CRIMINAL LAW NOTES

prepared by I. Hore
Midlands State University
Criminal law refers to a set of rules and regulations which
are meant to regulate people’s conduct within a given
society.

Rationale: to protect society against people who might be a

menace to the society by causing instability and disorder.
Criminal law gives a formal and public warning
that certain specified activities are forbidden
and once a citizen is warned he now has an
option of regulating his /her conduct in order to
align it to the expectations of the law.
A person who contravenes a given law risks
being punished.
 Purpose of criminal law

•It is there to prevent socially intolerable behavior or

conduct or at least to hold it within socially acceptable
limits.
•Burchell and Milton pg 2 says “Criminal law is a social
mechanism that is used to coerce members of the society
through threats of pain and suffering to abstain from
conduct which is harmful to various interests of the
society.
•Its object is to promote the welfare of society and its
members by establishing and maintaining peace and
order.
 Criminal law in a democracy

• A democratic government is one that respects

the rights of its citizens and allows democratic
activities to take place e.g right to demonstrate in
terms of Section 59 of the Constitution.
• In a democratic state law enforcement agencies
should protect every citizen against unlawful
activities regardless of one’s political affiliation.
• Law should not be used as an instrument of
political repression in a democratic state.
 Criminal law in repressive state

•A repressive regime is one that does not respect

human rights and is characterized by
criminalization of ordinary democratic activities
e.g demonstrations and petitions.
 Principle of legality
It postulates that law must be as fixed and as certain as possible
•A law restricting a fundamental constitutional right must be
formulated with sufficient precision in order to enable citizens to
regulate their conduct.
•Citizens must know with reasonable certainty what the law is and
what actions will be taken when one breaches the law.
•Cases: Chavhunduka and Anor V Minister of Home Affairs and Anor
2000
•S v Tsvangirai 2001 (2) ZLR
•Law must be laid in advance and conduct that was not criminalized at
the time of conduct must not be made criminal in retrospect.
•See Section 70 (K)
•Rule of law by G. Feltoe.
 CAUSES OF CRIMES

• Poverty leading to theft, loitering for purposes of

prostitution, unauthorized borrowing e.t.c
•Peer Pressure on drug abuse
•Anger and Jealousy leading to murder and assault
•Weakness when tempted e.g rape
•Psychiatric disorder eg murder mdp and assault
•Greed leading to extortion
•Political ambition leading to kidnapping and assault and
even murder in certain extreme cases.
 Presumption of innocence and burden
of proof
•In Zimbabwe all accused persons are presumed innocent until
proven guilty. Presumption of innocence is a Constitutionaly
entrenched provision in terms of Section 70 (1)(a).
•It is the State’s duty to prove the accused guilty beyond a
reasonable doubt.
•It therefore means that there is no obligation on accused to
prove his innocence.
•However this general rule is subject to exceptions There are
situations where the onus of proof is shifted from the State to
the accused e.g RTA- driving without a licence.
 Rule of law

•Rule of law in Criminal law entails that criminal law must be

applied impartially and without discrimination.
•Law must be applied evenly and impartially.
•No one is above law i.e everyone must be subject to the law.
•Law enforcement agencies must apply the law equally to all
persons.
•Law must protect anyone in need of the protection.
•Independent courts must enforce the law without
discrimination.
•QUES: Why criminal sanction? Theories of Punishment.
 Jurisdiction of criminal courts

•Magistrate court- territorial jurisdiction and

punitive jurisdiction.
•It is the lowest criminal court in Zimbabwe but
the busiest.
•Governed by the Magistrate Court Act and
Criminal Procedure and Evidence Act.
 Composition

•It is preside over by a magistrate.

