly could not be free to do that. He was virtually held against his will and imprisoned. Ordinarily, an employee is free to exercise the freedom of movement even if it is circumscribed to a certain area of his jurisdiction. The same cannot be said of someone who is locked up against his will inside a workshop which he was guarding prior to losing his freedom. Once the freedom to move was lost, the right to liberty was infringed and the crime of kidnapping was committed.

 

The appellant’s claim that he had acted under a claim of right in effecting a citizen’s arrest could not withstand scrutiny. Whatever good faith he may have had when he initially “arrested” the complainant was destroyed and betrayed by his subsequent behaviour. He was not effecting a citizen’s arrest so could not rely on the provisions of the Criminal Procedure and Evidence Act [Chapter 9:07]. The Act permits an arrest by a private person where a First Schedule offence has been committed in that person’s presence (s 27); or where the person is involved in an affray (s 28) or such other circumstances as set out in ss 28, 29, 30, 31 and 31A. Where a private person effects an arrest in terms of the Act, he is enjoined to bring the arrested person to a police station as soon as possible (s 32). He is not entitled to detain his suspect unless such detention is closely connected to bringing the suspect to a police station. The factual circumstances will determine whether such detention can be so construed. The complainant’s detention was not for the purposes of bringing him to the police station.

 

In S v Ngwenya HB-117-14 X dragged complainant through the fields to his home where he pushed her into the kitchen and sat on the doorway to stop her from escaping..He detained her for 20-60 minutes He was found guilty of kidnapping. 

 

See also S v Class HH-803-08; S v Dube & Ors HB-13-06; S v Dhlamini S-240-2010; S v Ncube & Ors HH-39-15;  S v Makunike HH-770-15 (of minor),

 

Sentence

 

In S v Hall 2014 (2) ZLR 278 (H) the court pointed out that a custodial sentence is generally unavoidable for kidnapping, though there is a wide possible variation in seriousness between one instance of kidnapping and another. At the top of the scale comes the carefully planned abductions where the victim is used as a hostage or where ransom money is demanded. Such offences will seldom be met with less than 8 years’ imprisonment or thereabouts. Where violence or firearms are used, or there are other exacerbating features such as detention of the victim over a long period of time, then the proper sentence will be very much longer than that. At the other end of the scale are those offences which can perhaps scarcely be classed as kidnapping at all. They very often rise as a sequel to family tiffs or lovers’ disputes, and seldom require anything more than 18 months' imprisonment, and sometimes a great deal less. Among factors deemed as aggravating are the following; degree of planning or premeditation, number of perpetrators, vulnerability of victim, duration of loss of liberty, using, brandishing, threatening with or possession of weapons, other offence(s) committed, sophisticated concealment, unpleasant circumstances of detention, such as degradation, effect upon victim, effect upon persons other than the person kidnapped, particularly family, other offence(s) committed, sinister motive, such as terrorist background, any ransom involved, threats intended to discourage victim from reporting the offence and so on.

 

Pledging a female person

[s 94]

As well as re-enacting and combining the crimes contained in sections 11 and 15 of the Customary Marriages Act, this section also includes a prohibition of the customary (or allegedly customary) practice of handing over of a female person to settle a debt or delict.

Ingredients

A lawful custodian or relative of a female–

  • when she is under 18 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 without her consent,; or
  • when she is under 18 or without her consent, enters into an arrangement whereby the female is promised in marriage to any man, whether for any consideration or not; or
  • by force or intimidation compels or attempts to compel a female to enter into a marriage against her will, whether as compensation or pursuant to a promise of marriage.

Accomplice [s 94(2)]

Any party to such a compensation arrangement or marriage promise may be charged as an accomplice to pledging a female person.

If the person to whom the girl is handed over has sexual intercourse with the female without her consent, he would be guilty of rape or if he has sexual intercourse with her with her consent and she is under 16 he would be guilty of unlawful sexual intercourse with a young person in contravention of s 70 of the Code.

Penalty

 

Fine

Prison

Both

Up to or exceeding level 14

Up to 2 years

Both

 

Cases

S v Maguya & Anor HH-231-11 Pledged girl to family in compensation for person killed by the Maguya family.

 

Criminal insult

[s 95]

The crime of “criminal insult” (presently called by the Latin name of crimen injuria) in punishes the infringement of the dignity or the privacy of individuals.

Ingredients [s 95(1)]

The crime is committed when X–

  • by words or conduct;
  • seriously impairs Y’s dignity or seriously invades Y’s privacy;
  • intending to do so or realising the real possibility that the words or conduct will have this effect.

In the case of S v Majuru S-121-90 X, a headmaster at a school, was convicted of four counts of criminal injuria. The complainants were four female pupils at the school aged 11 and 12. X had been in the habit of visiting the girls’ dormitory at night time before they went to bed. The State had alleged that on such visits X had engaged in activities that amounted to the crime of criminal injuria. On appeal the convictions on all of the four counts were set aside as the record showed that the State had failed to prove that there had been an intentional impairment of dignity of a serious nature.

 

Seriousness requirement [s 95(2)]

So as to avoid the cluttering up of the courts with trivial cases of criminal insult this crime is only committed where X seriously impairs dignity or seriously invades privacy. In deciding whether X’s insult or invasion of the privacy of Y was sufficiently serious to constitute the crime, the court must take into account all relevant factors including the following–

  • nature of X’s words or conduct;
  • whether X repeated words or persisted in conduct;
  • age and sex of Y;
  • any previous relationship between X and Y;
  • the degree of offence caused to Y.

See S v Dongonda HH-73-88. X had written insulting words on a cell wall about a policeman. The court said the test of seriousness is whether the interests of the State or the community will be detrimentally affected? Having regard to all the circumstances of this case — the words were written in the privacy of a police cell and directed at a policeman by an accused person — the injuria did not meet the test of seriousness.

 

Impairment of dignity – must Y feel insulted or degraded? [s 95(3)]

Where the charge is based on impairment of dignity, the State must usually prove that Y felt insulted or degraded. However, proof that Y felt insulted or degraded is not necessary where–

  • Y is a child [as defined in s 92 this means a person under the age of 18];
  • Y is a mentally disordered or intellectually handicapped person as defined in the Mental Health Act;
  • Y is a person who through physical disability is unable to hear the insulting words or see the insulting conduct.

In R v Mpofu 1975 (1) RLR 362 (G) the court said that although this crime can be committed against young children, the State must prove intent on part of X to impair the dignity of child.

 

Invasion of privacy – must Y be aware of invasion? [s 95(4)]

Where X invades Y’s privacy and observes Y in a state of undress, it is unnecessary to prove that Y was aware of the invasion of his or her privacy when it took place. If Y only became aware of what had happened later, however, the State must prove that Y did feel insulted or degraded when he or she learned about X’s conduct.

See S v Nhamoinesu S-56-95.

 

Defence to charge based on invasion of privacy [s 95(5)]

X has a defence where he or she invades the privacy of his or her spouse (Y) in order to obtain evidence of the adultery of Y. The defence also applies to a licensed private investigator engaged by X to obtain evidence of the adultery of Y.

The requirements for this defence are as follows–

  • the intrusion must have been motivated solely by the desire to obtain evidence of the commission of adultery by Y;
  • there must be reasonable grounds for believing that X was not invading the privacy of innocent persons;
  • the extent of invasion of privacy was not more than was reasonably necessary to obtain evidence of the adultery.

See S v Israel & Anor 1975 (2) RLR 191 (A).

All persons entitled to protection of dignity [s 95(7]

This everyone is entitled to the protection of his or her dignity by the law and no one is devoid of dignity whatever his or her occupation or mode of life. This means that prostitutes, homosexuals and “vagrants”, previously considered under the classical Roman-Dutch law not to possess dignity and therefore not to be entitled to legal protection, are no longer denied the protection of the law in this respect.

Penalty

Fine

Prison

Both

Up to level 6

Up to 1 year

Both

 

See Guide pp 80-82 and 190-192

 

Criminal defamation

[s 96]

This entire section was repealed by section 15(1) of Part XX of the General Laws Amendment Act No 3 of 2016.

The repeal followed the ruling by the Constitutional Court to be void. See Madanhire & Anor v Attorney-General 2014 (1) ZLR 719 (CC).

The conclusion in the Madanhire case was as follows:

“…the harmful and undesirable consequences of criminalising defamation, viz. the chilling possibilities of arrest, detention and two years’ imprisonment, are manifestly excessive in their effect. Moreover, there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation. Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons.  In short, it is not necessary to criminalise defamatory statements. Consequently, I am satisfied that the offence is not reasonably justifiable in a democratic society within the contemplation of s 20(2) of the former Constitution. Accordingly, it is inconsistent with the freedom of expression guaranteed by s 20(1) of that Constitution.”

 

Ingredients [s 96(1)]

X commits this crime if–

  • X publishes a statement which causes serious harm to the reputation of that other person or creates a real risk or possibility of causing such serious harm;
  • intending to harm the reputation of another person; and
  • knowing that when he or she published the statement it or possibility

Seriousness of defamation [s 96(2)]

There is a non-exhaustive list of factors that a court must take into account in deciding whether the publication of a statement is sufficiently serious to constitute this crime. The factors are–

  • the extent to which X has persisted with the allegations;
  • the extravagance of allegations;
  • the nature and extent of publication of the statement;
  • whether and to what extent the interests of the State or any community have been detrimentally affected by the publication.

Presumption [s 96(4)]

If the prosecution proves that the defamatory statement was made known to any person, it will be presumed unless the contrary is proved that the person understood its defamatory significance.

Defences [s 96(3)]

X is entitled to raise the same defences to criminal defamation as are applicable in a case of civil defamation. These defences are justification (truth and public benefit), fair comment and privilege.

Penalty [s 96(1)]

Fine

Prison

Both

Up to or exceeding level 14

Up to 2 years

Both

 

Cases

In R v Chikerema 1958 R&N 516; 1959 (1) SA 721 (FS) X accused a Government Minister of being a thief at a political meeting. The allegation was serious and X was found guilty.

 

In S v Murangarire 1977 (2) RLR 73 (GS); 1977 (4) SA 237 X had made a false claim that he had been assaulted during the course of being arrested. This allegation was not serious and he was found not guilty.

 

In S v Modus Publications & Anor 1996 (2) ZLR 553 (S) a newspaper published stories alleging that the President of Zimbabwe had married a woman at a secret ceremony and that a named judge had conducted this ceremony and that a named Minister had been a witness at the ceremony. These false allegations were serious and the editor and owner of the paper were found guilty.

Defamation of group of persons

In S v Wilson & Ors HH-114-04 it was alleged that a newspaper had defamed the Executive Committee of the Constitutional Commission of Inquiry by publishing an article that implied the draft constitution had been printed without taking into account the general populace’s views extracted during the constitutional review process. No evidence was led to show that the Commission was a body corporate or universitas that was independent from its members and had succession.

The court held that for the Executive Committee to be defamed reference must have been to its named or ascertained member or members. The defamatory matter must not just refer to the Executive Committee itself without reference to a certain definite person or definite persons who are its members. As the Committee came into existence only after the original draft was allegedly printed, the defamatory words were written about an unnamed entity comprising anonymous individuals.

 

See Guide pp 79-80 and 189-190.

 

 

Comment

This crime can be used as a weapon by senior politicians and other prominent persons to suppress criticism of their actions. It therefore carries the risk of being used to oppress opponents of government. The crime imposes a severe restraint on freedom of speech.

 

Burchell Principles of Criminal Law (Juta 2010) maintain that “prosecution for defamation has an unacceptable potential to inhibit freedom of expression and media freedom.” He goes on to say; “A strong case for decriminalising defamation has been made by many writers and the case for abolition is even stronger in the light of the constitutional imperatives of freedom of expression.”

 

It is arguable that in Zimbabwe this crime violates that constitutional guarantee of freedom of expression and that it should be abolished and everyone, no matter how important or prominent, should be restricted to protecting their reputations by suing for damages under civil law.

 

Constitutionality of criminal defamation

 

The constitutionality of this offence was successfully challenged in the case of Madanhire & Anor v The Attorney General 2014(1) ZLR 719 (CC). This challenge was made in terms of section 20(2) of the pre-2013 constitution as the previous constitution was still in operation when the challenge was made. The court decided that the offence and is inconsistent with the freedom of expression guarantee in section 20(2) of the former Constitution and is not reasonably justifiable in a democratic society.

 

However, a further constitutional challenge may need to be mounted referring to section 61 of the 2013 Constitution. This may be necessary as a result of this statement towards the end of the judgment in the Madanhire case:

“What has not and need not be considered for present purposes is the validity of that offence within the framework of the new Constitution.

What I would simply note at this stage is that the freedom of expression and freedom of the media as secured by s 61 of that Constitution are framed differently in several material respects.

Of particular significance is subs(5)(c) which expressly excludes malicious injury to a person’s reputation or dignity from the ambit of the freedom of expression and freedom of the media guaranteed by subs (1) and (2)

Also relevant is s 51 which declares that every person has inherent dignity and the right to have that dignity respected and protected.

Having regard to these provisions, taken together, it is arguable that the freedom of expression conferred by s 61 is to be more narrowly construed as being subordinate to the value of human dignity.

It might also be argued that the offence of criminal defamation is a justifiable limitation on the freedom of expression as envisaged by s 86 of the new Constitution. In any event, as I have said, these are matters for argument and consideration as and when an appropriate case is brought for determination before this Court.”

 

The matter has now been finally settled in the case of Media Institute of Southern Africa (Zimbabwe) & Ors v Minister of Justice, Legal and Parliamentary Affairs & Ors CCZ-07-15. In this case the Constitutional Court made the following order:

1. Having been declared as inconsistent with section 20(1) of the former Constitution in the judgment of this Honourable Court in Madanhire & Anor v The Attorney-General CCZ-2-15, section 96 of the Criminal Law (Codification and Reform Act [Chapter 9:23] was not an existing law as defined in section 1 of the 6th Schedule to the Constitution of Zimbabwe.

2. Accordingly for the avoidance of doubt, section 96 of the Criminal Law (Codification and Reform) Act is void and [not] part of the said enactment.

 

 

Human Trafficking

 

These provisions on human trafficking are not contained in the Criminal Code but in a separate Act, namely the Trafficking in Persons Act, Act 4 of 2014

 

The Trafficking in Persons Act was enacted to fulfil Zimbabwe’s obligations under the United Nations Convention against Organised Transnational Crime and the Protocol to Prevent, Suppress and Punish Trafficking in Persons. In conformity to the Protocol, the Act will provide for the prohibition, prevention and prosecution of the crime of trafficking in persons and the protection of victims of trafficking in persons.

Human trafficking is modern day slavery. Its victims are women, men and children in search of better prospects in life. Women comprise at least 56% of the world’s trafficking victims.

It is estimated that 12.3 million adults and children are in forced prostitution and/ or forced labour or bonded labour around the world. They are lured with promises of better jobs or education, they often end up in prostitution or forced labour. Recently it was estimated that world-wide 1.2 million children are trafficked for sex.

The Act also provides for the appointment of a Committee on Trafficking in Persons with a mandate to formulate and implement a national plan of action against trafficking in persons. The President has appointed an Inter-Ministerial Committee on Trafficking in Persons.

Section 3 of the Act creates the offence of trafficking in persons. The offence is committed by any person who traffics any individual by transporting him or her into, outside or within Zimbabwe—

            involuntarily by using any of the following means—

  • force, violence or threats thereof; or
  • administering drugs to subdue the victim or causing the victim to be addicted to drugs; or
  • abduction or detention of the victim; or
  • fraud, extortion or deception; or
  • the abuse of power or trust over the victim; or
  • the giving of inducements to the victim or a person having control over the victim for the purpose of facilitating the transportation of the victim;
  •  

            voluntarily, for an unlawful purpose;

 

It is also committed by any person who knowingly does any of these acts—

  • recruits, transfers, harbours or receives another person that he or she knows or suspects is being or is likely to be trafficked; or
  • attempts, assists, abets, conceals, procures, incites, solicits, connives at, or conspires with others for, the commission of the crime of trafficking; or
  • leases or subleases or allows the use of any premises or land which belongs to him or her or over which he or she has control for the purpose of trafficking; or
  • advertises or assists in the advertising, printing, publication, broadcasting or distribution by any means, any material that promotes trafficking in persons; or
  • being an internet service provider operating in Zimbabwe, is aware of any site on its server that contains information in contravention of subparagraph (iv); or
  • for the purpose of trafficking assists any other person to obtain false identity or travel documents or tampers with identity or travel documents; or
  • facilitates in any way the cross-border transportation of victims in contravention of paragraph (a); or
  • benefits either directly or indirectlyfrom the proceeds of trafficking; or
  • for the purpose of trafficking confiscates, destroys or conceals the identity or travel documents of an individual in order to unlawfully deny such individual his or her freedom of movement, or access to any public services.

 

It sets out the factors of aggravation which if present will result in a mandatory minimum sentence of imprisonment for 10 years and a maximum sentence up to life imprisonment.

These factors include—

  • the trafficked person is a child or disabled person;
  • the crime is committed by an organized criminal group;
  • the offender is parent or guardian of victim;or
  • the offender is a member of a law enforcement agency or the leader of a religious body
  • by reason of trafficking, the victim dies, becomes insane, suffers mutilation or is infected withHIV or a sexually transmitted infection; or
  • the trafficking is procured by violence, threats of violence, use of drugs, extortion or abuse of power etc

 

Finally the Act provides an enabling framework for the establishment and operation of centres for victims of trafficking in persons. 

 

 

Witchcraft, Witch-finding and Related Crimes

 

Sections 97 to 102 replace the provisions of the Witchcraft Suppression Act and reform the criminal law on this subject.

A clear distinction is now made between the practices of “witchcraft” and “witch-finding”. It was felt that witch-finding should not be stigmatised as “witchcraft”, but it was also recognised that the practice of witch-finding may in some cases be socially disruptive or lead to injustice or harm to the person accused of witchcraft.

Engaging in practices commonly associated with witchcraft

[s 98]

Ingredients [s 98(1)]

Physical ingredients

Mental ingredient

X engages in a practice commonly associated with witchcraft and such practice inspires in the other person a real fear or belief that harm will occur to him or her or any member of his or her family

X engages in these practices with intent to cause harm to another

 

Words alone cannot amount to practice [s 98(2)]

For this crime spoken or written words alone will not constitute a practice commonly associated with witchcraft, unless the words are accompanied by or used in connection with other conduct commonly associated with witchcraft.

Judicial notice of witchcraft practice not permissible [s 98(3)]

A court itself may not take judicial notice of any practice that is said to be commonly associated with witchcraft.

Expert testimony on witchcraft practice [s 98(4)]

The court can call evidence about whether a practice is commonly associated with witchcraft generally or in the particular area where the practice took place.

The court can call to give such evidence a witness any person who, in court’s opinion, is suitably qualified to give such evidence on account of his or her knowledge.

Accomplices [s 98(3)]

Any person aiding or abetting the commission of this crime can be charged as an accomplice to the crime.

Penalty [s 98(1)]

Fine

Prison

Both

Up to level 10

Up to 5 years

Both

 

Case

In S v Jochoma 2014 (2) ZLR 553 (H) X pleaded guilty to and was convicted of engaging in an act commonly associated with witchcraft with intention thereby to cause harm to any person, in contravention of s 98(1) of the Code. He was seen early one morning at the Chitungwiza magistrates court breaking an egg at the court gate. When confronted he ran away. The following morning at around the same time he was again observed attempting to break another egg at the same gate. When confronted, he again fled, but was pursued and apprehended. Upon being searched he was found in possession of some red and white cloths. When questioned by the trial magistrate after pleading guilty, he admitted that he engaged in a practice commonly associated with witchcraft and that he intended to cause harm to persons at those premises. The matter was referred for review by the Chief Magistrate, who took the view that because s 98(4) of the Code precludes a court from taking judicial notice of any practice commonly associated with witchcraft, a court cannot simply convict an accused of this offence without calling expert evidence to determine whether indeed the practice which forms the subject of the charge is a practice commonly associated with witchcraft, even if the accused pleads guilty.

 

The High Court held that under both common law and s 31 of the Criminal Procedure and Evidence, what is admitted need not be proved because the admission constitutes evidence of the admitted fact. Section 98(4) of the Code did not preclude an accused person from admitting that a particular conduct he engaged in amounted to “any practice commonly associated with witchcraft.” Under s 271 of the Criminal Procedure and Evidence Act, where an accused person pleads guilty and the plea is accepted by the State (as happened in this case), the court is authorised to convict the accused without hearing any further evidence. The concept of judicial notice is a rule of evidence that allows a fact to be introduced into evidence where the truth or veracity of that fact is so notorious or well-known such that it needs no proof. A court may also invoke the rule where facts are known either from the judicial officer’s general knowledge of them, or from inquiries made by himself for his own information from sources to which it is proper for him to refer. Here, the trial magistrate did not take judicial notice of the fact that breaking an egg at the gate with the intention of causing harm to the occupants of the premises is a practice commonly associated with witchcraft. He convicted the accused on the basis of proven facts placed before him by virtue of the accused’s admission. That being the case, the question of taking judicial notice of any facts in convicting the accused did not arise.

 

Shumba v Shumba HH-25-05

Indicating witches and wizards

[s 99]

Section 6 of the Witchcraft Suppression Act punished the mere profession of witch-finding. The crime in the Code of indicating a witch or wizard does not make X criminally liable if X simply accuses another of engaging in witchcraft practices. X is not liable for this crime, if having reasonable grounds for suspecting the other is engaging in such practices, X makes his or her accusation without the purported use of non-natural means.

Ingredients [s 99(1)]

This crime is committed if-

  • X groundlessly accuses someone of being a witch or wizard;
  • X by the purported use of non-natural means accuses someone of witchcraft.

To “accuse a person of witchcraft” means that the person accused has used or is likely or able to use non-natural means to cause-

  • another death, injury or disease or disability; or
  • destruction, loss or damage to property.

or

is possessed by a spirit which has caused, is causing or is likely or able to cause-

  • another death, injury, disease or disability; or
  • destruction, loss or damage to property.

[s 97]

Section 97 defines “non-natural means” as including the practice of witch-finding.

Penalty [s 99(1)]

Case of any purported use of any non-natural means

Any other case

Fine up to level 10

Imprisonment for up to 5 years

Both.

Fine up to level 6

Imprisonment for up to 1 year

Both.

 

Competent verdict [s 275 as read with 4th Schedule]

  • Using non- natural means to resolve crimes or delicts

 

Employing non-natural means to resolve crime or delict

[s 100]

Ingredients [s 100(1)]

X commits this crime if–

  • X by the purported use non-natural means, intentionally indicates Y as the perpetrator of a crime or delict; or
  • X in the purported investigation by non-natural means of a crime or delict, requires, advises or incites Y to undergo any test or to consume any substance.

Accomplice [s 100(2)]

X will be an accomplice to this crime if he or she procures the services of another to commit this crime.

Unavailable defence [s 100(3)]

It is not a defence that the person indicated actually perpetrated a crime or delict, but this can be mitigatory. [Also under s 99(3)]

Penalty [s 100(1)]

Fine

Prison

Both

Up to level 10

Up to 5 years

Both

 

 

 

Belief in witchcraft not defence to murder or assault

[s 101]

This restates the common law rule that a genuine belief in witchcraft does not excuse, but may mitigate, a criminal charge of murdering or assaulting someone believed to be a witch.

See cases such as: S v Franshisko & Ors 1977 (2) RLR 37 (GS); S v Bitoni & Anor S-98-87 and S v Muleya & Ors S-69-88.

See also “Sentencing persons who kill witches” by G. Feltoe 1990 Vol 2 No 1 Legal Forum pp 36-40.

Case

In S v Hamunakwadi 2015 (1) ZLR 392 (H)  the court dealt with the possibility of provocation operating a partial defence in a case of witch killing. The court pointed out that many cultures across Africa embrace traditional healers and a persistent belief in witchcraft. The African concept of a witch does not encompass the potentially benign witch who, in some western countries, enjoys the status of an alternative religion.  To the contrary, there is little redeeming about African witches who, through sheer malice, either consciously or sub-consciously employ magical means to inflict all manner of evil on their fellow human beings. The attempts of the common law courts to address witchcraft-inspired violence differed markedly from the suppression tactics of the various legislative initiatives. Whereas legislation recognises the widespread violence and seeks to curtail it, the criminal law has often recognised the belief that gave rise to the violence and carved out a witchcraft-provocation defence that could be offered as a mitigating factor in cases of witchcraft-related violence. Under this theory, accused persons could reduce their crimes or punishments upon proof that they believed they, or persons under their immediate care, were being bewitched and that this belief caused them to temporarily lose self-control. In some ways, this theory provides tacit recognition that in certain communities killing a “witch” is not merely explainable, or excusable, but praiseworthy.

 

See also S v Ncube HB-80-18

 

 

Alternate or concurrent charges

[s 102]

This provides for charges alternative to or concurrent with those specified under ss 98 to 100.

 

Charge

Alternative charge

Engaging in practice commonly associated with witchcraft, indicating witch or wizard, employing non-natural means to resolve crime or delict, involving conduct that is in itself otherwise unlawful

X may be charged with crime constituted by that conduct if punishment to which the person is liable for that crime is the same or less than that provided for under section 98, 99 or 100

 

X shall be charged with 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 punishment to which the person is liable for that crime is greater than that provided for under section 98, 99 or 100.

 

 

 

Bigamy

 

Sections 103 and 104 provide for the crime of bigamy. The crime is committed in relation to monogamous marriages only, that is, marriages celebrated under the terms of the Marriage Act or other monogamous marriages celebrated inside or outside Zimbabwe.

