Criminal Capacity

 

Sections 6, 7 and 8 deal with the matter of criminal capacity and codify the pre-existing law without significant alteration.

 

Children below 7

[s 6]

 

A child below 7 cannot be tried for a criminal offence as he or she is irrebuttably deemed to lack criminal capacity.

 

Children of 7 or over but below 14

[s 7]

General presumption

A child of or over the age of 7 but below the age of 14 is rebuttably presumed to lack criminal capacity

• to form intention (for a crime requiring proof of intention);
• to behave in the way that a reasonable adult would have behaved in the circumstances (for a crime requiring proof of negligence).

Rebutting presumption

The State can rebut this presumption by proving that the particular child in question

• did have the capacity to form the intention;
• did have the capacity to behave as a reasonable adult would have behaved.

In s 230 of the Code, which deals with the defence of minority, it is provided that the presumption of criminal incapacity that applies to a child between the age of 7 and below 14 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; and
• 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.

Simply by rebutting the presumption, the State, of course, has not proved that the child had the requisite state of mind. After successfully rebutting the presumption of incapacity, for a crime of intention the State would obviously still have to prove that the child in question did actually form the intention and for a crime of negligence that the child did actually act in a negligent fashion.

Presumption where crime committed in presence of older person [s 230(4)]

This provides a further presumption that 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.

 

Attorney-General’s authority required [s 231]

Section 231 provides that a criminal prosecution can only be instituted against a child who is between 7 and 14 if the Attorney-General has given his or her authority.

Capacity in respect of sexual offences

 

Capacity of boys to commit sexual offences

There is an irrebuttable presumption that a boy under the age of 12 is incapable of sexual intercourse. [s 63(1)] Such a boy cannot therefore be prosecuted for any sexual offence.

A boy of or over 12 but below 14 is presumed to be incapable of performing sexual intercourse unless the contrary is shown on a balance of probabilities. If the presumption is rebutted and the essential ingredients of the sexual offence can be proven, such a boy could be convicted of rape, aggravated indecent assault or indecent assault. [s 63(2].

Capacity of young persons to consent to sexual offences

A young person of or over 12 but below 14 is presumed to be to be incapable of giving consent to sexual intercourse, anal sexual intercourse or other forms of indecent assault unless there is evidence that the young person was capable of giving consent to the sexual act and did give his or her consent to that act. If the presumption is rebutted and the essential elements of the crime can be proven, the young person can be convicted of rape, aggravated assault or indecent assault. [s 64(2)]

Persons of or over the age of 14 have the capacity to consent to sexual acts.

Cases

In S v C (a juvenile) 1997 (2) ZLR 395 (H) a girl of 14 was charged before a magistrate with indecent assault. She was not represented by a legal practitioner nor assisted by a parent or guardian. She pleaded guilty, was convicted and was sentenced to a wholly suspended term of imprisonment. The High Court held as follows–

 

Where a child is put on trial an enquiry into the child’s age must be made, because from that enquiry many other important considerations flow. If the child was under 14 years at the time of the alleged offence, the first decision is whether there is evidence to displace the presumption that the child did not have criminal capacity. Even if such evidence is available, the next decision is whether as a matter of policy such a young person should be subjected to the might of the criminal justice system. Other methods of dealing with such an offender might be more appropriate. Even if the child is over 14, the circumstances of the case might suggest that he may have acted without forming or being able to form a criminal intent.

The decision as to whether to prosecute a child is in practice reserved for the Attorney-General himself. If authority is not obtained, this is an irregularity, though not one which could justify the upsetting of a conviction. Nevertheless, the practice of obtaining authority has the whole-hearted approval of the High Court. If no authority has been obtained, the magistrate should use his moral and persuasive authority, to ensure that the prosecutor seeks authority from the Attorney-General.

The concept of placing a juvenile on trial before a magistrate is inherently repugnant. particularly a very young one, unrepresented and unassisted by its parents. In a civil proceeding, such a child would be deemed incapable of enforcing or defending its rights. To expect such a child to conduct his own defence in a criminal trial is to expect far too much. It is questionable whether the child would be afforded its constitutional right to a fair trial, without the sympathetic and active involvement of a magistrate assiduous in safeguarding the position of the unfortunate child in such a distasteful milieu.

A court should be extremely slow and reluctant to subject a young person to the punishments prescribed for adults rather than to afford the child the benefit of institutional care. The discretion as to which course to follow cannot be properly exercised if the magistrate does not call for the report and recommendation of a probation officer. While in some cases such a report is unnecessary, in most the failure to receive the report of a probation officer before exposing a child to adult punishment is a serious misdirection.

 

The conviction was set aside. The court ordered the child to be brought before a juvenile court to be dealt with as a child in need of care.

