GENERAL DEFENCES AND MITIGATING FACTORS

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This provides for the types of defences that may be made to criminal charges brought under the Code or any other enactment.

 

Preliminary matters

 

Categorisation of defences

Defences are grouped in the following categories

  • defences affecting voluntary conduct;
  • defences relating to the state of mind of the accused;
  • and defences relating to unlawfulness.

Complete and partial defences [s 213]

Some of these defences are complete defences completely absolving X from criminal liability for a crime and some are partial defences that reduce the crime charged to some lesser crime.

Defences in Code are not exhaustive [s 214]

The provisions in the Code dealing with defences do not purport to codify all possible defences that may be raised, but only the most common or important ones. Thus X can still raise defences and mitigatory factors not contained in the provisions of the Code relating to defences.

 

Defences relating to voluntary conduct

 

Automatism

[s 216]

This can be a complete defence.

It is a fundamental principle of criminal law that no person may be held be criminally liable except for voluntary conduct. (see s 9). Thus X should not be found guilty of a crime where his or her action was involuntary. The defence of “automatism” deals with situations where the action was performed without any control or conscious knowledge.

This defence is a complete defence to a criminal charge, except in cases where the person was at fault in bringing about the situation where his or her conduct was involuntary (for example, where the person drives a motor vehicle knowing that he or she may suffer from an epileptic fit while driving it, and causes the death of another person when this eventuality occurs).

In cases where the person’s involuntary conduct is the result of a mental disorder (“insane automatism”) the court is required to return a special verdict in terms of section 29 of the Mental Health Act, 1996.

Requirements [s 216(1)]

X’s conduct was not voluntary, that is, that X did or omitted to do anything that is an essential element of the crime without conscious knowledge or control.

The involuntary conduct must was not have been brought about by X’s own fault. [s 216(3)]

Situations in which conduct is not voluntary [s 216(2)]

Situations in which conduct is not voluntary include the following–

  • a reflex movement, spasm or convulsion;
  • a bodily movement during unconsciousness or sleep;
  • conduct during hypnosis, or which results from hypnotic suggestion;
  • conduct over which a person has no control, his or her body or part of his or her body being merely an instrument in the hands of a human or natural agency outside him or her (a example of a natural agency (An example of a “natural agency” affecting the movements of a person is a powerful gust of wind that may cause an involuntary movement of the body or limbs of a person.)

Involuntary conduct resulting from mental disorder [s 216(4)]

If the involuntary conduct was the result of a mental disorder or defect, a court must return a special verdict in terms of s 29 of the Mental Health Act.

Cases

In S v Evans 1985 (1) ZLR 95 (S) the appellant was charged with and convicted of culpable homicide arising out of a collision between two railway trains allegedly caused by his negligent driving of one of the trains. In his defence he testified that he had suffered a “black-out” due to the stress and irregular hours of his work and so had been unable to activate the appropriate braking system in time to avoid the collision. Despite the fact that a medical practitioner called by the prosecution conceded that it would not be unexpected that a person leading the life of an engine-driver should suffer a black-out, the trial court found that the appellant had not established the defence and that in any event, if he had proved it, the court would have been obliged to enter a special verdict in terms of s 28 of the Mental Health Act, 1976. On appeal it was held that there is no onus on an accused person to establish the defence of a black-out; as with the defence of compulsion, all that is required is that there emerge from the evidence material sufficient to raise the issue as a realistic issue. Once the issue is so raised the persuasive burden of proving the mental element of the offence rests with the prosecution. The medical practitioner’s evidence laid a foundation for the defence of a black-out and the persuasive burden of proving that the appellant was negligent then rested with the prosecution. It had not discharged this onus. The appellant’s black-out was a defence to the charge.

 

On the other hand, the defence of blackout was unsuccessful in S v Mafusire 2010 (1) ZLR 417 (H). In this case the accused quarrelled with one of his wives and the accused the wife of infidelity. The accused lost his temper, armed himself with an axe and tied up the deceased’s hands and legs. He then axed the deceased indiscriminately all over the body. The deceased died shortly thereafter. One of the defences raised was that of blackout although this defence had not been raised in the defence outline. The court decided that not foundation had been laid for the defence. Apart from his mere say-so there is no other evidence from which one may infer that he experienced a black-out. On the facts the court said it is incredible that the accused could recall how he assaulted the deceased with a stick but could not recall how he assaulted her with an axe. There is no evidence that there was a lull between the assault with a stick and the assault with the axe. The accused was able to recall what he did after injuring the deceased.

The definition of “mentally disordered or defective” in s 2 of the Mental Health Act, 1976, does not encompass a person who suffers from a black-out such as the one suffered by the appellant, where the black-out was not caused by an injury. A special verdict of “guilty but insane” in terms of s 28(1) of the Act would therefore have been wrong.

 

See also “Firm and Shaky Foundations for the Defence of Black–Out” 1985 Vol 3 Zim Law Review 100–109.

 

In S v Trickett 1973 (3) SA 526 (T) the defence of sane automatism was raised to a charge of negligent driving. X said that she may have suffered unexpected blackout whilst driving. The defence failed because X had not discharged the evidential onus.

 

In S v Cunningham 1996 (1) SACR 631 (A) X while driving his vehicle collided with two cyclists. He pleaded the defence of sane automatism to a charge of culpable homicide. The court held that although he was upset and preoccupied with his problems at the time of the accident, he was not acting in a state of automatism.

 

In R v Ncube 1977 (2) RLR 304 (G); 1978 (1) SA 1178 ruled that in some cases where X acts violently because he is responding to a nightmare, an acquittal on the basis of sane automatism may follow rather than a special verdict being handed down. In the present case, however, the court returned a special verdict after the accused fatally stabbed his brother when he was sleep walking and he was reacting to the threatening realities of a dream. The special verdict was appropriate as it was necessary that the accused be subjected to medical examination to ascertain whether he was suffering from any underlying psychiatric problem that could recur in the future. (See case note in 1979 Zimbabwe Law Journal 11)

 

 

 

 

Defences and Mitigatory Factors Relating to Mental State

 

Intoxication

[s 219-s 225]

Intoxication refers to situations where a person is intoxicated as a result of the consumption of alcohol or drugs.

 

Involuntary intoxication

[s 220]

Involuntary intoxication means intoxication that is not voluntarily self-induced. Involuntary intoxication refers to a situation where a person does not voluntarily become intoxicated. Instead someone else causes the person to become drunk without the person knowing that this is happening, for example, where Y slips alcohol or a drug into X’s soft drink and Y consumes the soft drink not knowing that it has alcohol or a drug in it.

Crimes requiring proof of intention, knowledge or realisation of real risk [s 220(1)]

Involuntary intoxication can be a complete defence to such a crime if effect of the intoxication was such that he or she did not form the intention or have the knowledge or realise the existence of risk required. However, it will not be a defence if, despite the involuntary intoxication, X was still able to form the necessary intention, have the knowledge or realise the risk.

Crimes of negligence [s 220(2)]

Involuntary intoxication can be a complete defence to such a crime. However, the crucial question will be whether X behaved negligently after becoming involuntarily intoxicated. For example, if after involuntarily consuming alcohol, X realised that something was wrong and that he or she was not in a fit state to drive and, knowing this, attempted to drive and had an accident that caused someone’s death. In this situation X would be guilty of culpable homicide because he or she would have been negligent. If, on the other hand a drug slipped into X’s drink suddenly and without any forewarning started to have a drastic effect upon X after he or she had started to drive and this led to a fatal accident, X may not have been negligent. See the following cases–

In S v Gardener 1974 (2) RLR 48 (G); 1974 (4) SA 304 X was charged with drunken driving. Although she was involuntarily intoxicated because vodka had been poured into beer without her knowledge, she was found guilty because she had intentionally driven her vehicle and was not unaware of what she was doing when she drove towards her home.

 

In R v Innes Grant 1949 (1) SA 753 (A) X was charged with culpable homicide after a fatal motor accident. He was found guilty because even if X’s condition was involuntary, accused was not so incapacitated that he did not know what he was doing. He was negligent in doing so.

 

In S v Hartyani 1980 (3) SA 613 (T) X was charged with drunken driving. The defence of involuntary intoxication succeeded as a defence to the charge and X was found not guilty as her drink had been spiked and she was not aware of what she was doing when she attempted to drive.

See Guide pp 21 and 137.

 

Voluntary intoxication

 

Voluntary intoxication is intoxication that is voluntarily self-induced. Voluntary intoxication is where a person becomes intoxicated as a result of voluntarily consuming alcohol or drugs.

Common law

Under the common law, voluntary intoxication could be a partial defence. It could reduce murder to culpable homicide, assault with intent to do grievous bodily harm to common assault and rape to indecent assault where the intoxication caused X to mistakenly believe that the female was a consenting party.

Case

In S v Ndiwene 1971 (3) SA 260 (RA) X killed a woman whilst in a state of intoxication due to the voluntary consumption of dagga. He did not have intention to kill so he was found guilty of culpable homicide.

 

New strict liability crime of voluntary intoxication leading to unlawful conduct [s 222]

It is clearly contrary to public policy to allow a person to escape liability completely where they cause harm in a state of voluntary intoxication. If they are not punished at all, no deterrent influence will be brought to bear upon those who irresponsibly get themselves drunk and cause harm whilst in this drunken state.

The Code has therefore adopted an approach similar to that in South Africa. Under this approach if X is acquitted of a subjective crime on the basis that he or she lacked intention, knowledge or realisation of a risk because of intoxication, that person can instead be found guilty of the new strict liability crime entitled “voluntary intoxication leading to unlawful conduct.” As this latter crime is a strict liability crime, the state does not have to prove that X acted intentionally or negligently. All it has to prove is that X voluntarily got drunk and in this drunken and irresponsible state he or she caused harm. It is immaterial for this crime that he or she did not intend to cause harm, did not know he or she was doing so and did not realise that there was a risk that he or she would do so.

For this strict liability crime, X can be sentenced to the same punishment as would have been imposable had he or she been found guilty of the crime with which he or she was originally charged.

Crimes of intention [s 221(1)]

Under the Code voluntary intoxication will now be a defence to any crime requiring proof of intention, knowledge or realisation of a real risk if, at the time of the conduct that would otherwise constitute the crime, the effect of the intoxication upon X was such that he or she did not form the intention or have the knowledge or realise the existence of risk required. Thus, for instance, voluntary intoxication can now be a defence to what was previously referred to as common assault.

On the other hand, if despite the intoxication, X was still able to form and did form the requisite subjective state of mind, he or she will be found guilty of that crime, but the court may regard his or her intoxication as mitigatory.

But if the accused is found not guilty of a crime of intention because he or she lacked intention to commit the crime, the accused will still be found guilty of the strict liability crime of voluntary intoxication leading to unlawful conduct.

Cases

In S v Muchemesi HH-287-15 the court found that despite heavy drinking X was still able to form the intention to kill his father and therefore he was guilty of murder, although the intoxication could be taken into account in mitigation of sentence.

In S v Sibanda HB-262-16 X, who was a young man, had stabbed to death his mother after she had refused to drive her vehicle to go out and she had also refused to give him money. After the stabbing, the accused locked the doors, took the murder weapon and concealed it in the garage. He then took the vehicle and money and drove to see his girlfriend. Later he teamed up with his friend, collected more money belonging to the deceased from a neighbour and went to a club to drink beer. The court found that despite his intoxication from drugs and alcohol, he had the intention to kill his mother

 

            Some critical comments on the provisions relating to crimes of intention

With crimes such as murder, rape, assault and malicious damage to property, a person cannot be committed if the accused lacked the intention to commit the crime in question. However, if the accused lacked the intention as a result of voluntarily getting drunk, the accused should be held accountable and it is socially inappropriate to let that person go free without any punishment; that person must be punished to deter him from engaging in such socially dangerous conduct in the future. The question is how this can be achieved. The solution adopted in the code was to find the accused guilty of a strict liability offence of voluntary intoxication leading to criminal conduct if he cannot be convicted of a crime of intention because he lacked intention because of intoxication. The punishment that can be imposed can be up to the penalty that could have been imposed for the crime of intention with which he was originally charged. This approach was derived from the South African law, although the current provisions in South Africa on this offence apply where the accused lacked capacity rather than intention because of voluntary intoxication. As Burchell points out the offence only applies in relation to crimes of violence.

 

Previously on a murder charge if the accused lacked intention to kill, he or she could have been found guilty of culpable homicide instead. Now the accused will be found guilty of the offence of voluntary conduct leading to unlawful conduct. As is pointed out in the case of S v Masina 2010 (2) ZLR 498 (H) the crime of culpable homicide does not attract the same sentence as murder whereas with the new crime of voluntary intoxication leading to unlawful conduct allows the court to impose a sentence up to that of the original crime charged i.e. murder.

 

It is suggested that the position be reconsidered at least in respect of crimes of violence where there are available lesser charges based on negligence. In respect of murder the punishment applicable should certainly not be up to the death penalty because the accused lacked the intention to kill. It is more appropriate to convict the accused of culpable homicide and sentence on that basis. This was the position that prevailed prior to the Code provisions. The table below sets out how various situations can be dealt with.

 

 

Crime for which accused lacked intention

 

 

Crime for which he should be convicted

Murder

Culpable homicide

Assault

Negligently causing serious bodily harm (s 90)

Malicious damage to property

Causing serious damage to property by gross negligence (s 141)

 

Crimes of negligence [s 221(2)]

Voluntary intoxication cannot operate either as a defence or in mitigation of sentence in relation to a crime requiring proof of negligence.

 

Intoxication facilitating the commission of the crime (Dutch Courage)

[s 223]

Voluntary intoxication cannot be pleaded as a defence or in mitigation where a person deliberately becomes intoxicated to facilitate the commission of a crime.

This will be the situation where X forms the intention to commit a crime and then becomes voluntarily intoxicated for the purpose of enabling him or her to commit the crime or facilitating his or her commission of the crime. If X then goes on to commit the crime that he or she had formed the intention to commit; X will be guilty of the crime on the basis of his or her original intention, in all respects as if he or she had not been intoxicated when he or she did or omitted to do the thing concerned.

If a person becomes voluntarily intoxicated realising that there is real risk or possibility that he or she will, in his or her intoxicated condition, engage in any conduct for which he or she may be held criminally liable, he or she may be convicted of the crime constituted by the conduct on the basis of his or her original realisation, in all respects as if he or she had not been intoxicated when he or she did or omitted to do the thing concerned.

See Guide p 23 and S v Nyathi & Ors S-52-95

 

Intoxication leading to mental disorder

[s 225]

A verdict that the person was mentally disordered must not be returned if the person’s mind was only temporarily disordered or disabled by the effects of alcohol or a drug. This sort of case must be dealt with under the defence of voluntary intoxication.

Voluntary or involuntary intoxication resulting in a permanent or long-lasting disorder or disability of mind will be capable of constituting a defence of mental disorder to a criminal charge arising out of any conduct on the part of the person charged whilst he or she is suffering from the disorder or disability.