•Magistrates are divided into four classes
•Ordinary magistrates
•Senior magistrates
•Provincial magistrates
•Regional magistrates
• In theory there is no minimum qualification for a
person to be appointed as an ordinary magistrate
but in practice there is a legal element required.
• Ordinary magistrates who have held office for
four years or more or those who have qualified to
practice for four years or more maybe appointed
as senior magistrates in terms of the Magistrate
Court Act.
• Provincial magistrates are appointed from senior
magistrates and Regional magistrates from
Provincial Magistrates.
• Assessors and their role
• Role of assessors is limited to questions of fact
and judges to questions of law.
 Jurisdiction of Magistrate Court

•Determined by three aspects namely:

•(a) the territory where the crime took place
section 56 (1).
•(b) the nature of crime itself.
•(c) the punishment that may be imposed upon
conviction.
 Territorial jurisdiction Section 56 (1)

•A magistrate Court has no Jurisdiction over

common law crimes committed outside Zimbabwe.
It does not enjoy extra- territorial jurisdiction.
•However a Magistrate court may enjoy
extra-territorial jurisdiction over a statutory crime
in circumstances where the statute in question has
extra- territorial effect in terms of Section 56 (1) of
the Magistrate Court Act.
 Excerptions

•(1) A magistrate court can have jurisdiction for an

offence within 5km beyond its boundary.
•(2)Where any element of the offence takes place in
a given province or region the court may have
jurisdiction even though the other elements
occurred outside the jurisdiction.
•(3) Where the P.G with the consent of the accused
may direct that trial be held in court of any
province.
 Nature of crime Section 49

•Provided by section 49.

•The nature of crime should guide the prosecutor
on which court the matter should be placed e.g
murder.
 Punitive

•Jurisdiction in terms of section 50

•Ordinary Magistrate – 12 months
•Senior Magistrate –
•Provincial Magistrate-
•Regional Magistrate-
 New offences created
The codification of zimbabwean criminal law saw
the advent of some new offences which were not
there under common law for instance,
•Inciting or assisting a person to commit suicide.
•Aggravated Indecent Assault
•Negligent assault causing serious bodily harm
•Making off without payment
•Computer elated crimes
•Threats to commit a serious offence
•Cyber crimes etc
 Crimes that were merged
Previous offences
Assault, Assault with intent to Cause grivious
Bodily Harm and Administration of noxious
substances.
Currently now covered by Assault under the
Code Section 89
Previous offences
Malicious Injury To Property and Arson
Currently now covered by Malicious Damage to
Property.
 Crimes that have new names
Previously
Theft by false pretents and uttering
New offence
Now falls under Fraud
Previously
Contempt of court by commenting on pending
cases.
Now termed Obstructing or defeating the course of
justice
 Criminal liability
CAPACITY

• in criminal law, for a person to be held to be

criminally liable he or she must have the
capacity to commit an offence.
•Capacity is therefore an essential element in
establishing criminal liability.
•It is the duty of the State to prove that the
accused person in question has the capacity to
commit an offence.
• Where the accused person lack legal capacity to
commit an offence, no criminal liability attaches
to that person.
• Issues of criminal capacity are provided for in
terms of Section 6, 7 and 8 of the Code.
• Section 6 provides for Criminal capacity for
children below the age of 7.
• Section 6 provides that a child under the age of 7
cannot be tried for a criminal offence because he
or she is irrebuttabely presumed to lack criminal
capacity.
• Section 7 of the Code further provides for the Criminal
capacity of children between the age of 7 and 14.
• The group lack criminal capacity to commit an offence but
this is a rebuttable presumption.
• Rebutting is when State challenges the presumption.
• Under section 7, the State can rebut the presumption of in
capacity by proving to the Court that the child in question
has the capacity to form the necessary intention to commit
a criminal offence.
• If the child is facing a crime requiring proof of negligence,
the State can rebut that presumption of incapacity by
proving that the child in question had capacity to behave in
a way that a reasonable adult would have behaved.
 Three types of offences