 

In S v F (a juvenile) 1988 (1) ZLR 327 (H) a 10-year-old boy was alleged to have raped an 8-year-old girl. Because a child of that age is presumed incapable of committing rape, the State prosecuted him on a charge of indecent assault, in spite of the professional opinion of a probation officer that both the accused and the complainant were still too young either to appreciate the wrongfulness of his action or to understand criminal proceedings. Neither before nor at the trial, despite the accused’s age and the presumption that a child of his age is doli incapax, was the question of knowledge by the accused of the wrongfulness of his act investigated. The accused was nevertheless convicted and sentenced to a whipping of four cuts.

 

The court held that it is wrong, unjust and prejudicial to the interests of the accused and society to prosecute a child where the evidence is that the child will not understand or appreciate the proceedings. The question of whether or not the accused was actually doli incapax not having been investigated, the State could not have discharged the onus on it of showing that the accused knew his act to be wrongful.

 

The imposition of a whipping, in the face of the probation officer’s report that the accused would not understand the proceedings and his recommendation that the matter be settled under his professional counselling, was barbaric, inherently brutal, cruel, inhuman and degrading.

 

See also Guide pp 32-33 and 151-152.

Persons over 14

[s 8]

 

No presumption of incapacity

There is no presumption that a person who is of or over the age of 14 does not have 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).

These provisions should be read together with the provisions later in Code dealing with the defence of minority. [ss 230 & 231]

 

 

 

 

Essential ingredients of crimes

 

Every crime has certain essential ingredients. When a person is prosecuted for a crime the prosecutor must prove each and every essential ingredient for that crime. The essential ingredients can be divided into the physical ingredients (actus reus) and the mental ingredient (mens rea). The only crimes that which do not require proof of intention or negligence are strict liability crimes. Section 18(1) provides that subject to subsection (2), no person shall be held to be guilty of a crime in terms of this Code or any other enactment unless each essential element of the crime is proved beyond a reasonable doubt.

 

The prosecutor, the defence lawyer and the judge or magistrate must all know what these essential elements are. The prosecutor must know the essential elements in order to know what crime to charge and what he or she has to prove to obtain a conviction for the crime charged. The defence lawyer must know the essential elements in order to decide what defences to plead such as that prosecutor has failed to prove one or more of the essential elements or that there is an applicable defence affecting lawfulness or mental element or capacity. In S v Matsetu HH-84-13 the court said a judicial officer is expected to know the law applicable to the offence charged and the essential elements of the crime charged. That will enable him to avoid being distracted by answers not relevant to the issues before him.

 

Criminal Conduct

 

Liability for criminal conduct

[s 9]

This section sets out the essential ingredients of criminal liability for crimes. These are–

• a person is only guilty of a crime that is defined in the Code or any other enactment;
• the person must have committed the crime or be a party to its Commission as provided in the Code or any other enactment;
• the conduct in question must be voluntary conduct; [See Guide p 6]
• unless the crime is a strict liability crime, the conduct must be accompanied by the required blameworthy states of mind;
• the conduct must be unlawful, that is, conduct without lawful excuse.

 

Acts or omissions

[s 10]

This provides that criminal conduct may consist of either an act or an omission.

 

Liability for omission

 

A person is only criminally liable for an omission if–

• the crime in question is defined in such a way as to render failure to act criminal; or
• the person had a legal duty to act positively–
  • because X stands in a protective or family relationship to another which required X to protect the life, safety or any other legal interest of the other person;
  • because by his or her prior conduct X has created a situation which endangered another’s life, safety or legal interest;
  • because X has by contract or otherwise assumed control over a situation which endangered another’s life, safety or legal interest, whether that situation was created by X or someone else;
  • because X holds a public office or calling.

Note that this provision does not explicitly deal with the situation where a statute imposes a legal duty upon another to act positively. See for instance the duties imposed upon a driver who has been involved in a motor accident to stop and render assistance to injured persons in terms of s  70 of the Road Traffic Act [Chapter 13:11].

The Code provides that the person has a legal duty to act positively because X stands in a protective or family relationship to another which required X to protect the life, safety or any other legal interest of the other person. The use of term “family relationship” must be construed to cover only situations such as the legal obligation of a parents of a minor child to obtain medical attention for the child when it becomes seriously sick or the reciprocal duty of spouses to obtain medical treatment of a spouse to obtain medical treatment for the other spouse when that spouse becomes seriously ill. It does not mean that simply because A is related to another A has a duty to obtain medical treatment for his or her sick relative simply because A has learned of that sickness. A would only be liable for the death of a sick relative where A has undertaken to look after the relative and obtain medical treatment for the relative if this is needed and A fails to fulfil this assumed duty as in the Instan case below.

Cases

Protective relationship/public office or calling

 

In most instances A is only guilty of culpable homicide by omission but in some instances A could be liable for murder by omission as in the Gibbins case below:

 

R v Gibbins and Proctor (1918) 13 Cr App Rep 134 (CA) in this English case, a man was the father of a child. A woman was living with the man. They withheld food from the child until it starved to death. They were both convicted of murder of the child. The woman was liable on the basis that by going to live with the man and taking money from the man to buy food for the child she had assumed a legal duty to protect the child.