Case

In S v Dube 1997 (1) ZLR 229 (H) although the court found that X affected by alcohol and drugs and by post- traumatic stress disorder, X was nevertheless aware of what he was doing and was capable of forming the necessary specific intent, and that the he should be convicted of murder with actual intent, although with diminished responsibility. There was no evidence that the accused was intoxicated to such an extent as to be unaware of what he was doing or unable to appreciate the consequences of his actions.

 

See Guide pp 21-22.

 

Voluntary intoxication leading to provocation

[s 222(3)]

If a person, while in a state of voluntary intoxication, is provoked into any criminal conduct by something which would not have provoked that person had he or she not been intoxicated, he or she will be guilty of voluntary intoxication leading to unlawful conduct.

 

Insanity (Mental disorder)

[s 226-229]

These sections provide for the defence that the accused was mentally disordered or defective at the time he or she committed the crime (“the defence of insanity”). The legal consequences of this defence, where it is proved, are now governed by section 29 of the Mental Health Act. Under that Act the court is required to return a special verdict of “not guilty by reason of insanity” and thereafter the accused may, depending on the outcome of an examination, be detained in an institution at the President’s pleasure.

Insanity can be a complete defence to any charge including murder. The correct verdict here will be not guilty because of insanity. The effect of s 229 of the Criminal Law Code [Chapter 9:23] is that if an accused person is proved to have committed the acts constituting the crime charged, but is also proved that the accused was been suffering from a mental disorder or defect at the time of committing the offence which made him or her not responsible for his or her actions, he or she will be found not guilty in terms of s 227 of the Code.

However, if X’s responsibility was diminished rather than negated will only be a mitigatory factor that X was suffering from diminished responsibility.

The defence of insanity will not avail an accused if he or she became temporarily insane as a result of voluntary intoxication.

Mental disorder or defect [s 226]

As in the Mental Health Act “mental disorder or defect” is widely defined to mean mental illness, arrested or incomplete development of the mind, psychopathic disorder or any other disorder or disability of the mind.”

In s 2 of the Mental Health Act a “psychopathic disorder” is defined as

“a persistent disorder or disability of the mind, whether or not subnormality of intelligence is present, which has existed or is believed to have existed in the patient from an age prior to that of eighteen years, and results in abnormally aggressive or seriously irresponsible conduct on the part of the patient.”

Mental disorder or defect at time of crime [s 227(1)]

This codifies the existing defence of insanity, comprising the so-called “M’Naghten rules” and the concept of “irresistible impulse”.

X will have this defence if when he or she committed the crime he or she was suffering from a mental disorder or defect that made him or her–

  • incapable of appreciating the nature of his or her conduct, or that his or her conduct was unlawful, or both; or
  • incapable, notwithstanding that he or she appreciated the nature of his or her conduct, or that his or her conduct was unlawful, or both, of acting in accordance with such an appreciation.

The mental disorder must be present at the time of the commission of the crime. See  S v Mapfumo v The State A-48-79 and S v Chikunda HH-563-14.

 

Cause of mental disorder immaterial [s 227(2)]

The cause and duration of the mental disorder, defect or disability is immaterial. X will have this defence whether the cause of the mental disorder or disability is organic (that is arising from an injury or disease of the brain) or functional (that is affecting physical functions) or physical in nature (such as where the mental disability emanates from concussion due to a blow to the head.)

See R v Senekal 1969 (4) SA 478 (A) (mental disorder arising from concussion, S v Mawonani 1970 (1) RLR 41 (A) (hysterical dissociation) and S v Ncube 1977 (2) RLR 304 (G) (violence during sleepwalking with a possibility of an epileptic disorder.)

In S v K 2009 (2) ZLR 409 (H) a 16-year-old juvenile had shot and killed his parents. He was charged with two counts of murder when he was 17 years of age. A psychiatrist testified that he was suffering from post-traumatic stress disorder and panic attacks. The psychiatrist suspected that his violent behaviour was possibly due to epilepsy and he was sent for an EEG scan and was found to be suffering from temporal lobe epilepsy. The psychiatrist then testified that the juvenile was not responsible for his actions at the time of the murders as a result of temporal lobe epilepsy. The court returned a special verdict. The accused had not yet recovered from his mental illness and was still under treatment. The court said that as the accused still needed medical treatment it was obliged to proceed in terms of s 29(2)(a) of the Mental Health Act and return the accused to prison and the prison authorities would then make the administrative arrangements for him to be transferred to an institution or special institution for treatment.

In S v Jokonya HH-116-09 A was charged with murder. A had thrown several stones into the hut through an open window and one of these stones had hit the deceased on the head and the head injury sustained by the deceased eventually led to his death. The court found that A did not have intention to kill and could only have been convicted of culpable homicide. However, on the basis of psychiatric testimony, the court found him not guilty by reason of insanity.

 

In S v Mashungu 2013 (2) ZLR 1 (H) a 20 year old woman forced her two step children to drink poison from which the two children died. She also took some of the poison in an apparent attempt at suicide. She was saved after first aid was applied to revive her from a state of unconsciousness. She got married when she was only 16 and she married into an abusive family. She was subjected to both physical and verbal abuse. Her husband verbally abused her over the allegations that she was not taking proper care of the two step-children. Her brother in law also confronted her over the same issue and her sister-in-law accused her of witchcraft.

The defence argued that the cumulative effect of all these events was that the accused suffered severe psychological and emotional stress which triggered a mental disorder the effect of which was to cause her to preoccupy herself with suicidal and homicidal thoughts.  She acted when her mind was so affected. The psychiatric evidence was that she suffered from a mental illness which is called bipolar disorder. This is a condition which is reflected by severe mood swings between manic and depressive moods. When one is in manic phase, the person would not be aware of his or her mental state or behavior and may take high risk action that may endanger herself or those around him or her without appreciating the effect of that action. The person may indulge in self-injurious behaviour as a result of pre-occupation with thoughts of death. The condition which she suffered from is of non-pathological origin and, therefore, curable without the necessity of institutionalization. The court found that in all probability, the crime was committed as the result of non-pathological criminal incapacity of a temporary nature and acquitted her.

 

It is submitted that the court should have found her not guilty by reason of insanity. The judge could then have proceeded in terms of s 29(2)(c) of the Mental Health Act and if “satisfied that the accused person [was] no longer mentally disordered or intellectually handicapped or [was] otherwise fit to be discharged, order[ed] [her] discharge and ... [her] release from custody.”.

 

In S v Makurumure HH-46-12 a woman was charged with murder. She was in an abusive and unhappy marriage characterized by domestic violence, strife and misery. On the fateful night they had had an altercation before retiring to bed. During the night the woman set her husband alight whilst he was asleep thereby killing him. There was no rational reason for the killing. On the night in question she said that that night she persistently heard a voice to kill her husband otherwise he would kill her. This prompted her to set her husband alight.

 

The medical evidence was that she was suffering from bilateral temporal lobe epilepsy. This type of epilepsy can lead to abnormal behaviour and criminal conduct. The court found that the facts establish quite clearly that her condition could trigger to irrational conduct such as displayed by the accused on the night in question.  The court found that on a preponderance of probabilities that when the accused killed the deceased by setting him alight she was mentally disordered or intellectually handicapped. She was accordingly found not guilty by reason of insanity.

 

In S v Chikunda HH-563-14 X pleaded guilty to a charge of malicious damage to property. The issue of the defence of insanity arose. The onus was on X to establish on a balance of probabilities that at the time she committed the acts constituting the offence she was suffering from a disease of the mind rendering her incapable of appreciating that what she was doing was wrong. She did not discharge this onus. On the contrary she knew that what she had done was wrong and was liable and willing to compensate the complainant for the damage she had caused. She knew the exact amount of money she had on her person and that it was insufficient to compensate the complainant. She also knew that she could ask for help from her relatives to help her pay reparations. The appellant’s mental state was exhaustively investigated at the trial and the trial court made the following finding on this aspect of the case, ‘…the court considers that the most that it can say consistently with the medical evidence is that, there is a possibility that the accused was suffering from hysterical dissociative condition at the time of the shooting but I cannot put it higher than that. There is no evidence that the accused was unaware of the nature and quality of his acts and that what he was doing was wrong. Like what I have already indicated above, the accused’s answers to the magistrate’s questions while canvassing the essential elements of the offence established beyond question that the accused knew the nature and quality of her conduct and that what she was doing was wrong. She knew that she had been assaulted and she deliberately took a conscious unlawful decision to retaliate by damaging the complainant’s car. When asked she had an independent recollection of the details of her criminal conduct at the material time. That cannot be the attributes of a person suffering from a mental disease at the time of commission of the crime or trial.

 

In S v Ndzombane S-77-04 the appellant killed the deceased, his own brother, by decapitation with a sharpened axe. What remained unclear at the close of the defence case was what had motivated the appellant to commit such a gruesome murder. Unconvinced by the appellant’s explanation for his conduct, the court ordered an examination of the appellant by two doctors in terms of the Mental Health Act. The two doctors, three months after the commission of the offence, found some evidence of mental defect and recommended that the appellant be referred to a psychiatrist. Some seven months later, the psychiatrist carried out her first of several assessments from which she concluded that the appellant was not labouring under any mental illness at the time of the commission of the offence. Her evidence was admitted in affidavit form. The appellant’s mother submitted an affidavit to the psychiatrist, giving information about strange behaviour on the part of the appellant.

 

The court held that the apparently motiveless, odd and bizarre murder should have alerted the defence counsel, prosecution and the court – but more so the defence counsel – to the possibilities of mental or emotional fragility on the part of the appellant. While the court a quo did institute the procedures for the mental examination of the appellant, the final consideration of the psychiatric report still left a lot to be desired. However, the defence counsel woefully failed to heed the clanging alarm bells. He should have interviewed the appellant’s family, friends, co-workers and former employers, in an attempt to discover whether the appellant had any history of strange behaviour. The appellant’s mother’s account was effectively a footnote in the psychiatrist’s report.

 

 

Duration of mental disorder immaterial [ s 227(2)]

The duration of the mental disorder or defect is immaterial. If X was suffering from a mental disorder, defect or disability at the time he or she committed the crime, the fact that the disorder, defect or disability was only temporary in nature and X is no longer suffering from this at the time of the trial is irrelevant.

See R v Senekal 1969 (4) SA 478 (A) (concussion leading to mental disorder or disability), S v Mawonani 1970 (1) RLR 41 (A) (hysterical dissociation) and S v Ncube 1977 (2) RLR 304 (G) (sleepwalking and possible epilepsy)

Mental disorder at time of trial [s 228]

The fact that X is mentally disordered at the time of his or her trial on a criminal charge will not be a defence to the charge unless X was also mentally disordered or defective at the time that he or she is alleged to have committed the crime.

In S v Machona 2002 (1) ZLR 61 (H) after a series of personal misfortunes, the appellant attempted to commit suicide by cutting his own throat. When taken to a doctor for treatment, he attacked the doctor, severely and permanently injuring him. The medical evidence was that the appellant, who was charged with attempted murder, had suffered a brief “reactive psychosis” or “psychotic episode” which was unlikely to recur. The court held that the appellant was mentally disordered at the time, and not merely suffering from diminished responsibility, and should have been found not guilty by reason of insanity. Because he was no longer mentally disordered, he was entitled to be released from custody.

 

Voluntary intoxication [s 227(3)]

The defence of insanity will not be applicable where X is temporarily mentally disordered or disabled as a result of voluntary intoxication. This situation will be dealt with under the rules relating to the defence of voluntary intoxication. It is only if at the time of the crime X is suffering from a permanent or long lasting mental disorder as a result of abuse of alcohol or drugs that the defence of insanity will apply instead of the defence of voluntary intoxication.

In S v MacGregor 1975 (1) RLR 77; 1975 (2) SA 385 the court ruled that where there is temporary mental incapacity due to voluntary intoxication, the special verdict must not be returned but instead the matter must be dealt with in terms of the legal rules that apply to the defence of voluntary intoxication.

Continued application of Mental Health Act [s 229]

The Mental Health Act will continue to apply in relation¾

  • the procedure to be followed when persons being tried are found to be mentally disordered or defective or any verdict to be returned at any such trial;or
  • the detention, examination or treatment of persons found to be mentally disordered or defective.

Onus of proving insanity [s 18]

With the defence of insanity the accused has the burden of proving the defence on a balance of probabilities. (See S v Moyo 1969 (1) RLR 162 (G) at 163; R v Benjamin 1968 (1) RLR 126 (G) at 127 and S v Taanorwa 1987 (1) ZLR 62 (S) at 66.

Evaluation of psychiatric evidence by court

 

In S v Ndzombane S-77-04 the court said that it was necessary to hear viva voce evidence from the psychiatrist, from the mother of the appellant and any other relevant person. The psychiatrist would have had to explain to the court the basis for her affirmative finding that from 2010 onwards the appellant no longer suffered from any mental illness, especially in the light of the fact that she accepted that the appellant had suffered from some “psychotic disorder” between 2007 and 2008.

Section 278 of the Criminal Procedure and Evidence Act allows the production of medical reports from doctors in affidavit form.  However, the court has the discretion in terms of s 280 to order that the doctor be summoned to give oral evidence at the trial. The court may also send written questions to the expert who is enjoined to reply thereto. The interrogation through oral testimony of expert evidence given on affidavit is necessary to avoid the error of treating such evidence as gospel truth or divine revelation.

 

Expert opinion evidence is admitted to assist the court to reach a just decision by guiding the court and clarifying issues not within the court’s general knowledge. It is not the mere opinion of the expert witness which is decisive but the expert’s ability to satisfy the court that, because of the special skill, training and experience, the reasons for the opinion expressed are acceptable. However, in the final analysis, the court itself must draw its own conclusions from the expert opinion and must not be overawed by the proffered opinion, and simply adopt it without questioning or testing it against known parameters. The expertise of a professional witness should not be elevated to such heights that sight is lost of the court’s own capabilities and responsibilities in drawing inferences from the evidence. The court can only do this well if it requires the expert witness to give oral evidence in the clarification and elucidation of an affidavit that is otherwise technically dense and incomprehensible, contradictory or inadequate in all respects except the conclusion. A court errs when it merely adopts the conclusions of an expert report without exercising its mind on it by, for example, calling for oral testimony or drawing the necessary inferences from the evidence

 

Responsibilities of defence counsel in cases where the murder was apparently motiveless, odd or bizarre

In S v Ndzombane S-77-04 the court pointed out that in such cases defence counsel should heed the clanging alarm bells alerting them to the possibility of mental disorder being the cause of the murder. He should interview the family, friends, co-workers and former employers, in an attempt to discover whether the accused had any history of strange behaviour. The court held that the apparently motiveless, odd and bizarre murder should have alerted the defence counsel, prosecution and the court – but more so the defence counsel – to the possibilities of mental or emotional fragility on the part of the appellant. While the court a quo did institute the procedures for the mental examination of the appellant, the final consideration of the psychiatric report still left a lot to be desired. However, the defence counsel woefully failed to heed the clanging alarm bells. He should have interviewed the appellant’s family, friends, co-workers and former employers, in an attempt to discover whether the appellant had any history of strange behaviour.