•The first type relates to those offences which

require proof of intention.(mensrea)subjective
crimes
•Second one requires proof of
negligence.(objective crimes)
•Third one refers to strict liability crimes.
• In terms of section 230 of the Code provides factors
that the court must resort to in an effort to determine
whether or not the child in question had the criminal
capacity to commit an offence.
Factors that the court looks at:
• The nature of the crime which the child is charged
with.
• The child’s general maturity and family background.
• The child’s education, knowledge and experience.
• The child’s behavior before , during and after the
offence.
• Where the State has successfully managed to rebut
this presumption it means it would have proven that
the child in question had the requisite State of mind to
commit the offence.
• Section 230 (4) comes up with yet another
presumption namely where a child of 7 years or above
but below 14 years engages into a conduct of a
criminal nature in the presence of an adult person
whom the child would ordinarily be expected to obey,a
presumption arises that the child acted under the
compulsion of the older person.
• Section 231 further provides that no criminal
prosecution can be made against a child of 7 years or
above but below 14 years unless the P.G has given
authority to prosecute.
• CASE: S v C 1997 (2) ZLR 395- the case deals with the
importance of age.
• A girl below the age of 14 was charged before the
Magistrate court with the offence of indecent assault.
• It was held that whenever a child is put on trial an
inquiry of his or her age should always be made
because it is in these inquiry that many other
considerations follow.
• Where the child under the age of 14 is brought to
court for prosecution the first decision is-
• (1) to decide on whether enough evidence has been
adduced by the State to rebut the presumption that
the child in question had no capacity to commit the
offence.
• (2) If evidence of criminal capacity is there then the
second consideration is as a matter of policy such
young person should be subjected to the mighty of
the criminal justice system instead of resorting to
other methods of dealing with such offenders.
 Criminal liability
causation

•Enshrined in section 11 of the Code which

provides that X can only be held to be criminally
liable if he or she caused or substantially
contributed to the criminal outcome.
• It is therefore the duty of the State to prove
that x was both the factual and legal cause of
the end result.
 Test for factual causation

•Had it not been for X’s conduct, would the

criminal consequence have occurred anyway.
•It is the duty of the State to prove that X was the
causa sine qua none of the end result .
•If the criminal outcome would have resulted
even without X’s conduct or input then X is not
liable.
 Factual causation

•The test for factual causation is a wide one and the

question to be asked under factual causation is
whether but for X’s conduct would the
consequence have occurred anyway. This is
referred to as Causa sine qua none.
•It postulates that X must be responsible for the end
result however applying the factual causation test
alone would make X liable on an unreasonably over
extended basis.
 Legal causation

•Was introduced as a way of limiting the liability

of X which would arise if Factual causation was
applied without exceptions.
•The question is whether on a common sense
basis, looking back over what had occurred it
was reasonably foreseeable that X’s conduct
would lead to that result.
• The causal link would not have been broken
by a new cause that supervened after X had
engaged in the conduct provided it was
reasonably foreseeable that the subsequent
event would occur after X’s conduct.
• If the risk of the criminal outcome happening
is very low then X is held not to be criminally
liable for the offence.
• Section 53 of the Code provides some
guidelines that are meant to assist the court in
determining the whether a person can be
found to have caused the death of another in
cases of murder and culpable homicide.
• Consideration 1
• Court looks at the abnormality of the event i.e
the unlikeliness from human experience of the
end result occurring from X’s conduct.
• Consideration 2
• Where X inflicts a mortal wound or serious
injuries on Y and Y dies, X will normally be
taken to be the cause of Y’s death.
 Thin skull rule

•It provides that it is within the range of ordinary human

experience that a particular person may suffer from
ailments or more.
•In the case of R v John 1969 (2) RLR PG 560 the court
held that ‘ an accused person who intentionally assaults
his victim with a moderate blow does not necessarily
escape liability if death would not have resulted save for
some exceptional , physical peculiarities of his victim
which may cause a man to die from a trivial assault”.
 CRIMINAL LIABILITY
essential ellements

intention
•Where intention is an essential element of a crime
the State must prove that X had the requisite
intention to commit the crime.
•For those crimes that require intention X will be
deemed to have actual intention to cause such
criminal outcome or he or she engaged into a
conduct which he or she foresaw as certain to
cause that criminal outcome.
• X will be deemed to have legal intention only
if he or she engages in conduct which he or
she foresees might possibly result in the
consequences and having foreseen this he or
she continues with the conduct.
 Omission