Under the monogamous system a person may only marry one wife. Under the polygamous system a person can marry more than one wife. Under Zimbabwean law most Zimbabweans are entitled to enter into either a monogamous or a polygamous union. However, the system of polygamy is incompatible with the system of monogamy and the two systems cannot be intermingled. Thus if X is married to Y under the polygamous system X is entitled to marry Z under the system of polygamy. However, X cannot marry Y under the monogamous system without first dissolving his polygamous marriage to Z. So too if X is married to Y under the monogamous system he may only enter into a polygamous marriage with Z after first dissolving his marriage to Y according to the laws relating to monogamy.

Ingredients [s 104(1)]

Monogamous marriage

Actually polygamous marriage

Potentially polygamous marriage

X is married to Y in monogamous marriage

X knowing that marriage to Y still subsists

intentionally purports to enter into another marriage, whether monogamous or polygamous, with Z.

 

“monogamous marriage” means¾

  • marriage celebrated in terms of the Marriage Act or

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.

X is married to Y in an actually polygamous marriage

X, knowing that marriage to Y still subsists ;

X intentionally purports to enter into a monogamous marriage with Z.

 

 

“actually polygamous marriage” means a polygamous marriage consisting of a husband and two or more wives.

 

X is married to Y in a potentially polygamous union

X knowing that marriage to Y still subsists,

intentionally purports to enter into a monogamous marriage with Z.

 

 

“potentially polygamous marriage” means a polygamous marriage consisting of a husband and a single wife.

 

“polygamous marriage” means¾

  • a marriage celebrated according to customary law and solemnised in terms of the Customary Marriages Act ; or
  • an unregistered customary law marriage.

 

In respect of an unregistered customary law unions, where X denies that he is a party to such a union the onus is on the State to prove the existence of such a union beyond a reasonable doubt. [s 104(2)]

 

 

Penalty [s 104(1)]

Monogamous marriage followed by purported monogamous marriage

Fine

Prison

Both

Up to level 6

Up to 1 year

Both

 

Polygamous or potentially polygamous marriage followed by purported monogamous marriage

Fine up to level 5.

Bigamous marriage entered into in another country

In S v Moyo 2013 (2) ZLR 225 (H)X had married a woman in Zimbabwe in terms of the Marriage Act and, a few years later, knowing that the marriage still subsisted, purported to enter into another monogamous marriage in South Africa. He was charged before a magistrates court in Zimbabwe with bigamy and convicted. On review it was held that the courts of Zimbabwe have no jurisdiction to convict of bigamy in a case like this where the alleged bigamous marriage took place in some other country.

 

In Tsvangirai & Anor v Mutevedzi NO & Anor 2012 (2) ZLR 224 (H) the court pointed out that it is bigamy if a person contracts a civil marriage when that person is already in an unregistered customary law union that has not been dissolved.

 

See Guide pp 73-74 and 186.

 

Concealment of Births and Exposure of Infants

 

Concealment of birth

[s 105-s107]

These sections replace and expand upon the provisions of the Concealment of Birth Act, which this Code repeals in its entirety and codify the common law crime of exposing an infant.

Ingredients [s 106(1)]

X 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,

X may be convicted of this crime even though it has not been proved that the child died before its body was buried, abandoned or disposed of.

 

Presumptions [s 107]

Fact proven by prosecution

Presumption

Prosecution proves that X buried, abandoned or disposed of body of child otherwise than in accordance with the provisions of the Burial and Cremation Act

Presumed, unless the contrary is proved, that X buried, abandoned or disposed of the body with the intention of concealing the fact of its birth

Prosecution proves that X buried, abandoned or disposed of any human remains

Presumed, unless the contrary is proved, that X buried, abandoned or disposed of the body of a child.

 

 

Penalty [s 106(1)]

Fine

Prison

Both

Up to level 7

Up to 6 months

Both

 

Cases

In S v Jasi 1993 (2) ZLR 451 (H) the court ruled that a “child” means a foetus which has reached a stage of development which makes it capable of being born alive, irrespective of duration of pregnancy

 

In S v Maramba 1994 (1) ZLR 326 (H) a woman had a spontaneous abortion and had discarded the foetus. There was no evidence as to the age of the foetus or whether foetus was a “child” for purposes of Act.

 

Exposing an infant

[s 108]

This provides for common law crime called “exposing an infant”. This crime has rarely been prosecuted in the past, but it is specifically mentioned (together with concealment of birth) in s 213 of the Criminal Procedure and Evidence Act (in the context of an alternative verdict for culpable homicide or murder where the victim is a recently born child).

Arguably, this common law crime has been impliedly repealed by section 7 (1) of the Children’s Act, but it is uncertain whether a common law crime can be repealed without express provision to that effect. Moreover, that section is limited to parents or guardians, whereas the common law offence applies to anyone who exposes an infant.

Ingredients [s 108(1)]

X intentionally abandons an infant in such a place or in such circumstances that death may result from the exposure.

Concurrent and alternate charges [s 108(2)]

Child dies as result of abandonment

Child does not die as result of abandonment

X will be charged with murder or attempted murder or infanticide or attempted infanticide, whether or not concurrently with the charge of exposing an infant.

(The alternative charge of “attempted infanticide” may not be appropriate in every case where an infant is exposed by its mother, because frequently the mother is motivated not by a wish to kill the child, but by a hope that the child will be found by someone and reared by that person. The stigma of “infanticide” should therefore not attach to a mother in those circumstances.)

X may be charged concurrently or alternatively under s 7(1) of Children’s Act.

 

Factors in sentencing [s 108(3)]

In the case of a mother exposing her child, the court must have regard to any pressure or stress from which she suffered arising out of any one or more of the following circumstances or considerations¾

  • the effects which the birth had, or which she believed it would have, on her social, financial or marital situation;
  • 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;
  • the difficulties which she had, or which she believed she would have, in caring for the infant due to her inexperience or incapacity;
  • any other relevant circumstance or consideration.

 

Penalty [s 108(1)]

Fine

Prison

Both

Up to level 10

Up to 5 years

Both

 

 

Crimes in Relation to Graves and Corpses

 

Violation of graves

[s 110]

This supplements s 26 of the Cemeteries Act and is of somewhat wider scope.

Ingredients

X 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.

“grave” includes any monument, vault or tombstone, whether situated in a cemetery established in terms of the Cemeteries Act or not;

“violate” a grave includes to destroy or damage the grave or the immediate surrounds of the grave, or take any article from the grave.

Penalty

Fine

Prison

Both

Up to level 7

Up to 1 year

Both

 

Violation of corpses

[s 111]

This codifies the existing common law crime.

However, dealing with human remains will not be held to be unlawful if this is done pursuant to certain enactments, such as the Inquests Act and the Anatomical Donations and Post-mortem Examinations Act.

Ingredients [s 111(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,

Lawful activities [s 111(2)]

This crime is not committed and it is lawful for a person

  • 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, the Anatomical Donations and Post-mortem Examinations Act, or any other enactment; or
  • to do anything necessary for the purpose of embalming a dead human body or preparing it for burial, cremation or other lawful disposal.

Penalty [s 111(1)]

Fine

Prison

Both

Up to or exceeding level 14

Up to 5 years

Both

 

 

Property Crimes

 

Theft and Related Crimes

 

Sections 112 to 129 are concerned with theft, robbery and related crimes.

Theft

[s 113]

This codifies, with modification, the common law crime of theft.

It also abolishes the existing crime of “theft by false pretences”, treating it instead as a species of fraud. Included within the scope of this crime is the theft of money or other property held in trust.

Ingredients [s 113(1)]

X commits theft if–

  • X takes property capable of being stolen; and
  • X knows that another is entitled to own, possess or control the property or realises that there is a real risk or possibility of this; and
  • X intends to deprive the other permanently of his or her ownership, possession or control, or realises that there is a real risk or possibility of this.

Taking [s 112]

For the purposes of theft X can take property ¾

  • if X takes possession or control of a movable corporeal thing or object;
  • if X, who has in his or her possession a movable corporeal thing or object, assumes the rights of an owner over that thing or object;
  • if X exercises or assumes title to the right to any incorporeal right vested in another.

Presumption of intention to deprive permanently [s 115]

Unauthorised borrowing of property does not constitute theft, although it is now a separate offence in terms of the Code (see s 116). However, a person charged with theft is presumed to have had the intention to deprive someone permanently of the property in question if–

  • after taking possession or assuming control of the property
  • X abandons it without regard to whether or not it is restored to the person who owned, possessed or controlled it;
  • X subjects it to a use which he or she realises will destroy it;
  • X consumes the property, intending to return identical property;
  • X spends money intending to return the same amount.

Property that can and cannot be stolen [s 112]

Property that can be stolen

Property that cannot be stolen

  • a movable corporeal thing or object;
  • any incorporeal right vested in a person relating to movable or immovable property.

This includes–

  • 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;

  • in a business undertaking;
    • electricity or electromagnetic waves from telecommunications or broadcasting system - when illegally tapped or diverted from their intended destination.

 

  • property common to everyone, such as water in a public stream or air in the atmosphere;
  • wild animals, birds, insects and fish not reduced to captivity;
  • eggs, honey and other produce of wild animals, birds, insects and fish not taken into someone’s possession;
  • 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.

 

 

In terms s 60A of the Electricity Act [Chapter 13:19] it is an offence for any person, without lawful excuse, the proof whereof shall lie on him or her to —

  • abstract or divert any electric current or causes any electric current to be abstracted or diverted; or
  • use any electric current, knowing it to have been unlawfully abstracted or diverted;

The penalty for this offence is a fine not exceeding level fourteen or imprisonment for a period not exceeding five years or both such fine and such imprisonment.

 

Claim of right defence [s 237]

 

Section 237 of the Code deals with the defence of claim of right as it relates to property crimes generally. (It can be raised as defence to theft, stock theft and unauthorised borrowing.)

 With this defence X asserts that he or she believed he or she has a right to do or omit to do something thing. An example would be if X is accused of theft and he or she says that he or she genuinely believed that he or she was the owner of the property in question. If the entitlement to the property forms an essential ingredient of the crime (as it does in cases of theft) this defence will avail an accused if he or she genuinely believed that he or she was entitled to the property but was factually mistaken.

A claim of right is a "decently clothed" ignorance or mistake of law. If ignorance or mistake of law is decently clothed, that is where X either knows or suspects that his action would normally be illegal but, because of some extraneous factual basis, he believes that his actions will not be unlawful in present circumstances. It is often difficult to distinguish naked ignorance from properly clothed ignorance.

 

Section 237 provides that if X raises the defence of claim of right in relation to a property crime, this defence can only succeed if the mistake arises from mistake or ignorance of fact. If the belief arose–

  • solely from mistake or ignorance of an essential fact, the defence will succeed;
  • solely from mistake or ignorance of law, then the defence will be treated as the defence of ignorance of the law and it will not succeed unless it falls within the exception to the rule that ignorance of the law is no excuse;
  • partly from mistake or ignorance of law and partly from mistake or ignorance of fact, the belief will be treated as arising from mistake or ignorance of law and it will not succeed unless it falls within the exception to the rule that ignorance of the law is no excuse.

 

In the light of the above, the case of S v Banet 1973 (1) RLR 335 (A); 1973 (4) SA 430 (RA) would be differently decided under this Code provision. In that case X was found not guilty of theft by conversion. He had made personal use of money given for business expenses for entertainment. He genuinely thought he was allowed to use the money for personal purposes provided that he replaced it. In effect the mistake was a mistake of the law, as X was mistakenly believed that the law allowed him to make personal use of the money given to him for expenses provided that he later replaced the money. The decision in this case is criticised in the case of S v Johnson 1977(4) SA 116 (RA) at 123H-124C. It is suggested in the Johnson case that the mistake in the Banet case was naked ignorance of the law]. The same also seems to apply to the case of S v Latham 1979 RLR 458 (A); 1980 (1) SA 723 (ZA). Here X was found not guilty of theft. He had genuinely but unreasonably believed that he could replace the Government horse with one from own stable. Here again this was essentially a mistake as to the law. See also R v Ellis 1961 R&N 468 (FS).

 

See Guide pp 27 and 143-146.

 

This defence only applies in respect of property crimes, such as theft, robbery or malicious injury to property.

 

For example if X takes property from C mistakenly thinking that that property is X’s property which C has stolen from him X is not guilty of theft because he had no intention to steal as he thought he was recovering his own property, that is, that he had a lawful right to take the property.

 

In S v Muzuzu A-67-80 the court said that no matter how wrong-headed or unreasonable he was, if X believed that he was entitled to take the property, he is free from responsibility. X had taken property from a burnt out store after being told to do so by a police officer.

 

In S v Chihanya 1981 ZLR 381 (GS) X thought he was entitled to take the property. He was found not guilty.

 

In S v Tamayi & Ors 1982 (1) ZLR 267 (S) – X had taken cattle belonging to another because they thought that the family of that person had had something to do with the death of their relative. They took the cattle as compensation. They were found not guilty because of claim of right.

 

In S v Musarurwa HH-212-84 – X had taken money from employer's store where she worked because her employer had withheld her wages. She thought she was entitled to take the money. She was acquitted on the basis of claim of right.

 

In S v Watamba S-4-85 X unsuccessfully raised the defence that bona fide believed that he legitimately entitled to borrow money.

 

In S v Mahanzu HB-108-88 X, a Government employee, openly took 54 litres of petrol from a Government store to put in his personal vehicle, which he had to use on official business.  At the earliest opportunity he replaced the petrol. The court held that although the unauthorised borrowing of a substance which is consumed by use is theft, X had bona fide believed that he was entitled to act as he did, in the sense that he believed there was nothing wrong in his action. He was therefore not guilty of theft.

 

In S v Jonasi S-15-92 X took some money from the complainant believing that this was money which C had stolen from him. However, after it had become clear that this money had not been stolen from him, X had failed to return this money but had converted it to his own use. He was found guilty of theft.

 

61 Other offences

Competent verdicts [s 275 as read with 4th Schedule]

  • Unauthorised borrowing or use of property;
  • Making off without payment;
  • Receiving stolen property knowing it to have been stolen;
  • Malicious damage to property;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

Jurisdiction

Theft is a continuing offence. Thus if a theft has been committed outside Zimbabwe and the thief brings the proceeds of the theft into Zimbabwe, the accused can be prosecuted in Zimbabwe. See S v A 1979 RLR 69 (G) at 74A-D.

 

 

 

See Guide pp 124-126 and 237-243

 

Theft of trust property

[s 113(2)]

This type of theft deviates in certain respects from the general law of theft; for example, it may be committed by a deliberate failure to account for the property or to hand it over to another person without an actual “taking” of the property. Certain specific defences also apply to charges of theft of trust property.

What constitutes trust property [s 112]

What is trust property

What is not trust property

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 following¾

  • hold the property on behalf of another or account for it to another; or
  • hand the property over to a specific person; or
  • deal with the property in a particular way.

Property received on terms expressly or impliedly stipulating that¾

  • the recipient is entitled to use the property as his or her own;
  • there would only be a debtor and creditor relationship between the parties.

 

 

Ingredients [s 113(2)]

X commits this crime if

  • X holds trust property; and
  • in breach of the terms under which it is so held, X intentionally¾
    • omits to account or accounts incorrectly for the property;
    • hands the property or part of it over to a person other than the person to whom X is obliged to hand it over;
    • uses the property or part of it for purposes other than purpose for which X is obliged to use it;or
    • converts the property or part of it to his or her own use.

When X not guilty of theft of trust property [s 113(3)]

X will not be guilty if

  • X properly and transparently accounted for the property in accordance with the terms of the trust; or
  • When X disposed of the property X retained the equivalent value of the property 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.

Using misrepresentation to take property [s 113(4)]

X must be charged with fraud and not theft if X uses a fraudulent misrepresentation to take property capable of being stolen.

Penalty [s 113(1)]

Fine

Prison

Both

Up to level 14 or twice the value of the stolen property, whichever is the greater

Up to 25 years, provided that a court may suspend the whole or part of the prison sentence on condition that X restores the property to Y or compensates Y for its loss.

Both

 

Cases

In S v Vambe 1986 (1) ZLR 168 (S) V operated agricultural equipment purchasing company. He  advertised in the press offering his services and inviting customers requiring equipment to place orders. He required the customers to pay deposits after undertaking to procure the equipment they required. However, after taking deposits and using this money for his own purposes, he failed to deliver the equipment that had been ordered. The court decided he was not guilty of theft by conversion, finding that the transactions were pre-paid contracts of sale to purchase goods. These were civil matters. In such transactions it was usually intended that pre-paid money became that of the payee who could use the money for wages, rent etc. If goods were not delivered the customers could bring civil suits for breach of contract. This was not a situation where the money had to be held in trust for payer and V had not been appointed as an agent for customers so that he was obliged to hold monies for purchase of goods. The court pointed out that if fraud had been alleged the State would have to have proven that V at the outset had no intention of procuring the goods and had induced the customers to hand over the deposits by misrepresenting that he intended to procure the goods when he knew that he had no such intention.

In S v Westgate Investments (Pvt) Ltd 2010 (2) ZLR 12 (H) acting on behalf of his company the managing director of the company was given sums of money by the Reserve Bank for the purpose of buying two tractors and a grader on behalf of a municipality. The State alleged that it was agreed that the money would be held in trust and would be used solely for the purposes of buying the machinery. The evidence was that the payment was an advance payment in terms of the contract between the accused and the municipality. As a precondition of the contract, the accused were required to obtain and furnish an advance payment bond for an equivalent sum. The accused did not have in their possession or under their control sufficient money either to meet the purpose for which the purpose for which the money was advanced to them or to repay an equivalent amount. The accused then used most of what was paid other than the purchase of the machinery. At some later stage the accused did try to procure two tractors through separate contracts and they did in fact attempt to partially fulfil their contracts with the municipality. The main question was whether the money paid to the accused was trust money or simply a pre-payment between a debtor and creditor. Put differently, were the accused entitled to use the money once they had received it for whatever purposes they deemed fit.

The court held that when trust money is handed to a person, it is the duty of the person to keep it in its possession and to use it for no other purpose than that of the trust. The person fulfils his duty if he accounts for or returns an equivalent amount. It is inherent in such a trust that the person should at all times have available liquid funds in an equivalent amount. The very essence of a trust is the absence of risk. If it is proved that the money was “trust money” i.e. money given to an agent with instructions to devote it to a specific purpose, then the use of that money for some other purpose without the retention of an equivalent liquid fund may well constitute theft. An advance payment is not necessarily and invariably indicative of an ordinary commercial pre-payment between debtor and creditor. In most cases, the probability is that is what was contemplated by the parties; but it may still be necessary and relevant in each case to have regard to the intention and conduct of the parties in order to ascertain the true purpose of an advance payment. In the present case, it was clear that all the parties, including the accused, unequivocally intended that the advance payment was to be used for the specific and clearly defined purpose of purchasing two tractors and one grader, and for no other purpose. The money was thus “trust money” and not merely “debtor-creditor money”. The argument that the accused could not be convicted of theft as they lacked the requisite mens rea or intention to permanently deprive the Reserve Bank or the municipality of their money ignored the fact that theft by conversion is a peculiar species of offence. Generally speaking, it is necessary for common law theft to establish an intention to effect a permanent deprivation. Ordinarily, therefore, furtum usus or unauthorised borrowing does not constitute theft at common law. In the case of money and other fungibles that are consumed by their use, the fact that the accused may attempt to procure or restore the equivalent thing or amount to the complainant does not negative his intention to deprive at the time of conversion. Such conduct may serve to mitigate the wrongdoing but does not exculpate the wrongdoer. By using the advanced trust money without having retained an equivalent liquid fund to replenish or cover the deficiency, the accused intentionally deprived the Reserve Bank of the money at the time that they converted it to their own use.

 

In S v Mugandani HH-635-15 the judge stated that only property held under a deed of trust; or by agreement; or under any enactment; or on terms requiring the holder to hold the property on behalf of another or account for it to another; or hand over the property to a specific person; or deal with it in a particular way, constitutes trust property for the purposes of s 112 of the Code.. Money handed over as a deposit for the purchase of goods is not trust property. In that situation, a debtor-creditor relationship is created. The money paid is a fungible which may be used by the recipient as his own, as long as he acknowledges his debt to the depositor.

                                                

See Guide pp 124-125.

 

Stock theft

[s 114]

This creates the new crime of “stock theft” (the existing crime commonly called “stock theft” is simply the common law crime of theft, with specific reference to the theft of livestock). This new crime is a composite one encompassing the theft of livestock or its produce, receiving livestock or its produce knowing it to have been stolen, and the unlawful possession or acquisition of livestock in the circumstances presently set out in sections 5 and 6 of the Stock Theft Act.

Definitions [s 114(1)]

Livestock

Produce

Bovine or equine animal (cows and horses)

Sheep, goat, pig, poultry, ostrich, pigeon, rabbit

Any domesticated game

Carcases or portion of carcass of such animals or birds

Includes the whole or any part of any skin, hide, horn or egg of livestock or any wool or mohair.

 

 

Ingredients [s 114(2)]

Taking livestock or produce

X is guilty if X takes livestock or produce–

  • knowing that another is entitled to own, possess or control the property or realising that there is a real risk or possibility of this; and
  • intending to deprive the other permanently of his or her ownership, possession or control, or realising that there is a real risk or possibility of this.

Taking possession of stolen livestock or produce

X is guilty if X takes possession of stolen livestock or its produce–

  • knowing that it has been stolen; or
  • realising that there is a real risk or possibility that it has been stolen.

Found in possession or having been in possession of livestock or produce

X is guilty if X is–

  • found in possession of, or has been in possession of the property
  • 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 property was stolen, and who is unable at any time to give a satisfactory explanation of his or her possession.

Acquiring or receiving stolen livestock or produce

X is guilty if–

  • X acquires or receives into his or her possession from another any stolen livestock or produce
  • without reasonable cause () 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 authorized by the owner thereof to deal with it or dispose of it.

Attempted stock theft

X is guilty of attempted stock theft if X–

  • 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

Shifting of onus [s 114(6)]

If X is accused of attempted stock theft on the basis that X entered a cattle kraal, stable, byre, fold, pen, sty, loft, coop, run, building or other enclosure with intent to steal any livestock or its produce therefrom, the onus will be on X to prove, on a balance of probabilities, that he or she had no intention of stealing any livestock or its produce.

Alternate charge [s 114(7)]

Charge

Alternate charge

Taking livestock or produce

Taking possession of stolen livestock or produce

Theft or receiving stolen property knowing it to have been stolen, if such a conviction is the more appropriate on the evidence.

 

Found in possession or having been in possession of livestock or produce

Acquiring or receiving stolen livestock or produce

 

Theft, receiving stolen property knowing it to have been stolen or possessing property reasonably suspected of being stolen, if such a conviction is the more appropriate on the evidence.

 

Failure to prove that livestock or produce belonged to particular person [s 114(8)]

If X is charged with stock theft involving livestock or its produce belonging to a particular person, X may be found guilty even if the prosecution fails to that such livestock or produce actually did belong to this particular person.

Penalty [s 114(2)]

Type of conduct

Penalty

Taking bovine or equine animal or taking possession of stolen bovine or equine animal

Mandatory prison sentence of 9 - 25 years unless X satisfies the court that there are special circumstances peculiar to the case, which circumstances must be recorded by the court

If the court sentences to minimum period of 9 years court may not suspend of whole or part of the sentence [s 114(4)(a)]

If court sentences to more than 9 years court may order suspension of whole or part of sentence in excess of 9 years. [s 114(4)]

 

Acts in relation to bovine or equine animal other than taking or taking possession of stolen bovine or equine animal

Acts not involving bovine or equine animal

Fine up to level 14 or twice the value of stolen property, whichever is the greater;

Prison up to 25 years

Both.

Attempted stock theft by entering enclosure etc with intent to steal livestock or produce

Fine up to level 12

Prison up to 2 years

Both.

 

Cases

 

   Donkey:

In S v Ndlovu & Anor HH-70-06 the court held that theft of an equine animal does not include theft of a donkey. However, in the earlier case S v Chigovera HH-84-05 the court reached the opposite conclusion that a donkey is an equine animal for the purposes a stock theft.

 

Defence of claim of right

In S v Gwingwidza 2013 (2) ZLR 33 (H) a cow had strayed onto X’s land. He had surrendered the stray cow to the authorities but not a calf dropped by the cow whilst the cow was in his care. The appeal court set aside a conviction for stock theft in respect of the calf on the basis that X in the circumstances had the defence of claim of right. For full details of this case see below under “Special defences to theft, stock theft or unauthorised borrowing”

 

Unauthorised borrowing

[s 116]

This creates the new crime of “unauthorised borrowing or use of property”. Under the common law, such borrowing did not constitute theft because for theft it was necessary to prove that the person intended to deprive someone permanently of the property. Under the existing statute law, only the unauthorised borrowing of cars (section 57 of the Road Traffic Act) and boats (section 10 of the Miscellaneous Offences Act) is punishable.

Ingredients

X commits this crime if–

  • 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 of this; and
  • takes possession or control of any property capable of being stolen without the consent of that other person, and
  • intending to temporarily hold or make temporary use of it and then return it to that other person’s possession or control

Penalty

Fine

Prison

Both

Up to level 14 or up to twice value of property, whichever is greater

Up to 2 years

Both

 

Claim of right defence [s 237]

This defence can be raised to a charge of authorised borrowing. Competent verdicts [s 275 as read with 4th Schedule]

  • Getting on to or interfering with or driving or riding a vehicle in contravention of s 57 of the Road Traffic Act;
  • Taking or retaining hold of or boarding a vehicle or trailer in contravention of s 58 of the Road Traffic Act.