For a discussion on some of the difficulties of dealing with these sort of cases see the following articles in the Legal Forum: 1988 Vol 1 No 2 p 42; 1989 Vol 1 No 4 p 28; 1989 Vol 1 No 5 p 27.

Cases

In S v Moyo 1969 (1) RLR 162 (G) a mother killed newly born child. She was found guilty but mentally disordered.

In S v Senekal 1969 (4) SA 478 (RA) X fatally stabbed another person. The court returned the special verdict that X was guilty but mentally disordered even though the temporary disablement or disorder was due to concussion which he suffered as a result of a blow to the head and even though X was apparently fully recovered at time of his trial.

In S v Johnston 1970 (1) RLR 58 (G) the court ruled that amnesia, which is not associated with any form of mental disorder or unconscious action amounting to automatism is not a defence to a criminal charge. X was found guilty. (However, if there is genuine amnesia about what happened at the time of the crime, the crime must be brought home to the accused so that he can be given a proper opportunity to defend himself.)

In S v Mawonani 1970 (1) RLR 41 (A); 1970 (3) SA 448 (RA)  X was a spirit medium.  After he had gone into a trance, he had suddenly and without any reason killed his brother with whom he had been on good terms. The court returned a special verdict based upon the psychiatric assessment that he had killed his brother in a state of hysterical dissociation.

In S v Ncube 1977 (2) RLR 304 (G); 1978 (1) SA 1178 a special verdict was returned where X fatally stabbed brother when sleep-walking and reacting to threatening realities of his dream. The court held that the special verdict was appropriate as it was necessary that the accused be subjected to medical examination to ascertain whether he was suffering from any underlying psychiatric problem that could recur in the future.(See case note in1979 Zimbabwe Law Journal 11)

In S v Mapfumo A-48-79 there was a possibility that X was suffering from hysterical dissociation but there was no evidence that he was unaware of nature and quality of his acts and that what he was doing was wrong. He was found guilty of murder.

In S v Smith 1980 ZLR 32 (G) X had a motor accident. He alleged that he had suffered amnesia. No medical evidence was led to support the allegation. It was held that X had not discharged onus resting on him to prove mental disability.

In S v Time A-21-81 the appeal court ordered a psychiatric examination to determine the mental state of X when he murdered his daughter. This examination was necessary to ascertain if there was some diminished sense of responsibility as the murder was motiveless. A special verdict was then returned.

In S v Dube 1997 (1) ZLR 229 (H) X was charged with murder, it being alleged that in the early hours of 24 September 1995, at Gwanzura Stadium, Harare, he had shot and killed the deceased. He had been urinating in a public place and was approached by the deceased, a police officer, who remonstrated with him. X did not deny the shooting, but gave evidence that he had been very intoxicated at the time. He also claimed that the deceased had approached him, referring to him as “Banana’s wife”. It was the X’s case that during the 1980s, when he was an aide to the then President, the Rev C Banana, the President had on various occasions committed homosexual acts on him against his will. The anger the deceased’s comment induced also caused his violent reaction. Psychiatric evidence was given that X was suffering from post-traumatic stress disorder as a result of these acts. There was a conflict between the evidence of the two psychiatrists called, one saying that the combination of this disorder and X’s drunkenness would have amounted to a mental disorder and that as a result thereof X would not have been responsible according to law for his actions. The other psychiatrist said that the disorder would not have prevented X from appreciating what he was doing or the consequences of his actions. On the question of X's mental state, the court held that although post-traumatic stress disorder could fall within the wide definition of mental disorder found in the Mental Health Act, it was not a disorder, on the facts found proved, which would have prevented X from being aware of what he was doing or of the consequences of his actions. The combination of alcohol, drugs and the stress disorder would, however, have meant that X was suffering from diminished responsibility. It was argued that the court should follow the decision in S v Arnold 1985 (3) SA 256, where the accused was acquitted of murder because of his emotional state. The court held that Arnold’s case was incorrect on the law - Arnold should have been convicted of culpable homicide - and not applicable on the facts.

In S v K (a juvenile) 2009 (2) ZLR 409 (H) X had shot and killed his parents when he was aged 16. The psychiatric evidence was to the effect that X had been suffering from post-traumatic stress disorder and had temporal lobe epilepsy which made him not responsible for his actions because of a mental defect. The court found him not guilty because of insanity and ordered that he be returned to prison he has to be returned to prison where he will be transferred to an institution or special institution for examination or treatment. In reaching this conclusion the court set out in detail the law pertaining to the defence of insanity.

In S v Makaka S-25-87 a psychiatric investigation was ordered. In S v Chiwambutsa S-113-87 and S v Taanorwa 1987 (1) ZLR 62 (S) a further mental examination was ordered. In Joseph S-82-85 a fuller mental examination was ordered by the court as the first examination was considered to be inadequate. See also S v Moyo S-148-87 S v Chikanda 2006 (2) ZLR 224 (S); S v Chikunda HH-563-14; S v Gwanda HH-30-06; S v Jokonya HH-116-09

 

1993 Vol 5 ZLRev No 2 p 20.

Order of court when a person is found not guilty because of insanity

In the case of S v K (a juvenile) 2009 (2) ZLR 409 (H) the court dealt with the law in this respect. It said that when a person is found not guilty because of insanity that person must be dealt with in terms of s 29(2) (a)-(c) of the Mental Health Act [Chapter 15:12]. The court has three options under s 29(2):

(a) if the person still needs to be mentally examined or to be treated, he has to be returned to prison where he will be transferred to an institution or special institution for examination or treatment; (If this provision is applicable, the condition of a prison does not justify the court’s refusal to send to prison those the law says must be send there. The court has to proceed in terms of the correct option.) From prison the accused must be transferred to a designated institution or special institution, as defined by s 2 of the Act.

(b) if the offence in respect of which a special verdict has been returned was one for which the person could not have been sentenced to imprisonment or a fine exceeding level three, then the accused can be released to be dealt with in terms of s 29(2)(b);

(c) if the court is satisfied that the person is no longer mentally disordered or intellectually handicapped or is otherwise fit to be discharged, it can order his discharge

See Guide pp 17-20 and 134-137.

 

Defence of non-pathological criminal incapacity

 

In a series of cases the South African courts have recognised as a full defence to a criminal charge the defence of non-pathological criminal incapacity. (See the South African cases of S v Campher 1987 (1) SA 940 (A); S v Laubscher 1988 (1) SA 163 (A); S v Calitz 1990 (1) SACR 119 (A); S v Wiid 1990 (1) SACR 561 (A) and S v Smith 1990 (1) SACR 130 (A) at 135.)

This defence will apply where X lacks criminal capacity due to a cause other than mental illness. This defence can be raised in situations where X suffers an emotional collapse or severe emotional stress, often emanating from provocative action and behaviour towards X over a period of time. This defence could have application to a situation where a woman loses her powers of self-control after being subjected to domestic violence by a brutal husband.

The fact that the Criminal Law Code does not provide for this defence does not prevent it from being employed in our system. Section 214 provides that defences that may be raised are not limited to those in the Code. It provides that the defences and mitigatory factors which an accused may successfully raise are not limited to those set out in the Chapter dealing with defences.

In South Africa the defence has been successful in other situations in which the emotional stress has arisen from factors such as shock, fear and tension which have strained the powers of self-control until the accused has eventually lost his or her powers of self-control and snapped. (See the Arnold case.)

This defence carries potential dangers to the public if it is allowed too easily and a number of writers have said that the defence must be approached with caution and some writers have expressed scepticism about this defence. See, for instance, Burchell and Milton Principles of Criminal Law (Second edition) pp 278-296, Burchell Principles of Criminal Law (Fourth edition) pp 55-56 and 252 and Snyman Criminal Law (Fifth edition) 162-169.

In S v Munga 2003 (1) ZLR 591 (H) the court stated that the defence of non-pathological incapacity has to be treated with great caution as it can be raised easily by an accused but it is very difficult for the state to refute. If the courts allowed the defence to succeed easily the criminal justice system would quickly be discredited. A brief emotional disturbance would not satisfy the defence, although an act preceded by a very long period of months or years in which the accused’s level of emotional stress increased progressively might do so. The onus lies on the accused to establish this defence.  

This defence has not been specifically incorporated into the Criminal Law Code. It is referred to in passing in the case of S v Gambanga 1998 (1) ZLR 364 (S) and has been the subject of a number of High Court decisions. In the Gambanga case the accused took his wife to a garage and then shot and killed his wife after she admitted that she had a lover. Although there was some degree of diminished responsibility, it did not reduced his legal responsibility.   

In the case of S v Ncube & Anor (1) 2002 (2) ZLR 153 (H) a woman killed her husband by cutting his throat with an axe as he lay drunkenly asleep. For more than four years she has suffered abuse from her husband. He was a heavy drinker and used to assault her once or twice a week with an electrical cord; on at least one occasion she had to be hospitalised after such an assault. He also assaulted their two young children, and occasionally threatened to kill his wife. On the night in question he had come home drunk and abused her and told her to leave the house. After he had fallen asleep and had taken the axe and killed him by striking him twice on the neck. Her defence to a charge of murder was non-pathological criminal incapacity. She maintained that she had acted under an emotional storm brought about by the prolonged physical and mental abuse by her husband and that she had been incapable of appreciating the wrongfulness of her actions or acting in accordance with an appreciation of such wrongfulness.  The court did not accept this defence. It found that the accused had pre-planned the murder. She had waited for him to fall asleep and had removed one of children from his bed and taken the child to another room. After the killing, she had placed the body on the ground and had placed in plastic bags a portion of the mattress and the sheet and pillow into which the deceased had bled. She had then awoken the second accused who had helped her carry the body outside. She warned the second accused that if he told anyone that she had harmed her husband he would be killed by a person who knew him well and who had assisted her in killing her husband. She told him that he must tell people that her husband had been killed by thugs. On her orders, he took the plastic bags away and hid them in the bush. She ordered the second accused to go to the police and tell them that they had found the deceased outside next to his car. She then told the neighbours, the police and the court that her husband had been killed by thugs. On the facts the court found that she acted intentionally with premeditation and had not acted subconsciously. She had not acted in a state of criminal incapacity and was aware of the wrongfulness of what she was doing. (She had in fact told the psychiatrist who examined her that she had got angry after the husband had beaten her and had decided to kill him when he was asleep. She was therefore found guilty of murder. 

Another possible line of defence in a case of a brutalised woman is that the woman was suffering from a mental disability at the time she killed brought about by the accumulation of stress and tension arising from successive acts of brutality perpetrated upon her and her children by her violent spouse. The provisions of s 29 as read with s 2 of Health Act are sufficiently wide to allow the court to return a verdict of not guilty by reason of insanity and to decide to release the woman in question and not to commit her to a mental institution. (If the judge convicting the woman is satisfied that the accused person is no longer mentally disordered or is otherwise fit to be discharged, it may order her discharge and, where appropriate, her release from custody.)

In S v Mashungu 2013 (2) ZLR 1 (H) a 20 year old woman forced her two step children to drink poison from which the two children died. She also took some of the poison in an apparent attempt at suicide. She was saved after first aid was applied to revive her from a state of unconsciousness.

She got married when she was only 16 and she married into an abusive family. She was subjected to both physical and verbal abuse. Her husband verbally abused her over the allegations that she was not taking proper care of the two step-children. Her brother in law also confronted her over the same issue and her sister-in-law accused her of witchcraft.

 

The defence argued that the cumulative effect of all these events was that the accused suffered severe psychological and emotional stress which triggered a mental disorder the effect of which was to cause her to preoccupy herself with suicidal and homicidal thoughts.  She acted when her mind was so affected. The psychiatric evidence was that she suffered from a mental illness which is called bipolar disorder. This is a condition which is reflected by severe mood swings between manic and depressive moods. When one is in manic phase, the person would not be aware of his or her mental state or behavior and may take high risk action that may endanger herself or those around him or her without appreciating the effect of that action. The person may indulge in self-injurious behaviour as a result of pre-occupation with thoughts of death. The condition which she suffered from is of non-pathological origin and, therefore, curable without the necessity of institutionalization. The court found that in all probability, the crime was committed as the result of non-pathological criminal incapacity of a temporary nature and acquitted her.

 

It is submitted that the court should have found her not guilty by reason of insanity. She clearly suffered from a mental disorder, bipolar disorder. The judge could then have proceeded in terms of s 29(2)(c) of the Mental Health Act and if "satisfied that the accused person [was] no longer mentally disordered or intellectually handicapped or [was] otherwise fit to be discharged, order[ed] [her] discharge and ... [her] release from custody".

 

If the abused wife has killed her husband and has been charged with murder the defence of provocation could apply, either under the first or second rungs of the two-stage approach. The second rung is particularly useful in a case where a battered woman kills intentionally having lost her self-control.

If the woman has killed or injured her husband in order to defend herself against a brutal assault by her husband, in appropriate circumstances, the battered wife could also raise the defence of private defence.

 

South African case law on non-pathological criminal incapacity

 

S v Wiid 1990 (1) SACR 561 (A) A woman, X shot and killed her husband, D. He had been unfaithful to her throughout the marriage. He had assaulted her on two occasions before the shooting occurred. Shortly before the shooting she discovered that D was having another affair. A confronted D about this and an altercation ensured during which D severely assaulted A. After the assault, D chased X out of the bedroom, threatening to assault X again and X said he had threatened to kill her.    

 

Diminished responsibility

[ss 217 & 218]

Diminished responsibility does not constitute a defence but is only taken into account in mitigation of sentence. Note that diminished criminal capacity caused by intoxication or provocation will be dealt with under the rules relating to the defences of intoxication and provocation and not under the provisions relating to diminished responsibility.

The plea of diminished responsibility on the part of a perpetrator of a crime is a plea by or on behalf of the perpetrator to the effect that his or her capacity to appreciate the nature or lawfulness of his or her conduct or to act in accordance with such an appreciation was reduced by reason of some disorder or stress affecting the mind of the perpetrator.

The case of S v Gambanga 1998 (1) ZLR 364 (S) makes it clear that diminished responsibility may result from a “non-pathological incapacity” occasioned by severe emotional stress, and not only from a less than total mental disorder or defect as such. (See also S v Mutsipa S-3-90)

When diminished responsibility will be mitigatory [s 218(1)]

It will be mitigatory when X commits a crime when he or she is suffering from an acute mental or emotional stress, or a partial mental disorder or defect and this diminishes his or her capacity to appreciate the nature of his or her conduct or that his or her conduct was unlawful or to act in accordance with such appreciation.