•An omission refers to failure to do something in

circumstances where the law expects you to act.
•In terms of the law an accused person can only
be held to be criminally liable as a result of an
omission where the person a had a legal duty to
act in order to prevent harm fro being caused to
another person.
• Scenarios where one will be criminally liable
include:
• (1)where there is a duty to act arising out of a
protective relationship e.g parent/ child,
husband / wife, employer/ employee etc.
• (2) where the duty to act is imposed by by a
statute e.g RTA- to report an accident within
24 hours.
• (3) the duty to act can also arise out of a
contract.
• (4)where X has created a potentially
dangerous situation.
• (5) where X gratuitously assumes a duty to
act.
• (6) where X occupies a public office or calling.
 Players

•Section 195 – 204 of the Code provides for criminal

liability of persons who participate or assist by or
during the commission of a crime.
•Section 195 introduces the actual perpetrator
(principal offender) defined in the Code as a person
who, with the requisite state of mind, actually does
completes, or omits to do something and the
completion or omission constitutes that crime.
 Co- perpetrator section 196

•Co- perpetrator is a person other than the actual

perpetrator who was present with the actual
perpetrator during the commission of the
offense and knowingly associated himself with
actual perpetrator with the intention that each
or any of them will commit or be prepared to
commit the crime.
• Direct contribution to the commission of a crime
is not necessary which means that a person can
be guilty as a co- perpetrator regardless of
whether or not he has contributed directly in any
way to the commission of the offence.
• It is not necessary for the actual perpetrator to
be identified and failure to identify the actual
perpetrator does not absolve co-perpetrator
from liability.
• It is not necessary to prove which member of the
group actually perpetrated the crime and in a case of
murder all members of the gang will be held liable for
murder as long as the murder falls within common
purpose.
• S v Chauke & Anor (2) ZLR 494 – SC held that “ where a
criminal group acts with a common purpose, all the
members of the group can be liable for a crime
committed if it falls within the common purpose and it
is unnecessary to prove which member of the group
actually perpetrated that crime”.
• When it comes to punishment Section 196 (3)
(a) the co- perpetrator is guilty of crime as if
he/she was the actual perpetrator and will be
sentenced the same as actual perpetrator
unless he/she satisfies the court that there are
special circumstances which are peculiar to
him/her.
 Accomplice

This is a person who participates in a crime without being

physically present when it is actually present through
conspiring, authorizing, inciting or assisting actual perpetrator
in any way before or during the offence is committed.
•X can still be held liable as an accomplice even if the actual
perpetrator is unaware of X’s assistance.
•In terms of Section 197 (2) (a) a person can be held liable as
an accomplice to a crime that he/ she would not be able to
commit as an actual perpetrator e.g Rape (S65) a woman
cannot commit rape as an actual perpetrator since the crime
is defined in such a way that only a man commit the crime.
• TYPES OF ASSISTANCE
• Supplying means to commit the offence –
information, supplying transport, incapacitating
the victim, keeping watch off or guarding against
intervention.
• WITHDRAWAL (S200)
• An accomplice will not be liable for the crime
committed by actual perpetrator if before the
crime is committed he/she voluntarily desist
from further rendering assistance.
• He must render wholly ineffective his or her
previous actions or assistance.
• He must give warning of the crime to the
police officer or any other person with
authority to prevent commission of the crime
in sufficient time in order to enable that
person to prevent its commission.
 Accessory after the fact Section 208

•This refers to a person which renders assistance

to actual perpetrator of the crime after crime
has already been committed.
•How?
•(1) by concealing, sheltering or feeding the
actual perpetrator in order to enable him escape
apprehension.
•(2) providing transport to assist escape.
• (3) Destroying or concealing evidence of
commission of the offence.
• (4) Giving false information to the police.
 Sexual crimes and crimes against
morality