 

In R v Chenjere 1960 (1) SA 473 (FS) at 482 a man, X, went to live with a woman who had a small child. By going to live in the house with the woman in the house, X was held to have assumed a duty to look after and protect the child and his failure to do so could make him criminally liable. X knew that the murder was being carried out as suggested by the child's mother and as he was ready to give aid if required, that by his presence in the circumstances he was  to his knowledge giving actual encouragement in the commission of the crime.

 

In S v Chenjeya & Ors 1977 (2) RLR 179 (A) X, a prison warder in charge of other warders failed to stop a serious assault on prisoner by the other warders. The prisoner died as a result of the assault combined with bronchia-pneumonia from which he was suffering. X was found guilty of culpable homicide.

 

In S v Chipinge Rural Council 1988 (2) ZLR 275 (S); 1989 (2) SA 242 (ZS) a rural council, maintained a public swimming-pool which was patronised largely by children. The council had not provided a person to supervise the children when they were swimming.  One day, D, a 12-year-old girl was found floating in the water, drowned. On the evidence the State had not shown that the council’s negligent failure to provide supervision at the swimming-pool caused the death of the child, since even if a supervisor had been present performing his duties in a responsible and efficient manner, he might well not have noticed that the deceased was in trouble until it was too late. The Council was found not guilty of culpable homicide.

 

In S v Van As & Anor 1967 (4) SA 594 (A) police officers had arrested a person with children. The children absconded and the police were unable to find them after searching. The children died of exposure. It was not proved that a further search would have led to discovery of children. The police officers were found not guilty of culpable homicide.

 

In R v Instan [1893] 1 QB 450 a niece was living with her aunt, who paid for the food they consumed. When the aunt became ill the niece failed to supply her with food or to seek medical care for her.  The aunt died. It was held that she had voluntarily assumed the legal responsibility to look after the aunt by going to live with her and taking money from her for food for them. She was found guilty of manslaughter (culpable homicide in Zimbabwean law) 

 

In R v Stone and Dobinson [1977] QB 354 a couple assumed the responsibility of looking after an elderly infirm relative. The assumption of responsibility led to a corresponding legal responsibility and they were held liable for the death of the relative when they failed to discharge their legal duty. (The same would apply in respect of assumption of responsibility to look after a non-relative.)

 

      Creation of dangerous situation

 

In R v Puttock 1967 RLR 186 (A) X, a farmer had introduced a lethal protective device to protect his livestock from thefts. This was wiring with a lethal current running through it. An employee died when he touched the wire. X was held to have taken inadequate precautions to protect his employees and he was found guilty of culpable homicide.

 

In S v Howard HH-272-88 X had pursued a group of children who had been trespassing on club premises near a dam. One of the children ran into the dam and X continued pursuing the others. The child in the water got into difficulties and it was alleged that X returned, watched him, and then went away. The child subsequently drowned. The court held that there was no “guilt nexus” between X’s lawful pursuit of the children and the death of the deceased. The evidence did not show that X had specifically driven the deceased into the dam, nor that he ought to have foreseen that the deceased might enter the dam. There was no legal duty on X to do anything when the child got into difficulties in the water

 

In S v Mlambo 1994 (2) ZLR 410 (S) X, a farmer had put up an electric fence with a lethal current running through it and took inadequate precautions to protect his employees. X was found guilty of culpable homicide in respect of the death of one of his employees who was electrocuted.

     

      Control over dangerous situation

 

S v Chipinge Rural Council 1988 (2) ZLR 275 (S); 1989 (2) SA 242 (ZS) (see above)

 

In S v Engelbrecht & Ors 1962 (4) SA 219 (O) X, a captain in charge of a mortar display, had failed to check the ground carefully after the display to ensure that there were no unexploded shells. A person died after stepping on an unexploded mine. X was found guilty of culpable homicide.

 

In S v Fernandes 1966 (2) SA 259 (A) X had assumed control over a caged baboon. The animal had escaped and killed a child. X was found guilty of culpable homicide.

 

In S v Russell 1967 (3) SA 739 (N) X had assumed the duty to pass on a warning about existence of dangerous situation. He had failed to transmit the warning and a death had resulted from this failure. He was found guilty of culpable homicide.

 

In S v Grobler 1974 (2) SA 663 (T) X, a lift operator had fallen asleep after he had started a mine lift. Deaths had resulted after the lift had fallen to the bottom of the shaft. X was found guilty of culpable homicide.

           

      Statutory duty

 

In S v Blanket Mine (Pvt) Ltd Blanket Mine (Pvt) Ltd 1991 (1) ZLR 227 (S) the mine had failed to provide a serviceable face mask for the deceased, a cyanide plant assistant, who apparently fell asleep when doing an unexpected extra shift and died from inhaling cyanide gas. The failure to provide an adequate facemask was a breach both of the duty of care created by statute and of the standard of care required by law. The mining company was found guilty of culpable homicide. 