 

Making off without payment

[s 117]

This provides for the new crime of “making off without payment” in order to cover situations where “services” rather than “goods” are “stolen”. Also within the scope of this crime is the consumption of goods for which payment after consumption is required but has not been made: in these circumstances the intention to “deprive another person permanently” of ownership, possession or control is incapable of proof, because it may only have been formed after the goods were consumed and therefore no longer capable of being owned, possessed or controlled by anybody.

Ingredients [s 117(2)]

X commits this crime if–

  • X benefits from a service or consumes goods lawfully provided to him or her; and
  • X intentionally makes off without paying for the services or goods.

Payment on the spot includes–

  • where a service is provided, payment at the time of collecting goods on which work has been done or in respect of which a service has been provided;
  • payment before leaving the premises where the service or goods were provided.

Penalty [s 117(2)]

Fine

Prison

Both

Up to level 7 or up to twice value of service or goods, whichever is the greater

Up to 2 years

Both

 

Presumption of intention to make off without paying [s 117(3)]

Facts proven by prosecution

Presumption

  • X, 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.

 

It will be presumed, unless the contrary is proved, that¾

  • X knew that payment on the spot for the service or goods was required or expected from him or her; and
  • X intentionally made off without paying for the service or goods.

 

Competent verdicts [s 275 as read with 4th Schedule]

  •  
  • Unauthorised borrowing or use of property;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

 

Special defences to theft, stock theft or unauthorised borrowing

[s 118]

As well as the general defences that apply to all crimes, certain special defences that can be raised to a charge of theft, stock theft or unauthorised borrowing or use are set out in this section.

Mistaken belief that owner consented [s 118(1)(a)]

It is a defence to these charges if X took the property genuinely but mistakenly believing that 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.

Mistaken belief that was own property [s 118(1)(b)]

It is a defence to these charges if X took the property genuinely but mistakenly believing that the property was his or her own property and no other person was entitled to possess or control it.

See S v Mutonga S-71-83 in which X had a claim of ownership over the goods.

Mistaken belief that property abandoned [s 118(1)(c)]

It is a defence to these charges if X took the property genuinely but mistakenly believing that 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.

But this defence will only apply if–

  • the belief was reasonable given the nature and value of the property and the circumstances of its finding; or
  • X 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.

In S v Randen & Anor 1980 RLR 473 (A) the court stated that claim of right is only a defence if X genuinely believed property was abandoned by owner or lost by the owner and circumstances are such as to reasonably lead X to believe that the owner is unascertainable.

In R v Clarke & Anor 1976 (1) PH H 108 (R) Xs took parts from tractor which had rolled down embankment. They genuinely but unreasonably believed that tractor had been abandoned. They were found not guilty of theft because they had no intention to steal as they genuinely thought that tractor had been abandoned. It should be noted that under the Code provision the Xs would have been found guilty as their belief that the property had been abandoned was unreasonable.

Where defence will not apply [s 118(3)]

Where X takes possession or control of the property with the mistaken consent or acquiescence of Y, consent will not be a defence to a charge of theft, stock theft or unlawful borrowing or use of the property if X–

  • knows of the mistake at the time that X takes the property;
  • deals with or uses or keeps the property after X has become aware of the mistake.

There are other types of claim of right cases that are not dealt with under these provisions. See, for instance–

In S v Gwingwidza 2013 (2) ZLR 33 (H)  three stray cattle wandered into the appellant’s herd. He reported this fact to the authorities, who registered the cattle. The cattle were eventually collected by the poundmaster and auctioned in terms of the law. In September 2011, he again registered a stray cow which had joined his herd the previous year. On 10 December 2011 the police, together with district council officials, approached the appellant to collect the stray cow. He did not disclose that the cow had dropped a calf whilst under his care. The calf remained in his possession.

The appellant was charged with stock theft, the charge averring that the calf was the property of the State. When asked about why he did not register the calf, he explained that the reason he had not registered it was that he did not know the procedure of dealing with the progeny of a stray beast. The magistrate convicted him, holding that the only reasonable and plausible explanation for his failure to disclose the calf to the authorities was the motivation to deprive the State permanently of the progeny of the stray cow.

 

The court held that the averment that the calf belonged to the State was fatal. Such an averment betrays the accepted status of the stray cow. If it belonged to the State it would not be classified as stray. The correct position is that the calf belonged to the owner of the stray cow who was, to the prosecutor, unknown. An error of fact may be a complete defence, negativing mens rea. The appellant was in lawful possession of the res and laboured under a genuine and reasonable mistake of fact regarding his ownership of the calf. Judicial notice may be taken of the fact that, under customary law and practice, a person who has taken care of another’s herd of cattle, whether under agreement or not, was entitled to a portion of the progeny, depending on the length of the period for which such care was undertaken. Such a defence amounts to a claim of right. The appellant had a bona fide belief that he was entitled to keep the calf, as that calf was not subject to the same status as the cow. His evidence in court was not shown to be false nor his belief to be dishonest. The fact that he had openly possessed the bullock must negative any intention to deprive the owner permanently of his ownership of the bullock. The mental element for theft, animus furandi (the intention to steal), could not have been met in circumstances where the appellant had taken steps to notify several people of the existence of firstly the cow and later the calf. He believed he was entitled to some benefit of his agency for the pound master. Although our law recognises assumption of control as sufficient indication of the element of contrectatio required for theft, it was debatable whether the appellant effected a contrectatio by merely assuming control of the newly-born calf. An accused can, in various situations, escape conviction because of his bona fide belief that he was entitled to act in the way he did. The fact that a belief is unreasonable would no more than evidence of a lack of good faith.

 

There was no proof that the subject matter was property capable of being stolen in the particular circumstances of this case. Our law recognises that res nullius are things unowned but capable of ownership. They may be acquired by occupatio. Two categories relevant to this enquiry are res derelictae and wild animals. Res derelictae cannot be stolen. However, for a thing to be classed as a res derelicta, it must not merely have been lost to the owner, but the owner must have written it off or lost all hope of recovering it in every sense. Where, however, the property was merely lost and not abandoned, and thus capable of being stolen, the critical question is always whether the accused effected contrectatio with the intention to steal it in two aspects; i.e (a) did he intend to deprive the owner of the full benefit of his ownership or merely to look after the res pending enquiries; and (b) did he genuinely believe it to have been abandoned? The appellant was saying he was not aware whether he was obliged by law to register the calf and therefore to surrender it together with its dam. This was clearly a plea of mistake of fact as well as mistake of law.

 

Although by accessio, the calf accrued, as fruit, to the owner of the cow, here there was no owner of the cow at the time of the coming into being of the “fruit” and, therefore the lawful possessor of the cow at the time became the legal owner of the fruit by occupatio. The appellant should not have been charged with theft of the property as it was incapable of being stolen in these circumstances.

 

 

 

 

 

Unavailable defences to theft, stock theft and unauthorised borrowing

[s 119]

Unavailable defences s 119(1) and (2)]

Charges

Defences not available to these charges

Theft, stock theft or unauthorised borrowing or use of property

That X took the property concerned in circumstances other than those provided for in 118 (1) genuinely but mistakenly believing that he or she¾

  • had a legal right to take the property on his or her own behalf or on behalf of someone else;
  • did not intend to gain any personal benefit from the property concerned;
  • needed the property concerned because he or she was suffering hardship;
  • 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;

See S v Fisher 1970 (1) RLR 179 and S v Johnson 1977 (4) SA 116 (A)

  • did not intend to prejudice the person entitled to own, possess or control the property;
  • did not know the identity of the person entitled to own, possess or control the property.

Theft, stock theft or unlawful borrowing or use of the property

In respect of trust property that it is not a defence that X genuinely but mistakenly believed that he or she was allowed to consume or dispose of the property (provided that he or she replaced the property), unless there is an express provision in the agreement allowing this.

This provision would seem to eliminate the defence that the accused successfully pleaded in the case of S v Banet 1973 (1) RLR 355 (A) as the money given to the salesman was trust money because it was specified that it only be used for expenses in connection with the business trip.

Theft or stock theft

 

If X originally took the property with the intention of permanently depriving the person entitled to own, possess or control, that X intended to return the property to that person.

Theft

 

That X 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.

 

 

Mitigatory factors [s 119(3)]

When assessing the sentence to be imposed upon a person convicted of theft, stock theft or unauthorised borrowing or use of property a court may regard as mitigatory the factors referred to in–

  • s 119(1) (a), (b), (c) and (e); and
  • s 119(2).

 

Jointly owned property - when spouse, partner or co-owner guilty

[s 120]

When there is theft

This sets out when a spouse, partner or co-owner may be guilty of theft, stock theft or unauthorised borrowing or use of property jointly owned with another spouse, partner or co-owner if–

  • 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
  • in the case of a charge of theft or stock theft, X 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.

 

Leave of Prosecutor-General required for proceedings in respect of spousal property

However, no proceedings may be taken against X for stealing from or unlawfully borrowing from his or her spouse except with the leave of the Attorney-General.

 

Theft and stock theft continuing crimes

[s 121]

Previously the law on theft provided that a person continues to commit the crime of theft for as long as the stolen property remains in the possession of the thief. This rule meant that if X steals property in an area falling outside the territorial jurisdiction of the court he or she can nonetheless be tried for theft by that court if he or she is found in possession of the stolen property within the court’s jurisdiction.

The new rule [s 121(1)]

This drastically widens this rule by providing that 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

Place where thief may be tried [s 121(2)(a)]

Regardless of whether a thief remains in possession of the property he or she has stolen, that person may be tried for 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.

Accomplice s[s 121(2)(b)]

Any person who assists the thief while he or she is in possession of the stolen property may be charged and convicted as an accomplice to theft or stock theft.

 

Temporary acquisition as security or pledge

[s 122(1)]

Taking possession of property capable of being stolen as security or pledge [s 122(1)]

Physical elements

Mental element

X takes possession or control of property capable of being stolen which is owned, possessed or controlled by Y.

X intends to hold the property as a pledge or security pending the satisfaction of a debt owed to Y by X.

 

 

X is guilty–

  • of theft or stock theft X intended to deprive the other person permanently of his or her ownership, possession or control of the property ;
  • of unauthorised borrowing of the property if he did not intend to deprive the other person permanently of his or her ownership, possession or control of the property.

Converting property originally received as pledge or security [s 122(2)]

X–

  • receives property capable of being stolen from the owner as a pledge or security pending the satisfaction of a debt owed to X; and
  • thereafter X takes the property, intending to deprive the owner permanently of his or her ownership, contrary to the terms on which the person received possession,

X is guilty of theft or stock theft.

 

Recent possession of stolen property

[s 123]

This allows the court, in the absence of any other reasonable inference, to infer that an accused is guilty of theft, stock theft or receiving property knowing it to have been stolen if the property was recently stolen and the accused fails to account for his or her possession of it in circumstances where he or she could reasonably be expected to do so.

When inference can be drawn [s 123(1)]

Where X is found in possession of property that has recently been stolen and

the circumstances of X’s possession are such that X may reasonably be expected to give an explanation for his or her possession, and

X cannot explain his or her possession or gives an explanation which is false or unreasonable

a court may infer that the person is guilty of whichever of these crimes is appropriate: theft or stock theft, or of receiving it knowing it to have been stolen.

When inference will not be drawn [s 123(2)]

But the court must not draw this inference unless the circumstances of the possession are such that, in the absence of an explanation from X, 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.

 

Receiving of stolen property

[s 124]

This codifies the existing common law crime of “receiving stolen property knowing it to have been stolen”.

Ingredients [s 124(1)]

X takes possession of stolen property

knowing that it has been stolen or realising that there is a real risk that it was stolen

Where did not know or realise stolen when received property [124(2)]

If X is charged with receiving and it is proved–

  • when X took possession of the property, X did not know that it had been stolen or did not realise that there was a real risk or possibility of this;
  • but after taking possession X acquired such knowledge or realisation;

X 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.

Penalty [s 124(1)]

Fine

Prison

Both

Up to level 7 or up to twice the value of the property concerned, whichever is the greater

Up to 25 years

Both

 

Case

R v Ushewokunze 1971 (1) RLR 107 (A); 1971 (2) SA 360 (RA) 

Competent verdicts [s 275 read with 4th Schedule]

  •  
  • Unauthorised borrowing or use of property;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

 

See Guide pp 120-121 and 232-233.

 

Possessing property reasonably suspected to have been stolen

[s 125]

This re-enacts s 12(2) of the Miscellaneous Offences Act.

Ingredients

X is or has been in possession of property capable of being stolen, and

the circumstances of X’s 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

X is unable at any time to give a satisfactory explanation for his or her possession of the property.

 

Penalty

Fine

Prison

Both

Up to level 10 or up to twice the value of the property concerned

Up to 5 years

Both

 

Competent verdicts [s 275 read with 4th Schedule]

  • Unauthorised borrowing or use of property;
  • Getting on to or interfering with or driving or riding a vehicle in contravention of s 57 of the Road Traffic Act;
  • Taking or retaining hold of or boarding a vehicle or trailer in contravention of s 58 of the Road Traffic Act.

 

Robbery

[ss 126-129]

These sections codify the existing offence which defines robbery.

Ingredients [s 126(1)]

X steals property or does an act constituting the crime of unauthorised borrowing or use of property and

intentionally uses violence or the threat of immediate violence¾

  • 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
  • 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.

Robbery where complainant forced to abandon control over property [s 127]

It is not a defence to a charge of robbery that, when X took possession or control over the property, the person who had lawful control over it was no longer exercising such control, if¾

  • when the accused first used violence or the threat of violence, that other person was in control of the property; and
  • 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.

See S v Seekoi 1984 (4) SA 690 (A)

Defences to charge of robbery [s 128]

A person accused of robbery is 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.  One such defence that is available is claim of right.

 

See section 237 of Code Section 237 provides that if X raises the defence of claim of right in relation to a property crime, this defence can only succeed if the mistake arises from mistake or ignorance of fact. If the belief arose–

  • solely from mistake or ignorance of an essential fact, the defence will succeed;
  • solely from mistake or ignorance of law, then the defence will be treated as the defence of ignorance of the law and it will not succeed unless it falls within the exception to the rule that ignorance of the law is no excuse;
  • partly from mistake or ignorance of law and partly from mistake or ignorance of fact, the belief will be treated as arising from mistake or ignorance of law and it will not succeed unless it falls within the exception to the rule that ignorance of the law is no excuse.

 

Thus if X has uses force to take the property, thinking mistakenly that the property belongs to him he is not guilty of robbery, as he did not have the intention to steal but is still guilty of assault as it was not lawful for him to use violence to take back property that he believed belonged to him.

 

In S v Fisher 1970 (1) RLR 179 (A); 1970 (3) SA 446 (RA) a debt collector had genuinely thought he was entitled to assault the complainant to extract money owing to his principal. He was not guilty of robbery because he had had no intention to steal but he was guilty of assault.

 

In S v Johnson 1977 (2) RLR 3 (A); 1977 (4) SA 116 (RA) X was not guilty of robbery when he used force to take money that he genuinely, but mistakenly, believed had been stolen from him. He therefore lacked the intention to steal and he was found guilty only of assault.

 

In S v Chimwaja GS-240-81 X had used force used to extract payment that he believed was due to him. He was found not guilty of robbery but guilty of assault.

Threat of future violence [s 129]

X is only guilty of robbery if X threatens immediate violence to take the property, to retain possession of it immediately after he steals it or in order to be able to use it.

See S v Yolelo 1981 (1) SA 1002 (A)

If X threatens future violence, X is not guilty of robbery but may be guilty of extortion.

It is necessary to clearly establish the violence has been used to obtain the property. In this regard see S v Imbayarwo HB-35-13. 

On sentence see S v Mushuku HB-95-04 and S v Gumede & Anor HB-91-11.

 

Penalty [s 126(2)]

If committed in aggravating circumstances

Other cases

Prison for life or any definite period of imprisonment

 

Aggravating circumstances–

When X (a perpetrator or accomplice) committed the robbery–

  • X possessed a firearm or a dangerous weapon; or
  • X inflicted or threatened to inflict serious bodily injury upon any person; or
  • X killed a person. (This surely should be charged as murder.)

 

Fine up to level 14 fourteen or up to twice the value of the property that forms the subject of the charge, whichever is the greater

Prison up to 50 years

Both.

Suspended sentence

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.

 

Competent verdicts [s 275 read with 4th Schedule]

  •  
  • Threatening to commit murder;
  •  
  • Making off without payment;
  •  
  •  
  • Assault and theft;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

 

Jurisdiction

In the case of S v Ncube (2) 2002 (2) ZLR 524 (H) the court ruled that robbery, unlike theft, is not a continuing offence, so a person cannot be prosecuted in Zimbabwe for a robbery committed outside the country even if the proceeds of the crime have been brought into Zimbabwe.

 

See Guide pp 121-122 and 233-235.

 

 

Crimes Involving Entering or Being In or On Premises or Land

 

Unlawful entry into premises

[s 131]

(formerly “housebreaking”)

This crime deals with unlawfully entry into premises.

It rationalises the existing common-law crime known as “housebreaking” or, to use the popular term, “burglary”.

The common law of housebreaking can only be committed if X intended to commit some crime inside the premises. It only had a series of highly technical requirements regarding the nature of the premises broken into and the manner of the entry. For instance, entry through an open window did not constitute housebreaking but entry after opening further a partially open window did amount to housebreaking.

The principal purpose of this crime should be to protect the privacy of one’s home from intrusion. X intrudes upon a person’s right to privacy in his or home however X enters the premises and whatever X’s purpose in effecting unauthorised entry. The law should also protect people against invasion of premises being used to store goods and this should apply whatever the manner of X’s entry into A person is also entitled to protection of his property against theft.

This crime has been completely reformulated to eliminate the unnecessarily technical requirements of housebreaking. The reformulated crime will simply treat as aggravating factors for sentence such factors as the purpose in entering, the fact that there was forcible entry and the fact that the property entered was a dwelling-house.

Ingredients [s 131(1)]

X intentionally enters the premises

without permission or authority from the lawful occupier of the premises, or without other lawful authority.

“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.

In S v Garanewako 2010 (2) ZLR 395 (H) X was convicted of unlawful entry into premises, in contravention of s 131 of the Criminal Law Code. He had opened the sliding gate of the complainant’s yard and entered the yard, where he was discovered. On review it was held that the conviction was wrong. “Premises”, for the purposes of s 131, means any movable or immovable building or structure used for human habitation or storage. The crime of unlawful entry into premises is nothing more than a codified version of the old offence of housebreaking with intent to commit a specified crime within the premises so broken into. The mere opening of a sliding gate of a perimeter wall surrounding the yard of a dwelling premises and only entering that yard as happened in the present case can never legally found the crime of unlawful entry into premises. There is patently a world of difference between unlawful entry into premises and criminal trespass, which relates to and is limited to land as we know it (usually with written signs prohibiting entry) or an enclosed area on which is situated a building or structure ordinarily used for human habitation or for storage of property and is outside that building but is surrounded by a sufficient wall, fence or hedge that is continuous and has an entrance(s) either barred or capable of being barred by a gate or other means (what is commonly referred to as a yard).The correct charge should therefore have been criminal trespass as defined in s 132 (1)(a) of the Code.

 

 “Enter” includes the following–

  • to insert any part of one’s body or an instrument into the premises;
  • to open or break open a door, window or gate or otherwise to remove an obstacle to entry into the premises;
  • to enter the premises without having removed an obstacle, as when entry is effected through an open door, window or gate.

 

“Lawful occupier” of premises means any person who has lawful authority to control entry into the premises.

Penalty [s 131(1)]

If committed one or more of the aggravating circumstances

Other cases

Fine up to level 13 or up to twice the value of any property stolen, destroyed or damaged by the person as a result of the crime, whichever is the greater

Prison up to 15 years

Both

 

Aggravating circumstances;

if, on the occasion on which the crime was committed, X

  • entered a dwelling-house; or
  • knew there were people present in the premises; or
  • carried a weapon; or
  • used violence against any person, or damaged or destroyed any property, in effecting the entry; or
  • committed or intended to commit some other crime.

 

Fine up to level 10 or up to twice the value of any property destroyed or damaged by the person as a result of the crime, whichever is the greater,

Prison up to 10 years

Both.

 

In S v Chirinda & Ors 2009 (2) ZLR 82 (H) the judge pointed out that the essential elements of the crime are an intentional entry into premises without the authority of the lawful occupier or other lawful authority. The crime is aggravated by the fact that the accused person stole property from the premises or caused damage or destruction to property. The section does not create an offence of unlawful entry and theft, so the accused cannot be convicted of unlawful entry and theft, even if the facts establish that he stole from the premises he unlawfully entered. The elements of theft need not be canvassed as they would for purposes of securing a conviction for theft. The stealing of property can merely be mentioned in the agreed facts or the State outline, or in the prosecutor’s address in aggravation.

 

The court said an accused person who steals from the premises he unlawfully enters must be charged with contravening s 131(1)(a) of the Code for unlawful entry. He can also be charged for contravening s 113(1) of the Code for stealing from those premises if the State hopes the court may impose a stiffer sentence if the accused is charged with both offences. However, once the details of the theft have been used as an aggravating factor for the unlawful entry charge, they cannot again be used to punish the convicted person on a theft charge, as that would amount to punishing the convicted person twice for the theft which will have been taken into account in sentencing him for unlawful entry. The sentence for an unlawful entry which is accompanied by theft of property from the premises will in most cases be the same as that which would be imposed if the convicted person is convicted of unlawful entry as defined in s 131(1) and theft as defined in s 113(1) of the Code.

 

In S v Zhakata 2013 (1) ZLR 58 (H) the court said that the essential elements of unlawful entry are intentional entry without permission or authority. This statutory offence repeals and replaces the common law crime of burglary or housebreaking with intent to steal, but with certain additional features. By virtue of para (a) of subs (1), as read with paras (a) to (e) of subs (2), the offence is aggravated by any of the circumstances set out in subs (2). Section 131(1)(a) does not create a combined offence of unlawful entry and theft. What it does is to aggravate the offence of unlawful entry, by prescribing a more severe penalty therefor, in the event of any one or more of the circumstances enumerated in subs (2) being established. These circumstances include the commission of another crime.

 

It is necessary for the State to prove or otherwise establish the relevant aggravating factor if it is to sustain a charge under s 131(1)(a). If it fails to do so, that factor cannot be taken into account for the purposes of assessing and imposing the more severe sentence stipulated by that provision (or for ordering restitution). Once this is accepted, it is unavoidable that the aggravating factor or circumstance be specifically pleaded and spelt out in any charge under s 131(1)(a). It cannot simply be left to be dealt with at some later stage in the proceedings. In the event that the State fails to prove or otherwise establish the aggravating circumstance stated in the charge, this will not be fatal to the conviction of the accused on the primary charge. It would still be possible to properly convict him of unlawful entry simpliciter under s 131(1)(b).

 

It is axiomatic that a criminal indictment must clearly set out all the particulars of the charge so that the accused fully grasps the basis of the charge so as to enable him to prepare his defence. If the charge does not allude to the alleged aggravating circumstance, the accused would be prejudiced in the preparation and presentation of his defence. For instance, the crime of robbery under s 126 of the Code attracts a considerably more severe punishment if the crime is committed in aggravating circumstances, such as possession of a firearm or dangerous weapon or the infliction of serious bodily injury. In any such case, the State must both charge the particular aggravating factor alleged and prove it in order to invoke the more severe penalty prescribed. The same principle must apply to all crimes that provide for increased sentences when those crimes are committed in aggravating circumstances.

Note: this decision conflicts with that in S v Chirinda & Ors  2009 (2) ZLR 82 (H), which held that aggravating circumstances may be taken into account, even if not specified in the charge, if they are mentioned in the outline of the State case, in any agreed statement of facts, or in the prosecutor’s address in aggravation.

 

In S v Maripfonde & Anor 2013 ((1) ZLR 360 (H)  the court noted that sections 113 and 131 of the Criminal Law Code  create two separate, stand alone, offences of theft and unlawful entry into premises, respectively. Neither of these two crimes can be read with the other, as used to be done in the old offence called housebreaking with intent to steal and theft. That offence has now been codified into two stand alone offences. It is accordingly procedurally both wrong and incompetent to charge one as read with the other. Where a person unlawfully enters premises and steals property therefrom, the aspect of theft remains encompassed in s 131 and should not be ascribed separately to s 113. The clear meaning of s 131 is that where the accused unlawfully enters into premises and steals property therefrom and the premises were a dwelling house, or if the accused knew that there were people in the premises, or if the accused carried a weapon or used violence against anyone in effecting the entry, there is absolutely no procedural legal justification to charge the accused with two separate offences of unlawful entry into premises and theft. The proper charge is simply one of unlawful entry into premises in aggravating circumstances in contravention of s 131(1)(a) as read with subsection (2)(a), (b), (c) or (d) of the Code in respect of each count.

 

A simple unlawful entry not accompanied by theft, destruction or damage and not aggravated by the circumstances mentioned in subs (2) should be charged under s 131(1)(b), which provides for a lower sentence than a charge under s 131(1)(a).

 

In S v Phiri 2015 (1) ZLR 148 (H)  it was pointed out that under s 131(1) the penalties are higher if the offence is committed in any of the aggravating circumstances set out in s 131(2). These include the fact that the premises were a dwelling house and the fact that the accused committed or intended to commit some other crime. Where a person is charged with the crime of unlawful entry into premises, it is necessary to determine, from the facts set out in the outline of the State case, whether the crime was committed in aggravating circumstances. Failure to consider whether there were any aggravating circumstances has the same effect as failing to consider any mitigating factors in passing sentence, or whether special circumstances exist. If the accused is alleged to have broken into a dwelling house and stolen property, the charge should allege a contravention of s 131(1) as read with 131(2)(a) and 131(2)(e). If the State wishes to rely on any aggravating circumstances when it comes to sentence, it is not enough to rely on the State outline or agreed facts or in the prosecutor’s address in aggravation. The particulars of the alleged aggravating features must be specifically charged and proved, by the State, as part and parcel of the essential elements of the offence. Where the State fails to allege and prove the aggravating circumstances, the accused can be convicted only of simple unlawful entry, and the fact of aggravation cannot be taken into account for the purposes of assessing and imposing the more severe sentence stipulated by that provision, or for ordering restitution.