•RAPE: Section 65
•Rape refers to unlawful and intentional vaginal or anal
sexual intercourse by a male person with a female person
without her consent.
•Under common law the crime of rape could only be
committed by a male person who has vaginal sexual
intercourse with a female person and the criminal Code
under Section 65 has extended the ambit of the crime of
rape with the resultant effect that now rape includes
penetration per anum.
 Essential elements of rape

•(1)Unlawful sexual intercourse per vagina /

anum.
•(2) The offence is committed by a male on a
female.
•(3) There must be an intention to rape with full
knowledge that the woman is not consenting.
• Section 64 (1) provides that a girl under the age of 12
is irrebuttabely presumed to be incapable of giving her
consent to sexual intercourse as a result anyone who
has sexual intercourse with such a girl commits the
crime of rape because the law says such a child cannot
consent to sexual intercourse.
• A girl over the age of 12 but below 14 is rebuttabely
presumed to be capable of giving consent and this
presumption can be rebutted by giving evidence that
the girl in question was capable of giving consent and
indeed gave such consent
• X cannot be found guilty of rape of a girl
between 12 and 14 if the court finds that the
presumption has been rebutted by evidence
which shows that the girl ad the capacity to
consent and did in fact consent.
• However the accused is still guilty of having
sexual intercourse with a young person in
terms of section 70 of the Code.
• On the other hand where the court is satisfied
on evidence led that the girl in question
lacked capacity to consent then for purpose of
rape charge the sexual intercourse will be
deemed to be non consensual.
• Consensual sexual intercourse with a girl
above 14 years but below 16 years
• A person who has sexual intercourse with a
girl who falls within this age group commits an
offence of having sexual intercourse in terms
of section 70.
• Factors considered by Court when sentencing in
Section 65
• (1) use or degree of force.
• (2) extent of physical/ psychological injuries.
• (3)Infection of sexual transmitted diseases.
• (4) the age of the victim.
• (5) relationship between the two.
• (6)number of people who took part in the
commission of the offence.
• (7) previous convictions.
 Competent Verdicts for Rape

•These are lesser offences.

•Aggravated indecent assault
•Indecent assault
•Sexual intercourse with a young person
Aggravated indecent assault Sec 68

• This offence is committed where X has non

consensual penetration with indecent intent of
any part of the body of the victim.
• Essential elements
• (1) unlawful penetration
• (2) of any part of the body
• (3) Indecent intent
• (4) by both males and female
 How can this offence be committed

• (a) male on a female –

• (i)inserting one’s fingers in the female’s vagina
• (ii) male inserts penis into the mouth

• (b)male on male
• (i)Male inserts penis in mouth
• (ii) male inserts penis in anus
• (iii) male inserts any object in mouth
• (c) female on male
• (i) female penetratest male per anum using
object

• (d) female on a female

• (i)Insertion of fingers
• (ii)Insertion of tongues
 Penalty

•A person who has committed aggravated

indecent assault is liable to same punishment as
rape.
•S v Mugwenzi 1994 (1) ZLR 442
•Competent Verdict of Aggravated indecent
assault is Indecent assault.
 Indecent assault
• This offence can be committed by a male on a female,
male on male, female on a male and female on a
female.
• Male on Female
• This offence is committed where a male with an
indecent intent and knowing and realizing that there is
a real risk that the female person has not consented
commits on the female any indecent act involving
physical conduct other than sexual intercourse or anal
sexual intercourse or any other act involving the
penetration of any part of the complainant’s body.
• Indecent assault violates the dignity of a
person e.g fondling of breasts and buttocks
and touching of genital parts.
• Question: How do you distinguish between
indecent assault and aggravated indecent
assault?
 Marital rape- S 68
• Under section 68 a husband can now rape his
wife however before such a husband can be
prosecuted there has to be authority from PG