See the following cases on civil liability for omissions Minister of Police v Ewels 1975 (3) SA 590 (A) (a policeman has a legal duty to stop an assault). See also Minister of Law and Order v Kadir 1995 (1) SA 303 (A) and Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) (Civil liability of police for allowing serial rapist to escape.)

However, caution must be exercised when seeking to use civil cases in this area as it has been correctly pointed out that in the area of criminal law the principle of legality demands that criminal offences must be laid down in advance in reasonably clear and precise terms and that the legislature and not the courts create new criminal offences. Thus any expansion the ambit of criminal liability for omission should be the domain of the legislature and not the courts.

Causation in relation to omission

Even where there was a legal duty to act positively, it must be proven that had the person under the legal duty acted as required by law, the criminal consequence would not have ensued. In other words there must be a causal link between the failure to act and the end result. Thus if X is charged with culpable homicide it must be proven that had X fulfilled his or her legal duty the death would not have ensued. In the case of S v Chipinge Rural Council 1988 (2) ZLR 275 (S); 1989 (2) SA 242 (ZS) it had not been proven that if the rural council had provided a person to supervise children swimming at the swimming pool it operated, the child in question would not have drowned. (For the full facts of this case see below.) In the case of S v Van As & Anor 1967 (4) SA 594 (A) it was not proven that had the police mounted a search for the missing children, they would have found them in time to prevent them from dying from exposure. (For the full facts of this case see below.)

 

Causation

[s 11]

X can only be criminally liable if he or she caused or substantially contributed to its occurrence.

To prove that X caused or substantially contributed to the occurrence the State has to prove that X was both the factual and the legal cause of the end result.

Factual cause

The test for factual cause is a wide one. The question asked is simply whether but for X’s conduct would the consequence have occurred? This is referred to as causa sine qua non. If the consequence would have occurred even without X’s conduct, X is not causally responsible. Applying this test alone would make X liable on an unreasonably over-extended basis. So to limit causal responsibility within reasonable limits, a second test is applied after factual cause has been established, namely the test for legal cause.

Legal cause

For legal cause the question asked is whether on a common sense basis looking back over what occurred it was reasonably foreseeable that X’s conduct would lead to that consequence. The causal link would not be broken by a new cause that supervened after X had engaged in the conduct, provided it was reasonably foreseeable that the subsequence event would occur after X’s conduct.

For a case dealing with the distinction between factual and legal cause see S v Zvimire & Anor HH-336-83.

Guidelines [s 53]

The Code in s 53 provides a series of guidelines are provided to assist in determining the often difficult question of whether a person can be found at law to have caused the death of another for the purposes of the crimes of murder and culpable homicide. These are:

• an abnormal subsequent event –  one which is unlikely in the light of human experience to follow from the conduct – is regarded as breaking the  causal link unless it was planned or anticipated by X;
• where X inflicts a mortal or serious injury upon Y normally there is a causal link between the conduct and the death;
• voluntary subsequent conduct more likely than involuntary subsequent conduct to break the causal link between the conduct and the death;
• it is within range of ordinary human experience that particular persons may suffer from ailments or physical susceptibilities which make them more liable than other persons to die from assaults or from other unlawful conduct. (The thin skull rule.)

 

Cases

In R v Cox A-181-74 D who was drunk had been knocked down and injured. He was lying on the road and being attended to by passers-by. X drove out of a nearby motel without his lights. He drove straight over D despite torch being flashed at him to warn him. The court held that X’s actions contributed substantially to the death and he was guilty of culpable homicide.

 

In S v Musindo A-132-78 X had not stopped his vehicle at a roadblock. The police had fired at the vehicle and a passenger was killed. X was held to be criminally responsible for the passenger’s death. He was found guilty of culpable homicide.

 

However, in S v Machembo 2008 (1) ZLR 1 (H) X was driving a lorry on a main road at night. The lorry carried several passengers. X was stopped at a police road block; he was told by the police to go to the nearest police station because the vehicle had no tail lights. He instead drove off, resulting in the police giving chase and erecting another road block to stop him. He did not stop there either. A police officer fired two warning shots into the air and when the vehicle failed to stop he fired at the vehicle, killing one of the passengers. X was charged with and convicted of culpable homicide. It was alleged that by failing to obey the order to stop, he acted negligently and that this negligence caused the death of one of his passengers. It was held that a conviction for culpable homicide is founded, firstly, on proof of negligent conduct and, secondly, on the foreseeability of death arising from that conduct. The concept of foreseeability is sometimes expressed as the natural and probable consequence or as the direct result of the act or omission that the accused fails to guard against which results in death. In the present case, X took a deliberate and conscious act to disobey the police. His actions in failing to stop were grossly negligent. He was therefore negligent in that he created a dangerous situation by driving off from the road block instead of stopping as directed by the police. However, the State case fell on the aspect of the foreseeability of death arising from X’s failure to obey the instruction to stop. Whether or not he was aware that the police who stopped him before the shooting were armed, a reasonable person would not expect an armed policeman to shoot at a moving lorry with passengers at the back in a bid to stop the driver. The death of the deceased was thus caused by the policeman and not by X’s manner of driving. It was neither the direct result nor the natural and probable consequence of his failure to obey the police instruction to stop.