 

Competent verdicts [s 275 read with 4th Schedule]

  • Criminal trespass;
  • Any crime of which a person might be convicted if he or she were charged with criminal trespass.

 

Criminal trespass

[s 132]

This offence relates to unauthorised entry onto land.

This re-enacts, with modifications, section 5(b) and (c) of the Miscellaneous Offences Act.

Ingredients [s 132(1)]

  • X enters any land knowing or realising that there is a real risk or possibility that such entry is forbidden; or
  • having entered any land, X fails or refuses without lawful excuse to leave the land, or area when called upon to do so by the lawful occupier or any other person with apparent authority to require him or her to leave.

The “lawful occupier” of land is defined as any person who has lawful authority to control entry into or access to the land.

Presumption [132(2)]

It will 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.

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;

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.

Penalty [s 132(1)]

Fine

Prison

Both

Up to level 5

Up to 6 months

Both

 

Competent verdicts [s 275 read with 4th Schedule]

  • Possessing an article for criminal use;
  •  

 

Extortion

[ss 133 & 134]

These sections codify the common law crime of extortion.

Ingredients [s 134(1)]

X–

  • intentionally exerts illegitimate pressure on another person;
  • with the purpose of extracting an advantage, whether the advantage is for X or for some other person, and whether or not it is due to him or her, from that other person or causing him or her loss; and
  • by means of the illegitimate pressure, obtains the advantage, or causes the loss.

“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; [This would include non-proprietary benefits such as applying illegitimate pressure on another to give of false evidence in court or to extract a promise to marry the accused.) It should be noted that unlike in Zimbabwe, in South Africa the advantage that is extracted must be of a proprietary nature.]

“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–

  • to threaten to do something that is lawful for the purpose of extracting an unlawful advantage from another person; and
  • to threaten to do something that is unlawful for the purpose of extracting a lawful advantage from another person.

Extorting money as compensation [s 134(2)]

Where for the purpose of inducing or compelling the payment of any money or property as damages or as marriage compensation in respect of a deceased person,

X leaves or deposits the deceased person’s body on any land or premises occupied by another person, or hinders or prevents the burial of the deceased person’s body, he or she shall be guilty of extortion or, if he or she failed to induce or compel the payment of any money or property, attempted extortion.

The Sixth Schedule repeals s 8 of Burials and Cremations Act [Chapter 5:03] which made it an offence to dump bodies or to hinder burials in order to obtain payment of damages or marriage consideration (roora).

 

Penalty [s 134(1)]

Fine

Prison

Both

Up to level 13 or up to twice the value of any property obtained by him or her as a result of the crime, whichever is the greater

Up to 15 years

Both

 

Repayment of victim [s 134(3)]

If a court convicting a person of extortion is satisfied that, as a result of the crime, any money or property was paid to the convicted person, the court may order the convicted person to repay that money or property to the person who paid it to him or her.

Section 366(2) and ss 367 to 375 of the Criminal Procedure and Evidence Act will apply, with the necessary modifications, in relation to any such order under as if it had been made in terms of Part XIX of the Criminal Procedure and Evidence Act.

 

Competent verdicts on a charge of extortion [s 275 read with 4th Schedule]

  • Attempted murder;
  •  
  •  
  •  
  • Any crime of which a person might be convicted if charged with any of the crimes above.

In R v Fikizolo 1942 SR 80 at 83 a headman, X, unlawfully heard a criminal trial. He imposed a fine on Y which was not paid. He ordered Y to perform some work for him. This was an advantage and X was found guilty.

 

In S v Munyani 1971 (2) RLR 131 (A); 1972 (1) SA 411 (RA) X induced C by threats to sign a document falsely incriminating X’s wife in adultery. The court held that extortion was committed as it was not necessary to the advantage to be proprietary. (See case note in 1972 (2) Rhodesia Law Journal 137).

 

In S v Mpofu A-14-74 a police constable, X, told C that he had committed certain offences which would probably lead to fine of $20. He said that if he paid $20 to him, he would drop charge. As C had no money, C gave X a jacket instead. X was found guilty

 

In S v Branfield S-32-83 X was in charge of hiring and firing employees. X, extracted money from an employee by threatening to have his employment terminated unless he paid the money.

 

See Guide 87-89 and 205-206.

 

Fraud and Forgery

 

Definitions [s 135]

Term

Meaning

defraud

 

to commit the crime of fraud upon a person

document

an embodiment of any information, design or other written or depicted matter in any material form whatsoever that is capable of being read or understood by persons or machines and, without limiting this definition in any way, includes

  • coins, banknotes and negotiable instruments;
  • receipts, certificates, vouchers, tickets, invoices, stamps, marks, licences, permits, statements of account and any entry in any book of account;
  • paintings and other works of art;
  • documents of a literary or historical nature;
  • information stored by electronic means that is capable of being printed out or retrieved or displayed on a screen or terminal;
  • any three-dimensional item.

misrepresentation

any act or omission of any kind whatsoever which wrongly or incorrectly represents any fact, law, character, circumstance, opinion or other thing whatsoever and, without limiting this definition in any way, includes

  • a false statement of fact or law or a false expression of opinion;
  • silence on the part of a person who has a duty to speak, knowing that another person has been or will be misled by the silence;
  • a promise to do something in the future, when made by a person who knows that he or she will not be able to do that thing or who realises that there is a real risk or possibility that he or she may not be able to do it;
  • a false statement by a person who wishes to borrow money or any other thing as to the purpose for which he or she requires the money or other thing;
  • an exaggerated claim as to any quality of a thing that is being sold, where the person who makes the claim knows or realises that the person to whom he or she makes the claim is being or is likely to be deceived thereby;
  • the use, publication or uttering of a document which contains a false statement, knowing that the document contains a false statement or realising that there is a real risk or possibility that it does so.

potentially prejudicial

involving a risk, which is not too fanciful or remote, of causing prejudice

prejudice

injury, harm, detriment or damage of any kind whatsoever, including material or financial prejudice, prejudice to reputation and prejudice to good administration

public document or item

a document or item, including a judicial document or item, issued by or on behalf of the State.

 

Fraud

[s 136]

Ingredients

Physical ingredients

Mental ingredients

X makes a misrepresentation

 

The misrepresentation causes prejudice to another or is potentially prejudicial to another

 

 

X intends

  • to deceive another or realises that there is a real risk of doing so; and
  • to cause another person to act upon the misrepresentation to his or her prejudice, or realises that there is a real risk that another person may act upon the misrepresentation to his or her prejudice.

 

Misrepresenting purpose for which loan required

See S v Reggis 1972 (1) RLR 110 (G) and S v Huizers 1988 (2) SA 503 (A)

 

Attempted fraud

In the case of S v Francis 1980 ZLR 368 (A) the appellant buried a quantity of jewellery in a garden and then insured the jewellery against theft. He immediately reported to the insurance company that the insured jewellery has been stolen from his care the theft and informed the insurance company that he was going to make a claim. The insurers told him to report the loss to the police, who examined his car. The appellant returned to the insurance company to collect claim forms, where he was told that the insurance covered only forcible entry. With the aid of a screwdriver, the appellant simulated a forced entry and asked the police to further examine the car. It was apparent to the police that the damage had been caused after their earlier examination. He was found guilty of attempted fraud as the appellant’s conduct was sufficiently proximate to the commission of the offence to have gone beyond the stage of mere preparation. In terms of the test for attempt in the Code, the action of the appellant clearly constituted a substantial step towards the commission of the crime.

 

Penalty

Fine

Prison

Both

Up to level 14 or up to twice the value of any property obtained by him as a result of the crime, whichever is the greater

Up to 35 years

Both

 

Competent verdicts [s 275 read with 4th Schedule]

  •  
  • Any crime which is shown to have been committed by the person charged if it is established that his or her alleged misrepresentation was true;
  • Any crime of which a person might be convicted if he or she were charged with theft.

See Guide 91-94 and 207-210.

 

Forgery

[s 137]

This section retains the common law crime of forgery, but abolishes the existing crime of “uttering” (that is, passing off as genuine) a forged document. Uttering a forged document will be treated as fraud. If the utterer also forged the document in question, he or she will be liable for both forgery and fraud.

Ingredients [s 137(1)]

Physical ingredients

Mental ingredients

X forges any document or item by–

  • making a document or signature which purports to be made by a person who did not make it or authorise it to be made or by a person who does not exist;or
  • tampering with a document or item by making some material alteration, erasure or obliteration.

X intends to defraud another person or realises that there is a real risk or possibility of defrauding another.

 

For forgery, the document must tell a lie about itself and must not merely contain false information. If it is a genuine document in which false information is included the correct charge to bring is theft. For instance, if an employee is entitled to claim travel expenses and he fills in and signs the prescribed form but he fraudulently claims an amount more than he actually incurred, he must be charged with fraud not forgery. On the other hand, if after Y had filled in the claim form, X altered deleted Y’s signature and substituted his own signature in order that he could falsely claim the expenses due to Y, he would be guilty of forgery.  

 

In S v Katiyo 1981 ZLR 115 (A); 1981(3) SA 34 (ZA) X who was employed by the Grain Marketing Board signed a grain receipt for receipt of 6 bags of nuts. This was a false statement as the goods had not been received, but it was not forgery. The correct receipt form had been used but false details had been made therein. He was guilty of fraud.

 

 

Penalty [s 137(1)]

Forgery of public document or item

Document or item other than a public document or item

Fine up to level 14

Prison for up to 20 years

Or both.

 

Fine up to level 13

Prison up to 15 years

Or both.

 

Competent charges [s 137(2)]

X delivering forged item

Where X delivers or causes to be delivered a forged document or item to another person with the intention of defrauding that person or realising that there is a real risk or possibility of defrauding that person–

If X forged the document or item delivered, the competent charges are fraud and forgery

If X did not forge the document or item delivered, the competent charge is fraud.

Forged item is banknote

If the forged document or item is a banknote issued by the Reserve Bank of Zimbabwe, the competent charge is that specified in s 42 of the Reserve Bank Act.

See Guide pp 89-90 and 206-207.

 

Conviction for fraud or other crime involving misrepresentation where specific victim not identified

[s 138]

This provision re-enacts s 222 of the Criminal Procedure and Evidence Act.

If X is accused of fraud or any other crime involving the making of a misrepresentation, X  may be found guilty of the crime even though–

  • the person to whom the misrepresentation was made is not identified;or
  • the person whom the accused intended to deceive or prejudice, or whom the accused realised he or she might be deceiving or prejudicing, is not identified;or
  • the person to whom prejudice or potential prejudice was or would have been caused is not identified.

 

 

Causing Damage To or Destruction of Property

 

 

Malicious damage to property

[s 140]

The crime of malicious damage to property has been re-formulated to combine the existing common law crimes of arson and malicious injury to property. In other words what used to be charged as arson will now simply be subsumed under the crime of malicious injury to property, but the fact that fire was used to cause the damage or destruction may be an aggravating factor.

Ingredients

Physical ingredients

Mental ingredient

X damages or destroys property

knowing that another 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

 

damage” means causing any permanent or temporary damage or injury of any kind to property, whether or not it causes financial loss to the person entitled to own, possess or control the property, and includes–

  • damage or injury which necessitates the repair of the property, whatever the cost of the repair;
  • the displacement, removal or breaking of a constituent part of the property;
  • damage or injury which renders the property unsuitable or less suitable for the use to which it was being put;

but does not include damage or injury which is trivial in nature;

 

“property” means any movable or immovable material thing that is capable of being owned by a person, but does not include any of the following things–

  • wild animals, birds, insects and fish that have not been reduced to captivity;
  • eggs, honey and other produce of wild animals, birds, insects and fish, which has not been taken into possession by anyone;
  • property that has been finally and absolutely abandoned by its owner, ;
  • property that is owned by the person who damages or destroys it, unless some other person has a right to possess or control the property and the person who damages or destroys it intends, by his or her act, to deprive that other person of his or her right.

X intends to cause the damage or destruction; or realises that there is a real risk that the damage or destruction might result.

 

 

Co-owned property [s 142]

X will have no defence to charge of malicious damage to property if he or she damages the co-owned property whether the co-ownership arises through marriage or a partnership or otherwise, if the damaging of the property was not authorised by any agreement between the person and his or her co-owner, spouse or partner.

 

However, no proceedings may be taken against any person accused of maliciously damaging, property belonging to the other spouse or that forms part of the spouses’ joint estate except with the leave of the Attorney-General.

Case on marital property

In S v Munjoma & Anor HH-91-04 the judge made this ruling in relation to marital property: Because a husband’s marital power is not part of the matrimonial law in Zimbabwe, where a spouse damages jointly owned matrimonial property, he or she can be guilty of malicious injury to property just like any other joint-owner or partner in a partnership. It is unnecessary to inquire into whether the spouses were married in or out of community of property once the joint ownership has been proved. Such an enquiry was previously necessary in South Africa in order to determine whether the husband enjoyed immunity consequent upon community of property marriages where the marital power had not been excluded, a position which was then erroneously imported into our own law. If any enquiry at all has to be made into the type of marriage property regime, it would be for the purpose of establishing whether the property in question was jointly-owned, in which case either spouse can be found liable, or whether it was individually and exclusively (res sua) owned, in which case neither spouse nor indeed any other person, ceteris paribus, can be found liable.

 

Damaging own property

 

In the case of S v Panje 1983 (1) ZLR 108 (H) the court decided that to set one’s own property on fire would not constitute an offence, unless someone else’s property was also set on fire. Where the accused had permitted his wife to occupy one of his huts, she enjoyed a right to use that hut. That right was part of her general store of proprietary assets, and by setting the hut on fire, he intended thereby to deprive her of that right and benefit. The accused was guilty of arson.

 

In South Africa there is case authority that a person is guilty of arson if he or she sets fire to his or her own property with the intention of fraudulently claiming insurance. In Zimbabwe this could simply be charged as fraud.

 

Claim of right defence

 

In S v Mtshilselwe & Ors 1957 (3) SA 313 (E) X mistakenly believed that the boundary fence had been erected in the wrong place thereby intruding onto X's land. He had knocked down the fence. He was found not guilty of malicious injury to property.

 

In S v Mudimu A-120-80 X genuinely believed that he was entitled to remove a boundary fence. He was found not guilty of malicious injury to property.

 

In S v Sangare S-118-83 X thought the property was abandoned. He broke down the remains of a building to extract bricks. He was found not guilty of malicious injury to property or theft because of the claim of right.

 

In S v Mutizwa & Ors 1988 (2) ZLR 74 (S) Xs were members of the youth wing of the ruling political party. They were members of a group of about 100 people who went to stop building operations by the complainant in their grazing area in their communal land. They acted as they did because they had been instructed by party and government officials to prevent squatters settling in their area and cutting down trees. They believed they had a right to protect their grazing area from the depredations of squatters. The court held that on a charge of malicious injury to property the infliction of intentional wrongful injury to the property of another raises a presumption of malice, which may be rebutted by showing a bona fide belief that the act done was lawful. It is not necessary for the accused to show that such a belief was reasonable, although the reasonableness or otherwise of the belief provides cogent evidence as to whether it was held bona fide. In the present case, it was eminently reasonable for the appellants to believe that they had a legal right to remove the structures that had been erected in their grazing area and the presumption of malice was accordingly rebutted.

 

In S v Mead S-75-91 X attempted to castrate a neighbour’s bull which kept straying into his pedigree herd, threatening him with substantial losses. When the owner came to collect it he did not tell her what he had done but simply threatened to shoot it next time. The defence raised was that of claim of right. The court found that because of the appellant's silence at the time the owner collected the bull he could not claim he had genuinely believed he was entitled to castrate it.

 

In S v Kaiwona & Ors S-182-93  X drove cattle into a maize field and killed a goat which they claimed was theirs. It was held that the accused must lay a foundation for defence of claim of right by leading evidence of its existence and the accused had failed to do this.

 

 

 

Penalty

Fine

Prison

Both

Up to level 14 or up to twice the value of the property damaged as a result of the crime, whichever is the greater

Up to 25 years

Both

 

Aggravating circumstances [s 143]

It is an aggravating circumstance if the damage or destruction–

  • is caused by the use of fire or explosives;or
  • causes injury or involves a risk of injury to persons in or near the property concerned; or
  • occasions considerable material prejudice to the person entitled to own, possess or control the property damaged or destroyed; or
  • the property involved owned, possessed or controlled by the State, a statutory corporation or a local authority.

Where the malicious damage causes injury to persons, depending on the circumstances, the accused could be charged with attempted murder, assault or negligent causing of serious bodily harm.

 

Negligently causing serious damage to property

[s 141]

This creates the new crime of destroying or seriously damaging another’s property through gross negligence”. It was felt that the public interest required the creation of this new crime.

Ingredients

Physical ingredients

Mental ingredient

X seriously damages or destroys property which he or she knows another person is entitled to own, possess or control

X was grossly negligent in causing such damage or destruction

 

Comment

The courts will have to decide what constitutes serious damage for the purpose of this crime and when the negligence will amount to gross negligence for the purposes of this crime.

Co-owned property [s 142]

X will have no defence to charge negligently causing serious damage to property if he or she damages the co-owned property whether the co-ownership arises through marriage or a partnership or otherwise, if the damaging of the property was not authorised by any agreement between the person and his or her co-owner, spouse or partner.

However, no proceedings may be taken against any person accused of negligently causing serious damage to property belonging to the other spouse or that forms part of the spouses’ joint estate except with the leave of the Attorney-General.

Penalty

Fine

Prison

Both

Up to level 10

Up to 5 years

Both

 

Aggravating circumstances [s 143]

It is an aggravating circumstance if the damage or destruction–

  • is caused by the use of fire or explosives; or
  • causes injury or involves a risk of injury to persons in or near the property concerned; or
  • occasions considerable material prejudice to the person entitled to own, possess or control the property damaged or destroyed; or
  • the property involved owned, possessed or controlled by the State, a statutory corporation or a local authority.

 

Claim of right

[s 144]

It is defence to a charge of malicious damage to property that the accused genuinely but mistakenly believed that he or she was entitled to possess the property in question or that the owner had abandoned the property, or had consented or would have consented to its destruction. However, for defence of mistake to succeed, the belief must have been a reasonable one.

Requirements [s 144(1)]

X’s mistake must be genuine

X’s mistake must be a mistake that in the circumstances was reasonable

X must have mistakenly believed one of the following things–

  • the owner or person entitled to possess or control the property had consented to the damage or destruction or would have consented if he or she had known of the circumstances; or
  • the property was X’s own property and no other person was entitled to possess or control it;or
  • the property had been finally and absolutely abandoned by its owner, that is, that the owner had thrown it away or otherwise disposed of it intending to relinquish all his or her rights in it.

Other defences [s 1444(2)]

X will also be able to rely on any of the other general defences where these are applicable.

Cases

In S v Sangare S-118-83 X thought the property was abandoned. He broke down the remains of a building to extract bricks. He was not guilty of malicious injury to property or theft because of the claim of right.

 

In S v Mutizwa & Ors 1988 (2) ZLR 74 (S) Xs were members of the youth wing of a political party. They were members of a group of about 100 people who went to stop building operations by the complainant in their grazing area in their communal land. They acted as they did because they had been instructed by party and government officials to prevent squatters settling in their area and cutting down trees. They believed they had a right to protect their grazing area from the depredations of squatters. The court held that on a charge of malicious injury to property the infliction of intentional wrongful injury to the property of another raises a presumption of malice, which may be rebutted by showing a bona fide belief that the act done was lawful. It is not necessary for the accused to show that such a belief was reasonable, although the reasonableness or otherwise of the belief provides cogent evidence as to whether it was held bona fide. In the present case, it was eminently reasonable for the appellants to believe that they had a legal right to remove the structures that had been erected in their grazing area and the presumption of malice was accordingly rebutted.

 

In S v Mead S-75-91 X attempted to castrate a neighbour’s bull which kept straying into his pedigree herd, threatening him with substantial losses. When the owner came to collect it he did not tell her what he had done but simply threatened to shoot it next time. The defence raised was that of claim of right. The court found that because of X's silence at the time the owner collected the bull he could not claim he had genuinely believed he was entitled to castrate it.

 

In S v Kaiwona & Ors S-182-93 X drove cattle into a maize field and killed a goat which they claimed was theirs. It was held that X must lay a foundation for defence of claim of right by leading evidence of its existence and X had failed to do this.

 

In R v Mtshilselwe & Ors 1957 (3) SA 313 (E) X mistakenly believing that the boundary fence had been erected in the wrong place thereby intruding onto X's land. He had knocked down the fence. He was not guilty because of the claim of right.

 

 

 

Hijacking and Other Crimes Involving Aircraft

 

Sections 145 to 154 largely re-enact the provisions of the Aircraft (Offences) Act. The Aircraft (Offences) Act is repealed in its entirety.

 

Hijacking

[s 147]

Ingredients

Without lawful reason X takes or exercises control over an aircraft.

Penalty

Imprisonment for life or for any definite period of imprisonment.

Competent verdicts on charge of hijacking [s 275 read with 4th Schedule]

  • Attempted murder;
  • Kidnapping or unlawful detention;
  •  
  • Damaging destroying or prejudicing the safe operation of an aircraft;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

 

Destroying or prejudicing the safe operation of an aircraft

[s 148]

Ingredients

Without lawful reason¾

  • X intentionally damages or destroys an aircraft; or
  • X does or omits to do anything intending to prejudice the safe operation of an aircraft or realising that there is a real risk of doing so.

Penalty

Imprisonment for up to 25 years.

Competent verdicts on charge of destroying or prejudicing the safe operation of an aircraft [s 275 read with 4th Schedule]

  • Placing or carrying dangerous goods on an aircraft;
  •  
  • Any crime of which a person might be convicted if he or she were charged with the crimes above

 

 

Assaulting, intimidating or threatening a person on an aircraft

[s 249]

Ingredients

Without lawful reason¾

X assaults, intimidates or threatens any person aboard an aircraft;

with the intention or realising that there is a real risk or possibility

  • of interfering with the performance of the functions of any member of the aircraft crew; or aircraft; or
  •  

Penalty

Imprisonment for up to 5 years.

Competent verdicts[s 275 read with 4th Schedule]

  • Placing or carrying dangerous goods on an aircraft;
  •  
  • Any crime of which a person might be convicted if he or she were charged with the crimes above

 

Placing or carrying dangerous goods on an aircraft

[s 150]

Ingredients

Without lawful reason¾

  • placing or carrying any dangerous goods aboard an aircraft; or
  • causing any dangerous goods to be placed or carried aboard an aircraft; or
  • delivering dangerous goods to a person for the purpose of their being placed aboard an aircraft; or
  • having dangerous goods in his or her possession aboard an aircraft.

This crime is not committed if X does any of these things–

  • with the consent of the owner or operator of the aircraft, given with the knowledge of the nature of the goods;
  • in accordance with the Civil Aviation Act or any regulations in terms of that Act;
  • by a person in the course of his or her lawful duties as an employee of the State.

Penalty

Imprisonment for up to 5 years.

Competent verdicts [s 275 read with 4th Schedule]

  • Threatening harm in relation to an aircraft;
  • Possessing or using a firearm or explosives in contravention of any enactment.

 

 

Threatening harm in relation to an aircraft

[s 151]

Ingredients

Without lawful reason¾

X threatens; states an intention or makes a statement from which there is a reasonable inference that X intends

to damage, destroy or prejudice the safe operation of an aircraft or to kill, injure or harm any person aboard an aircraft.

Penalty

Imprisonment for up to 5 years.

Competent verdicts [s 275 read with 4th Schedule]

  • Threatening to commit murder;
  •  
  • Attempted malicious damage to property;
  • Falsely threatening harm in relation to an aircraft;
  • Any crime of which a person might be convicted if charged with any of the crimes above.

 

Falsely threatening harm in relation to an aircraft

[s 152]

Ingredients

Without lawful reason¾

X makes a statement knowing that it is false or realising that there is a real risk that it may be false

to the effect that, or from which it can reasonably be inferred that, there has been or is to be a plan, proposal, attempt, conspiracy or threat¾

unlawfully to take or exercise control over an aircraft;  or

unlawfully to destroy, damage or prejudice the safe operation of an aircraft;  or

unlawfully to kill or injure any person aboard an aircraft.

 

Penalty

Fine

Prison

Both

Up to level 14

Up to 5 years

Both

 

Proof of lawful reason

[s 153]

If X raises the defence of a lawful reason for his or her action in relation to an aircraft offence X must prove any fact or circumstance that would constitute a lawful reason for that conduct.

 

 

Alternative to or concurrent charges to aircraft offences

[s 154]

If X commits an aircraft offence¾

  • in pursuance of an act of insurgency, banditry, sabotage or terrorism, the person may be charged concurrently or alternatively with insurgency, banditry, sabotage or terrorism;or
  • that results in or was intended to cause the death of another person, whether or not in pursuance of an act an act of insurgency, banditry, sabotage or terrorism the person may be charged concurrently with murder or attempted murder.

 

 

Crimes Involving Dangerous Drugs

 

Sections 155 to 161 provide for crimes involving dangerous drugs. At present, these crimes are provided for under the Dangerous Drugs Act and the Medicines and Allied Substances Control Act.

Every major offence that concerns a “dangerous” or “prohibited” has been excised from those Acts and re-enacted here in the Code.