• R v Wiliams
• Case where consent is absent
Sexual Intercourse with young person
• Section 70 defines a young person as a person
below 16. Section 70 is a reenactment of
Section 4 of SOA.
• Essential Elements
• This crime is committed where a male person
has extra marital sexual intercourse or
performs an indecent act with a young female
person or a male person who commits an
indecent act on a young male person.
• NB: This crime is not committed if the acts are
committed between married persons.
• Under section 70 (2) the consent of the minor
is not a defense
• Read Section 73 and 75
 Public Indecency
• For instance where X indecently exposes
himself or herself or engages in other indecent
conduct which causes an offence to another in
or near a public place or in or near a private
place within
• Smith v Hughes
 Section 48 - Infanticide
• Section 48 does not create does not create an entirely
new offence.
• Section 48 substantially incorporates provisions of
Infanticide Act.
• The offence of infanticide is committed where a
woman within 6 months of giving birth to a child
causes its death intentionally or causes its death by
conduct which she realizes involves a real risk to the
child’s life and the woman should have killed the child
in circumstances where the balance of her mind is
disturbed as a result of giving birth.
• NB: This offence can only be committed by a
mother who cause the death of her own child
within 6 months of giving birth to the child.
• Essential Elements
• (1) offence committed only by a woman who
is biological mother of the child.
• (2) The child in question must be within 6.
months and below
• (3) killing must be intentionally
• (4) the woman must be able to demonstrate that she
was in a disturbed state of mind as a result of giving
birth.
• NB: What makes this offence different from murder is
that although the woman killed the child intentionally,
she must demonstrate that she was in a disturbed
state of mind at the time she intentionally killed the
child due to pressure and stress arising out of giving
birth.
• The stress can be as a result of social, economic,
physical or psychological factors.
 Examples of Factors
• Lack of means to look after the child.
• Physical deformities of the child in question
• Psychological problems caused by hormonal
imbalances caused by severe pain during
birth.
• Effects which birth had or which she believed
would have on her social, financial or marital
impacts.
• NB: The crime of infanticide only applies where
the mind of the mother has been disturbed as a
result of giving birth.
• As a result where the mother’s mind has not
been disturbed such a mother would be charged
with murder if she intentionally kills her child.
• If the woman kills her own child in circumstances
where she was so mentally disturbed that she did
not understand the nature of what she was
doing, the court can return a special verdict of
not guilty in terms of Section 29 of MHA
• Question:
• Should a person who incites a mother to kill
her own bay be charged with infanticide as an
accomplice or murder?
• CASES:
• S v Kachipare 1998 (2) ZLR 271
• S v Kueri SC 188/95
 Property related offences
• Theft Section 113
• Section 113 is a codification of common law
crime of theft.
• Included within the scope of theft under section
113 is theft of money or other property held in
trust.
• Theft is defined as the unlawful, taking of
property capable of being stolen with the
intention of permanently depriving the owner,
possessor or controller of such property.
 Essential Elements
• Theft is committed if
• (1) X takes property that is capable of being
stolen.
• (2)At the material time X must have knowledge
that another person is entitled to own, possess or
control the property, or realize that there is a real
risk or possibility of such possession or control.
• (3) X’s intention must be to permanently deprive
Y of his ownership, possession or control.
• Section 115 introduces a presumption of
intention to deprive permanently.
• A person charged with theft is presumed to have
had intention to deprive permanently if the
following happens:
• (a) if after taking possession or assuming control
of the property he abandons it without making
sure whether or not it is restored to the person
who owns, possess or controls it.
• (b)If after possession or assuming control of
property X subjects property to use which
he/she realizes will destroy the property.
• (3) if X consumes the property intending to
return an identical property.
• (4) Where X spends money intending to return
exactly the same amount.
 Property capable of being stolen

• Any movable corporeal thing or object

• Any incorporeal right vested in a person
relating to moveable/ immovable property e.g
trademarks, shares, electricity
• Electromagnetic waves
 Property that cannot be stolen
• Property that is common to everyone e.g
water in a public stream or air in atmosphere
• Wild animals, birds, insects and fish as long as
they have not been reduced into captivity,
eggs, honey or produce of the wild
• Property that was finally and profusely
abandoned by owner with intention of
relinquishing all his rights to it.
 Competent verdicts
• (1)Unauthorized borrowing
• (2)Making off without payment