Where diminished responsibility due to X’s fault [s 218(2)]

If the acute mental or emotional stress, or partial mental disorder or defect, is brought about through the person’s own fault, a court may regard such person’s responsibility as not having been diminished. The kind of situation contemplated is where a person who is required to take medication to relieve the symptoms of a partial mental disorder or defect knowingly fails to do so and thereafter commits a crime.

“partial mental disorder or defect” means a mental disorder or defect as defined in s 226, the effect of which is not such as to entirely deprive the person suffering from it of the capacity to appreciate the nature or lawfulness of his or her conduct or to act in accordance with such an appreciation. [s 217]

Intoxication and provocation [s 218(3)]

Diminished capacity due to intoxication or provocation will be dealt with under these specific defences and not under diminished responsibility but it should be noted that in terms of section s 224 if X, while in a state of voluntary intoxication, is provoked into any conduct by something which would not have provoked that person had he or she not been intoxicated, this is only mitigatory.

Insanity [s 218(4)]

Where a mental disorder or defect is such as to negate rather than diminish X’s mental capacity, X will be entitled to a complete defence in terms of s 227.

Onus of proving diminished responsibility [s 18]

The accused bears the onus of proving diminished responsibility on a balance of probabilities.

Cases

See S v Nyati 1974 (2) RLR 19 (A); S v Mapfumo A-48-79; S v Taanorwa 1987 (1) ZLR 62 (S); S v Mutsipa S-3-90; S v Chin’ono 1990 (1) ZLR 244 (H); S v Stephen 1992 (1) ZLR 115 (H); S v Sibanda S-137-93; S v Musimwa S-198-94; S v O’Neill S-232-95; S v Dube 1997 (1) ZLR 229 (H).

In S v Chikanda 2006 (2) ZLR 224 (S) the court pointed out that the borderline between criminal responsibility and criminal non-responsibility on account of mental incapacity or illness is not an absolute one, but a question of degree. A person may suffer from a mental illness yet nevertheless be able to appreciate the wrongfulness of his conduct and to act in accordance with that appreciation. Diminished responsibility only reduces the level of responsibility but does not completely absolve an accused person from his actions. Where the court finds that the accused, at the time of the commission of the act, was criminally responsible for the act, but that his capacity to appreciate its wrongfulness was diminished by reason of mental illness or mental defect, the court may take the fact of such diminished responsibility into account when sentencing him. Medical reports suggesting that a person may have been suffering from a state of diminished responsibility at the time of the commission of the offence need to be supported by some other evidence. On their own, such reports may not be conclusive. The decision as to whether there is diminished responsibility is to be made by the court and not just by medical experts. Where medical reports of diminished responsibility are not supported by some other facts from the evidence the court is entitled to reject the claim of diminished responsibility if there are other factors which justify that rejection.

In this case X, who had had a stormy relationship with his wife and was living apart from her, came to her house at midnight and stabbed her to death. Shortly afterwards, he grabbed his young child from the arms of her grandmother and stabbed her to death as well. The grandmother said in evidence that he was generally somebody who was not well and did not give respect to elders. He was not mentally normal, though not insane. The medical report on X said there was evidence of unstable abnormal behaviour and a tendency to violence, due to underlying suspiciousness of a paranoid nature. The trial court made a finding of diminished responsibility. The appeal court found that the conduct of X before and immediately after the killing did not seem to support the defence of diminished responsibility and the trial court had misdirected itself in so finding.

See Guide pp 20 and 136.

 

Minority

[ss 230 & 231]

 

These sections codify the existing law on minority as a defence to a criminal charge.

Presumption of incapacity of children below 7

Children under the age of 7 are irrebuttably presumed to lack criminal capacity. It would therefore be pointless to prosecute a child of this age as that child cannot be convicted of a crime.

Presumption of incapacity of children between 7 and 14 [s 230(1)]

Children who are 7 or above but below 14 are rebuttably presumed to lack criminal capacity. This is provided for in s 7 of the Code.

This presumption can be rebutted if, at the time of the commission of the crime for which the child is charged, the child was sufficiently mature-

  • to understand that his or her conduct was unlawful or morally wrong;
  • to be capable of conforming with the requirements of the law.

In deciding whether the child was sufficiently mature to have the required understanding and capacity, the court must take into account all relevant factors including the following–

  • the nature of the crime with which the child is charged;
  • the child’s general maturity and family background;
  • the child’s knowledge, education and experience;
  • the child’s behaviour before, during and after the conduct which forms the basis of the charge.

[s 230(3)]

Commission of crime by child between 7 and 14 in presence of older person [s 230(4)]

Where a child of 7 or above but below 14 engages in conduct in the presence of an older person whom the child would be expected to obey because that person is so placed as to be able to control the child, it will be presumed until the contrary is proven that the child acted under the compulsion of the older person.

Authority of Attorney-General [s 231]

A criminal prosecution can only be instituted against a child who is 7 or above but below 14 if the Attorney-General has given his or her authority.

Persons who are 14 or older

There is no presumption that a person who is 14 but below the age of 16 lacks criminal capacity to form intention or to behave in the way that a reasonable person would have behaved in the circumstances. However, although there is no presumption of incapacity, the court may still find that the particular young person of tender years was so immature that he was unable to, and did not, form the requisite intention. See for instance the case of S v P 1972 (3) SA 412 (A).

See Guide pp 32-33 and 151-152

 

Ignorance or mistake of fact

[ss 232-234]

Definitions [s 232]

Term

Meaning

essential fact

means any fact or factual circumstance which relates to an essential element of the crime

ignorance of a fact

complete lack of knowledge that the fact exists

mistaken about a fact

means an erroneous impression concerning that fact

 

Crimes requiring proof of subjective state of mind [s 233]

In respect of a crime that requires proof of a subjective state of mind, such as intention, knowledge or realisation, X will have a defence to this crime if X lacked the required state of mind because he or she X was mistaken or ignorant about an essential fact.

In respect of subjective crimes, the mistake has only to be genuine. The mistake does not have to be a reasonable one, although the unreasonableness of any mistake or ignorance may be taken into account in determining whether or not it is genuine.

In S v Moyo the court acquitted X of murder because he lacked the intention to kill a person as he thought he was being attacked by a goblin.

In S v Lunga 1989 (3) ZLR 27 (S); 1990 (1) SACR 612 (ZS) X fondled a woman whom he mistakenly believed to be the woman who had agreed to have sexual relations with him.

 

Crimes requiring proof of negligence [s 234]

X will have a defence to a crime that requires proof of negligence, if X lacked the required state of mind because he or she X was mistaken or ignorant about an essential fact.

  • when he or she did or omitted to do the thing, he or she was genuinely mistaken or ignorant as to an essential fact of the crime concerned;and
  • the person’s mistake or ignorance of that essential fact was reasonable in all the circumstances.

 

See Guide pp 25-26 and 140-142.

 

Ignorance or mistake of law

[s 235-237]

 

Definitions [s 235]

“ignorance of the law” means complete lack of knowledge that the law exists;

“mistake of law” means an erroneous impression as to the nature or content of that law.

“law” means this Code or any other enactment;

Ignorance or mistake of law no excuse [s 236(2)]

These sections codify the defence of mistake or ignorance of the law. The existing rule is that ignorance of the law is no excuse.

X is criminally liable by virtue of his or her awareness of the essential facts comprising the crime with which he or she is charged, and not by virtue of his or her awareness that the conduct constituting the crime is unlawful.

S v Bledig & Anor 1974 (2) SA 613 (RA)

S v Appleton 1982 (2) ZLR 110 (S)

 

Reliance on mistaken advice of public official [s 236(1)]

The existing exception to this rule is also incorporated into the Code. This exception is that ignorance of the law operates as a defence where the accused, being genuinely ignorant of a particular law, relies upon the mistaken advice of a public official whom he or she had reason to believe was charged with the administration of the law concerned and was familiar with its contents. It is yet to be decided if this exception would apply to a situation where a person relies on the mistaken advice of an experienced police officer. It does not apply to reliance on the advice of a private legal practitioner because that person is not a public official.

In any other case a genuine and even reasonable ignorance or mistake of the law will merely be a factor in mitigation of sentence.

S v Zemura 1973 (2) RLR 357 (A); 1974 (1) SA 584 (RA)

S v Maphosa S-170-89

S v Biddlecombe 2013 (1) ZLR 674 (H)

 

Comment

In the commentary to the Bill of the Criminal Law Code it is asserted that the general rule that ignorance of the law is no excuse” is indispensable to the administration of justice.” This assertion is very arguable. In South Africa the rule has been dispensed with without apparently causing any undue problems for the administration of justice.

 

The rule that ignorance of the law is no defence is a very harsh rule. In an earlier draft of the Code a compromise formulation was suggested. This would have allowed a reasonable mistake or ignorance of the law to operate as a defence but the onus would have been on X to prove that his or her mistake or ignorance was reasonable. It is submitted that this approach is far fairer. The compromise formula read as follows–

“When mistake or ignorance of law a defence

(1) Subject to this Part, if a person does or omits anything which is an essential element of a crime in terms of any law, the person shall have a complete defence to a charge of committing that crime if–

    (a)      when he or she did or omitted to do the thing, he or she did not know that his or her conduct was unlawful because he or she was genuinely mistaken or ignorant as to the relevant provisions of the law; and

(b)      the person’s mistake or ignorance as to the relevant provisions of the law¾

       (i)   was reasonable and excusable in all the circumstances:

                     Provided that the burden of proving that the mistake or ignorance was reasonable and excusable shall lie on the person charged;

              or

      (ii)   was directly brought about by advice given to him or her by an administrative or judicial officer whom he or she had reason to believe was charged with the administration of the law concerned and was familiar with its contents.

(2) In any circumstances other than those specified in subsection (1), genuine mistake or ignorance as to the relevant provisions of a law on the part of a person charged with a crime shall merely be a factor to be taken into account in the assessment of sentence.”

See Guide pp 26-28 and 142-147.

 

 

Provocation

[ss 238 & 239]

These sections codify the defence of provocation.

Provocation can be partial defence to a charge of murder but it is not a defence to any other crime, although it can be a mitigatory factor in respect of other crimes. (Previously provocation could also have been a partial defence to assault with intent to do grievous bodily harm. This no longer applies because the Code has merged together what used to be the separate crimes of common assault and assault with intent to do grievous bodily harm.)

In cases other than murder the defence of provocation operates merely to mitigate sentence.

Murder [s 239]

In murder cases there is a two-stage approach.

The first stage is to decide whether X had intention to kill when he or she reacted to the provocation. If X did not have intention to kill, X will not be convicted of murder but only of culpable homicide.

If X had intention to kill, then the court will proceed to the second stage, which is to decide whether X lost his or her self-control and killed intentionally in circumstances where even the reasonable person, faced with this extent of provocation, would also have lost self-control. If X did lose his or her self-control and the reasonably person would have done likewise, X will have a partial defence and will be found guilty of culpable homicide and not murder. (In South Africa on the other hand if X killed intentionally X will be found guilty of murder and the provocation will only act in mitigation of sentence.)

      Where X didn’t intend to kill

This defence will reduce the charge from murder to one of culpable homicide if as a result of X’s reaction to provocation

  • X lacked the intention to kill and did not realise the real possibility that his or her actions would result in the death.

Where X intended to kill

Even if X intended to kill, the defence of provocation will still reduce the charge from murder to culpable homicide if:

  • as a result of provocation that would have been sufficient to make a reasonable person in his or her position to lose his or her self-control, X completely lost his or her self-control and intentionally killed Y.

In the case of S v Nangani 1982 (1) ZLR 150 (S) the Supreme Court suggested an alternative formulation of this test, namely the question should be asked: Was the provocation such as could reasonably be regarded as sufficient ground for loss of self-control that led X to act against the victim as he or she did? This formulation is preferable as it avoids the need to find that even a reasonable person would have gone ahead and killed if faced with that extent of provocation.

The second rung approach has been criticised in the case of S v Dzaro 1996 (2) ZLR 541 (H) at 549-450.

Clearly the second rung of the defence will only succeed in a limited range of situations where the provocation has been very severe and has provoked the person beyond endurance.. For example, it might apply–

  • where X kills a man whom he discovers raping his daughter or sodomising his son;
  • where X discovers his or spouse in the act of adultery and kills the spouse or his or her lover;

 

There are a number of cases in which the second rung has been applied.

In S v Nangani 1982 (1) ZLR 150 (S) a man had killed his common law wife in circumstances which led him to believe that she had engaged in sexual intercourse with another man. He was found guilty of culpable homicide instead of murder even though he had had intention to kill.

In S v Ncube S-14-87 a woman stabbed to death a woman who had been committing adultery with her husband when she found her kissing her husband. The court found that although she intended to kill the woman she has lost her self-control and the circumstances were such as to justify a verdict of culpable homicide instead of murder.

On the other hand in S v Gambanga 1998 (1) ZLR 364 (S) the accused took his wife to a garage and then shot and killed his wife after she admitted that she had a lover. The court found that although there was some degree of diminished responsibility, it did not reduced his legal responsibility.

In S v Ngwanda HH-30-2006 X stabbed to death the deceased in circumstances of extreme provocation. The deceased had previously committed adultery with X’s wife on numerous occasions. He openly bragged about having seduced X’s wife.  X took the legal route and obtained a judgment against the deceased for adultery damages. The deceased contemptuously refused to pay these damages and continued to brag and taunt X to the extent of boasting in public that he had fathered X’s last child. Despite having been caught red handed committing adultery with X’s wife he did not repent nor relent despite being sanctioned by the village court and elders. On the day in question he was caught red handed again soliciting for sexual favours from X’s wife.  Shortly before his death the deceased had harassed and tormented the X at the beerhall. X then lost his self-control and stabbed to death the deceased.

 

The court found that any reasonable man could have lost his temper to the extent of exercising self-help by taking the law into his own hands as X did. The extreme provocation was sufficient to reduce murder to culpable homicide. It pointed out, however, that the courts do not condone the unlawful shedding of precious human blood. Undoubtedly the deceased was a nasty wicked character. The evil and wicked members of society, however, also have the right to life and due protection of the law.  That being the case no one is allowed to exact punishment or deprive them of their life without the due process of law.

 

In S v Mafusire 2010 (1) ZLR 417 (H) the court pointed out that by virtue of s 238 of the Criminal Law Code [Chapter 9:23], provocation is not a complete defence. In respect of any crime other than murder, provocation is not a defence but the court may regard it as mitigatory when assessing the sentence to be imposed for the crime. In murder cases there is a two-stage approach. The first stage is to decide whether the accused had the intention to kill when he reacted to the provocation. If he did not have intention to kill, he will not be convicted of murder but only of culpable homicide. If he had an intention to kill, then the court will proceed to the second stage, which is to decide whether the accused himself lost his self-control and killed intentionally in circumstances where even the reasonable person, faced with this extent of provocation, would also have lost self-control. If the accused did lose his self-control and the reasonable person would have done likewise, the accused will have a partial defence and will be found guilty of culpable homicide and not murder. In South Africa, on the other hand, if the accused killed intentionally, he will be found guilty of murder and the provocation will only act in mitigation of sentence. It is not enough to show merely that in the circumstances a reasonable man would have lost his self-control. There would have to be some evidence (leaving aside the question of onus) that the accused himself lost his self-control. What is meant by loss of self-control, and how that may differ from a lack of intention, is another matter. A loss of self-control is not absolute but is a matter of degree: there are many intermediate stages between icy detachment and going berserk.