However, the administrative, procedural and other provisions relating to the control of such drugs (their specification and classification, the restriction of their import, export and distribution, their forfeiture and custody, and so forth) will remain in the appropriate Acts.

 

Definitions

[s 155]

This section contains definitions of terms used in connection with offences involving dangerous drugs. The definition of “dangerous drug” comprehensively encompasses the plants and drugs specifically prohibited and controlled by the Dangerous Drugs Act (that is, the coca, opium poppy and cannabis plants and their derivatives), and the drugs prohibited by the Medicines and Allied Substances Control Authority established under the Medicines and Allied Substances Control Act. The definition of “deal in” in relation to a dangerous drug re-enacts the definition of the same term contained in section 19 (7) of the Dangerous Drugs Act and section 42 of Medicines and Allied Substances Control Act.

Term

Meaning

authority

 

the Medicines and Allied Substances Control Authority established by section 3 of the Medicines and Allied Substances Control Act or any body that succeeds to its functions.

cannabis

 

the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted, by whatever name they may be designated.

cannabis plant

 

the whole or any portion, whether green or dry, of any plant of the genus cannabis also known as “Indian hemp”, bhang, camba, dagga, mbanje or intsangu, but excluding–

  • any fibre extracted from the plant for use as or in the manufacture of cordage, canvas or similar products;or
  • any seed which has been crushed, comminuted or otherwise processed in such a manner as to prevent germination; or
  • the fixed oil obtained from the seed.

cannabis resin

 

the separated resin, whether crude or purified, obtained from the cannabis plant.

coca bush

 

the plant of any species of the genus erythroxylon.

coca leaf

 

 

the leaf of the coca bush except a leaf from which all ecgonine alkaloids have been removed.

dangerous drug

 

  • any coca bush, coca leaf, raw opium or cannabis plant;
  • prepared opium, prepared cannabis or cannabis resin;
  • a scheduled drug.

deal in a dangerous drug

includes to sell or to perform any act, whether as a principal, agent, carrier, messenger or otherwise, in connection with the delivery, collection, importation, exportation, trans-shipment, supply, administration, manufacture, cultivation, procurement or transmission of such drug.

medicinal opium

 

opium which has undergone the processes necessary to adapt it for medicinal use.

opium

 

the coagulated juice of the opium poppy.

opium poppy

 

the plant of the species Papaver somniferum L.

poppy straw

 

all parts (except the seeds) of the opium poppy, after mowing.

prepared cannabis

 

cannabis which has been prepared for smoking and any dross or other residue remaining after cannabis has been smoked.

prepared opium

 

opium prepared for smoking and any dross or other residue remaining after opium has been smoked.

raw opium

 

powdered or granulated opium, but does not include medicinal opium.

scheduled drug

a drug specified in Part I or Part II of the Schedule to the Dangerous Drugs Act , and the term “Part I scheduled drug” will be construed accordingly.

 

Unlawful dealing in dangerous drugs

[s 156]

 

This combines the crimes and penalties specified in s 9 (a) and (g) and 19 (2) and (3) of the Dangerous Drugs Act, and s 44 of the Medicines and Allied Substances Control Act; it also incorporates certain other penal provisions specifically required or recommended by the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (“Vienna Convention”).

Ingredients [s 156(1)]

X unlawfully does any of the following in relation to a dangerous drug–

  • imports, exports, sells, offers or advertises for sale, distributes, delivers, transports or otherwise deals in the drug;
  • cultivates, produces or manufactures the drug for the purpose of dealing in it;
  • possesses the drug, or any article or substance used in connection with the production or manufacture of the drug, for the purpose of dealing in such drug;
  • incites another person to consume the drug;
  • supplies or administers to or procures for any person, or offers to supply or administer to or procure for any person, the drug.

Penalty [s 156(1)]

Committed in aggravating circumstances and no special circumstances peculiar to the case

Other cases

Prison for not less than 15 years or more than 20 years.

Fine not below level 14 or, in default of payment, prison for additional period of not less than 5 years or more than 10 years.

 

The court may not order that the operation of the whole or any part of this sentence be suspended. [s 156(4)]

Fine up to or exceeding level 14

Prison up to 15 years

Both.

Aggravating circumstances  [s 156(2)]

If the dangerous drug was a drug other than any cannabis plant, prepared cannabis, or cannabis resin and X

  • was a member of a group of persons organised within or outside Zimbabwe for the purpose of committing the crime; or
  • employed weapons or engaged in violence in the course of committing the crime; or
  • held a public office which he or she abused to facilitate the commission of the crime; or
  • being over the age of 18 years, incited any minor to consume or deal in a dangerous drug; or
  • was previously convicted, whether within or outside Zimbabwe, of a crime constituted by any of the acts relating to unlawful dealing in drugs.

 

Special circumstances [s 156(3)]

If X is convicted of dealing in a dangerous drug in aggravating circumstances and X satisfies the court that there are special circumstances peculiar to the case why the penalty provided under for on conviction of this crime in aggravating circumstances should not be imposed, X will be liable to the penalty provided for conviction for this crime without aggravating circumstances.

The court finding special circumstances must record what these circumstances were.

 

 

Unlawful possession or use of dangerous drugs

[s 157]

This section combines the crimes and penalties specified in s 9 (b), (e) and (f) of the Dangerous Drugs Act and s 45 of the Medicines and Allied Substances Control Act.

Ingredients [s 157(1)]

X unlawfully–

  • acquires or possesses a dangerous drug; or
  • ingests, smokes or otherwise consumes a dangerous drug; or
  • cultivates, produces or manufactures a dangerous drug for his or her own consumption.

Penalty [s 157(1)]

Fine

Prison

Both

Up to level 10

Up to 5 years

Both

 

Where it is established that the person convicted is addicted to a dangerous drug, the court may, additionally or alternatively to the sentence imposable for this crime, impose a sentence requiring the person to undergo treatment for such addiction. [s 157(2)]

 

Extra-territorial effect

[s 158]

 

This re-enacts section 19 (1) (d) of the Dangerous Drugs Act by giving extra-territorial effect on a reciprocal basis to the crimes specified in clauses 155 and 156: in other words, if such crimes are committed outside Zimbabwe by Zimbabwean citizens or Zimbabwean residents in countries where the offending acts are also crimes, the offenders may be prosecuted in Zimbabwe. This is in keeping with the spirit of mutual assistance in the prosecution of drug crimes that is encouraged by the Vienna Convention and other narcotics conventions.

Drug crime committed outside Zimbabwe [s 158(1)]

If X is a citizen of Zimbabwe or ordinarily resident therein and

X does anything outside Zimbabwe which, if it were done in Zimbabwe, would–

  • constitute the crime of unlawful dealing in dangerous drugs or unlawful possession or use of dangerous drugs;
  • constitute an attempt, conspiracy or incitement to commit one of these crimes;
  • render him or her liable as an accomplice or accessory to one of these crimes;

and such crime is punishable under a corresponding law in force in that place outside Zimbabwe,

X will be guilty of the appropriate drug crime under Zimbabwean law.

 

Incitement or conspiracy by person in Zimbabwe to commit drug crime outside Zimbabwe [s 158(2)]

X will be guilty of conspiracy or incitement, to commit the appropriate crime and liable to be sentenced accordingly if–

  • X who, in Zimbabwe, conspires with or incites another person to do anything outside Zimbabwe which, if it were done in Zimbabwe, would constitute the crime of unlawful dealing in dangerous drugs or unlawful possession or use of dangerous drugs; and
  • such crime is punishable under a corresponding law in force in that place outside Zimbabwe.

 

Permitting premises to be used for unlawful dealing in or use of dangerous drugs

[s 159]

This re-enacts s 9 (c) and (d) of the Dangerous Drugs Act.

Ingredients

X who is the occupier of any premises,

permits those premises to be used for purpose of the unlawful cultivation, manufacture, sale, supply, storage or consumption of a dangerous drug;

or

X is concerned in the management of any premises used for any of these purposes.

Penalty

Fine

Prison

Both

Up to level 14

Up to 10 years

Both

 

Concealing, disguising or enjoying proceeds of unlawful dealing in dangerous drugs

[s 160]

This creates the crime of concealing, disguising or enjoying the proceeds of the unlawful dealing in dangerous drugs. This crime is a specific version of the general offence of “money-laundering” contained in section 63 of the Serious Offences (Confiscation of Profits) Act.

Ingredients

Any person who, knowing that any property is derived from the unlawful dealing in dangerous drugs, or realising that there is a real risk or possibility that any property may be so derived–

  • converts or transfers such property for the purpose of concealing or disguising the origin of the property; or
  • conceals or disguises the true nature, source, location, disposition, movement, rights with respect to, or ownership of such property; or
  • acquires, possesses or uses such property;

Penalty

Fine

Prison

Both

Up to level 12

Up to 10 years

Both

 

 

Lawful possession

[s 161]

This section stipulates who may lawfully possess, deal in or use dangerous drugs.

Person

Scope of lawfulness

  • a person licensed to do so under the Medicines and Allied Substances Control Act;
  • any medical practitioner, dental practitioner or veterinary surgeon;
  • any pharmaceutical chemist licensed in terms of the Medicines and Allied Substances Control Act or pharmaceutical chemist or other person–
    • employed in a hospital, clinic, dispensary or like institution administered by the State or by a local authority, or in any other hospital, clinic, dispensary or like institution approved by the Minister responsible for health; or
    • employed in any medical store of the State;
      • any person in charge of a laboratory used for the purposes of research or instruction and attached to–

a university, a university college or other educational institution approved by the Minister responsible for health; or

any hospital referred to in s 161(c);

  • any analyst employed by the State; or
  • any inspector appointed in terms of the Medicines and Allied Substances Control Act; or
  • any other person by the Minister

Such person may, in that capacity and so far as is necessary for the practice or exercise of that person’s profession, function or employment, lawfully acquire, possess and supply any coca bush, cannabis plant, raw opium or scheduled drug and, in the case of a Part I scheduled drug, prescribe, administer, manufacture or compound such drug.

A qualified nurse in charge of a ward, theatre or out-patients’ department in any hospital administered by the State or by a local authority, or in any other hospital, approved by the Minister responsible for health; or

A qualified nurse who is employed in a supervisory capacity over two or more wards in any hospital administered by the State or by a local authority, or in any other hospital, approved by the Minister responsible for health and has been appointed by the medical practitioner in charge of the hospital to be responsible at any time for the distribution of Part I scheduled drugs within the hospital.

 

Such person may, in that capacity and so far as is necessary for the practice of that nurse’s profession, function or employment, lawfully acquire, administer, possess and supply a Part I scheduled drug.

 

A person licensed by the Authority

Such person may, in accordance with the terms and conditions of the licence, import or export opium poppies, coca bushes, cannabis plants or a Part I scheduled drug.

A person licensed by the Authority

Such person may, in accordance with the terms and conditions of the licence, cultivate opium poppies, coca bushes or cannabis plants.

A person licensed by the Authority

Such person may, in accordance with the terms and conditions of the licence and on premises authorised or licensed by the Authority for the purpose, manufacture a Part I scheduled drug or carry on any process in the manufacture of a Part I scheduled drug.

any person to whom a Part I scheduled drug has been supplied in accordance with a prescription by a medical practitioner, dental practitioner or veterinary surgeon

Such person will be regarded as a person lawfully in possession of that drug.

But this person will not be treated as a person lawfully in possession of that drug if, at the time when he or she is so supplied, he or she is also being supplied with a Part I scheduled drug by or on a prescription given by another medical practitioner, and did not disclose that fact to the first-mentioned medical practitioner.

 

 

 

Computer-Related Crimes

 

Sections 162 to 168 provide for computer-related crimes (often collectively described as “cyber-crime”) in line with the recommendations of the Law Development Commission of Zimbabwe made in its Report No. 75 (“Computer-Related Crime”) (November, 1999). That report demonstrated the potential for fraud, sabotage and other harm that may be caused to the public interest by the deliberate misuse of computers, credit and debit cards, passwords and pin-numbers.

There are a number of crimes to deal with the problems of computer hacking. These include the crimes of unauthorised access to or use of a computer, deliberate introduction of a computer virus into a computer or computer network and unauthorised manipulation of a proposed computer program.

Definitions [s 162]

Term

Meaning

computer

a device or apparatus or series of devices which, by electronic, electromagnetic, electro-mechanical or other means, is capable of one or more of the following¾

  • receiving or absorbing data and instructions supplied to it;
  • processing data according to rules or instructions;
  • storing and additionally, or alternatively, reproducing data before or after processing the data.

It includes

  • the devices or apparatus or series of devices commonly known as automatic telling machines, electronic cash registers and point-of-sale tills;and
  • any other device or apparatus used for the electronic processing of monetary transactions.

computer virus

any set of computer instructions that are, or any data, programme or system that is, designed directly or indirectly to¾

destroy or alter; or render meaningless, useless or ineffective; or obstruct, intercept, divert, interrupt or interfere with the use of;

any computer or computer network.

 

The Minister may, by notice in a statutory instrument¾

  • specify as a computer any particular device or apparatus that is or may be comprised within the definition of “computer”; or
  • exclude from the definition of “computer” any specified device or apparatus.

 

computer network

the interconnection of one or more computers through¾

  • the use of satellite, microwave, terrestrial line or other communication media; or
  • computer terminals, or a complex consisting of two or more interconnected computers, whether or not the interconnection is continuously maintained.

credit or debit card

a card, disc, plate or token which, directly or indirectly, causes a computer to function;

data

representations of information or concepts that are being prepared or have been prepared for storage or use in a computer

essential service law enforcement agency

These have the meanings given to them in s 19.

function

an operation or exercise of logic, control, arithmetic, deletion, storage, retrieval and communication within, to or from a system

owner

in relation to a computer or computer network, means the owner or person entitled to possess or control the computer or computer network

password or pin number

any combination of letters, numbers or symbols that belongs or is assigned to a particular user for the purpose of enabling that user to gain access to a programme or system which is held in a computer or computer network

programme

data or a set of instructions which, when executed in a computer, causes the computer to perform a function

system

an arrangement of data or one or more programmes which, when executed, performs a function

 

Unauthorised access to computers

[s 163]

This crime is restricted to cases where the unlawful access is “material”, because many instances of unauthorised access to computers are trivial or inoffensive. It is a defence that the access did not have any material effects.

Ingredients [s 163(1)]

Without authority from the owner of the computer or computer network, X intentionally–

  • gains access to; or
  • destroys or alters; or
  • renders meaningless, useless or ineffective; or
  • copies or transfers; or
  • obstructs, intercepts, diverts, interrupts or interferes with the use of;

any data, programme or system which is held in a computer or computer network

Defence [s 163(2)]

It is a defence for X to prove that

  • the conduct was not motivated by malice; and
  • the conduct did not materially affect the data, programme or system nor the interests of computer or computer network.

Penalty [s 163(1)]

Crime committed in any of the aggravating circumstances in s 166.

Other cases

Fine up to level 12

Prison up to 10 years

Both.

Fine up to level 8

Prison up to 3 years

Both.

 

Deliberate introduction of computer virus into computer or computer network

[s 164]

 

Ingredients

Without authority from the owner of the computer or computer network, X knowingly–

introduces or causes to be introduced any computer virus into any computer or computer.

Penalty

Crime committed in any of the aggravating circumstances in s 166.

Other cases

Fine up to level 12

Prison up to 10 years

Both.

Fine up to level 8

Prison up to 3 years

Both.

 

Unauthorised manipulation of proposed computer programme

[s 165]

Ingredients

X fraudulently or mischievously

creates, alters or manipulates any data, programme or system (or any part or portion thereof) which is intended for installation in a computer.

Penalty

Crime committed in any of the aggravating circumstances in s 166.

Other cases

Fine up to level 12

Prison up to 10 years

Both.

Fine up to level 8

Prison up to 3 years

Both.

 

 

Aggravating circumstances

[s 166]

 

The crime of unauthorised access to or use of a computer, deliberate introduction of a computer virus into a computer or computer network, or unauthorised manipulation of a proposed computer programme is committed in aggravating circumstances if–

  • committed in connection with or in furtherance of the commission or attempted commission of the crime of insurgency, banditry, sabotage or terrorism, theft, unauthorised borrowing or use of property, extortion, fraud, forgery, malicious damage to property, damaging, destroying or prejudicing the safe operation of an aircraft, concealing, disguising or enjoying the proceeds of the unlawful dealing in dangerous drugs, corruptly using a false document or defeating or obstructing the course of justice;or
  • the computer, computer network, data, programme or system a law enforcement agency,;or
  • the crime occasions data, programme or system
  • the crime

 

 

Unauthorised use or possession of credit or debit cards

[s 167]

Ingredients

Without authority, X manufactures copies or uses any credit or debit card belonging to another; or

Without reasonable excuse, X possesses any credit or debit card belonging to another

Penalty

Fine

Prison

Both

Up to level 8

Up to 3 years

Both

 

 

Unauthorised use of password or pin-number

[s 168]

Ingredients

Without authority X intentionally uses any password or pin-number belonging or assigned to another.

Penalty

Fine up to level 8

Imprisonment for up to 3 years

Both.

 

Bribery and Corruption

 

Sections 169 to 175 re-enact, expand upon and add to the crimes contained in the Prevention of Corruption Act.

Sections 170 to 172, which provide for crimes of bribery, corruptly using a false document and corruptly concealing a transaction from a principal, re-enact section 3 (1) (a), (b), (c) and (f) of the Prevention of Corruption Act.

Definitions [s 169]

Term

Meaning

agent

A person employed by or acting for another person in any capacity whatsoever.

Without limiting this definition in any way, this includes¾

  • a director or secretary of a company;
  • the trustee of an insolvent estate;
  • the assignee of an estate that has been assigned for the benefit or with the consent of creditors;
  • the liquidator of a company or other body corporate that is being wound up or dissolved;
  • the executor of the estate of a deceased person;
  • the legal representative of a person who is a minor or of unsound mind or who is otherwise under legal disability;
  • a public officer; a member of a board, committee or other authority which is responsible for administering the affairs or business of a body corporate or association other than a statutory body or local authority;
  • a person who voluntarily and without the knowledge or consent of another
  • manages the affairs or business of another person; or takes care of the property of another.

 

consideration

any right, interest, profit, indemnity, benefit or advantage of any kind whatsoever.

local authority

a city, municipality, town council, town board, provincial council, rural district council or any similar body established by or in terms of any enactment.

principal

The employer or other person for whom an agent acts.

In relation to a trustee, assignee, liquidator, executor or legal representative referred to in the definition of “agent”, this includes¾

  • all persons represented by the trustee, assignee, liquidator, executor or legal representative, as the case may be, or in relation to whom he or she stands in a position of trust;and
  • any public officer who is responsible for supervising the activities of the trustee, assignee, liquidator, executor or legal representative.

 

In relation to a public officer who is a Minister and a member of the Cabinet, this includes¾

both the State and the Cabinet.

 

In relation to a member of a council, board, committee or authority which is responsible for administering the affairs or business of a statutory body, local authority, body corporate or association

includes both such council, board, committee or authority and the statutory body, local authority, body corporate or association for whose affairs or business it is responsible.

 

public officer

  • a Vice-President, Minister or Deputy Minister;or
  • a Chairperson of a Provincial Council elected in terms of section 272 of the Constitution; or
  • a member of a council, board, committee or other authority which is a statutory body or local authority or which is responsible for administering the affairs or business of a statutory body or local authority; or
  • a person holding or acting in a paid office in the service of the State, a statutory body or a local authority.

statutory body

any Commission established by the Constitution; or

any body corporate established directly by or under an Act for special purposes specified in that Act.

 

Case

S v Paradza 2006 (1) ZLR 20 (H) a judge was found guilty of corruption when he approached two other judges seeking to show favour to his business partner and thereby to show favour to himself.

 

 

Bribery

[s 170]

Ingredients [s 170(1)]

Agent

Other person

 

A agent who obtains or agrees to obtain or solicits or agrees to accept for himself or herself or any other person

 

any gift or consideration as an inducement or reward¾

  • for doing or omitting to do, or having done or omitted to do, any act in relation to his or her principal’s affairs or business; or
  • for showing or not showing, or having shown or not shown, any favour or disfavour to any person or thing in relation to his or her principal’s affairs or business

 

knowing or realising that there is a real risk or possibility that such gift or consideration is not due to him or her in terms of any agreement or arrangement between himself or herself and his or her principal.

 

Any person who, for himself or herself or any other person, gives or agrees to give or offers to an agent

 

any gift or consideration as an inducement or reward¾

  • for doing or omitting to do, or having done or omitted to do, any act in relation to his or her principal’s affairs or business;or
  • for showing or not showing, or having shown or not shown, any favour or disfavour to any person or thing in relation to his or her principal’s affairs or business;

 

 

knowing or realising that there is a real risk or possibility that such gift or consideration is not due to the agent in terms of any agreement or arrangement between the agent and his or her principal.

 

 

Case

In S v Murisi 2013 (10 ZLR 89 (H) the court said that for bribery in terms of section 170 there is no need for the State to show that the accused’s actions objectively showed favour or disfavour to another.

Presumption [s 170(2)]

If the prosecution proves that¾

  • an agent has obtained, agreed to obtain or solicited any gift or consideration, whether for himself or herself or for another person; or
  • any person has given, agreed to give or offered any gift or consideration¾
    • to an agent, whether for himself or herself or for another person;or
    • to any other person, after agreeing with an agent to do so;

it will be presumed, unless the contrary is proved, that he or she did so in contravention of this section.

Penalty [s 170(1)]

Fine

Prison

Both

Up to level 14 or up to three times the value of any consideration obtained or given in the course of the crime, whichever is the greater

Up to 20 years

Both

 

Competent verdicts[s 275 read with 4th Schedule]

  • Corruptly using a false document;
  • Corruptly concealing a transaction from a principal;
  • Corruptly concealing from a principal a personal interest in a transaction;
  • Criminal abuse of duty as a public officer;
  •  
  •  

 

See Guide pp 74-75 and 186

 

 

Corruptly using false document

[s 171]

Ingredients [s 171(1)]

Agent

Other person

An agent who, in connection with his or her principal’s affairs or business, uses a document which contains a false statement¾

  • knowing that the document contains a false statement or realising that there is a real risk or possibility that it may do so; and
  • intending by the use of the document to deceive his or her principal, or realising that there is a real risk or possibility that his or her use of the document may deceive his or her principal.

A person who gives an agent a document which contains a false statement¾

 

  • knowing that the document contains a false statement or realising that there is a real risk or possibility that it may do so; and
  • intending to deceive the agent or the agent’s principal or realising that there is a real risk or possibility that by his or her use of the document the agent or the agent’s principal may be deceived.

 

Where a person gives an agent a false document, intending to deceive the agent or the agent’s principal in the conduct of his or her principal’s affairs or business or realising that there is a real risk or possibility that the agent or the agent’s principal may be so deceived¾

the person shall be presumed, unless the contrary is proved, to intend to deceive the agent’s principal as well as the agent, or to realise that there is a real risk or possibility that the agent’s principal as well as the agent may be deceived, as the case may be.

[s 171(2)]

 

 

Penalty [s 171(1)]

Fine

Prison

Both

Up to level 14

Up to 20 years

Both

 

Competent verdicts [s 275 read with 4th Schedule]

  •  
  • Any crime of which a person might be convicted if he or she were charged with bribery.

 

 

Corruptly concealing transaction from principal

[s 172]

Ingredients [s 172(1)]

Agent

Other person

An agent has carried out a transaction in connection with his or her principal’s affairs or business and fails to disclose to the principal the full nature of the transaction¾

  • intending to deceive the principal or realising that there is a real risk of doing so; or
  • intending to obtain a consideration knowing or realising that there is a real risk that such consideration is not due to him or her in terms of any agreement or arrangement between himself or herself and the principal.

 

A person who carries out a transaction with an agent in connection with the affairs or business of the agent’s principal; or assists an agent to carry out any such transaction;

knowing that the agent does not intend to disclose to the principal the full nature of the transaction.

 

Competent charge [s 172(2)]

The competent charge for the following situation is conspiracy to commit the crime of corruptly concealing a transaction from a principal–

An agent agrees or arranges with another person or a person agrees or arranges with an agent not to disclose to the agent’s principal the full nature of any transaction which the agent has carried out or will carry out in connection with the principal’s affairs or business, and the agent or person so agreed or arranged¾

  • intending to deceive the principal or realising that there is a real risk or possibility that the principal may be deceived; or
  • intending that the agent should obtain a consideration knowing or realising that there is a real risk or possibility that such consideration is not due to the agent in terms of any agreement or arrangement between the agent and the principal;

Presumption [s 172(3)]

Facts proved

Presumption

Prosecution proves that the agent

  • agreed or arranged with another person that the full nature of any transaction should not be disclosed to the agent’s principal;or
  • failed to disclose to his or her principal the full nature of any transaction.

 

Unless the contrary is proved, the agent will be presumed to have done so intending to deceive the principal, or to obtain a consideration for himself or herself knowing or realising that there is a real risk or possibility that such consideration is not due to him or her in terms of any agreement or arrangement between himself or herself and the principal, as the case may be.

A person agreed or arranged with an agent that the full nature of any transaction should not be disclosed to the agent’s principal.

Unless the contrary is proved, it will be presumed that the person did so intending to deceive the agent’s principal.

A person carried out a transaction with an agent or assisted an agent to carry out a transaction the full nature of which was not disclosed to the agent’s principal.

Unless the contrary is proved, the person will be presumed to have known that the agent did not intend to disclose to the principal the full nature of the transaction.

 

Penalty [s 172(1)]

Fine

Prison

Both

Up to level 14

Up to 20 years

Both

 

Competent verdicts [s 275 read with 4th Schedule]

  •  
  • Any crime of which a person might be convicted if he or she were charged with bribery.