• Section 113 (2) provides for theft of trust

property.
• The offence comes in when you fail to account
for the property.
 Section 114 stock theft

•This creates the crime of stock theft and before the

Code the existing crime was stock theft under
common law with specific reference to livestock.
•Now section 114 introduces a new offence of stock
theft which is a composite one encompassing theft
of livestock or its produce knowing it to have been
stolen.
•It also includes the unlawful possession or acquiring
of livestock in circumstances set out in Section 5
and 6 of Stock Theft Act.
• What is considered to be livestock?
• Refer to the Code.
• Essential Elements
• (1) X’s conduct must involve taking of livestock
or its produce
• (2) knowing that another is entitled to own,
possess or control the property or realizing
that there is a real risk or possibility of
entitlement.
• X’s intention must be to permanently deprive
the other person of his ownership, possession
and control or realizing the real risk or
possibility.
• X can also be guilty under section 115 if he
takes possession of stolen livestock or its
produce knowing that it has been stolen or
realizing that there is a real risk or possibility
that it has been stolen.
• X can also be found to be liable under section
114 if he is found in possession of livestock or
its produce in circumstances which give rise,
either at the time of possession or anytime
thereafter to a reasonable suspicion that at
the time of such possession the property was
stolen and who is unable to give satisfactory
explanation for his or her possession.
• X can also be found guilty under section 114 if he
acquires or receives into his or her possession
from another any stolen livestock or produce
without any reasonable cause believing at the
time of acquiring that it was the property of the
person from he/ she acquired or received it.
• The onus of proving that X had reasonable cause
to believe that the property in question belongs
to Y lies with X.
• X is guilty of attempted stock theft if he
enters any cattle kraal, stable or barn etc with
the intention to steal any livestock or its
produce.
• In terms of section 114 (6) the onus will be on
X to prove on a balance of probabilities that
he had no intention to steal any livestock or
its produce.
 Unauthorized borrowing
• This offence is committed were X knowing
that another person is entitled to own,
possess or control:
• (1) takes possession or control of such
property without consent;
• (2) with the intention of temporarily depriving
the owner, possessor or controller
 Making off without payment
• This offence is a new offence that was
introduced to cover situations where services
rather than goods are stolen.
• It also covers circumstances where
consumption of goods for which payment
after consumption is required but has not
been made.
 Essential elements