 

In S v Chavhunduka S-216-13 the defence of provocation failed. He had attempted to kill his wife. Even if he had had suspicions of his wife’s infidelity this should have abated once he had been intimate with her a few hours before he attacked her.

 

In S v Kanyowa HH-375-13 and S v Moyo HB -343-16 the defence of provocation failed.

 

In S v Chatukuta HH-326-15 X was charged with murder. X was a schoolkid who had long time friendship with another schoolkid, D. After doing their homework they retired to bed at X’s residence. X woke up after he felt D’s penis probing his anus. He confronted D and D offered to pay for his abuse. X was infuriated and in a fit of rage and he severely assaulted D using his bare hands, inflicting grave injuries that led to the death of D the next morning. X pleaded the defence of provocation. The court accepted that X had been severely provoked by the unnatural sexual attack and had completely lost his self-control and did not realise that he would cause the D’s death. However, he had responded by resorting to excessive violence against his attacker. A reasonable person in the same circumstances which X found himself would have realised that by assaulting the deceased indiscriminately serious injury or death might result and would have taken steps to guard against such an eventuality by desisting from such conduct. X’s reaction must be measured against what a reasonable person in the position of the accused would have done. A victim of sodomy in our view would have taken reasonable steps to report it so that the law takes its course rather than resort to such a murderous attack. He would have thereby avoided taking the law into his own hands and also avoided another unlawful attack. As it is said, two wrongs do not make a right. He was therefore guilty of culpable homicide.

 

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.

 

The basic elements required for a successful defence of witchcraft provocation are: (a) the act causing death must be proved to have been done in the heat of the passion, that is, in anger; fear alone, even fear of immediate death, is not enough; (b) the victim must have been performing, in the presence of the accused, some act which the accused genuinely believed, and which an ordinary person of the community to which the accused belongs would genuinely believe, to be an act of witchcraft against him or another person under his immediate care; (c) a belief in witchcraft per se does not constitute a circumstance of excuse or mitigation for killing a person believe to be a witch or wizard when there is no immediate act of provocation; (d) the act of provocation must amount to a criminal offence under criminal law; (e) the provocation must be not only grave but sudden and the killing must have been done in the heat of passion.

 

See also S v Chamunorwa & Ors S-137-86; S v Ngwanda HH-30-06; S v Masina 2010 (2) ZLR 498 (H); S v Kazembe HH-378-15 and S v Ncube HB-80-18,

Second rung defence should not be applied in cases of adultery

In S v Ranchi HH-155-17 the judge says that the defence of provocation as a partial defence in relation to the killing of a spouse because of adultery is inconsistent with the constitutional provision in section 52 which accords the right to person security, which prohibits violence at the hands of private actors. This defence is gender biased as women are the predominant victims of crimes of passion. The judge argues that that “adultery defence for crimes of passion ought to be categorically removed from the ambit of provocation because it increases women vulnerability to violence given that women and not men are predominantly though not exclusively at the receiving end of crimes of passion.” The judge also maintains that it is a questionable to say that a reasonable person will kill when faced with provocation. The judge points out that the UN Division on the Advancement of Women has said that both “honour” and adultery be removed as defences for premeditated killings or “crimes of passion”.

 

See Guide 29-30 & 147.

Attempted murder

Although these Code provisions only deal with the possible reduction of murder to culpable homicide, provocation will also be a partial defence to attempted murder and the two-rung approach to provocation on a murder charge must also apply in respect of a charge of attempted murder. This is because s 193(2) provides that any defence that can be relied upon where the person has actually committed the crime may also be relied upon in respect of an attempt to commit that crime. If this defence is successful the crime of attempted murder will be reduced to assault. This is made clear in the Fourth Schedule to the Code which provides that on a charge of attempted murder a permissible verdict is that of assault. This was also the position that applied before the Code although then attempted murder would have been reduced to assault with intent to do grievous bodily harm.

Crimes other than murder (and attempted murder) [s 238]

Provocation is not a defence to such crimes but the court may regard the provocation as mitigatory.

See Guide pp 29-31 and 147-150.

 

Provocation stemming from voluntary intoxication

In terms of section s 224 if X, while in a state of voluntary intoxication, is provoked into any conduct by something which would not have provoked that person had he or she not been intoxicated, this is only mitigatory. See S v Masina 2010 (2) ZLR 498 (H).

 

The battered wife syndrome

Where a woman has been abused by her husband over a long period of time, she may lose her self-control and end up killing her husband. In a case of murder the defence of provocation could apply, either under the first or second rungs of the two-stage approach. The second rung is particularly useful in a case where a battered woman kills intentionally having lost her self-control.

Alternatively, she may be able successfully to raise the defence that she should be found not guilty by reason of insanity or the defence of non-pathological mental incapacity. On these defence see under the defence of insanity.

 

 

Defences and Mitigatory Factors Relating to Unlawfulness

 

Lawful authority

[s 240-242]

The defence of lawful authority deals with situations where X’s conduct is lawfully authorised.

If such authority is of a public character, in that it stemmed from an enactment authorising the conduct in question, or from the accused’s lawful mandate as an employee or agent of the State, this defence will fully avail him or her so long as the conduct was in every respect authorised by the enactment, or the mandate conferred by the State was a lawful one.

The defence of “private authority” avails parents, guardians and heads or deputy heads of schools with respect only to the infliction of “moderate” corporal punishment upon minor children under their authority. However, a head or deputy head of a school has no authority to inflict corporal punishment upon a female pupil or student. Nor does such authority exist as between spouses.

Public authority [s 240]

The fact that X is authorised or permitted by an enactment to do or omit to do any thing is a complete defence to a charge alleging the commission of a crime of which that conduct is an essential element. However, this defence will only if X’s conduct was in all respects authorised or permitted by the enactment concerned;

The fact that X did or omitted to do any thing as a duly authorised official, employee or agent of the State and in the proper exercise of that authority shall be a complete defence to a charge alleging the commission of a crime of which that conduct is an essential element. However, this defence will only apply where it was lawful for the State to give the authority concerned

Discipline of children [s 241]

“guardian” means a person, other than a school teacher in his or her capacity as such, who has the lawful custody, charge or care of a minor person, whether permanently or temporarily;

“minor”, in relation to a person, means that the person is under the age of eighteen years;

“school” includes an educational institution of any kind;

“school-teacher” means the head or deputy head of a school.

Parents and guardians [s 241(2)]

A parent or guardian has authority to administer moderate corporal punishment for disciplinary purposes upon his or her male or female minor child or ward and where the parent or guardian acts within the scope of that authority, the parent or guardian will have as a complete defence the defence of authority.

Cases

In R v Pondo & Anor 1966 RLR 478 (G) a parent caused the death of a child when he beat him for disciplinary purposes.

 

In S v Walata HH-84-89 a young mother burned the palms of hands of 7 year old son with flaming plastic because he had been caught stealing at his school. She was guilty of assault with intent to do grievous bodily harm as she had gone way beyond infliction of moderate corporal punishment for disciplinary purposes.

 

Schoolteachers (that is heads or deputy heads of schools) [s 241(2)]

A schoolteacher has authority to administer moderate corporal punishment for disciplinary purposes upon any minor male pupil or student and where the schoolteacher acts within the scope of that authority, the parent or guardian will have as a complete defence the defence of authority.

However, when administering corporal punishment upon a minor male pupil or student at his or her school, a schoolteacher shall comply with any lawful rules, regulations or administrative instructions which apply to the administration of corporal punishment at his or her school. [s 241(5)]

No schoolteacher or person acting under authority delegated to him or her by a schoolteacher may administer corporal punishment upon a female pupil or student.

In S v Mutetwa HH-373-87 a Headmaster had grossly exceeding the bounds of moderate chastisement.

 

In S v Mangwarira 1988 (2) ZLR 372 (S) X, a student teacher, was convicted of assault after she had caned a schoolboy on his buttocks. She admitted during her trial that she knew that only the headmaster was allowed to administer strokes. That although the right of a parent to administer reasonable punishment is clear under the common law, the right of a teacher is less certain. It may be, in the absence of any rule or regulation to the contrary, that even a student teacher has the right to inflict moderate chastisement on pupils under her control. The court held, however, that in view of the appellant's admission that the authority to impose corporal punishment had been reserved to the headmaster, it did not matter whether the reservation of authority was based on a Statutory Instrument or an internal school rule:  in either case she could not rely on an authority which she acknowledged she did not have, and her defence of lawfulness failed. X was found guilty of assault.

 

Delegation of authority [s 241(3)]

Any person who administers moderate corporal punishment upon a minor person under authority delegated to him or her by a parent, guardian or schoolteacher will have a complete defence to a criminal charge if it would have been lawful for the parent, guardian or schoolteacher to have administered such punishment himself or herself.

Factors for deciding whether punishment moderate [s 241(6)]

The court must take into account all relevant factors including the following–

  • the nature of the punishment and any instrument used to administer it;
  • the degree of force with which the punishment was administered;
  • the reason for the administration of the punishment;
  • the age, physical condition and sex of the minor person upon whom it was administered;
  • any social attitudes towards the discipline of children which are prevalent in the community among whom the minor person was living when the punishment was administered upon the minor person.

Corporal punishment of spouse unlawful [s 242]

It is not permissible for a person to administer corporal punishment upon his or her spouse, whatever the nature of their marriage and wherever their marriage may have been contracted.

 

See Guide pp 35-36 and 152-153.

 

 

Lawful justification

 

This defence is not incorporated into the Criminal Law Code. It is to be found in section 42(2) of the Criminal Procedure and Evidence Act. Section 42(1) provides that where a person such as a police officer is authorised to arrest a person and that person resists or flees, the person attempting to effect the arrest may use reasonable force to overcome the resistance or effect the arrest. Section 42(2) goes on to provide that where a person whose arrest is attempted is killed as a result of the use of reasonably justifiable force the killing is lawful if the person was to have been arrested on the ground that he was committing or had committed, or was suspected on reasonable grounds of committing or having committed an offence referred to in the First Schedule.

 

Cases

In S v Mhomho S-57-06 the appellant, a soldier, was charged with murder. It was argued for him that the killing was justifiable in terms of s 42(2) of the Criminal Procedure and Evidence Act. The appellant had been detailed, along with a policeman, to ambush a spot on the border suspected to be used by illegal border crossers. They did so at night. During the evening the deceased and another person approached the ambush spot and were challenged. The deceased attacked the accused and tried to take away his rifle but he and the other man fled when they saw the policeman. The accused fired a shot in the direction in which he could see the two men fleeing. The shot hit and killed the deceased. The court held that at the time the appellant discharged the firearm the deceased and his companion had committed the offence of assault in addition to a contravention of s 42(2) of the Immigration Act. However, for the appellant to have invoked the protection afforded by s 42(2) of the Criminal Procedure and Evidence Act, it had to be been shown that he had taken other reasonable steps in the attempt to prevent the deceased from escaping before resorting to the use of the force that killed him. This the appellant did not do: he appeared to have simply fired the shot in the direction of the two people just because they were fleeing. He clearly acted precipitately and prematurely took the drastic action of shooting the deceased. He was negligent in that he failed to take reasonable steps to ascertain the whereabouts of the deceased before discharging his firearm and thus should be convicted of culpable homicide.

 

See also R v Purcell-Gilpin 1971 (1) RLR 241 (A); 1971 (3) SA 548 (RA); Sv Sanyanga S-106-86; S v Kware S-85-93 on when force used to effect arrest is excessive. (The Kware case involved the use of force by a private farm security guard to prevent a thief from escaping with mealies he had stolen.)

 

 

 

 

Compulsion

[ss 243&244]

This can be a complete defence.

The defence of compulsion is available under certain stringent conditions to an accused who asserts that he or she was compelled to commit the crime with which the accused is charged.

Requirements [s 243(1)]

All the following requirements must be satisfied

  • The compulsion consisted of a threat
    • unlawfully to kill him or her or cause him or her serious bodily injury or to kill or cause serious bodily injury to some other person; or
    • unlawfully to cause him or her financial or proprietary loss;
      • X believed on reasonable grounds that implementation of the threat had begun or was imminent;
      • the threat was not brought about through his or her own fault;
      • X believed on reasonable grounds that he or she could not escape from or resist the threat and that his or her conduct was necessary to avert the implementation of the threat;
      • by his or her conduct X did no more harm than was reasonably necessary to avert the implementation of the threat, and no more harm than was unlawfully threatened.

Voluntary association with criminals [s 243(2)]

Where X voluntarily associates himself or herself with one or more other persons knowing or realising that there is a real risk or possibility that they will involve X in the commission of a crime, any threat made against him or her by one or more of those other persons for the purpose of inducing him or her to commit a crime will be deemed to have been brought about by X’s own fault.

See S v Dolosi & Ors HH-210-15

 

Additional requirements in case of murder [s 244]

  • Compulsion will only be a complete defence if, in addition to the ordinary requirements for compulsion to be a defence, the following requirements are satisfied¾
  • the compulsion took the form of a threat unlawfully to kill the accused or some other person immediately if the accused did not kill or assist in killing the deceased; and
  • the accused could not escape from or resist the threat; and
  • the accused had no warning of the threat to enable him or her to forestall it, whether by reporting the matter to the police or by other means.

Thus where the compulsion was not an immediate one, and took the form of a threat to kill a hostage, or X’s spouse, child or other relative unless X killed a third party, X may not avail himself or herself of the defence of compulsion if he or she did not report the threat to the police.

If all these requirements are satisfied, the defence of compulsion will be a complete defence to a charge of murder, whether the accused is charged as an actual perpetrator or as an accomplice.

See S v Goliath 1972 (3) SA 1 (A)

See Guide pp 36-37 and 153-155.

 

Cases

 

In R v Chipesa 1964 RLR 274 (A); 1964 (4) SA 472 (SRA) X had set fire to certain property under compulsion.

 

In R v Damascus 1965 RLR 477; 1965(4) SA 598 (SR) the defence failed where threat against X that huts would be burnt down unless they committed crime under the Law and Order (Maintenance) Act. The action was held to be disproportionate to the threat.

 

In S v Mucherechedzo & Anor 1982 (1) SA 215 (ZS) X killed two persons after having been ordered to do so by spirit medium. The defence failed as there was no overt threat of harm if X didn't carry out the order.