 

      Action taken by victim for self-preservation

 

In R v Sikona 1937 SR 54 the court dealt with issue whether action taken by a victim for purpose of self-preservation can break the causal link.

 

In R v McEnery 1943 SR 158 (H) a victim jumped out of moving train to escape an assault by a soldier. The act of victim was done for the purpose of self-preservation. Nonetheless X was found not guilty of culpable homicide. Compare this case with the English case of R v Roberts (1971) 56 CAR 95 the court held that the victim's act of jumping out of moving vehicle was reasonably foreseeable in the circumstances. (See Glanville Williams Textbook of Criminal Law pp 333-334)

 

In R v John 1969 (2) RLR 23 (A); 1969 (2) SA 560 (RA) X had pursued D, who was six months pregnant with intent to kill her. She fell into a pool of water and drowned. X was found guilty of culpable homicide as the subsequent situation of the person fleeing falling into the pool and drowning was within the range of ordinary human experience. His appeal against conviction was dismissed on the grounds that he ought to have foreseen that there was some risk of death in his aggressive pursuit of the deceased. It was further held that it should not have come as a surprise when the deceased either accidentally fell or deliberately ran into the pool.

 

In S v Mukwambuwe 2014 (2) ZLR 115 (H) X said that after he had struck the deceased twice on the legs she ran away from him but he did not pursue her. X said that the deceased ran for a distance of more than 10 metres before she fell. Although it is clear that it is X who caused the deceased to run by assaulting her, it cannot be said that it was reasonably foreseeable to the accused that if he assaulted the deceased she was going to run and fall on the rocks and get fatally injured. There is no evidence that X was pursuing her when she fell. The judge found that accused not guilty of culpable homicide, finding that this case was distinguishable from the case of R v John 1969 (2) RLR 23 (A).

 

      Medical treatment after injury

 

In R v Mubila 1956 (1) SA 31 (SR) at 33 X had inflicted a wound upon D. D failed to follow medical advice and died. Had he followed the medical advice he would not have died. X was still held liable for the death.

 

In R v Mabole 1968 (2) RLR 159 (G); 1968 (4) SA 811 X stabbed D who was taken to hospital. The doctor concluded that none of the wounds was penetrating. Later D showed signs of loss of blood-pressure and a raised pulse rate. To determine the cause, exploratory surgery was undertaken. As a result of the surgery, D developed a fatal pulmonary embolism. The court held that there was no break in the causal chain. It was a reasonably predictable consequence of the attack that D would require medical attention and, in the present state of medical knowledge, mistakes in diagnosis and treatment are a commonplace. Provided that medical attention is given bona fide and with reasonable efficiency, X cannot complain of such mistakes.

 

In S v Rahman S-178-82 X had struck D on the head with a piece of wood. The doctors subsequently failed to detect internal bleeding. D died. The court held that the subsequent failure to detect the bleeding did not snap the causal link and X was found guilty of culpable homicide.

 

In S v Rukonkunda S-27-85 X shot an elderly woman in the hip. She was taken to hospital where she was bedridden. The woman died. The death certificate indicated that the cause of death was bronchial pneumonia. There was not medical negligence. The court decided that there was no snap in the causal link and that X was guilty of murder.

 

In S v Tembani 2007 (2) SA 291 (SCA) X shot his girlfriend twice. One bullet entered her chest penetrating the lung and abdomen and perforating her duodenum. The other shot hit her in the leg. She was treated in hospital but died two week later of septicaemia. The court pointed out that without medical treatment, the gunshot wounds would have been fatal. The wounds were intrinsically dangerous. Normally A is liable even if wound readily treatable and even where there was negligent medical treatment unless the victim had so recovered that the original injury was no longer posing a danger to life. The court held that the negligent medical treatment did not break the causal link between the murderous assault and the death. Medical resources in the country are sparse and badly distributed. Therefore improper medical treatment is neither abnormal nor extraordinary and supervening negligent treatment did not exculpate X on a charge of murder.

 

Thin skull rule

 

In R v John 1969 (2) RLR 23 (A) the court stated that if X intentionally assaults his victim by striking him a moderate blow, X does not necessarily escape liability if death would not have resulted save for some exceptional physical peculiarity of his victim such as an eggshell skull or weak heart. Eggshell skulls, weak hearts and other human ailments which may cause a man to die are well within the range of ordinary human experience.