 

Corruptly concealing personal interest in transaction from principal

[s 173]

This creates the new crime of corruptly concealing from a principal a personal interest in a transaction.

Ingredients [s 173(1)]

Agent

Other person

An agent who carries out any transaction in connection with his or her principal’s affairs or business

without disclosing to the principal that he or she holds a personal interest in the subject matter of the transaction

intending to deceive the principal or realising that there is a real risk of doing so; or

intending to obtain a consideration or realising that there is a real risk that such consideration is not due to him or her in terms of any agreement or arrangement between himself or herself and the principal.

A person who carries out any transaction with an agent in connection with the affairs or business of the agent’s principal or assists an agent to carry out any such transaction

knowing that the agent does not intend to disclose to the principal that the agent has a personal interest in the subject-matter of the transaction.

 

Competent charge of conspiracy [s 173(2)]

The competent charge for the following situation is conspiracy to commit the crime of corruptly concealing from a principal a principal a person interest in a transaction–

An agent agrees or arranges with another person or a person agrees or arranges with an agent not to disclose to the agent’s principal any personal interest held by the agent in the subject-matter of any transaction which the agent has carried out or will carry out in connection with the principal’s affairs or business, and the agent or person so agreed or arranged¾

  • intending to deceive the principal or realising that there is a real risk or possibility that the principal may be deceived; or
  • intending that the agent should obtain a consideration knowing or realising that there is a real risk or possibility that such consideration is not due to the agent in terms of any agreement or arrangement between the agent and the principal;

 

Presumption [s 173(3)]

Facts proved

Presumption

Prosecution proves that the agent

  • agreed or arranged with another person that the agent’s personal interest in the subject-matter of any transaction should not be disclosed to the agent’s principal;or
  • failed to disclose to his or her principal the agent’s personal interest in the subject-matter of the transaction.

 

Unless the contrary is proved, the agent will be presumed to have done so intending to deceive the principal, or to obtain a consideration for himself or herself knowing or realising that there is a real risk or possibility that such consideration is not due to him or her in terms of any agreement or arrangement between himself or herself and the principal, as the case may be.

A person agreed or arranged with an agent that the agent’s personal interest in the subject matter of the transaction should not be disclosed to the agent’s principal.

Unless the contrary is proved, it will be presumed that the person did so intending to deceive the agent’s principal.

A person carried out a transaction with an agent or assisted an agent to carry out a transaction in which the agent’s personal interest in the subject matter of the transaction was not disclosed to the agent’s principal.

Unless the contrary is proved, the person will be presumed to have known of the agent’s personal interest and that the agent did not intend to disclose to the principal the agent’s personal interest in the subject-matter of the transaction.

 

Penalty [s 173(1)]

Fine

Prison

Both

Up to level 14

Up to 20 years

Both

 

Competent verdicts on this charge [s 275 read with 4th Schedule]

  •  
  • Any crime of which a person might be convicted if he or she were charged with bribery.

 

 

Criminal abuse of duty by a public officer

[s 174]

Section 174 providing for the criminal abuse of duty by a public officer for the purpose of showing favour or disfavour to any person, re-enacts and expands upon section 4 of the Prevention of Corruption Act.

Ingredients [s 174(1)]

A public officer, in the exercise of his or her functions as such, intentionally¾

does anything that is contrary to or inconsistent with his or her duty as a public officer; or omits to do anything which it is his or her duty as a public officer to do

for the purpose of showing favour or disfavour to any person.

Presumption [s 174(2)]

If the prosecution proves that a public officer did or omitted to do anything to the favour or prejudice of any person in breach of his or her duty as a public officer

it will be presumed, unless the contrary is proved, that he or she did or omitted to do the thing for the purpose of showing favour or disfavour, as the case may be, to that person.

When crime not committed [s 174(3)]

The crime of criminal abuse of duty as a public officer is not committed by a public officer who does or omits to do anything in the exercise of his or her functions as such for the purpose of favouring any person on the grounds of race or gender, if the act or omission arises from the implementation by the public officer of any Government policy aimed at the advancement of persons who have been historically disadvantaged by discriminatory laws or practices.

Penalty [s 173(1)]

Fine

Prison

Both

Up to level 13

Up to 15 years

Both

 

Competent verdicts on this charge [s 275 read with 4th Schedule]

  •  
  •  
  •  
  • Any crime of which a person might be convicted if charged with any of the crimes above.

 

 

Crimes Against Law Enforcement and Public Administration

 

This part of the Code provides for crimes against law enforcement and public administration.

 

Assaulting peace officer

[s 176]

This re-enacts with amendment s 20 of POSA.

Ingredients

X assaults or violent means resists a peace officer acting in the course of his or her duty, knowing that he or she is a peace officer or realising that there is a risk that he or she is a peace officer.

“Peace officer” includes–

  • any magistrate or justice of the peace;
  • the Sheriff or any deputy sheriff;
  • any police officer;
  • any prison officer;
  • any immigration officer;
  • any inspector of mines;
  • any chief, within his or her community; or headman, chief’s messenger or headman’s messenger, within the community of his or her chief, as defined in the Traditional Leaders Act;
  • any other person designated by the Minister by notice in a statutory instrument.

Penalty

Fine

Prison

Both

Up to level 12

Up to 10 years

Both

 

 

Undermining police authority

[s 177]

This re-enacts s 21 of POSA.

Ingredients

Physical ingredients

Mental ingredient

X makes in a public place any statement that is false in a material particular or does any act or thing whatsoever in the presence of a police officer who is present on duty or a police officer who is off duty.

 

 

X know that the person is a police officer or realises that there is a risk that the person is a police officer

X intends or realises that there is a risk or possibility of engendering feelings of hostility towards such officer or the Police Force or exposing such officer or the Police Force to contempt, ridicule or disesteem.

 

X makes in a public place any statement that is false in a material particular or does any act or thing whatsoever, whether or not in the presence of a police officer

X intends or realises that there is a risk or possibility of engendering feelings of hostility towards an officer or the Police Force or exposing an officer or the Police Force to contempt, ridicule or disesteem

 

Penalty

Fine

Prison

Both

Up to level 7

Up to 2 years

Both

 

 

Obstructing public official, impersonating police officer, peace officer or public official and deliberately supplying false information to public authority

[ss 178,179 & 180]

These sections create the new crimes of obstructing a public official, impersonating a police officer, peace officer or public official and deliberately supplying false information to a public authority. Some enactments which provide for the powers of public officials or the rendering of information to a public authority contain provisions criminalising this kind of conduct in relation to the particular officials or authorities mentioned in the enactment concerned. Where such provision exists, a prosecution may be sustained only by reference to the appropriate crimes contained in those enactments.

Definition [s 175]

Term

Meaning

advantage

any right, interest, profit, indemnity or advantage of any kind whatsoever which benefits a person, whether lawfully or otherwise, or which the person believes will so benefit him or her

corporate body of a public character

  • established directly by or any enactment for special purposes specified in that enactment; or
  • wholly owned or controlled by the State that discharges statutory functions, including functions specified by or under a licence or other like authority issued in terms of an enactment;

public authority

a peace officer, public official, corporate body of a public character or any agency of the State.

public official

  • a person who holds public office or is appointed to perform a public duty; or
  • any employee or agent of the State or a corporate body of a public character, who is appointed as an inspector or in any other capacity to enforce the provisions of any enactment.

According to the case of S v Musedza 2015 (1) ZLR 927 (H) members of the intelligence service known as the Central Intelligence Organisation are public officials for the purposes of offence of impersonating a public official. 

 

Obstruction of public official

[s 178]

Ingredients [s 178(1)]

X by physical interference obstructs a public official acting in the lawful execution of his or her duty

Crime chargeable where obstructs police investigations [s 178(2)]

Where X is accused of obstructing a police officer investigating the commission of a crime, X must be charged with the crime of defeating or obstructing the course of justice and not obstructing a public official.

Crime chargeable where obstructs public official acting under an enactment [s 178(3)]

Where X is accused of obstructing a public official acting under an enactment which makes such obstruction a crime, X person must be charged under that enactment and not obstructing a public official under section 178(1).

Penalty [s 178(1)]

Fine

Prison

Both

Up to level 5

Up to 6 months

Both

 

 

Impersonating police officer, peace officer or public official

[s 179]

 

Ingredients [s 179(1)]

X, for the purpose of obtaining any advantage, whether for himself or herself or for some other person, impersonates a police officer, peace officer or public official.

Charge under enactment [s 179(2)

Where X is accused of impersonating a police officer, peace officer or public official acting under an enactment which makes such impersonation a crime, X must be charged under that enactment and not with a contravention of s 179.

Penalty [s 178(1)]

Where X impersonated a peace officer or police officer

Other cases

Fine up to level 10

Prison up to 5 years

Both.

Fine up to level 6

Prison up to 1 year.

Both.

 

 

 

Deliberately supplying false information to public authority

[s 180]

 

Ingredients [s 180(1)]

X for the purpose of obtaining any advantage, whether for himself or herself or for some other person, supplies any information verbally or in writing to a public authority¾

  • knowing that the information is false; or
  • realising that there is a real risk or possibility that it may be false.

Alternate or concurrent charge of fraud [s 180(3)]

X may be charged concurrently or alternatively with the crime of fraud.

Crime chargeable where other enactment makes such conduct a crime [s 180(2)]

Where X is accused of deliberately supplying false information to a public authority in connection with an enactment which makes such conduct a crime, such person must be charged under that enactment and not with this crime.

Penalty [s 180(1)]

Fine

Prison

Both

Up to level 5

Up to 6 months

Both

 

 

 

 

Crimes Against the Administration of Justice

 

Sections 181 to 185 provide for crimes against the administration of justice. Most of the existing common law and statutory crimes against the administration of justice may be classified into those which are related to the subject matter of judicial proceedings and those which are not. Accordingly sections 182 and 184 seek to incorporate these crimes as instances of one of the two crimes of “contempt of court” and “defeating or obstructing the course of justice”. Both crimes may be committed in relation to statutory tribunals exercising judicial or quasi-judicial functions, as well as in relation to the ordinary courts of law.

Definitions [s 181]

Term

Meaning

court

  • the Supreme Court;
  • the High Court;
  • the Administrative Court;
  • the Labour Court established in terms of section 83 of the Labour Act;
  • the Fiscal Appeal Court established in terms of section 3 of the Fiscal Appeal Court Act;
  • the Special Court for Income Tax Appeals established in terms of section 53 of the Income Tax Act;
  • the Intellectual Property Tribunal established in terms of section 3 of the Intellectual Property Tribunal Act;
  • a magistrates court established in terms of the Magistrates Court Act;
  • a local court established in terms of the Customary Law and Local Courts Act;
  • any other court or tribunal, which is established by or in terms of any enactment and which exercises judicial or quasi-judicial functions.

escaped person

a person referred to in s 185(1)(a) or (b) who has escaped from lawful custody in contravention of that section.

judicial proceedings

proceedings of a court, whatever the nature of such proceedings

oath

  • an oath lawfully sworn by a person in the course of or for the purpose of judicial proceedings; or
  • an affirmation lawfully made by a person in lieu of an oath in the course of or for the purpose of judicial proceedings; or
  • an admonition lawfully administered to a person in lieu of an oath in the course of or for the purpose of judicial proceedings.

officer of court

any person who performs official duties in any court or in connection with judicial proceedings,

and includes a legal practitioner acting in the course of such duties,

but does not include a person whose duties extend only to appearing in court as a witness.

prison

has the meaning given to that term in section 2 of the Prisons Act

reward

any right, interest, profit, indemnity, benefit or advantage of any kind whatsoever which is not due to the person who receives it.

 

 

Contempt of court

[s 182]

Ingredients [s 182(1)]

X by an act or omission impairs the dignity, reputation or authority of a court¾

intending to do so or realising that there is a real risk that the act or omission may have this effect.

Acts impairing dignity, reputation or authority of court [s 182(1)]

The ways by which X can commit this crime include the following¾

  • X misbehaves in court;
  • X insults a judicial officer or officer of court in the course of judicial proceedings;

Note that a person can also insult a judicial officer outside the courtroom by making insulting or disparaging remarks about the judicial officer, for instance in a newspaper article. The insult can also be about the judiciary generally as when X makes a generalised statement like all judges in Zimbabwe are corrupt or incompetent.)

  • X obstructs, interrupts or disturbs judicial proceedings;
  • having been properly summoned as a party or witness in any judicial proceedings to attend any court for the purpose of giving evidence or producing any document or thing before the court ¾
  • X intentionally or through negligence fails to attend the court in accordance with the summons; or
  • having attended the court, X refuses to give evidence or to produce the document or thing, as the case may be; or
  • X refusing as a witness to answer any question put to him or her which he or she is lawfully required to answer;
    • X knowingly contravening or failing to comply with any order of a court which is given during or in respect of judicial proceedings and with which it is X’s duty to comply;
    • X by words, conduct or demeanour pretends to be an officer of the court;
    • X issues or publishes to any other person a document that purports to be issued by or emanate from a court, knowing that the document is not issued by or does not emanate from the court concerned;
    • X publishes evidence that has been given in camera or which the court has ordered should not be published.

 

In S v Chinyama & Anor 2015 (1) ZLR 854 (H)  two legal practitioners were appearing on behalf of an accused person in a bail application being heard by a provincial magistrate in Chinhoyi. Both practitioners resided in Harare. The hearing was adjourned, and the practitioners undertook to be present at the resumed hearing. However, they did not appear at the appointed time, as they were at the office of the National Prosecuting Authority to negotiate with that office to consent to bail. The practitioners finally appeared several hours late, having earlier advised the prosecutor of the reason for the delay. The magistrate refused to accept their apologies or the reasons therefor, and summarily convicted them of contempt of court. They were both fined. On review the court held that the crime of contempt is only committed if the accused had actual or legal intention to bring the administration of justice into contempt. The lawyers were trying to obtain the consent of the NPA with the view of curtailing proceedings. Their intention was not to bring the administration of justice into contempt. Nor was it their intention to violate the dignity or authority of the court. What the magistrate either overlooked or accorded insufficient weight to was the fact that the lawyers had communicated or attempted to communicate with officials of the court their intention not to appear in time. This was a case where the court should have cautioned the accused without a conviction and a fine for contempt of court. The conviction was set aside.

 

In S v Nxumalo HB-68-16 the accused was sued in the small claims court, which ordered her to pay a sum of money to the complainant by a specified date. When she failed to pay more than around a quarter of the sum, the complainant reported the matter to the police, who preferred a charge of contempt of court against her. A magistrate convicted her.

The court held that criminal charges should not have been brought against a judgment debtor who had not satisfied the judgment debt. That is not the remedy available to a judgment creditor in terms of the law. Dragging a judgment debtor to the criminal court is not only inappropriate and unheard of. It also amounts to a duplication of proceedings, if not double jeopardy for the judgment debtor. The procedure for collection of a judgment debt is provided for by s 29(2) of the Small Claims Courts Act [Chapter 7:12].Contempt of court, in terms of s 182(2)(e) of the Criminal Law Code [Chapter 9:23], is an intentional impairment of the dignity, reputation or authority of a court. If not intentional, the contemnor must realise that there is a real risk or possibility that his or her conduct will have the effect of impairing the dignity, reputation or authority of a court. Although failure to comply with a court order, given during or in respect of judicial proceedings and with which it is the person’s duty to comply, may constitute contempt of court, this does not relates to a failure to satisfy a civil judgment. There must be malice in the conduct of the accused person which is directed at impairing the administration of justice. That requirement is not satisfied merely by failing to satisfy a judgment debt because the debtor does not have the money. The offence of contempt of court exists solely to protect the administration of justice and there must be a real risk of undermining public confidence in the administration of justice. A debtor who has no money to settle a debt does not undermine the public confidence in the administration of justice.

The charge was therefore incompetent and should have been dismissed.

 

 

Criminal Procedure and Evidence Act provisions

 

9          Prosecutions for contempt of court proceedings

(1)  A court or tribunal may, on its own motion, institute proceedings for contempt of court against any person who is alleged to have impaired its dignity, reputation or authority in the presence of the court or tribunal.

(2)  No court, tribunal or person, other than the Prosecutor-General or someone acting on the express authority of the Prosecutor-General, shall institute or continue any proceedings for contempt of court against anyone who is alleged to have impaired the dignity, reputation or authority of a court or tribunal in circumstances other than those referred to in subsection (1).

(3)  Nothing in this section shall affect the institution of proceedings for contempt of court against any person for the purpose of enforcing any order of a court or tribunal.

 

Comment on impending court case [s 184(1)(c)]

It used to be the crime of contempt of court if X makes a statement with any case which is pending before a court, intending the statement to prejudice the trial of the case. This will no longer amount to contempt of court but will instead be a species of defeating or obstructing the course of justice.

Defence [s 182(3)]

It is a defence to a charge of contempt of court based on an allegation of insulting a judicial officer that the person charged was criticising, fairly, temperately and without malice, the administration of justice, the conduct of a judicial officer, or any decision or proceedings of a court.

Cases

In the case of In re Chinamasa HH-118-02 the Attorney-General made highly critical and intemperate remarks following the passing of sentence in a criminal case. The judge ordered that proceedings be taken against him for contempt of court. The High Court held that the Attorney-General genuinely believed the sentence to be unreasonable or inordinately lenient. However, the terms used were not within the bounds of reasonable courtesy. What brought the statement within the ambit of contempt was the respondent’s intention and lack of good faith. The remarks were intended to bring the judge into disrepute as a judge and the administration of justice by the High Court into disrepute. The Attorney-General’s contempt was compounded by his deliberate and contemptuous response to the authority and process of the court to the hearing of the contempt indictment against him and to the warrant of arrest issued against him when he failed to appear at the hearing. He made no attempt to explain why he did not respond to the notice setting the original contempt indictment down for hearing. He made no effort to deal with the warrant of arrest that he knew has been issued. He deliberately scorned and avoided the processes and directives of the court. His only response to the authority of the court was abuse and threats. The judgment was, however, later set aside on the basis of procedural irregularities.

 

The species of contempt known as scandalising the the court is constitutional although it does impose restrictions on freedom of speech.

 

In the case of In re: Chinamasa 2000 (2) ZLR 322 (S) the Zimbabwe Supreme Court decided the crime of contempt of court in the form of scandalising the court is not unconstitutional. Although the courts play a key democratic role in a democratic society and are bound to be criticised, and the courts are strong enough to withstand criticism, criticism imputing improper or corrupt motives or conduct does create a real or substantial risk of impairing public confidence in the administration of justice and some limitation on the right of free speech in relation to the courts is justifiable. Although this offence restricts freedom of expression, the limitation imposed upon this right is reasonably justifiable in a democratic society.  It does not excessively limit the right of free speech as the offence is narrowly defined. The Supreme Court did, however, acknowledge that it is not always easy to draw the line between impermissibly scandalising the court and engaging in what is fair and legitimate criticism of the courts.

 

In Mutambara v A-G & Anor CC-11-15 In 2008, the applicant, who was then involved in the country’s politics and was a leader of an opposition party, wrote and caused to be published in an independent weekly newspaper an article entitled “A shameful betrayal of national independence.” The article was alleged to be contemptuous of the High Court of Zimbabwe and thus a contravention of s 182(1)(a) of the Criminal Law Code [Chapter 9:23]. The offending words in the article were:

“In terms of the House of Assembly (sic), the agenda is to seize at least nine seats from the opposition through recounts and court action leading to re-runs. This explains the 23 recounts ZEC had instituted. There is clearly criminal collusion between ZEC and ZANU PF. To add insult to injury, this unlikely marriage is dutifully consummated by a compliant and pliable judiciary typified and exemplified by Judge Tendai Uchena’s unreasonable and thoughtless decision not to order ZEC to release the Presidential results.”

He contended that his arrest on the charge resulted in the infringement of s 20(1) (freedom of expression), s 21(1) (freedom of association) and s 23 (freedom from discrimination) of the 1980 Constitution. He accordingly sought a permanent stay of proceedings, alternatively or additionally that s 182(1) of the Code be declared null and void. He submitted that the purpose of safeguarding freedom of expression was the fact that it lies at the very foundation of a democratic society and that, consequently, it is a right that is jealously guarded by the courts. He contended that the statement was one of a political nature, and therefore fell into the category of political speech which is ordinarily afforded highest protection against interference or restriction under the constitutional freedom of expression provisions. Since the comment was directed at the decision of the court, which had some political significance, any reference to the judiciary bordered on the incidental and therefore could not have been serious. Criticism of public authority including the judiciary is a valuable element of the freedom of expression because the ability to criticise the courts promotes impartiality, accessibility and effectiveness, serves as a democratic check on the judiciary and promotes peace and stability. Genuine, albeit rigorous, criticism of the judiciary is acceptable, as long as it stays within the limits of reasonable courtesy and good faith. His comment was also debate on the proper role of the judiciary, that is, whether it is best to have an activist or a deferential judiciary. Nothing in the facts suggested that there was any impairment of the dignity, reputation or authority of the court. He also argued that because he had been charged under s 182(1), but the incumbent presidential candidate had in an earlier made similar comments but had not been charged, he was being unlawfully discriminated against.

It was held that there was no dispute as to the content and purpose of the right to the freedom of expression that was enshrined in the old Constitution, nor was it disputed that such right was not absolute. The offence of contempt of court exists for purposes of protecting the administration of justice and is thus a permissible derogation from the freedom of expression. There is a rational connection between the restriction on the exercise of the right to freedom of expression and the objective pursued. The offence provided for in s 182(1) of the Code was reasonably justifiable in a democratic society. There was a need to protect the courts from being scandalised. The first part of the applicant’s statement had political overtones, but he did not stop there. He went on to draw the judiciary generally, and the High Court in particular, into the perceived conspiracy between ZANU (PF) and the ZEC. Using language that fell outside the limits of reasonable courtesy and good faith, he charged that the judiciary – accused by him of being compliant and pliable – would dutifully consummate the unlikely marriage between ZANU (PF) and ZEC. While the part of the applicant’s statement that cast aspersions on ZEC’s recounting of the votes and the alleged ZANU (PF) agenda could fall within the ambit of a political statement, the same could not be said of the part that denigrated the judiciary and the High Court. His words not only imputed improper and corrupt motives or conduct on those taking part in the administration of justice, but also excited misgivings as to the integrity, propriety and impartiality brought to the exercise of judicial office; indeed they created a real or substantial risk of impairing public confidence in the administration of justice. The statement fell within the ambit of “acts” contemplated by s 182(1). He had not discharged the onus of showing that the provision went further than was reasonably justifiable in a democratic society. The court further held that one cannot hope to escape arrest for committing a crime, on the basis that such arrest would violate one’s constitutionally guaranteed right to protection against discrimination, simply because another person who may have committed the same crime was not similarly arrested. While one was entitled to the fundamental rights and freedoms guaranteed under the Constitution, such entitlement did not absolve one of the duty to respect and abide by the law. It was because of his perceived breach of the law that the applicant was arrested and charged. He would escape the consequences of his conduct only if a court absolved him of all guilt, and not because of any notion of discrimination arising out of the fact that another person who might have engaged in similar conduct was not likewise charged with the same offence. Clearly, this would not be a defence to the charge, since every person must face the consequences of his or her own actions. In any event, the other person mentioned was the incumbent president, who under s 30(1) of the Constitution was immune from prosecution.

 

In the South African case of S v Mamabolo 2001 (3) SA 409 (CC) the Constitutional Court held that although crime of scandalising the court did limit freedom of expression, provided the crime was appropriately narrowly defined, the limitation was reasonable and justifiable in an open and democratic society in order to preserve confidence in the administration of justice. The court noted that many such societies have this power for this purpose. It held that freedom of expression must be weighed against public confidence in the courts.

 

Penalty [s 182(1)]

Fine

Prison

Both

Up to level 6

Up to 1 year

Both

 

See Guide pp 77-78 and 187-188.

 

Perjury

[s 183]

 

Ingredients s 183(1)]

In the course of or for the purpose of judicial proceedings, X makes a false statement upon oath, whether the statement is written or oral¾

knowing that the statement is false or realising that there is real risk it may be false.

 

“oath” means

  • an oath lawfully sworn by a person in the course of or for the purpose of judicial proceedings; or
  • an affirmation lawfully made by a person in lieu of an oath in the course of or for the purpose of judicial proceedings; or
  • an admonition lawfully administered to a person in lieu of an oath in the course of or for the purpose of judicial proceedings.

A statement may be false by reason of the omission of facts as well as by the assertion of untrue or incorrect facts.

Where the false statement is made in the course of or for the purpose of judicial proceedings but the statement is not made upon oath, the correct charge is defeating or obstructing the course of justice. [s 184(1)(d) as read with s 184(3)].

A false statement made in a sworn affidavit to be produced during court proceedings could constitute perjury as it is made under oath lawfully sworn by a person for the purpose of judicial proceedings.

Under s 10 of the Justices of the Peace and Commissioners of Oaths Act [Chapter 7:09] it is a criminal offence to make a false statement in a sworn affidavit. The section reads as follows–

10 (1) Any person who in an affidavit made before a person competent in terms of this Act to administer an oath makes a statement which he knows to be false in any particular or which he does not know or believe to be true shall be guilty of an offence and liable to the a fine not exceeding level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.

Immaterial matters [s 183(2)]

The crime of perjury is still committed even though¾

  • the judicial proceedings concerned are held or will be held before a court that is not properly constituted or that lacks jurisdiction to entertain the proceedings; or
  • the person who makes the false statement is not a competent witness in the judicial proceedings concerned; or
  • the statement is irrelevant to or inadmissible as evidence in the judicial proceedings concerned.

Presumption where conflicting statements [s 183(3)]

This re-enacts section 150 (3) of the Criminal Procedure and Evidence Act.