 

In S v Mapfumo & Ors 1983 (1) ZLR 250 (S) Xs killed D having been ordered to do so by guerrillas because she was witch. There was no immediate threat as guerrillas had left saying that they would come back 2 days later and would kill Xs and their families if the woman had not been killed- for the defence of compulsion to succeed the offence must have been induced by threats, actually believed in, or immediate death or serious bodily harm (not future harm) which there was no way of avoiding other than by committing the offence and threats must have been such that in all the circumstances the accused could not have been expected to have resisted them.

 

In S v Sixishe 1992 (1) SACR 624 (Ch A) X destroyed C’s home. He alleged that he had been compelled to do this by the son of the President of the Ciskei. The defence failed. The court held that X had not been an unwilling participant and his actions had not been dictated throughout by the threat. Moreover he would not have been at risk had he refused to carry out the order. Other had apparently resisted such orders on previous occasions and had suffered no harm as a result.

 

In S v Mambodo HH-29-12 a 17 year old male took part in the beating of an elderly woman who was accused of engaging in witchcraft. He unsuccessfully raised the defence of compulsion, contending that he was compelled to take part in the beating by his older cousin. The accused was convicted of culpable homicide.

 

In S v Ndlovu & Anor HB-188-16 the deceased aged 67 was killed by the deceased’s son (accused 1) and his daughter in law (accused 2). The two forcibly entered the deceased’s bedroom and accused 1 struck the deceased twice on the neck with a knobkerrie rendering him unconscious. Accused 1 then poured petrol all over the hut and ordered accused 2 to set the hut alight which she did and the deceased was burnt to death. Accused 1 was found guilty of murder but accused 2 was acquitted on the basis of the defence of compulsion. Accused 2’s husband had been jailed and she was left at the mercy of her brother in law, the first accused, who was always high on drugs and alcohol. On the night in question he had come frothing at the mouth after he had already fatally wounded the deceased, to force march her to the scene on the pain of death if she did not comply, a 2 litre container of petrol and a box of matches in tow. He forced her to contribute by lighting a match. After fumbling with it twice, accused 1 slapped her she succeeded. After shepherding her back to her bedroom hut he then stood guard over her and his own wife at the gate until the break of dawn armed to the teeth. He remained with her right up to the time of their arrest.

 

Compulsion where family members are kidnapped

 

It has yet to be decided in our law whether this defence would apply if X commits a crime because members of his family are being held hostage and the kidnapper has threatened to kill or harm them unless X commits the crime. Glanville Williams Textbook of Criminal Law p 585 argues that the defence should not apply in these circumstances as otherwise X could be programmed to commit a succession of heinous crimes in order to secure the release of the hostages. Glanville Williams therefore maintains that, even though it is a harsh rule, in this situation we should oblige X to seek assistance from the law enforcement agencies in the hope that they will have able to rescue the hostages.

 

Constitutional provisions

 

Section 12(2) of the previous constitution provided that a person was not to be regarded as having been deprived of his right to life if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable in the circumstances of the case for the defence of a person against violence.

 

There is no such provision in the 2013 Constitution. This appears to be a serious oversight because in effect now the Constitution does not allow for a law to provide for killing under compulsion.

 

 

 

Consent

[s 245-251]

Crimes requiring absence of consent [s 245(2]

Some crimes such as rape, aggravated indecent assault and indecent assault can only be committed if X performed the sexual act with the consent of Y. Thus the fact that Y consented would be a full defence to such a charge, provided that Y had the capacity to consent and the consent was true consent. For consent to avail as a defence

  • Y must have consented prior to the conduct, not as ratification afterwards;
  • Y must be capable in law of giving such consent and able to understand the nature and possible consequences of the conduct and to give informed consent;
  • Y’s consent must be real and is not induced by threats, force, fraud or mistake intentionally or knowingly induced by the person charged with the crime.

Crimes that do not require absence of consent [s 245(1)]

Where Y to any conduct which is likely to cause harm to his or her person, proprietary rights or other interests, Y’s consent will be a complete defence if ¾

  • the interests of the community as a whole are not adversely affected by the conduct to any substantial degree;
  • Y consented given prior to the conduct, not as ratification afterwards;
  • Y is capable in law of giving such consent and is able to understand the nature and possible consequences of the conduct and to give informed consent;
  • Y’s consent was real and is not induced by threat, force, fraud or mistake intentionally or knowingly induced by X;
  • the giving of the consent is not contrary to any law or to public policy.

Killing [s 246]

It is not lawful to a person to consent to being killed.

 

Infliction of serious bodily harm [s 246]

Usually it is not lawful for a person to consent to the infliction of serious bodily harm upon him or her. There are some exceptions to this rule, however. For instance, a person can lawfully consent to the carrying out of a major medical operation for therapeutic purposes.

 

Medical operations for therapeutic purposes [s 247]

This deals with consent to medical operations or treatment carried out by a medically qualified person (doctors and nurses) to cure or alleviate any disease or disability from which a patient suffers or is likely to suffer.

Consent to or authorisation for the medical procedure can be a complete defence to a charge of assault or murder. As regards murder the doctor may realise that there is a risk that the medical procedure might result death but the patient is gravely ill and the procedure offers the only chance of saving the patient’s life. If the patient has consented to the procedure knowing of the risk of death, the consent will be a defence to the change of murder.

Consent is a defence only if–

  • the treatment is carried out competently in accordance with recognised medical procedures;
  • the patient consented prior to the conduct, not as ratification afterwards;
  • the patient is capable in law of giving such consent and able to understand the nature and possible consequences of the conduct and to give informed consent;
  • the patient’s consent is real and is not induced by threats, force, fraud or mistake intentionally or knowingly induced by the person charged with the crime.

Persons who can consent or give authorisation

Patient

Person who can give consent to medical procedure

Patient capable in law of consenting

Patient

Patient incapable in law of consenting

Patient’s parent, guardian, spouse or any other person capable in law of giving consent on behalf of the patient

Patient who is minor where parent or guardian unreasonably refusing to consent to necessary medical treatment of minor

On application, magistrate may authorise medical treatment

Section 76 of Childrens’ Act provides that after due inquiry, including hearing from parent or guardian where reasonably practicable, if magistrate is satisfied that the treatment is necessary in the health interests of the minor, magistrate may order the treatment to take place.

 

 

Urgent or emergency treatment [s 247(3)]

The medically qualified person may give medical treatment or perform an operation without obtaining consent or authority, if, on reasonable grounds, the medically qualified person believes hat¾

  • the patient urgently requires the treatment or operation to cure or alleviate any disease or disability from which the patient is suffering or is reasonably suspected of suffering; and
  • it is not practicable in the circumstances to obtain the consent or authority normally required.

Where the treatment or operation took place in these circumstances this will be a complete defence to assault or murder, provided that the treatment or operation is carried out competently in accordance with recognised medical procedures.

Medical treatment for non-therapeutic purposes [s 248]

Consent is a full defence to a charge of murder or assault where a medically qualified person performs on a patient

  • a sterilisation operation on a patient;
  • medical treatment or an operation that is not to cure the patient or alleviate any disease or disability of the patient.

 

Thus, for instance, a patient can consent to cosmetic surgery, an operation that is not for therapeutic purposes.

 

Consent is a defence only if–

  • the treatment is carried out competently in accordance with recognised medical procedures;
  • the patient consented prior to the conduct, not as ratification afterwards;
  • the patient is capable in law of giving such consent and able to understand the nature and possible consequences of the conduct and to give informed consent;
  • the patient’s consent is real and is not induced by threats, force, fraud or mistake intentionally or knowingly induced by the person charged with the crime.

Clinical testing of drugs

There are strict controls over the clinical testing of drugs and medicines and such tests can only be carried out upon persons who have given their consent to the testing being carried out upon them. The legislation that governs clinical testing of drugs is the Medicines and Allied Substances Control Act.

Sporting injuries [s 249]

A person who takes part in any lawful sporting activity is to have consented to undergo the risk of sustaining any injury or destruction or loss of property which is normally inherent in participation in such sporting activity.

A person cannot consent to death or injury arising out of an illegal “sporting” activity such as a duel with pistols or swords where the participants agree to fight until one of them is killed or injured.

Consent is not a defence where

  • X inflicted deliberately inflicts the injury, destruction or loss in contravention of the rules of the sporting activity concerned; and
  • the injury, destruction or loss does not fall within the risks normally inherent in participation in the sporting activity concerned.

Injuries from customary or religious practices [s 250]

X will have a full defence if X inflicts with Y’s consent slight bodily injuries upon Y

  • in accordance with the customs or traditional practices of the community to which Y belongs; and
  • for the purposes of or in accordance with the practice of his or her religion or custom.

“slight bodily injury” includes the circumcision of a male person but does not include the practice of genital mutilation of a female person commonly known as “female circumcision”.

Consent given on behalf of those incapable of giving consent [s 251]

Y may be incapable in law of giving consent because, for instance, Y is a minor or is insane or may be physically unable to give consent because he or she is unconscious.

Where this is the case consent given by the person’s parent, guardian, spouse or any other person capable in law of giving consent on his or her behalf shall be as effective as if the consent had been given by the person himself or herself.

Refusal by parent or guardian to consent or where consent cannot be obtained within reasonable period

This situation is dealt with in the Children’s Act as follows—

76 Consent to surgical or other treatment

(1) Where the consent of a parent or guardian is necessary for the performance of any dental, medical, surgical or other treatment upon a minor and the consent of the parent or guardian is refused or cannot be obtained within a period which is reasonable in the circumstances, application may be made to a magistrate of the province where the minor is or is resident for authority to perform the treatment.

(2) A magistrate to whom an application in terms of subsection (1) is made may—

(a) after due inquiry and after affording the parent or guardian concerned a reasonable opportunity of stating his reasons for refusing to give the necessary consent or without affording such person such opportunity if his whereabouts are unknown or if in the circumstances it is not reasonably practicable to afford him such opportunity; and

(b) if satisfied that any dental, medical, surgical or other treatment is necessary or desirable in the interests of the health of the minor;

by order in writing authorize the performance at a hospital or other suitable place upon the minor concerned of such dental, medical, surgical or other treatment as may be specified in the order.

(3) Where authority for the performance of any treatment has been given in terms of subsection (2), the person legally liable to maintain the minor concerned shall be liable for the cost of the treatment.

(4) Notwithstanding any other law, a young person may, without the assistance of his parent or guardian, consent to donate blood for medical or scientific purposes:

Provided that no such consent shall be valid if—

(a) the donation of his blood would endanger the young person’s health or life; or

(b) the young person’s parent or guardian has informed the person who is to take the blood that he does not consent to the donation.

 

If the doctor went ahead and treated a gravely ill child to save its life and did so without parental consent or authorization from a magistrate because the child would have died if it had not received immediate medical intervention, the doctor would be able to raise the defence of necessity.

 

See Guide pp 37-39 and 156-157

 

 

Self-defence or defence of another

[s 252-255]

Constitutional provisions

 

Section 12(2) of the previous constitution provided that a person was not to be regarded as having been deprived of his right to life if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable in the circumstances of the case for the defence of a person against violence.

 

There is no such provision in the 2013 Constitution. This appears to be a serious oversight because in effect now the Constitution does not allow a law providing for the defence of killing in defence of a person against a violent attack. This is anomalous because the Constitution would allow a law to provide that a person can inflict harm in order to defend himself but does not allow a law to provide that a person can kill another to protect himself or his family members against a murderous attack. However, on the courts would surely adopt a common sense interpretation of the right to life so as to provide that a person is entitled to defend his or her life against a person who is trying to kill him or her. In other words, there is a natural right to act for the purposes of self-preservation against an unlawful attacker.

 

However, the Criminal Law Code provides that self-defence and defence of another can be a complete defence.

Our law recognises that the infliction of harm upon unlawful attackers is permissible to the extent that such harm was reasonably necessary to ward them off.

Requirements [s 253]

This defence is a complete defence to a crime if all the following requirements are met-

  • when X engaged in the conduct, the unlawful attack had commenced or was imminent or X believed on reasonable grounds that the unlawful attack had commenced or was imminent;
  • X’s conduct was necessary to avert the attack or X believed on reasonable grounds that that his or her conduct was necessary to avert the unlawful attack and that he or she could not otherwise escape from or avert the attack;
  • the means X used to avert the unlawful attack were reasonable in all the circumstances;
  • any harm or injury caused by his or her conduct¾
    • was caused to the attacker and not to any innocent third party;and
    • was not grossly disproportionate to that liable to be caused by the unlawful attack.

“unlawful attack” is defined as any unlawful conduct which endangers a person’s life, bodily integrity or freedom.

Case on unlawful attack

In S v Ncube & Anor 2014 (2) ZLR 174 (S) the two appellants, who were armed with knives, had stolen property from a school and were seen by a teacher loading the property into a bag. The teacher armed himself with an axe and went to investigate. He ordered the first appellant to surrender but he ran off. The teacher gave chase and eventually apprehends him by using the blunt end of the axe. He orders him to lie down. The first appellant pretended to surrender but suddenly drew out his knife and fatally stabbed the teacher twice on the arm and once in the stomach. The first appellant sought to rely on the defence of self-defence but this defence did not succeed. The court found that the “attack” by the teacher has been lawful as it was a lawful exercise of the right to defend property and he had the right to use moderate force to effect a citizen’s arrest and he had not exceeded this right so as to constitute an unlawful attack entitling the first appellant to rely upon the defence of self-defence.

Factors when considering whether the accused acted reasonably in defence

In S v Manzonza HMA-02-16 the court referred to Burchell’s Principles of Criminal Law 5th Edition 2016 at pp 129 where the author outlines some of the factors a court would take into account in assessing whether an accused person acted reasonably in the manner in which he defended himself or herself. The list is not exhaustive but include inter alia;

  1. the relationship between the parties.
  2. the respective ages, gender and physical strength of the parties.
  3. the location of the incident.
  4. the nature, severity and persistence of the unlawful attack.
  5. the nature of weapon used in the unlawful attack.
  6. the nature and severity of any injury or harm likely to be sustained in the unlawful attack.
  7. the means available to avert the unlawful attack.
  8. the nature of the means used to offer defence.
  9. the nature and extent of harm caused or likely to be caused by the defence.

 

Cases where accused was acquitted

In S v Maende HH-44-16 the deceased and the accused had quarrelled at a beer hall. The accused had left the beerhall but the young deceased who was drunk had pursued him and grabbed him by his collar and had brandished an axe. To defend himself the accused drew a knife and had ended up fatally stabbing the deceased in the stomach. The accused was acquitted on the basis of the defence of self-defence.

In S v Mpofu 1969 (1) SA 334 the deceased attacked the accused with a knife. The accused threw a stone at deceased who was hit on the head and died. The accused was entitled to be acquitted on the basis of self-defence.