 

The thin skull rule applies in cases where X does not know of the victim’s vulnerability. X would therefore be guilty of culpable homicide if X assaults a person not knowing that the person has a weak heart and the assault leads to the victim suffering a fatal heart attack. On the other hand but if X actually knew that the victim had a serious heart condition and assaulted him, X could be charged with murder. 

In S v Ndlovu HB-204-16 a grandmother assaulted a four year old child with a stick. She was found guilty of culpable homicide. The fact that the child was born HIV positive that does not help the accused in her defence at all. It does not break the causal link between the assault, the inhalation of smoke and the death of the child. This is because HIV-AIDS and other ailments are well within the range of human experience. They are a reality in modern day experience. The accused therefore cannot escape liability.  

 

In S v Chenjeya & Ors 1977 (2) RLR 179 (A)  a prisoner died as a result of the assault by prison warders combined with bronchia-pneumonia from which he was suffering. The warders did not know he had this ailment when they beat him. Applying the thin skull rule, the warders were found guilty of culpable homicide.

 

In S v Mhute HH-784-15 X assaulted his wife in a drunken brawl and was convicted of culpable homicide. On appeal it was argued that account should have been taken of the fact that a contributory factor in the death was that the wife had been suffering from a condition known as sickle cell trait. The appeal judge pointed out that the thin skull rule applied in this situation. He went to say that because X knew his wife was suffering from ill health when he assaulted her, he was lucky not to have been charged with murder on the basis of constructive intention. In other words, it could have been argued that he must have known that if he assaulted his already sick wife there was a real risk that he would end up killing her. The appeal against the conviction for culpable homicide was dismissed.

 

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

 

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

 

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

 

However, the thin skull rule does not automatically make X guilty of culpable homicide. If the assault is a minor one, the end result of death may not be reasonably foreseeable. 

 

Cases

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

 

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

 

 

See also R v John 1969 (2) RLR 23 (A); 1969 (2) SA 560 (RA) at 571 F-H

 

See Guide pp 7-8, 192-194 and 217-218.

 

 

States of Mind

 

Crimes contained in Code

[ss 12-16 as read with definitions of words “intend”, “know” and “realise” in s 2]

 

This Part deals with states of mind or, in other words, the mental ingredient of crimes.

All crimes except strict liability crimes require proof of some mental ingredient.

In the past the Latin tag, mens rea, was used to refer to the state of mind or mental element. The literal translation of mens rea is “guilty mind”.

The two main mental states are intention and negligence.

 

 Rejection of versari in re illicita doctrine

 

The doctrine of versari in re illicita postulates that if a person engages in an unlawful activity, he will be criminally liable for whatever consequence flow from the illegal activity even though he lacked the mens rea for the crime with which he has been charged based on the consequence that flowed from the original activity. This doctrine has been emphatically rejected in our law and the courts have stressed that a person can only be found guilty of a crime if he had the requisite mental state for that crime.

See S v Ncube 1983 (2) ZLR 111 (S)  and S v Tapera 2012 (2) ZLR 246 (H)

 

Intention

[s 13]

Where intention is an essential ingredient of a crime, the State must prove that X had the requisite intention.

Some crimes require proof of intention to cause a particular consequence. Thus for murder the State must prove X intended to cause the death of a person. Some crimes require proof of knowledge of a circumstance. Thus for rape the State must prove that the accused knew that the female person had not consented to sexual intercourse.

Prior to the Code intention was subdivided intention into actual intention and legal intention. Legal intention was also known as constructive intention or recklessness. With a crime of intention X could be convicted on the basis either of actual or legal intention.

The tests applied for actual and legal intention were as follows–

For crime requiring proof of an intention to cause a consequence–

• X would have actual intention if he or she set out to cause the consequence or X engaged in conduct which he or she foresaw was certain or substantially certain to cause that consequence; (See the case of S v Mugwanda 2002 (1) ZLR 574 (S)).

                                         or

• X would have legal intention if he or she engaged in conduct which he or she foresaw might possibly result in the consequence and, having foreseen this, he or she continued with the conduct reckless as to whether the consequence ensued.

For crime requiring knowledge of a circumstance–

• X would have actual intention regarding the circumstance if he or she knew that the circumstance existed or was substantially certain it did exist;
• X would have legal intention regarding the circumstance if he or she foresaw the possibility that it did exist and, having foreseen this, continued to engage in the conduct reckless as to whether or not it existed.

Although the substance of these tests for intention remains, some modifications have been made.

Firstly, intention and knowledge are dealt with separately. Both are defined as subjective concepts. With intention section 13 provides that the test is whether X intended to engage in conduct or produce the consequence. Section 14 provides that where knowledge is an element of a crime, the test is whether X had knowledge of the relevant fact or circumstance. The underlying idea behind this is to try to make it easier to distinguish between those crimes that require “intention” and those that require “knowledge” as one of their elements.