Facts leading to presumption

Presumption

X makes a statement upon oath and thereafter, upon the same or another oath, makes another statement which is in substantial conflict with the first statement

It will be presumed in any proceedings for perjury in respect of these statements that¾

 

  • the person made a false statement, whether or not either statement has actually been proved to have been false; and
  • the person knew the falsity of the statement.

 

unless the person proves that when he or she made each statement he or she genuinely believed that it was true.

 

 

Subornation of perjury no longer chargeable

Under the common law there was a separate offence known as subornation of perjury. This common law crime of subornation of perjury has been abolished. Instead if X incites Y to commit perjury X will be charged with incitement to perjury or, if the incitement succeeds, and Y gives actually false testimony, X will be charged as an accomplice to the perjury committed by Y.

Penalty [s 183(1)]

Fine

Prison

Both

Up to level 10

Up to 5 years

Both

 

See Guide 107-108 and 225.

 

 

Defeating or obstructing the course of justice

[s 184]

Ingredients [s 184(1)]

Relating to judicial proceedings

  • By any act or omission, X causes judicial proceedings to be defeated or obstructed, intending to defeat or obstruct the proceedings or realising that there is a real risk or possibility that the proceedings may be defeated or obstructed; or
  • In the course of or for the purposes of judicial proceedings X makes a false statement otherwise than upon oath, whether the statement is written or oral, knowing that the statement is false or realising that there is a real risk or possibility that the statement may be false. (This re-enacts and modifies section 150 (1) of the Criminal Procedure and Evidence Act. Note that if the false statement is made under oath, which is defined to include affirmations and admonitions, the correct charge is perjury); or
  • X makes any statement, whether written or oral, in connection with any case which is pending before a court, intending the statement to prejudice the trial of the case, or realising that there is a real risk or possibility that the trial of the case may be prejudiced by the statement. (This was previously treated as a sub-species of contempt of court.); or
  • By any act or omission X intentionally hinders or obstructs another person whom he or she knows to be an officer of court in the performance of his or her duties as such (This re-enacts and modifies section 6 (f) of the Miscellaneous Offences Act)

Judicial proceedings can be defeated in various ways including when an innocent person is convicted or a guilty person escapes conviction or a plaintiff or applicant unjustly succeeds or a defendant or respondent unjustly fails to succeed. [s 184(2(a)]

Judicial proceedings can be obstructed in various ways including when the judicial proceedings are impeded or interfered with in any way. [s 184(2(b)]

In relation to police investigations

  • X resists, hinders or disturbs a police officer in the execution of his or her duty, knowing that the police officer is a police officer executing his or her duty or realising that there is a real risk or possibility that the police officer may be a police officer executing his or her duty; or
  • X knowing that a police officer is investigating the commission of a crime, or realising that there is a real risk or possibility that a police officer may be investigating the commission or suspected commission of a crime, and who, by any act or omission, causes such investigation to be defeated or obstructed, intending to defeat or obstruct the investigation or realising that there is a real risk or possibility that the investigation may be defeated or obstructed; or
  • X makes a statement to a police officer falsely alleging that a crime has been committed or may have been committed, knowing that the allegation is false or realising that there is a real risk or possibility that it may be false (This re-enacts section 11 of the Miscellaneous Offences Act); or
  • X intentionally agrees with another person that, in return for a reward, he or she will not report to a police officer the commission of a crime. (This used to constitute the separate common la crime of compounding.)

Investigations of any crime can be obstructed in various ways including when the investigations are impeded or interfered with in any way. [s 184(2)(b)]

 

False statement otherwise than on oath [s 184(1) d) read with s 184(3)]

Where X in the course of or for the purposes of judicial proceedings makes a false statement otherwise than upon oath, whether the statement is written or oral, knowing that the statement is false or realising that there is a real risk or possibility that the statement may be false X will be guilty of defeating or obstructing the course of justice.

Accused person refusing to make statement to police [s 184(4)]

If a person who has committed or is suspected of having committed a crime refuses to make a statement or point out anything to a police officer, that refusal will not constitute the crime of defeating or obstructing the course of justice. A person accused of a crime has a privilege against self-incrimination. Thus a person has the right to refuse to incriminate himself or herself and such refusal cannot amount to the crime of defeating or obstructing the course of justice.

Penalty [s 184(1)]

Species of defeating or obstructing

Penalty

  • causing judicial proceedings to be defeated or obstructed
  • making false statement otherwise than on oath in course or for purposes of judicial proceedings
  • knowing that a police officer is investigating the commission of a crime, does something that causes the investigation to be defeated or obstructed

Fine up to level 10

Prison up to 5 years

Both.

  • making a statement to a police officer falsely alleging that a crime has been
  • resisting, hindering or disturbing a police officer in the execution of his or her duty,

Fine up to level 7

Prison up to 2 years

Both.

 

  • intentionally hindering or obstructing another person whom he or she knows to be an officer of court in the performance of his or her duties.
  • making a statement in connection with any case which is pending before a court, intending to prejudice the trial of the case
  • intentionally agreeing with another person that, in return for a reward, he or she will not report to a police officer the commission of a crime.

Fine up to level 6

Prison up to 1 year

Both.

 

Cases

In S v Ncube HB-27-85 X gave false information to police as to whereabouts of person who was the subject of a warrant of arrest. He was found guilty of attempt to defeat course of justice.

 

In S v Jabangwe S-25-89 a court interpreter, X, tried to induce a State witness to give false evidence which would have resulted in the State having to withdraw charges against a person charged with supplying dagga. The witness reported the matter to the police. X was found guilty of attempt.

In S v Moono HB-45-90 when on remand on criminal charge X paid fellow prisoner to take responsibility for X’s crime. X was then released and his friend was tried and sent to prison. The deception was subsequently discovered. X was found guilty.

 

In S v Fadika HH-83-93 a woman tried to help her boyfriend by raising money for bribing a police officer and by trying to substitute bicarbonate of soda for the kilo of cocaine he was found with. She was found guilty.

 

In S v Makahamadze HH-97-92 an unlicenced driver, Y, stopped by the police at a road block gave X’s particulars as his own and X then went to the police station and produced his licence to cover for his friend's offence. The court held that the offence of obstructing the course of justice was completed, not just an attempted, even though the falsehood was discovered.

 

In S v Williams S-10-94 the police came to X's home looking for X’s friend in connection with criminal investigations. X falsely denied that he was in the house. This allowed friend time to escape through window. He was found guilty.

 

 

See Guide 85-86 and 203-204.

 

Escaping from lawful custody

[s 185]

This section extracts, combines and expands upon s 44 of the Criminal Procedure and Evidence Act and Part XVI of the Prisons Act.

Ingredients [s 185(1)]

X escapes or attempts to escape from such custody after X has been lawfully arrested and held in lawful custody and has been lodged in prison or had not yet been lodged in prison.

 

Facts

Presumption

X conveyed any thing which may facilitate the escape of a person from lawful custody¾

  • to the person held in lawful custody; or
  • into a conveyance, prison, hospital or other place whatsoever where or in which the person held in lawful custody may be, or outside such conveyance, prison, hospital or other place whatsoever in which such person may be so that it may come into his or her possession or use;

 

Presumed unless the contrary is proved that he or she did so in the course of securing the escape from lawful custody of the person so held.

 

Penalty [s 185(1), (2) and (3)]

Committed in aggravating circumstances

Other cases

Where person not yet lodged in prison

Fine up to level 11

Prison up to 7 years

Both.

 

Where person lodged in prison

Prison up to 10 years.

 

Aggravating circumstance–

if any weapon or violence was used by a person charged with escaping from lawful custody.

Where person not yet been lodged in prison

Fine up to level 10

Prison up to 5 years

Both.

 

Where person lodged in any prison.

Prison up to 7 years

 

 

 

Accomplice

Penalty

An accomplice who secures another person’s escape from lawful custody or otherwise aids that person in escaping or attempting to escape

 

Where person assisted not yet lodged in prison

Fine up to level 11

Prison up to 7 years

Both.

 

Where person assisted lodged in prison

Fine up to level 10

Prison up to 5 years

Both

 

 

 

Accessory

Penalty

X charged as an accessory to the crime of escaping from lawful custody, in that X employed, or harboured or concealed or assisted in harbouring or concealing an escaped person knowing him or her to have escaped.

Fine up to level 6

Prison up to 1 year

Both.

 

Alternate or concurrent charge s 185(6)]

A person who escapes or attempts to escape from lawful custody after being lodged in a prison may be charged alternatively or concurrently in terms of s 90 of the Prisons Act.

 

 

Unfinalised Crimes;

Threats, Incitement, Conspiracy and Attempt

 

Sections 186 to 194 deal with “unfinalised” crimes, commonly also known as “preliminary” or “inchoate” crimes. These are crimes in their own right if the act threatened, incited, conspired or attempted would, if carried out, itself constitute a substantive crime.

 

Threatening commit a serious crime

[s 186]

This for the first time makes punishable any threat to commit certain specified crimes (although some existing crimes are constituted by threats– for example, a person who threatens to assault someone can be presently be charged with common assault). Such a threat is a crime if the accused threatens to commit a serious crime (such as murder, rape, kidnapping or other crime specified in the clause) and he or she intended to commit the crime concerned, or intended to inspire or realised that there was a real risk of inspiring in the person threatened a reasonable fear or belief that the accused would commit the crime concerned.

Ingredients [s 186(1)]

Physical ingredients

Mental ingredient

By words, writing or conduct

X threatens to commit against another any of the following crimes

murder, rape, aggravated indecent assault, indecent assault, kidnapping or unlawful detention, theft, robbery, unlawful entry into premises, malicious damage to property [ 186(3)]

and by making such threat X inspire in the person to whom X communicated the threat a reasonable fear or belief that X will commit the crime.

This crime is committed whether or not the person against whom the threat is made is the person to whom the threat is communicated or is some other person.[s 186(2)]

When X made this threat

  • X intended to commit the crime concerned or to inspire in the person threatened a reasonable fear or belief that X would commit the crime; or
  • X realised that there was a real risk of inspiring in the person threatened a reasonable fear or belief that X would commit the crime.

 

 

No defence that crime physically impossible to commit [s 190]

It is not a defence that X believed, due to a mistake of fact, that it was physically possible to commit the crime threatened, whereas in fact its commission was physically impossible.

Defences applicable [s 193(2)]

X may raise or rely on any complete or partial defence which X could have raised and relied on if X had been charged with committing the crime itself, to the extent that the defence relates to or is based on any fact or circumstance which is an essential element of both the crime and the threat.

Presumptions, jurisdiction, powers [s 193]

The same presumptions, jurisdiction and powers as are applicable in relation to completed crimes, whether under the Code or any other enactment apply to threatening to commit a crime.

The matters that will be applied equally to completed and unfinalised crimes are–

  • a presumption that applies;
  • the jurisdiction that may be exercised;
  • an award or order that may be made;
  • the power to enter, inspect, arrest, search, detain, seize or eject that may be exercised;
  • the power to take a deposit by way of a penalty that may be exercised.

 

Penalty [s 186(1)]

Fine

Prison

Both

Up to level 5

Up to 6 months

Both

 

 

Incitement

[s 187]

This restates the existing law on incitement to commit a crime.

Purpose of crime of incitement

Acts of incitement are potentially dangerous as they are aimed at encouraging others to commit crimes. The crime of incitement seeks to discourage others from inciting others to commit crimes by threatening them with punishment. This crime enables the law enforcement authorities to thwart crime at an early stage before real harm is done.

Ingredients [s 187(1)]

X, in any manner, communicates with another person¾

  • intending by the communication to persuade or induce the other person to commit a crime, whether in terms of this Code or any other enactment; or
  • realising that there is a real risk or possibility that the other person may be persuaded or induced by the communication to commit a crime, whether in terms of this Code or any other enactment;

Immaterial facts [s 187(2)]

It is immaterial to a charge of incitement that¾

  • the person who was incited was unresponsive to the incitement and had no intention of acting on the incitement; or
  • the person who was incited did not know that what he or she was being incited to do or omit to do constituted a crime.

Crimes such as treason [s 194]

Where a crime, such as treason, is committed by incitement, X will be guilty of the completed crime and not merely for incitement.

No defence that crime physically impossible to commit [s 190]

It is not a defence that X believed, due to a mistake of fact, that it was physically possible to commit the crime incited, whereas in fact its commission was physically impossible.

Defences applicable [s 193(2)]

X may raise or rely on any complete or partial defence which X could have raised and relied on if X had been charged with committing the crime itself, to the extent that the defence relates to or is based on any fact or circumstance which is an essential element of both the crime and the incitement.

One person inside Zimbabwe and one outside Zimbabwe [s 191]

If X who is in Zimbabwe incites Y who is outside Zimbabwe to commit a crime in Zimbabwe; or

If X outside Zimbabwe incites Y in Zimbabwe to commit a crime in Zimbabwe;

X may be charged with incitement to commit the crime concerned.

Both parties outside Zimbabwe [s 191]

If X who is outside Zimbabwe incites Y who is outside Zimbabwe to commit a crime in Zimbabwe,

X and Y or both may be charged with incitement to commit the crime if as a result of the incitement X or Y or both enter Zimbabwe in order to commit the crime.

Presumptions, jurisdiction, powers [s 193]

The same presumptions, jurisdiction and powers as are applicable in relation to completed crimes, whether under the Code or any other enactment apply to incitement.

The matters that will be applied equally to completed and unfinalised crimes are–

  • a presumption that applies;
  • the jurisdiction that may be exercised;
  • an award or order that may be made;
  • the power to enter, inspect, arrest, search, detain, seize or eject that may be exercised;
  • the power to take a deposit by way of a penalty that may be exercised.

 

Penalty [s 192]

Liable to same punishment to which he or she would have been liable had he or she actually committed the crime concerned the completed crime.

In practice, however, it is extremely rare for attempt to attract the same penalty as the completed crime.

Case

In S v Matoyi HH 919-15 X was found guilty of incitement to commit murder. He has hired a person to kill his son over use of witchcraft practices.

 

 

See Guide pp 52-53 and 172.

 

 

Conspiracy

[s 188]

This restates the existing law on conspiracy to commit a crime.

Purpose of crime of conspiracy

This crime enables the law enforcement authorities to thwart crime before the crime that the conspirators plan to commit is actually perpetrated.

 

Ingredients [s 188(1)]

Physical ingredients

Mental ingredient

X enters into an agreement with one or more other persons for the commission of a crime, whether in terms of this Code or any other enactment

 

 

For an agreement to constitute a conspiracy it is not necessary for the parties¾

  • to agree upon the time, manner and circumstances in which the crime which is the subject of the conspiracy is to be committed;or
  • to know the identity of every other party to the conspiracy.

[s 188(2)(a)]

 

X intends by the agreement to bring about the commission of the crime; or

X realises that there is a real risk or possibility that the agreement may bring about the commission of the crime.

 

 

Immaterial facts [s 188(2)(b)]

It is immaterial that¾

  • the crime which is the subject of the conspiracy is to be committed by one, both or all of the parties to the agreement; or
  • one or more of the parties to the conspiracy, other than the accused, did not know that the subject-matter of the agreement was the commission of a crime.

Withdrawal from conspiracy

In S v Stanley 2010 (1) ZLR 380 (H) the courts said “Conspiracy” may be defined as the act of conspiring; combination for unlawful purpose, plot. A conspirator is one engaged in a conspiracy. In general a conspirator is liable for the crime perpetrated by his co-conspirators. But where he has effectively withdrawn from the conspiracy, he does not remain liable for the commission of any subsequent criminal acts. The terms “withdrawal” and “dissociation”, which are often used in this context of the law, refer to a voluntary action by a conspirator which is legally effective to terminate his relationship to the conspiracy. The reason for allowing such a defence is to encourage the conspirator to abandon the conspiracy prior to the attainment of its specific object and, by encouraging his withdrawal, to weaken the group which he has entered. The actual role of the conspirator will determine the kind of withdrawal necessary to effectively terminate his liability for the commission of the substantive crime. Where a person has merely conspired with others to commit a crime but has not commenced an overt act toward the successful completion of that crime, a withdrawal is effective upon timely and unequivocal notification to the co-conspirators of the decision to abandon the common unlawful purpose. Where, however, there has been participation in a more substantial manner, something further than a communication to the co-conspirators of the intention to dissociate is necessary. A reasonable effort to nullify or frustrate the effect of his contribution is required.

 

Crimes such as treason [s 194]

Where a crime, such as treason, is committed by conspiracy, X will be guilty of the completed crime and not merely for conspiracy.

No defence that crime physically impossible to commit [s 190]

It is not a defence that X believed, due to a mistake of fact, that it was physically possible to commit the crime they conspired to commit, whereas in fact its commission was physically impossible.

Defences applicable [s 193(2)]

X may raise or rely on any complete or partial defence which X could have raised and relied on if X had been charged with committing the crime itself, to the extent that the defence relates to or is based on any fact or circumstance which is an essential element of both the crime and the conspiracy.

One party inside and one outside Zimbabwe [s 191]

If X who is in Zimbabwe conspires with Y who is outside Zimbabwe to commit a crime in Zimbabwe; or

If X who is outside Zimbabwe conspires with Y who is in Zimbabwe to commit a crime in Zimbabwe.

Both X and Y may be charged with conspiracy to commit the crime concerned.

Both parties outside Zimbabwe [s 191]

If X who is outside Zimbabwe conspires with Y who is outside Zimbabwe to commit a crime in Zimbabwe, X or Y or both may be charged with conspiracy to commit the crime concerned, as the case may be, if, as a result of the conspiracy, either or both persons enter Zimbabwe in order to commit the crime.

Presumptions, jurisdiction, powers [s 193]

The same presumptions, jurisdiction and powers as are applicable in relation to completed crimes, whether under the Code or any other enactment apply to conspiracy

The matters that will be applied equally to completed and unfinalised crimes are–

  • a presumption that applies;
  • the jurisdiction that may be exercised;
  • an award or order that may be made;
  • the power to enter, inspect, arrest, search, detain, seize or eject that may be exercised;
  • the power to take a deposit by way of a penalty that may be exercised.

Penalty [s 192]

Liable to same punishment to which he or she would have been liable had he or she actually committed the crime concerned the completed crime.

In practice, however, it is extremely rare for conspiracy to attract the same penalty as the completed crime.

See Guide pp 53-54 and 173.

 

Attempt

[s 189]

 

Ingredients [s 189(1)]

Physical ingredients

Mental ingredient

X does or omits to do anything that in preparation for or in furtherance of the commission of the crime.

X intends to commit a crime, whether in terms of this Code or any other enactment; or realising that there is a real risk that a crime, whether in terms of this Code or any other enactment, may be committed.

 

189     Attempt

(1)  Subject to subsection (1), any person who¾

       (a)   intending to commit a crime, whether in terms of this Code or any other enactment;  or

       (b)   realising that there is a real risk or possibility that a crime, whether in terms of this Code or any other enactment, may be committed;

does or omits to do anything in preparation for or in furtherance of the commission of the crime, shall be guilty of attempting to commit the crime concerned.

(2) A person shall not be guilty of attempting to commit a crime if he or she changes his or her mind and voluntarily desists from proceeding further with the crime before he or she has taken any substantial step towards its commission.

 

The latest provision on attempt was substituted by section 19 of Part XX of the General Laws Amendment Act No 3 of 2016.

 

The explanatory memorandum to the Bill introducing this change reads:

 

The "commencement of the execution" standard for distinguishing between an "attempt" to commit a crime and mere "preparation" raises more problems than it  solves, and suffers from the great disadvantage that it has never been canvassed by our courts. It is proposed to revert to the previous Common Law position, whereby all acts committed with the intention of furthering a crime would amount to an attempt, and the courts are left to decide whether a person has taken any "substantial" step towards its commission that would justify him or her being convicted of attempt.

 

Comment

The need for this change is questionable. At least the “commencement of the consummation” test which is similar to” the commencement of the execution” test has been the subject of a considerable body of previous case law interpretation.

However, even if the “substantial step” test is to be preferred it is firstly submitted that the draft does not properly lay out the test. Section 189(1) suggests that an attempt can be committed even if the accused has merely taken a preparatory step towards the commission of a crime. This clearly is wrong: a distinction has always been made between mere preparation and attempt and mere preparation did not amount to an attempt. Section 189(2) then obliquely introduces the substantial step test by that an attempt is not committed if the accused  changes his or her mind and voluntarily desists from proceeding further with the crime before he or she has taken any substantial step towards its commission.

In any event the substantial step test will still have to be interpreted and applied by the courts and does not overcome the perennial problem of differentiating between mere preparation and attempt.

 

This problem does not arise with so-called completed attempts. For example if X shoots at Y with the intention of killing him but the bullet misses Y, X is obviously guilty of attempted murder. Where the problem arises is with so-called uncompleted attempts.  In respect of these types of cases judges and magistrates will have to use a common sense approach in deciding whether a substantial step has been taken

e.g. X goes to store and buys tin of rat poison intending that evening to place it in wife’s porridge and kill his wife. Usually this plan would not be provable as it is simply an idea in the mind of X and no one else knows about the plan. But the plan might be provable if X tells another person that he cannot stand his wife anymore and is definitely going to poison her that evening. What then would happen if the police go to X’s house and arrest him before he can put the poison in her porridge and X is charged with attempted murder? The problem with making such preparatory acts punishable, however, is that X might well have changed his mind and decided not to poison his wife.

 

 

Acts of mere preparation

 

X illegally procures a firearm with the intention at some later stage of committing a robbery. He is not guilty of attempted murder. However if three criminals conspire to commit robbery and go out and procure weapons to use the next day in the robbery, they can obviously be charged with conspiracy to commit robbery.

 

X goes out and buys a tin of petrol intending that evening to use the petrol to set fire to someone else’s house. He is not guilty of attempted malicious damage to property.

 

X intends to break into a car and hotwire the car so he can steal it. He has a screwdriver to force open the lock to the car door. He is next to the car shining a torch onto the lock and is about to insert the screwdriver into the keyhole when he is arrested by the police. He is probably not guilty of attempted theft of a car.

 

Acts that may amount to attempt

 

X, an arsonist, pours petrol on building and is about to set fire to building when stopped by police.

 

X puts poison in wife’s porridge but before wife can eat porridge domestic worker who has seen X inserting the poison warns woman and she does not eat porridge.

 

X enters another’s house intending to steal – taken items from cupboard and piled them on floor intending to take away when interrupted by house owner and runs away but is apprehended by police.

 

If X, Y and Z conspire to rob a bank and Z turns informer and informs the police about the plan and the police stop the car of X and Y when it is on the way to bank and find the weapons in the car that they were intending to use in the robbery. Can it be said that they have taken a substantial step towards the crime or is what they have done mere preparation? Again the alternative here is simply to charge with conspiracy to rob?

 

X tells people that he is going to kill Y. X takes a firearm and is proceeding towards Y’s house and the police arrest him before he gets to the house? Is he guilty of attempted murder?

 

Crimes such as treason [s 194]

Where a crime, such as treason, is committed by attempt, X will be guilty of the completed crime and not merely for attempt.

No defence that crime physically impossible to commit [s 190]

It is not a defence that X believed, due to a mistake of fact, that it was physically possible to commit the crime attempted, whereas in fact its commission was physically impossible.

Defences applicable [s 193(2)]

X may raise or rely on any complete or partial defence which X could have raised and relied on if X had been charged with committing the crime itself, to the extent that the defence relates to or is based on any fact or circumstance which is an essential element of both the crime and the attempt.

Voluntarily desisting before commencement of execution [s 189(2)]

X is not be guilty of attempting to commit a crime if, before the commencement of the execution of the intended crime, X changes his or her mind and voluntarily desists from proceeding further with the crime.

Presumptions, jurisdiction, powers [s 193]

The same presumptions, jurisdiction and powers as are applicable in relation to completed crimes, whether under the Code or any other enactment apply to attempt.

The matters that will be applied equally to completed and unfinalised crimes are–

  • a presumption that applies;
  • the jurisdiction that may be exercised;
  • an award or order that may be made;
  • the power to enter, inspect, arrest, search, detain, seize or eject that may be exercised;
  • the power to take a deposit by way of a penalty that may be exercised.

Penalty [s 192]

Liable to same punishment to which he or she would have been liable had he or she actually committed the crime concerned the completed crime.

In practice, however, it is extremely rare for attempt to attract the same penalty as the completed crime.

See Guide 45-55 and 173-174 (But note that the section in the Guide dealing with uncompleted attempts is no longer directly applicable as the Code has established a new test for such attempts.)

 

 

Participation or Assistance in Commission of Crimes

 

 

Sections 195 to 204 provide for the criminal liability of persons who participate or assist before or during the commission of crimes.

The person who himself or herself commits the crime is referred to as the actual perpetrator. That person perpetrates the act which constitutes the crime with the requisite mental state for that crime. For example, X intentionally kills Y by stabbing him to death.

 The Code then deals with other persons who participate or assist in the commission of crimes in various ways. The common requirement for liability of such persons is that they have a common criminal purpose with actual perpetrator. In other words, they intentionally participate or assist in the commission of a crime knowing or realising that the particular crimes with which they have been charged is to be committed. It is not enough to prove that the actual perpetrator had the requisite mens rea; the participants or assistants must themselves have the requisite mens rea.

The person who renders assistance to the actual perpetrator after the crime has been committed will be guilty as an accessory to the perpetrator’s crime.

 

Actual perpetrator

[s 195]

Section 195 defines the actual perpetrator of a crime as a person who, with the requisite state of mind, actually does, completes or omits to do anything the doing, completion or omission of which constitutes that crime.

 

 

Principals

[s 196]

 

Requirements for person to be liable as principal

 

The principal offender is a person was not present at the scene of the crime but who has actual authority (whether lawful or otherwise) over the actual perpetrator and who authorises the actual perpetrator to commit a crime knowing that the actual perpetrator intends to commit the crime or realising the real risk or possibility that the actual perpetrator intends to commit the crime. Where these requirements have been satisfied, the principal offender is liable for the conduct of the actual perpetrator.