 

In S v Shavi HH-124-17 X’s wife attacked X first but he disarmed her and when she no longer was attacking him and was defenceless, X struck her several blows leading to her death. X was found guilty of murder.

 

In S v Sibanda HB-333-16 the defence of self-defence succeeded to a charge of murder.

 

In S v Manzonza HMA-02-16 the defence of self-defence succeeded to a charge of murder

 

In S v Zhou HMA-09-18 the defence of self-defence succeeded to a charge of murder.

 

Case on whether obliged to flee

In S v Mothoana 1992 (2) SACR 383 (O) X was attacked by C with a knife after C had caught X in bed with his wife. C had attempted to stab at C several times. X then took out his own knife and stabbed C several times. He was convicted of assault with intent to do grievous bodily harm. The appeal court held that he was not obliged to flee as found by the trial court as it would have been dangerous for him to have attempted to flee.

 

Cases dealing with requirement that the attack must have commenced or be imminent

 

In S v Kanzoto HH-400-2000 the defence failed where the woman killed her husband with axe whilst he slept. The husband had earlier used bare hands to assault her. The defence of self-defence did not succeed as the woman was not under attack when she killed her husband. Chihengo J commented in this case on the battered wife syndrome.

 

In S v Ncube & Anor (1) 2002 (2) ZLR 153 (H) a woman killed her husband by cutting his throat with an axe as he lay drunkenly asleep. For more than four years she has suffered abuse from her husband. The defence of private defence was rejected on the basis that the murder was pre-planned and pre-meditated and the woman was not under attack when she killed him.

 

Court must take into account X’s predicament

In determining whether or not the requirements for the defence have been satisfied, the court must take due account of the circumstances in which X found himself or herself, including any knowledge or capability X may have had and any stress or fear that may have been operating on his or her mind.

The courts have stressed again and again that they do not adopt an armchair approach to situations of self-defence. It would be wrong for the courts to fail to take into account that fact that X under attack is in a pressurised and dangerous situation. When dealing with the question of what a reasonable person would have done in those circumstances, the courts must try to place themselves in the predicament faced by X. They must be aware of the fact that X who is already under attack will have to take immediate defensive measure and will not have the time to ponder upon what weapon and how much force he should use. If a person is faced with the terrifying prospect of an attacker who is about to kill or gravely injure him, he will have to respond immediately with whatever weapons are to hand. Thus where a mob, intent upon killing or causing serious bodily harm set upon a person with sticks and stones, the defender may be justified in using a fire-arm to defend himself. But if a person is threatening to slap another person across the face, it would not be justified to shoot and kill the attacker.

 

Cases on avoiding armchair approach

 

In S v Phiri S-190-82 at night time D had gained entry into X's house by threatening to shoot X through the window. D assaulted P’s wife. X reacted by hitting D with a knobkerrie several times. On appeal the conviction was set aside, the appeal court holding that X had used reasonable means to defend himself and his wife against the intruder. The appeal court said warned against using an armchair test from refined atmosphere of court.

 

In S v Mahingaidze S-79-84 youth brigade members surrounded X, a policeman. The youth brigade members had uttered threats against his life. X ended up shooting the youth brigade leader in stomach. He had previously fired two warning shots first. X believed life to be in danger. The appeal against conviction for attempted murder was successful. The appeal court held that the action taken by X was reasonable.

 

In S v Mandizha S-200-91 X had been convicted of murdering his father who had a history of family violence and was attacking him with an iron bar and axe. He wrested away the iron bar and hit his father quickly three times on the head. It was unrealistic to expect X to stop after one blow to see whether his father’s murderous attack would stop. He had neither the time nor opportunity to rationalise the degree of force and number of blows that would be necessary to avert the danger to his own life. The State had failed to prove that X did or ought to have realised that he was exceeding the bounds of self-defence, to sustain a conviction for either murder or culpable homicide.

 

In S v Banana 1994 (2) ZLR 271 (S) X was found not guilty of culpable homicide. He had shot at armed and determined housebreakers at night. The court held that he had killed in defence of himself and of his property and the defence applied. The court said that the armchair approach to this sort of situation must be avoided.

 

In S v Mafusire 2010 (1) ZLR 417 (H) the court found that the defence of self-defence cannot be sustained. The accused, by his own admission was the aggressor as he started to assault the deceased with a stick. That act constitutes an unlawful attack on his part. If the deceased tried to use an axe against him self-defence could only have been raised by her in the circumstances. In any event, in relation to the accused, if there had been any attack against him he was no longer under such attack the moment he disarmed the deceased. In addition the means used would certainly be immoderately excessive to import intention on his part.

In S v Choruma 2010 (1) ZLR 403 (H)  X was about to be attacked with a spear by the D. He used a stick to knock the spear out of the hand of D. D was blocking his escape route and X believed that D would pick up the spear and resume his attack so he struck him once on the head with his stick. D later died from his head injury. The court acquitted him of murder, finding that he had acted in self-defence. He had acted on the spur of the moment and he had not had the time to rationalize things, as one would in the comfort of a courtroom or a judge’s chambers. The court also found that he had acted on the basis of a genuine and reasonable belief that the attack upon him was immediately going to resume.

In S v Kanyowa HH-375-13 the defence of defence of person failed. The court found that even if he had been under an unlawful attack the means he used to avert the purported unlawful attack was not reasonable in all the circumstances. He came out with a double edged ceremonial dagger to fight the deceased who was not armed. The supremacy of his weapon, far out weighed the deceased’s ability to beat him with his bare hands and feet. The harm he caused was grossly disproportionate to that the deceased could have caused on him using his hands and booted feet.

Battered wife

In S v Ncube HB-70-11 D was an abusive husband. Wherever he got drunk he would come home and severely assault his wife. The police were regularly called to this home because of the violence. On the evening in question D started attacking his wife with clenched fists and booted feet. His children eventually managed to leave the house but D blocked the door to prevent his wife from leaving. D then picked up a knife intending to stab his wife who was then forced to grab the knife to prevent the stabbing. The two then grappled over the knife while the D continued to kick and generally assault the wife.   During the grappling D was stabbed in the neck with the knife and died.

 

The wife was acquitted of murder on the basis of self-defence but additionally the stabbing of the husband may have been accidental during the struggle.

 

Can a criminal rely on self-defence?

 

The question which arose in the case of S v Ncube & Anor S-58-14 is whether a person carrying out a criminal enterprise can rely on the defence of self-defence if he is being attacked by the victim of a crime. In this case a teacher armed with an axe had pursued X who had broken into a school and stolen various items. X had pulled out a knife and stabbed the teacher to death. He had sought to raise the defence of self-defence. On the facts the teacher intended to arrest X and not to kill him. He had only used the handle of the axe in his attempt to subdue and arrest X. Thus it could not be said that X was trying to prevent the teacher from killing him. The teacher was lawfully entitled to apprehend X and recover the stolen property. If, however, X had surrendered but that teacher then decided to kill him, it is possible that X would have been entitled to defend himself because the teacher was not entitled to decide to execute the criminal and his attack upon the criminal could have then have become unlawful.

 

Where deceased was the original aggressor

 

In S v Ndlovu HB-263-16 the court decided that where a person is the original aggressor but his attack has ceased, the person attacked is not entitled to retaliate and attack the original aggressor and the person who retaliates is not entitled to rely upon the defence of self-defence.

 

Partial defence to murder [s 254]

X will have a partial defence to a charge of murder and will be found guilty of culpable homicide instead of murder if

  • X was defending himself or herself or another person against an unlawful attack;
  • All the requirements for this defence of self-defence or defence of another were satisfied except that the means X used to avert the unlawful attack were not reasonable in all the circumstances.

Mistaken belief that under attack (putative self-defence) [s 255]

If X genuinely and on reasonable grounds, but mistakenly, believes that he or she is defending himself or herself or another person against an unlawful attack, he or she shall be entitled to a complete or partial defence to any criminal charge in all respects as if his or her belief were in fact correct.

 

It should be noted that for this defence to avail the mistake must not only be genuine but also it must be reasonable. See S v Moyo S-45-84 and S v Fishani HB-33-14.

 

Cases on mistaken self-defence

 

In S v Moyo S-45-84 X was pursued by a group of people who accused him of being a dissident. The pursuers were armed. X took refuge in someone else's house and armed himself with kitchen knife. X stabbed and killed two people as they entered. X believed that these persons were pursuers who were intent on killing him. It turned out that these persons were in fact people who lived in the house in which he had taken refuge and that they had entered the house in order to expel X from the house. X was charged with two counts of murder. On appeal the Appeal court found that X had reasonably believed that his life was threatened and the means taken in circumstances were not unreasonable. He was acquitted on appeal.

 

In S v Motleleni 1976 (1) SA 403 (A) X believed on reasonable grounds that D had him cornered and that he intended to stab him. X struck D first. The conviction for murder set aside on appeal.

 

In S v Chauke 1991 (2) SACR 251 (B) the court found that the intention to kill had not been proved on charge of murder because it was reasonably possible, on the facts, that the X had reasonably believed that he was in danger of being seriously injured by the deceased and that, in shooting the deceased, he was acting in justifiable self-defence.

 

Defence of another

S v Mpofu 1968 (2) RLR 319

In S v Chidyamudungwe HH-459-15 X was acquitted on a charge of murder as he was defending his brother against a mortal attack. The court found that X had acted legitimately in defence of a third party when he struck and killed the deceased.

 

See Guide pp 42-44 and 159-162.

 

Defence of property

[s 256-259]

Defence of property can be a full defence to a crime, but where the crime charged is murder there are additional stringent requirements for this defence. These stringent requirements are there to try to ensure that killing is only used as a last resort measure to protect property which is of vital importance to the accused and to signify that greater value is usually placed on human life over that of property.

 

Constitutional provisions

 

Section 12(2) of the previous constitution provided that a person was not to be regarded as having been deprived of his right to life if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable in the circumstances of the case for the defence of property.

 

There is no such provision in the 2013 Constitution. This appears to be a serious oversight because in effect now the Constitution does not allow a law providing for the defence of killing in defence of property. This is anomalous because the Constitution would allows a law to provide that a person can inflict harm in order to defend his property but does not allow a law to provide that a person can kill another to protect his property.

 

There is no such provision in the 2013 Constitution. This appears to be a serious oversight because in effect now the Constitution does not allow for the defence of killing in defence of property.

 

Definitions [s 256]

property

includes property of any description and any interest or right therein

unlawful attack

any unlawful conduct which endangers or infringes a person’s property

 

General requirements [s 257]

Defence of property will be a complete defence to a crime with X is charged with if X is charged with a crime for his or her action in defending his or her property if all the following requirements are satisfied¾

  • when X did or omitted to do the thing, the unlawful attack had commenced or was imminent;
  • X’s conduct was necessary to avert the unlawful attack;
  • the means X used to avert the unlawful attack were reasonable in all the circumstances;
  • any harm or injury caused by X’s conduct¾
    • was caused to the attacker and not to any innocent third party; and
    • was not grossly disproportionate to that liable to be caused by the unlawful attack.
Killing in defence of property [s 258]

Where X is charged with a crime involving the killing of another person X is not entitled to rely upon defence of property unless all the following requirements are satisfied¾

  • X resorted to killing after taking all other possible steps to protect the property concerned;
  • the property concerned could not have been defended by any means except by killing;
  • the property concerned was of vital importance to X;
  • X believed on reasonable grounds that he or she would not receive adequate compensation for any destruction, damage or injury caused to the property concerned by the unlawful attack.
  • In determining whether or not these requirements have been satisfied in any case, a court shall take due account of the circumstances in which the accused found himself or herself, including any knowledge or capability he or she may have had and any stress or fear that may have been operating on his or her mind.
  • In determining whether or not any means used by a person to avert an unlawful attack were reasonable, or whether or not any harm or injury caused to an attacker was proportionate to that liable to be caused by an unlawful attack, a court will have regard to the nature of the property which the person was trying to protect and its value to him or her.

Cases

In S v Nicolle 1991 (1) ZLR 211 (S) the court found that a landowner was entitled to use reasonable force to carry out a search of a fish poacher on his land and to overcome the resistance by the poacher to the lawful search and seizure. He was therefore not guilty of assault on the basis of a combination of self-defence and defence of property.

 

In S v Mupawaenda HH-40-16 the situation seems to have involved primarily one of defence of person. Although the guards were employed to guard the diamond field against illegal diamond panners, the guards had come under attack from a stone throwing of panners who had yelled that they would kill the guards. However the court pointed out that where an accused is charged with a crime involving the killing of another person, he is not entitled to rely upon defence of property to exonerate him unless the following requirements are all satisfied: (a) he resorted to killing after taking all other possible steps to protect the property concerned; (b) the property concerned could not have been defended by any other means except killing; (c) the property concerned was of vital importance to him; and (d) he reasonably believed that he would not receive adequate compensation for any destruction, damage or injury caused to the property concerned by the unlawful attack. In determining whether or not these requirements have been satisfied in any case, a court shall take due account of the circumstances in which the accused found himself, including any knowledge or capacity in which he may have had and any stress or fear that may have been operating on his mind. In determining whether or not any means used by a person to avert an unlawful attack were reasonable, or whether or not any harm or injury caused to an attacker was proportionate to that liable to be caused by an unlawful attack, a court will have regard to the nature of the property which the person was trying to protect and its value to him.

 

Lethal traps

There is no case in Zimbabwe dealing with the setting up of a lethal trap to protect against burglars where the trap has caused the death of a burglar. There are two cases where lethal traps have been set up to protect property but in both cases employees were killed. In R v Puttock 1967 RLR 186 (A) X had rigged up an electrical fence to protect his pigs against theft. An employee had touched the fence thinking the current was off and had died. The employer was found guilty of culpable homicide because he had failed to take proper precautions to protect his employees against being killed by this trap. In S v Mlambo 1994 (2) RLR 410 (S) X had set up an electrified fence around his vegetable patch to keep wild animals out. Again an employee had touched the wire and had died. The court found X guilty of culpable homicide. It found that X had introduced an extreme hazard onto his property and he was obliged to take reasonable precautions to prevent harm to his employees. He could have used non-lethal current and a red warning light to show when current still switched on and provided safety clothing to employees. He had failed to employ reasonable precautions.

There is a South African case dealing with a situation in which a burglar was killed by a shotgun trap. The case is that of S v Van Wyk 1967(1) SA 488 (A). X had suffered repeated break ins at his store which was situation in a remote location. All previous protective measures had failed. Burglar bars had been broken, his watchdog was killed and his night watchman had been intimidated and driven away. The police had been unable to provide constant surveillance of store. Facing financial ruination and at his wits end, he had set out a shotgun trap set up with knowledge of police. The shotgun trap was intended to be triggered by a burglar breaking in through a window. The shotgun blast was supposed to hit the burglar in the legs but it in fact hit him in the chest and killed him. He had posted a warning notice about the trap but in dimly lit place and not in local languages. X was acquitted with the majority finding that he had not exceeded the bounds of private defence.