Secondly, the test for legal intention has been re-worded. Instead of asking the question did X foresee the possibility of a consequence or of a circumstance existing, the question will be formulated in this way–

For crime requiring proof of an intention to cause a consequence–

X would have legal intention if he or she engaged in conduct realising that there was a real risk or possibility (not merely a remote risk or possibility) that his conduct might cause the consequence and, having realised this, X continued to engage in the conduct reckless as to whether or not the consequence ensued.

For crime requiring proof of intention in relation to a relevant fact or circumstance–

X would have legal intention if he or she engaged in conduct realising that there was a real (not merely a remote) risk or possibility that the relevant fact or circumstance might exist and, having realised this, X continued to engage in the conduct reckless as to whether or not the relevant fact or circumstance existed.

The reason why the test for legal intention has been re-worded by substituting the words “realising that there was a real risk or possibility” is that this wording would be more understandable and make the test easier for the courts to apply. A “real risk or possibility” is required because X should not be convicted of a crime of intention on the basis of legal intention if there was only a remote risk or possibility that the harm might eventuate or the relevant fact or circumstance might exist.

General intention

Although this is not specifically referred to in the Code, it is clear that the courts can use this as a basis for liability. Where X does not have a particular person in mind, as for instance, where X throws a bomb into a crowd of people or derails a passenger train, X is guilty of murder as X knows that people will be killed. It is immaterial that X does not know the identities of those killed. If X plants a bomb under the chair of a dignitary who is intending to kill him and X knows that the bomb will kill not only the dignitary but also the people around him, X is guilty of murder in respect of all the people who have been killed by the bomb blast.

See the cases listed for murder where the application of the various forms of intention have most commonly arisen.

Negligence

[s 16]

Negligence is different from intention. Strictly speaking negligence is not a state of mind but rather the absence of a state of mind. With a crime of negligence the State must prove that X behaved in an unreasonable way. Thus for culpable homicide (negligent killing) that State must prove, not that X intended to cause the death, but that he engaged in conduct that a reasonable person would not have and that conduct caused death.

Previously in our law culpable homicide was only committed when X negligently failed to foresee and guard against death. The Code has added a further type of culpable homicide which may be referred to as advertent or conscious negligence. Advertent negligence applies where X appreciates that there is risk of death, but rather than taking a conscious risk which would have meant that he or she would have intention to kill, X negligently fails to guard against the risk. (See s 49).

In practice it is often extremely difficult to differentiate between legal intention and conscious negligence.

See the cases listed under culpable homicide where the application of the test for negligence arises most frequently.

 

Statutory crimes not contained in Code

[s 17]

 

This section provides guidance on how to apply the tests referred to in ss 13 to 16 to assessing the state of mind of persons accused of committing statutory crimes created by enactments other than this Code. The states of mind contained in ss 13-16 are intention, knowledge, realisation of a risk and negligence.

Interpretation of words in other statutes [s 17(2)]

Word or phrase	Interpretation
intentionally intend with intent to deliberately purposely for the purpose of maliciously mischievously wantonly wilfully dishonestly corruptly fraudulently and any related or derivative expression	The State must prove intention in terms of s 13 or, if this cannot be proved, realisation of a real risk or possibility in terms of s 15.

 

Word	Interpretation
knowing knowingly and any related or derivative expression	The State must prove knowledge in terms of s 14 or, if this cannot be proved, realisation of a real risk or possibility in terms of s 15.

 

Word	Interpretation
recklessly and any related or derivative expression	The State must prove realisation of a real risk in terms of s 15.

 

Word	Interpretation
negligently carelessly unskilfully and any related or derivative expression	The State must prove negligence in terms of s 16.

 

Crimes for which test of realisation of real risk or possibility can be applied [s 17(4)]

Section 17(4) provides that the kinds of crimes to which the test of realisation of the real risk can be applied are–

• a crime requiring proof that a particular consequence has occurred;
• a crime requiring proof of the existence or absence of particular circumstances.

Strict liability [s 17(5)]

A strict liability crime is one where X is liable even though X acted neither intentionally or negligently. In other words the State does not have to prove any mental element and X is liable simply on the basis that X committed the prohibited conduct.

It should be noted that strict liability is not the same as absolute liability. Although the State does not have to prove that X acted intentionally or negligently, the defence can still raise defences affecting lawfulness such as necessity, impossibility and authority and also defences such as lack of criminal capacity or involuntary conduct. 

Legislature expressly creating strict liability

The legislature can expressly provide that the crime is to be a strict liability crime.

Legislature impliedly creating strict liability

What happens if the legislature does not expressly state that the offence in question is a strict liability offence, but the statutory provision contains no words that specify that a state of mind required for the offence concerned, that is it uses no words indicating that intention, knowledge, realisation of risk or negligence is required? The question then is whether the legislature impliedly intended this offence to be a strict liability offence.