 

 

 

 

            Comment

 

It is submitted that the principal offender should not only be a person who authorises the crime but also a person who orders the commission of the crime or employs a person to commit the crime (e.g. a person who pays a person to commit a murder). This person is the “intellectual author” of the crime. On the basis of the principle of qui facit per alium facit per se (a person who acts through another himself or herself acts) that person can and should be held criminally liable even if the agent has a defence.

 

This provision does not deal with the actual perpetrator commits a crime different from the crime authorised by the principal.

 

Penalty imposable on principal

 

The principal will be liable to the same penalty imposed upon the actual perpetrator unless the principal satisfies the court that there are special circumstances peculiar to him or her or to the case why the same penalty as that imposed on the actual perpetrator should not be imposed on him or her. But the death penalty may not be imposed for murder unless the murder was committed in aggravating circumstances and the death penalty may not be imposed if the principal

  • was less than twenty-one years old when the offence was committed; or
  • is more than seventy years old; or
  • is a woman.

 

Where actual perpetrator has defence

 

Where the actual perpetrator of a crime authorised by a principal is entitled to rely upon a defence which excuses the actual perpetrator from liability or reduces his or her liability for the crime concerned—

  • the principal will be liable as if he or she is the actual perpetrator; and
  • the principal will not be entitled to rely upon that defence unless he or she would be entitled to rely upon it if he or she were charged as an actual perpetrator of the crime concerned.

 

Thus if the person uses a child of 6 to commit a crime, it is no defence for the accused that the child is irrebuttably presumed to lack criminal capacity. The same would be the position if a person with criminal capacity recruits a person who he knows to be mentally disordered to rape a woman.

 

Alternate basis of liability

 

A person charged with being the principal of a crime may be found guilty as a co-perpetrator of the crime or of assisting the actual perpetrator of the crime as an accomplice or accessory if such are the facts proved.

 

______________________________________________________________________

 

Co-perpetrators [s 196A]

 

Liability of co-perpetrator

 

Co-perpetrators are persons who commit a crime in association with one another where the State proves that they intended to commit the crime or had knowledge that it would be committed or realised that there was a real risk or possibility that a crime of the kind in question would be committed.

 

 Direct contribution to commission of crime unnecessary

 

A person can be guilty as a co-perpetrator whether or not he or she contributed directly in any way to the commission of the crime by the actual perpetrator.

Prior conspiracy unnecessary

There does not have to be a prior conspiracy with the actual perpetrator for a person to be guilty as a co-perpetrator. In other words, the co-perpetrator form a common purpose with the actual perpetrator by joining in a crime before it is committed and without having conspired with the actual perpetrator in advance to commit this crime.

Actual perpetrator not identified

 

Even if the actual perpetrator of the crime is not identified the conduct of the co-perpetrators will be treated as it is the conduct of the actual perpetrator. A person can thus be convicted as a co-perpetrator even if the actual perpetrator has not been identified.

 

In S v Chauke & Anor 2000 (2) ZLR 494 (S) the Supreme Court made it clear that in where a criminal group acts with a common purpose all members of the group can be liable for a crime committed that fell within the common purpose and it is unnecessary to prove which member of the group actually perpetrated that crime. Thus if a murder is committed, it is not necessary to prove which member of the gang carried out the murder. All members of the gang are liable for murder, provided that the murder fell within the common purpose.

 

Comment

 

This provision could have been better worded by providing that where persons “associate in a joint unlawful enterprise, each will be criminally responsible for the specific criminal conduct committed by one of their number which falls within their common design”. Liability arises from their ‘common purpose’ to commit the crime. Burchell Principles of Criminal Law 4th ed p 467. Burchell also points out that with a consequence crime, the prosecution does not have to prove that each of the participants causally contributed to the crime in question. It is sufficient that it is established that all agreed to commit the particular crime or actively associated themselves with the commission of the crime with the requisite intention that the particular crime would be committed. If this is established, the conduct of the participant who actually caused the consequence is imputed to the other participants. It is also not necessary to prove which member of the common purpose enterprise actually caused the criminal consequence.

 

Comment on problems with the common purpose doctrine in cases of murder

The doctrine of common purpose needs to be re-examined as in the past it has been applied on an over-extended basis.

What is the position where a group of persons participate in an activity and a person dies whilst the activity is being carried out? Clearly the actual perpetrator of the murder is guilty of murder but are all the other participants also guilty of murder?

The other participants would be guilty of murder if they participated when there was a prior agreement that the murder would be perpetrated during the murder or if they had given the actual perpetrator a clear mandate to perpetrate the murder during the course of the enterprise. They would also be guilty of murder if, during the enterprise they incited or encouraged the actual perpetrator to commit the murder or assisted him in the perpetration the murder. Beyond this the application of the common purpose doctrine to convict participants in an enterprise can be highly suspect.

The doctrine of common purposed derives from English law but it law but the doctrine has now been drastically narrowed down in English law. In a unanimous decision in R v Jogee [2016] UKSC 8; [2016] WLR (D) 84. The Supreme Court unanimously decided that

The requisite conduct element was that the accessory had assisted or encouraged the commission of the offence by the principal. The mental element was an intention to assist or encourage the commission of that crime. Foresight that the principal might commit the offence charged was not to be equated with intent to assist. The correct approach was to treat foresight as evidence, for the jury to consider, of intent to assist and encourage. The law had taken a wrong turn in Chan Wing-Sui v The Queen [1985] AC 168, when it had equated foresight with intent to assist, as a matter of law. It was not legitimate to treat foresight as an inevitable yardstick of common purpose; in doing so the law had departed from the rule which had been well established over many years that the mental element required for accessory liability was an intention to assist or encourage the principal to commit the offence charged.

In other words, in English law to convict a person of murder on the basis of common purpose the prosecution cannot simply prove that the accused foresaw that death might result when he participated; it must prove that he intended the murder to happen and it assisted or encouraged the actual perpetrator to commit the murder.

Similarly in South African law there have been concerted attempts to narrow down the application of the common purpose doctrine. Burchell in Principles of Criminal Law Fifth Edition at pp 488-489 heavily criticises the proposition that a person, who actively associates with others in the commission of a crime, can be liable for the crime committed by the actual perpetrator on the basis that he associated with foresight that the actual perpetrator might commit the crime.  He points out firstly that the concept of active participation is inherently vague and argues that that Alkema J in S v Mzwempi 2011 (2) SACR 237 (ECM) is correct when he says that …”association with the general design in the absence of a prior agreement is insufficient; to qualify as an actus reus it must an active association with the particular conduct which caused the death or other consequence crime.”

Where the degree of participation of the individual members of the group is unknown and it is also not known what the intention or agendas of the individual members were, mere collusion or association with others in an enterprise that results in a person dying cannot be an appropriate basis for liability for the most serious crime of murder. Accused persons should only be convicted if they play an active role in the commission of the murder by inciting or encouraging the killing. The approach that what you do through others you so yourself can only apply where you give a specific mandate to another to murder another.

 

According to Snyman a person cannot be a co-perpetrator to a crime that can only be committed through the instrumentality of that person’s own body. (Criminal Law 4th Edition p 266) Thus he says, if X holds down a woman whilst his friend rapes her, X can only be guilty as an accomplice. On this point he cites the case of S v Gaseb 2001 1 SACR 438 (NmS) 452a-d.

 

Additionally a person should only be convicted of a crime if he or she has the required mens rea for the particular crime. It is not enough that the person has the mens rea for “a crime of the kind in question.”

 

Section 196(A) sets out factors which are indicative but not, in themselves, necessarily decisive factors tending to prove that two or more persons accused of committing a crime in association with each other together had the requisite mens rea to commit the crime, namely, if they—

  • were present at or in the immediate vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime; or
  • were associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; or
  • engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged.

 

Comment

 

It is submitted the factors that are supposedly indicative of the intention on the part of the participants should be omitted. The reasons for this submission are:

  • they may create the impression that the onus shifts to the accused to disprove that he or she had the requisite intention if one of these factors is present; and
  • in any event, the conduct listed in each factor do not necessarily indicate that the participant formed a common purpose to commit the crime in question. For instance, association in preparation to the conduct which resulted in the crime for which the person is charged does not necessarily mean that the participant intended to associate with the crime that was actually committed. That person may have helped to prepare for the commission of one crime whereas when the criminal enterprise is carried out one member of the group may commit a completely different crime.

 

 

When death penalty imposable on a co-perpetrator for murder [s 196B]

 

The death penalty may not be imposed for murder unless the murder was committed in aggravating circumstances and the death penalty may not be imposed if the principal

  • was less than twenty-one years old when the offence was committed; or
  • is more than seventy years old; or
  • is a woman.

 

Alternate basis of liability

 

A person charged with being a co-perpetrator of crime may be found guilty of assisting the actual perpetrator of the crime as an accomplice or accessory if such are the facts proved.

 

Murder

X cannot be convicted as a co-perpetrator of murder unless X was present with the actual perpetrator while the victim was still alive and before a mortal wound or mortal wounds had been inflicted.

However, X can be liable for murder if, after a mortal wound has been inflicted, he joins in a murderous attack and by X’s own actions X expedites the death. See s 58 of Code.

Punishment

The co-perpetrator of a crime is guilty of that crime as if he or she was the actual perpetrator and will be sentenced to the same sentence as the actual perpetrator unless he or she satisfies the court that there are special circumstances peculiar to him or her or to the case why that penalty should not be imposed. (The court must record those special circumstances.)

See Guide pp 46-50 and 165-171

(But note that some aspects of the law that applied previously have been modified by the Code.)

 

 

 

Accomplices

 

Persons who participate in a crime without being present when it is actually committed, that is, by inciting, conspiring with, or authorising or assisting the actual perpetrator before or during the commission of the crime, are termed “accomplices”.

 

When person is an accomplice [s 195]

Section 195 provides that X is an accomplice if X is not the actual perpetrator and X incites or conspires with Y to commit a crime, with the result that Y commits the crime;

Accomplice unaware of nature of crime [s 197(2)(b)]

X can be liable as an accomplice even if X is only aware that the actual perpetrator’s conduct is unlawful but does not know the nature of the crime or the manner in which it is committed.

Actual perpetrator unaware of assistance [s 197(2)(c)]

X can be liable as an accomplice even if the actual perpetrator is unaware of the assistance rendered by X.

Person lacking ability or capacity to commit crime [s 197(2)(a)]

A person can be held liable as an accomplice to a crime that he or she would not be able to commit as an actual perpetrator or co-perpetrator. Thus a woman cannot commit the crime of rape as an actual perpetrator as the crime is defined in such a way that only a man can commit this crime. However, if a woman assists a man to rape a woman by, for instance, holding the woman down whilst she is raped, the woman who assisted in the rape can be found liable as an accomplice to rape.

Liability of accomplices [s 197(3)]

An accomplice can be convicted as an accomplice even where-

  • the actual perpetrator is produced as a witness on behalf of the prosecution; or
  • for any reason, it has not been possible to bring the actual perpetrator to trial.".

 

Types of assistance [s 198]

This provides a non-exhaustive list of the forms of assistance given to the actual perpetrator, may render a person liable as an accomplice–

  • supplying the means to commit the crime;or
  • supplying transport to enable the actual perpetrator to reach the scene of the crime;
  • supplying information to enable the actual perpetrator to locate or identify his or her victim or to acquire knowledge of the place where the crime is to be committed;
  • making premises of which the assister is the owner or occupier available for the commission of the crime;
  • against intervention or discovery while the crime is being committed,

 

X will be also be guilty as an accomplice in the following situations unless X was present at the scene of the crime and knew or realised the real risk or possibility that a crime of the kind in question would be committed r ,

  • holding oneself available to give assistance in the commission of the crime, in the event of such assistance being required; or
  • immobilising or incapacitating the victim of the crime to enable the crime to be committed; or
  • carrying implements or other things by which or with the aid of which the crime is committed; or
  • keeping watch for or guarding against intervention or discovery while the crime is being committed;

 

 

  •  

 

This provision is very confusing. Situations such as standing watch while the crime is committed, immobilising the victim and being available to give assistance are situations where X would obviously be present, usually with the required mens rea to associate with the crime, and thus X would be a co-perpetrator. These situations should thus have been included under the provisions on co-perpetrators.

 

Crime for which accomplice is liable [s 197(1)]

An accomplice is guilty of the same crime as that committed by the actual perpetrator.

 

Liability of principal or accomplice for further crimes [s 199]

This section deals with what happens when the actual perpetrator commits a crime different from or additional to the crime intended by the principal or accomplice when he or she incited, conspired with, authorised or assisted the actual perpetrator.

This section provides that the accomplice is liable for this different or additional crime only if the principal or accomplice realised that there was a real possibility that the actual perpetrator might commit this different or additional crime.

See S v Mumpande & Ors 2014 (2) ZLR 417 (H)  

Witnessing crime and doing nothing to prevent it

Such a person is not per se an accomplice. See S v Mumpande & Ors 2014 (2) ZLR 417 (H)  

Extra-territoriality [s 201]

This governs the extra-territorial aspects of being an accomplice to a crime committed within or outside Zimbabwe.

Presumptions, jurisdiction, powers and defences [s 203]

This applies to accessories the same presumptions, jurisdiction, powers and defences as are applicable in relation to the actual perpetrators, whether under the Code or any other enactment.

When accomplice liability is concurrent or does not apply [s 204]

The provisions dealing with accomplice liability will not affect special rules relating to the liability of participants contained in the Code or in other enactments.

With some crimes like treason incitement, conspiracy, attempt or failure to report the crime constitutes the crime of treason itself and not merely incitement, conspiracy or attempt to commit the crime. The inciter, conspirator or attempter is thus guilty of such a crime as an actual perpetrator and not merely as an accomplice.

With continuing crimes like theft the person assisting may be a perpetrator rather than an accomplice.

Punishment [s 202]

An accomplice is liable to the same punishment that he or she would have been liable if he or she been the actual perpetrator of the crime.

See Guide pp 46-50 and 165-171

(But note that some aspects of the law that applied previously have been modified by the Code.)

 

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Conducing to commission of offence by child or young person

 

The Children’s Act [Chapter 5:06] provides for a number of situations where others can be criminally liable for crimes committed by children or young persons. In this Act a “child” is defined as “a person under the age of sixteen years and includes an infant” and a “young person” as who has attained the age of sixteen years but has not attained the age of eighteen years.

13 Conducing to commission of offence by child or young person

(1) Any person who—

(a) encourages a child or young person to commit an offence; or

(b) trains a child or young person in the commission of an offence; or

(c) knowingly provides a child or young person with facilities to commit an offence;

shall be guilty of an offence and liable to the penalties that could have been imposed on him had he been guilty of the offence that the child or young person committed.

 (2) Any parent or guardian of a child or young person who fails to take reasonable steps to ensure that that child or young person does not commit an offence is guilty of an offence and liable to any penalty that may be imposed on a person convicted of the offence committed by the child or young person.

 (3) Where a person has been convicted of an offence in terms of subsection (1) the court may, in addition to any penalty which may be imposed therefor, order the person convicted to pay to any party who has been caused damage or loss by the commission of the offence concerned by the child or young person compensation for that damage or loss, whether the injured party makes any claim therefor or not.

 

Comment

There are some problems with the offence in subsection 2. If the child or young person has committed a crime requiring proof of intention, it would violate normal principles of liability to convict the parent or guardian of this offence on the basis of his or her negligence in failing to take reasonable steps to ensure that that child or young person does not commit the offence. 

 

 

Withdrawal from crime by principal, co-perpetrator or accomplice

[s 200]

 

 A person will not be guilty as a principal, co-perpetrator or accomplice of a crime committed by an actual perpetrator if, before the crime has been committed, the person prevents the commission of the crime, whether by having given timely wanting to a police officer to enable the police officer or other person to prevent its commission, or otherwise:

 

However the fact that a principal, co-perpetrator or accomplice succeeded in stopping the crime authorised by him or her or with which he or she was associated does not relieve the principal or co-perpetrator of liability for an attempt, incitement or conspiracy to commit the crime.

 

The fact that a principal, co-perpetrator or accomplice of a crime changes his or her mind and unsuccessfully took action to prevent the actual perpetrator from committing the crime will not relieve the principal or co-perpetrator from liability for the crime.

 

But the court will mitigate the sentence that may be imposed on the principal, co-perpetrator or accomplice if among other relevant considerations—

 

  • the principal, co-perpetrator or accomplice, before the commission of the crime, took all possible steps within his or her power to stop the actual perpetrator from committing the crime; and
  • in the absence of the circumstances that intervened to frustrate the prevention of the crime, the steps actually taken would have stopped the crime from being committed: and
  • the circumstances that intervened to frustrate the prevention of the crime were not reasonably foreseeable.

 

Comment

 

These provisions do not incorporate decided Zimbabwe case law in respect of conspiracies. They should therefore include a provision to reflect the decision in the case of S v Stanley 2010 (1) ZLR 380 (H). In this case the court said “Conspiracy” may be defined as the act of conspiring; combination for unlawful purpose, plot. A conspirator is one engaged in a conspiracy. In general a conspirator is liable for the crime perpetrated by his co-conspirators. But where he has effectively withdrawn from the conspiracy, he does not remain liable for the commission of any subsequent criminal acts. The terms “withdrawal” and “dissociation”, which are often used in this context of the law, refer to a voluntary action by a conspirator which is legally effective to terminate his relationship to the conspiracy. The reason for allowing such a defence is to encourage the conspirator to abandon the conspiracy prior to the attainment of its specific object and, by encouraging his withdrawal, to weaken the group which he has entered. The actual role of the conspirator will determine the kind of withdrawal necessary to effectively terminate his liability for the commission of the substantive crime. Where a person has merely conspired with others to commit a crime but has not commenced an overt act toward the successful completion of that crime, a withdrawal is effective upon timely and unequivocal notification to the co-conspirators of the decision to abandon the common unlawful purpose. Where, however, there has been participation in a more substantial manner, something further than a communication to the co-conspirators of the intention to dissociate is necessary. A reasonable effort to nullify or frustrate the effect of his or her contribution is required.

 

In the case of S v Beahan 1991 (2) ZLR 98 (S) case the Zimbabwean Supreme Court differentiated between two types of cases, namely

  • A has merely conspired to commit a crime but has not commenced any overt act towards the successful completion of that crime; and
  • A has actually participated in the crime in a more substantial manner.

 

The court stated that in the first situation withdrawal is effective upon timely and unequivocal notification of co-conspirators of his decision to abandon the unlawful purpose. On the other hand, in the second situation, because A has participated in a more substantial manner, A must do something further than merely communicating to his co-conspirators his intention to dissociate; he must also take steps to attempt to frustrate the effect of his contribution. Commenting upon this approach in 1992 Annual Survey of South African Law at 511 the authors agree that the role of the conspirator and the degree of his participation are central to the issue. However, they question the utility of a distinction based on commencement of overt acts. They point out that frequently a party is remote from the commission of the crime and yet he has already played a substantial or dominant role in the enterprise (e.g. by supplying the weapons to use in a robbery or supplying vital information or the keys to warehouse etc.) Conversely, they say, a minor player who performs a relatively insignificant overt act should, in certain circumstances, be allowed to dissociate himself from it. They suggest that a “pragmatic and theoretically defensible approach might be to consider what the accused has done to dissociate himself from the enterprise and to determine whether, at the end of the day, he may still be said to have dissociated himself sufficiently with the conduct of the immediate party or parties to justify a judgment that he is, in law, responsible for that conduct. Such an approach would view evidence of 'association' and 'dissociation' as being two sides of the same coin. This approach would be more realistic than one which treats dissociation as a second inquiry determined by its own rules, whether mechanical or otherwise."

 

In S v Chinyerere 1980 ZLR 3 (A); 1980 (2) SA 576 (RA) members of a gang conspired to break into some premise in order to steal, X was a member of that gang. He had not incited the others to commit this crime. After some members of the gang had broken in, X got scared and ran away. The rest of the gang still went on to steal. The court held that he was guilty of housebreaking but only of conspiracy to commit theft. On the other hand, in S v Ndebu & Anor 1986 (2) SA 133 (ZS) X and Y had in concert set out to rob. Before the fatal shot was fired X had fled. The court held that that X was still liable for murder on the basis of the common purpose and the running away was only an extenuating circumstance.

 

In the South African case of S v Nduli & Ors 1993 2 SACR 501 (A) the court said that dissociation consists of some or other form of conduct by a collaborator to an offence with the intention of discontinuing his collaboration. It is a good defence to a charge of complicity in the eventual commission of the offence by his erstwhile associates. The more advanced a person’s participation in the commission of the crime, the more pertinent and pronounced his conduct will have to be to convince a court, after the event, that he genuinely meant to dissociate himself from it at the time. It remains a matter of fact and degree as to the type of conduct required to demonstrate such an intention. The court found it unnecessary to decide whether the “more rigid” rule enunciated by our Supreme Court in the Beahan case reflected the law in South Africa or was to be treated as a rule of thumb.

 

In S v Ncube & Anor 2014 (2) ZLR 174 (S) the Supreme Court has now clarified the position. It decided that in respect of the defence of dissociation from a crime, a last-minute withdrawal on its own is insufficient to exculpate a secondary party from the main charge. That party must do more for the defence of “withdrawal” to succeed. He must “countermand” or “repent” the original instruction or understanding. The withdrawing party must literally “step on the lit fuse” in order to successfully dissociate from a conspiracy to blow up a building with dynamite. The ultimate decision whether a person’s dissociation from a common purpose can serve to exculpate him for crimes committed by the group after dissociation is a value judgment, but a number of factors relevant to the inquiry have emerged from the case law. These factors need to be weighed in the balance by the court in reaching an equitable decision on whether dissociation is legally effective or not. Much will depend on the circumstances: on the manner and degree of the accused’s participation; on how far the commission of the crime has proceeded; on the manner and timing of the disengagement; and, in some instances, on what steps the accused took or could have taken to prevent the commission or completion of the crime. The greater the accused’s participation, and the further the commission of the crime has progressed, then much more would be required of an accused to constitute an effective dissociation. He may even be required to take steps to prevent the commission of the crime or its completion. It is in this sense a matter of degree and in a borderline case calls for a sensible and just value judgment. Where a person has merely conspired with others to commit a crime, but has not commenced an overt act toward the successful completion of that crime, a withdrawal is effective upon timely and unequivocal notification to the co-conspirators of the decision to abandon the common unlawful purpose.

 

See also S v Dolosi & Ors HH-210-15

 

This matter of withdrawal is also dealt with in the Guide pp 48-50.

 

 

 

Assistance after commission of crime

[s 205]

 

Definition of accessory [s 205]

An accessory to a crime is a person who renders assistance to the actual perpetrator of the crime or any accomplice of the actual perpetrator after it has been committed.

Basis of liability [s 207]

X renders assistance to the actual perpetrator or accomplice after the commission of the crime enabling him or her

  • to conceal the crime;
  • to evade justice

or X in other way associates with crime by rendering assistance to the actual perpetrator or accomplice.

 

X can only be liable as an accessory if when he or she assists the actual perpetrator X

  • knows that the actual perpetrator has committed a crime; or
  • realises that there is a real risk that the actual perpetrator has committed a crime.

Types of assistance [s 208]

This section provides a non-exhaustive list of types of assistance that can make a person liable as an accessory–

  • concealing, sheltering or feeding the actual perpetrator in order to enable the actual perpetrator to escape apprehension;
  • providing transport to enable the actual perpetrator to escape apprehension;
  • destroying or concealing evidence of the commission of a crime;
  • giving false information to a police officer or other person in authority concerning the circumstances of the crime or the whereabouts of the actual perpetrator.

In S v Choruma & Anor 2010 (1) ZLR 403 (H) the judge stated that the elements of the crime of being an accessory to a crime are–

  • knowledge that the actual perpetrator has committed a crime, or the realization that there is a real risk or possibility that the actual perpetrator has committed a crime, and
  • rendering the actual perpetrator or his accomplice assistance which enables him to conceal the crime or to evade justice, and
  • the assistance must be rendered after the crime has been committed.

 

In an appropriate case the accused can be convicted as an accessory after the fact, of the crime which had been committed at the time he rendered assistance, even if at the time of rendering assistance he did not know what crime had been committed. He must, however, believe that a crime has been committed, and with that knowledge render assistance to conceal it, or help the actual perpetrator to evade justice. Giving false information to a police officer or other person in authority concerning the circumstances of a crime renders the giver of false information an accessory to the crime.

 

See also S v Muchaparara HH-99-04

 

Extra-territorial application [s 209]

This governs the extra-territorial aspects of being an accessory to a crime committed within or outside Zimbabwe.

Presumptions, jurisdiction, powers and defences [s 211]

This applies to accessories the same presumptions, jurisdiction, powers and defences as are applicable in relation to the actual perpetrators, whether under the Code or any other enactment.

When accessory liability is concurrent or does not apply [s 212]

The provisions dealing with accomplice liability will not affect special rules relating to the liability of participants contained in the Code or in other enactments.

With some crimes like treason incitement, conspiracy, attempt or failure to report the crime constitutes the crime of treason itself and not merely incitement, conspiracy or attempt to commit the crime. The inciter, conspirator or attempter is thus guilty of such a crime as an actual perpetrator and not merely as an accomplice.

 

With continuing crimes like theft the person assisting may be a perpetrator rather than an accomplice.

Penalty [s 210]

The accessory (X) is liable to the same penalty to which X would have been liable if X had been convicted of the crime committed by the actual perpetrator to which he or she rendered assistance.

See Guide pp 51 and 171-172