Even where the trap is set up to protect property against thieves, the defence will only apply where the means used are reasonable and were necessary to avert the “attack”. The courts will be likely to be reluctant to condone easily the setting up of lethal traps because of the potentiality of the trap harming innocent third parties and the fact that it is usually possible to set up a trap that protects without involving the causing of death.

When defence of property partial defence to murder [s 259]

If X killed Y to defend his or her or another’s property and X is charged with murder, X will be found guilty only of culpable homicide if all the requirements specified for defence of property  to be a defence to a charge of murder are satisfied except that the means X used to avert the unlawful attack were not reasonable in all the circumstances.

 

See Guide pp 44 and 162-164.

 

Entrapment

[s 260]

 

Entrapment is not a defence but can only be mitigatory.

This sets out the existing legal position on entrapment reflected in a number of Supreme Court decisions and this is that entrapment never constitutes a defence but is only taken into account in mitigation of sentence.

Entrapment no defence

It is not a defence to a crime that X was trapped into committing the crime concerned, that is to say that the police or other authority or person, by using any inducement or encouragement, caused X to commit it for the purpose of obtaining evidence of its commission,

When entrapment mitigatory

Where the court considers that unfair or undesirable entrapment methods were used by the police or other authority or person, it may take the manner of such entrapment into account as a factor in mitigation of sentence.

See Guide pp 45 and 163-164.

 

Impossibility

[s 261]

 

Impossibility can be a complete defence.

The defence of impossibility is of extremely limited application, being relevant only to those crimes defined by a failure to do something.

Requirements [s 261(1)]

Where X is charged with a crime of which an essential element consists of a failure, omission or refusal to do anything, the fact that it was physically impossible (not merely extremely difficult) for X to do that thing is a complete defence to the charge if¾

  • the impossibility was absolute, that is to say, if it was objectively impossible for anyone in X’s position to have done that thing; and
  • the impossibility was not due to X’s own fault.

Difficulty in complying with law [s 261(3)]

When imposing sentence upon X for a crime, a court can take into account any difficulty experienced by X in complying with a law.

See Guide pp 39 and 157.

 

 

Necessity

[s 262-266]

 

Necessity can be a complete defence.

The provisions on the defence of necessity are similar to those for the defence of compulsion, compulsion being a kind of necessity. There are very few situations not covered by the defence of compulsion where the defence of necessity will apply. If the case involves a threat that would give rise to the defence of compulsion, it should be dealt with under compulsion and not under necessity.

General requirements [s 263]

If X’s action or inaction was necessary to avoid harm to X or to another, necessity will be a complete defence if all the following requirements are satisfied–

  • the harm which he or she sought to avoid would have resulted in
    • death or serious bodily injury to X or to another; or
    • considerable financial or proprietary loss to X;

              and

  • X believed on reasonable grounds that the harm had started to occur or was imminent;and
  • the harm did not arise through his or her own fault;and
  • X believed on reasonable grounds that his or her conduct was necessary to avoid the harm and that there was no other feasible way of avoiding it; and
  • by his or her conduct X did no more harm than was reasonably necessary to avoid the harm, and the harm X did was not disproportionate to the harm he or she sought to avoid.

In determining whether harm would cause considerable financial or proprietary loss to a person, a court shall have regard to the financial or proprietary resources of the person concerned.

Case

In S v Pretorius 1975 (2) SA 85 (SWA) A had pleaded guilty to and had been convicted of exceeding the speed limit. His child, aged two years, had taken nine “Disprin” tablets; that he considered that his child’s life was in danger and that he wanted to get him to hospital as soon as possible. On his way he was caught in the speed trap. On review, the court held that the State had not disproved the defence raised of an act of necessity and it set aside the conviction.

 

When necessity complete defence to murder [s 264]

If X is charged with murder as the actual perpetrator or as an accomplice necessity is only a complete defence to the charge of murder if not only the general requirements for this defence are satisfied but also all the following requirements are also satisfied–

  • the harm which X sought to avoid would have resulted X’s death or in the death of his or her spouse, parent or child; and
  • X’s conduct was necessary to avoid the death and there was no other feasible way of avoiding it; and
  • X had no warning of the harm to enable him or her to forestall it by other means.

When necessity partial defence to murder [s 265]

If X is charged with murder and all the requirements for the defence of necessity are satisfied except that by his or her conduct X did more harm than was reasonably necessary to avoid the harm that X sought to avoid, X will be guilty of culpable homicide.

Other crimes [s 266]

In relation to all cases other than those specified above, necessity is not be a defence but will merely be a factor to be taken into account in the assessment of sentence.

 

See Guide pp 40 and 157-158.

 

 

Obedience to orders

[s 267-268]

 

This defence can be a complete defence.

 

Sections 267 and 268 set out the requirements for obedience to superior orders to be a complete defence to a lawful and an unlawful order. There are obviously more stringent requirements where the order that was carried out is illegal. To try to prevent members of disciplined forces from being used as agencies to carry out orders to commit atrocities and other human rights abuses, such as massacring innocent civilians, the defence of obedience to orders will not apply where the order was not so manifestly illegal that a reasonable person in his or her position would have refused to obey it.

 

Definitions [s 267]

 

 

active operations

  • active service during any war in which Zimbabwe is engaged; or
  • counterinsurgency operations; or
  • the suppression of a riot or public disturbance or public violence; or
  • the prevention of a disturbance within or escape from a prison.

disciplined force

  • the Defence Forces; or
  • the Police Force; or
  • the Prison and Correctional Service; or
  • any other force organised by the State which has as its sole or main object the preservation of public security and of law and order in Zimbabwe.

lawful order

any command, direction or order¾

  • of a routine, permanent or continuing nature that is properly made for any disciplined force by or under any enactment or in terms of any authority given by or under any enactment;or
  • given on a particular occasion or for a particular purpose by a member of rank of a disciplined force within the ordinary and lawful scope of that member’s authority

member

in relation to a disciplined force includes

a person who is assisting members of the disciplined force, whether voluntarily or otherwise and whether or not he or she is remunerated for his or her services, and who is subject to orders given by other members of the disciplined force.

member of rank

in relation to a disciplined force, means a member in lawful authority over any other member.

 

Requirements for obedience to lawful orders to be complete defence [s 268]

If X was obeying a lawful order X will have a complete defence to the charge if all the following requirements are satisfied¾

  • when he or she did or omitted to do the thing he or she was a member of a disciplined force; and
  • the order was given to him or her by a member of rank of a disciplined force, whether or not that person was a member of the same disciplined force.

Requirements for obedience to illegal orders to be complete defence [s 269]

If X was obeying an unlawful order X will have a complete defence, even if X realised that the order he or she was obeying was illegal to the charge if all the following requirements are satisfied¾

  • at the time of the conduct in question X was a member of a disciplined force engaged in active operations; and
  • the order was given to X by a member of rank of a disciplined force, whether or not that person was a member of the same disciplined force; and
  • X would have been liable, or believed on reasonable grounds that he or she would have been liable, to disciplinary action if he or she had refused to obey the order; and
  • the order was not so manifestly illegal that a reasonable person in his or her position would have refused to obey it; and
  • his or her conduct was no more than was necessary to carry out the order.

 

See Guide pp 40-41 and 158-159.

 

Trivialities

[s 270]

This defence permits an accused to be acquitted if the harm to a person or the community occasioned by the crime in question is so trivial as not to warrant a conviction. In practice, this defence has only very limited application.

Factors [s 270(2)]

In deciding whether the crime is of a sufficiently trivial nature to justify an acquittal the court must take into account all relevant factors including the following–

  • the extent of any harm done by the commission of the crime to any person or to the community as a whole; and
  • the extent to which it appears, from the enactment which created the crime, that the lawmaker wished to prohibit conduct such as that perpetrated by the accused; and
  • whether or not an acquittal will encourage other persons to commit the crime concerned.

 

When court should acquit [s 270(3)]

A court must only acquit X if the conduct is of a trivial nature in relation to the most serious conduct prohibited by the particular provision of the enactment concerned.

Case

In S v Dzimuri & Ors 1997 (2) ZLR 27 (H) the court said that 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.

 

See Guide pp 45 and 164-165.

 

Unavoidable accident

[s 271-272]

Situations covered [s 271]

An unavoidable accident is a circumstance or event so unlikely to occur that a reasonable person in the position of X would not take steps to guard against it. It includes such situations as¾

  • a heart attack or epileptic blackout suffered whilst driving a motor vehicle by a person who has not previously suffered from one and who has no reason to suppose that he or she might do so;
  • a swarm of bees flying into a moving motor vehicle and stinging the driver;
  • a stone thrown up by a passing vehicle and striking and stunning the driver of a moving motor vehicle.

Requirements [s 272]

This is a complete defence if to the charge if¾

  • the unavoidable accident did not occur through X’s own fault; and
  • a reasonable person, faced with the same unavoidable accident in the same circumstances, would not have been able to avoid the same conduct that would have constituted the crime.

Cases

Motor vehicle cases

 

In R v Shevill 1964 RLR 292 (A); 1964 (4) SA 51 (SR) the court stated that it is negligent to continue to drive when drowsy. X was found guilty of culpable homicide after he had fallen asleep at the wheel and caused some deaths.

 

In S v Crockart 1971 (1) RLR 260 (A); 1971 (2) SA 496 (RA) X was driving a car. His wife struck a match and the flaming match head broke off and landed between X's legs. He panicking and took his eyes off the road momentarily. He veered across the road and caused an accident. The court held that X should, by exercise of reasonable care and skill, have coped with emergency while maintaining car on its proper course. X was found guilty of negligent driving

 

In S v Lombard 1964 (4) SA 346 (T) a horsefly entered the cab of a vehicle and stung the driver, X, on the cheek. The driver who was allergic to insect stings panicked, lost control of the vehicle and had an accident. X was found guilty of negligent driving. The court found that a reasonable driver would not have lost control. He would have applied his brakes immediately and brought vehicle to a halt.

 

In S v Erwin 1974 (3) SA 438 (C) a bee stung, X, a driver on the cheek. X instinctively pulled away and bumped his spectacles against the window, breaking his lens. X then released the steering wheel and grabbing spectacles to protect eyes. The vehicle went out of control and caused an accident X was found guilty of negligent driving, the court finding that the error of judgment made while in a state of emergency was not one which a reasonable driver would have made.

 

In S v van Rensburg 1987 (3) SA 35 (T) X had had blood tests which had led to a fall in his blood sugar levels. His doctor did not warn him that this might happen and it was not reasonably foreseeable. X was thus not responsible for the accident and he was found not guilty of negligence.

 

In the civil case of S v Wessels & Anor 1985 (4) SA 153 (C) X was found guilty of negligence. While driving he had suffered a diabetic coma due to low blood sugar He had suffered previous attack resulting in an accident. He knew of his condition and how to control even if not been told this by his doctor.

 

See Guide pp 17

 

Indemnity under legislative provisions

 

In S v Bowa 2014 (1) ZLR 835 (S) the appellant was charged with murder. The court a quo rejected the appellant’s claim that he was protected by the provisions of s 3 of the Protection of Wild Life (Indemnity) Act [Chapter 20.15], holding that a person in the position of the appellant would be indemnified where “for instance, he comes across poachers who resist arrest and threaten to harm him or threaten to kill him.” In view of its finding that the deceased was not armed and was not resisting arrest but was simply running out of the house to avoid further assaults by the other rangers inside, the court found that the appellant was not entitled to such indemnity. On the appellant’s claim of self-defence, the trial court held that the appellant was not defending himself as the deceased was not armed and was running away to avoid further assaults. The court accordingly rejected that defence as well and consequently found the appellant guilty of murder with actual intent, and, upon finding no extenuating circumstances, imposed the death sentence on the appellant.

 

The Appeal Court held that it was clear from the evidence that the rangers believed they were going after suspects who were armed, which was why a total of ten rangers, nine of whom were armed with rifles, were involved in this operation. The appellant was a senior ranger, having been employed as a ranger for 35 years. If indeed the deceased was not armed, why would the appellant have fired at him in the manner he did? Two of the deceased’s younger brothers ran out of the house, but were not shot. Had it been a case of the appellant being trigger happy, he would, in all probability, have fired at the two young men as well. He did not do so. The probabilities were that the deceased must have conducted himself in a manner that made the appellant believe that he was in danger. There could be no other explanation for the events that unfolded. The trial court should, at the very least, have concluded that there was some doubt as to what happened exactly, and, in keeping with the principle applicable in these circumstances, resolved the doubt in favour of the appellant.

 

On the question of indemnity, it must have been the intention of the legislature to provide indemnity to armed personnel in the employ of the State who are involved in anti-poaching activities in respect of conduct which might otherwise attract criminal sanction, if such conduct is done in good faith for the purpose of or in connection with the suppression of poaching activities. The Act recognizes the fact that such personnel may find themselves in situations in which decisions have to be made in a split second in order to subdue, arrest or contain dangerous persons involved in poaching activities. As long as the conduct is bona fide and intended to suppress poaching of wild life, such personnel would be indemnified. A person claiming indemnity must satisfy two important requirements: (a) such person must have been acting in good faith; and (b) the act done by him must have been for the purposes of or in connection with the suppression of the unlawful hunting of wild life.  These two requirements must be present and read in conjunction with each other. If either is lacking such indemnity would not attach to such person. “Good faith” is the subjective state of mind that a certain set of facts genuinely exists, on the basis of which it becomes necessary to act in a manner most right thinking people would consider appropriate given those facts. A disproportionate reaction, given a particular set of facts, may well justify an inference that such reaction was not actuated by good faith. The words “for the purposes of or in connection with the suppression of the unlawful hunting of wild life” must be given a wide interpretation and would include anything linked to, related to or connected with attempts to suppress the unlawful hunting of wild life. The words “for the purpose of” have been interpreted to refer to the main or dominant purpose. The words “in connection with” are wider and can quite properly cover the whole spectrum of relationships from a close and direct relationship, at the one end of the scale, to a remote and indirect relationship, at the other end. The term is an elastic one and the context and purpose of the statutory provision must be considered in order to assess the degree of elasticity appropriate to the case. It should not to be presumed that, when the legislature was trying to be fair to an accused, as it manifestly was in the case of this section, it intended a narrow construction to be put upon these words which could, and probably would, result in unfairness to an accused. In the present matter the killing of the deceased, though unfortunate, was the result of a bona fide attempt to apprehend persons who were believed to be armed and involved in poaching activities. The trial court should have found that such indemnity attached to the appellant and entered a verdict of not guilty.

It was held further that even on the basis of the facts it found proved, the trial court was clearly in error in finding that no extenuating circumstances existed. The circumstances surrounding the death of the deceased provided mute evidence of extenuation. Against the background that existed, the incident occurred on the spur of the moment during the execution of official duty, in poor visibility and in circumstances in which the appellant may have genuinely believed that harm was likely to befall him.