Section 17(5) provides that an offence will be interpreted as a strict liability offence if

• requiring proof of a mental element for that offence would render the detection or prosecution of the offence impossible or practically impossible; or
• the offence’s object would be defeated if proof of a mental element were to be required.

However, even if these two criteria apply, the court must not hold that the legislature impliedly intended strict liability if the penalty for the offence is mandatory imprisonment or imprisonment without the option of a fine.

These guidelines are taken from the case S v Zemura 1973 (2) RLR 357 (A) as approved by S v Zimbabwe United Freight Company Ltd 1990 (1) ZLR 138 (S).

See also S v Muchingura HH-264-84 and S v Maceys of Salisbury Ltd 1982 (2) ZLR 239 (S) (statute on contamination of foodstuffs).

In S v Meikle 2014 (1) ZLR 526 (H) the court found that the crime in question was not a strict liability crime (s 3(2)(a) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28], which makes it a criminal offence for a former owner of land which has been gazetted to continue in occupation of such land 45 days after the fixed date without lawful authority.) It pointed out, however, that even in respect of a strict liability crime, the actus reus elements still need to be proven.

See Guide pp 128-129.

Attitude of courts to strict liability

In the Maceys case the Supreme Court questioned the need for strict liability and pointed out that it would usually be possible to enforce the statute by requiring at least negligence. It said that there was a growing tendency on the part of the courts to interpret statutory offences as requiring some fault element. This approach, however, could not be applied to pre-existing legislation as this may frustrate the intention of the legislature. See also the trenchant criticism of the concept of strict liability in Burchell Criminal Law (Fourth edition) pp 427-434. The imposition of strict liability is arguably unconstitutional. See the South African case of Coetzee 1997 (1) SA 527 (CC) para 176.

The authors conclude that because strict liability deprives the accused of the opportunity of raising a defence excluding fault, strict liability can “hardly be seen as justifiable in an open and democratic society based on human dignity, equality and freedom, particularly when the possibility of the middle course of negligence based liability exists.”

 

 

 

Crimes involving possession

 

In S v Mpa 2014 (1) ZLR 572 (H) the court said that where a person is charged with a crime involving the element of criminal “possession” it is important to note that the legal definition of “possession” is much broader than the common definition. At law, a person has possession of something if the person knows of its presence and has physical control over it or has the power and intention to control it. The law recognises several kinds of possession. A person may have actual possession or constructive possession. A person may have sole possession or joint possession. A person who has direct physical control of something on or around his person is then in actual possession of it. A person who is not in actual possession but who has both the power and the intention to take control over something alone or together with someone else is in constructive possession of it.

 

Proof of Criminal Liability

 

Burden and standard of proof

[s 18]

Standard of proof [s 18(1)]

In order to obtain a conviction the State must prove the guilt of the accused beyond reasonable doubt. This is a higher standard of proof than the one that obtains in civil cases (proof on a balance of probabilities).

Shifting of burden [s 18(2) and (3)]

An enactment may impose upon a person charged with a crime the burden of proving any particular fact or circumstance, but where it does so the person charged may discharge this burden by proving the fact or circumstance on a balance of probabilities.

Defences [s 18(4)]

Where there is some evidence before the court that raises a defence to a criminal charge, whether or not that evidence was introduced by the accused, the prosecution must disprove the defence to a charge beyond a reasonable doubt, except where the defence relates to insanity or any abnormality of the mental state of the accused, in which case the accused has the burden of proving the defence on a balance of probabilities.

In S v Mapfumo & Ors 1983 (1) ZLR 250 (S) the Supreme Court clarified the matter of onus in relation to defences. It pointed out that there was no onus as such upon X to establish some defence. Once there is some material, whether adduced by the defence or emerging from the prosecution case, suggesting that such certain defence may be available the Court must consider the defence. Evidence sufficient to raise a defence does not have to be evidence sufficient to establish the factual basis on a balance of probabilities; all that is required is that there be sufficient material evidence to make it a realistic issue and this evidence could emerge from the State case, from X’s confession, from the cross-examination of State witnesses or from evidence from the defence. Thus once there is a sufficient foundation for the defence from whatever quarter this evidence comes, the onus rested squarely on the prosecution to prove that the defence does not apply.

 

 

Fines

[s 2(1) and 280 and First Schedule]

 

There is now a standard scale of fines set according to the level of the fine. This standard scale can be amended from time to time

 

Level	Monetary Amount in dollars
1	500,00
2	1 200 ,00
3	2 500,00
4	5 000,00
5	10 000,00
6	20 000,00
7	40 000,00
8	60 000,00
9	75 000,00
10	100 00,00
11	125 000,00
12	150 000,00
13	200 000 ,00
14	250 000,00

 

Fine levels set in the Criminal Law Code (Standard Scale of Fines) Notice, 2007.