• He benefits from services or consumes goods

for which payment is expected after;
• X intentionally makes off without paying for
services or goods
 Section 120 – Joint ownership
• This section provides that a spouse, partner or
co-owner may be guilty of stock theft or
unauthorized borrowing or use of property which
is jointly owned with another spouse or
co-owner.
• Liability arises in the following circumstances:
• (1) Where the taking, dealing with or using of
property was not authorized by any agreement
between the accused and his/ her co-owner,
spouse or partner;
• (2) with the intention of permanently
depriving co-owner of his/her ownership or
control.
• NB: No prosecution can be taken against a
spouse for stealing from or unlawfully
borrowing from his/her spouse without the
leave of P.G.
 Section 126 - Robbery
• There must be unlawful taking of property by use
of violence in order to induce the owner,
possessor or controller to relinquish his
ownership, possession or control.
• In order for one’s conduct to constitute robbery
X must steal property or engage in an act
constituting the crime of unauthorized borrowing
or use of property and intentionally uses violence
or threats of immediate violence.
• Immediately before or at the time he/she
takes the property, in order to induce the
person who has lawful property to relinquish
his/her control of it.
• Or immediately after he/she takes the
property in order to prevent the person who
had lawful control over the property from
recovering his/her control over it.
• It is not a defense to a charge of robbery for X to argue
that when he took possession and control of the
property was no longer exercising such control of it.
• (1) when the accused first used violence or the threats
of violence, that other person was in control of the
property
• (2) if the effect of the violence or threats of violence
was to render that other person unconscious or to
cause him/her to run away or abandon the property or
to render him/her incapable of exercising control over
it.
• CASE: S v Seekoi 1984 (4) SA 690
• NB: threats of future violence do not
constitute robbery in terms of Section126.
• Robbery is committed in aggravating
circumstances e.g
• Use of weapons
• If a person is killed
• Infliction of injury or threats or serious bodily
injury
 Competent verdicts
• Theft
• MDP
• Making off without payment
• Threat of violence
 Section 131- unlawful entry of
premises
• This section has modified the common law crime
of house breaking in a number of ways.
• Under common law the offense of housebreaking
could only be committed if X intended to commit
some crime inside the premises.
• The crime of house breaking was also
characterized by a number of technical
requirements regarding nature of premises
broken into and manner of entry.
• The primary purpose of Section 131 is to protect
one from intrusion
• The common law offense of housebreaking has
been completely reformulated with resultant
effect that it eliminated the unnecessary
technical requirement of housebreaking.
• Under section 131 it is no longer essential that
the nature of building is a dwelling house or force
was used in accessing entrance. All these factors
are no longer relevant
• Essential Elements
• (1) X intentionally enters premises without
permission or authority from the lawful occupier
of the premises.
• (2) X should have entered the premises.
• Premises in the context of Section 131 means any
movable or immovable building or structure
which is used for human habitation or storage
and it includes an out building, shed, caravan,
tent or boat.
• Entering includes the following:
• (1) inserting any part of one’s body or an
instrument into the premises
• (2) opening or to break pen a door, window or
gate or otherwise to remove an obstacle to entry
into the premises.
• (3) refers to entering into the premises without
having removed any obstacle e.g when entry is
effected through an open window, door or gate.
 Aggravating circumstances
• X entered a dwelling house
• Carrying a weapon
• Used violence
• Damaged any property upon gaming entry
• The fact that X committed an offence whilst in
the property.
 Defenses
Defense of automation
•In terms of section 9 of the code a person can be
held liable for an offense committed in
circumstances where his/her conduct was
voluntary.
•X will not be found guilty if his conduct was
involuntary in the circumstances.
•Automation as a defense deals with situations
where the action or conduct was performed
without any control or conscious knowledge on the
part of X
• Automation is a complete defense to a
criminal charge unless X was at fault in
bringing about the situation where his/her
conduct was involuntary.
• In terms of Section 216 (4) if the involuntary
conduct was as a result of a mental disorder
then court must return a special verdict in
terms of Section 29 of MHA.
• CASE: S v Evans 1985 (1) ZLR 95
 Intoxication
• Provide in terms of Section 219
• It refers to a state of affairs where one gets
intoxicated as a result of consumption of
alcohol or some other drug with overall result
that one’s judgment is impaired.
• There are two types of intoxication:
• Voluntary intoxication & involuntary
intoxication
 Involuntary Intoxication Section 220
• Refers to that intoxication that occurs when one
is not aware that he is taking a drug.
• Question:
• Under what circumstances is involuntary
intoxication a defense to a criminal offence?
• Where an accused person is facing a crime
requiring proof of intention and knowledge
involuntary intoxication can be a complete
defense provided that the effect of intoxication
was such that X did not from the necessary
intention to commit the offense.
• The defense of involuntary intoxication will not
succeed if the court finds out that despite
involuntary intoxication X was still able to form
the necessary intention or realize a risk.
• In terms of section 220(2) intoxication is also a
full defense to an offence requiring proof of
negligence provided he did not negligently
conduct himself after having realized that he was
involuntarily intoxicated
• See Gardner case 1974 (2) RLR 48
 Voluntary intoxication
• It is a complete defense on any crime that requires
proof of intention provided that the effect of
intoxication was such that he/she did not form
necessary intention or at least realize the existence of
real risk.
• Section 222 creates a new strict liability crime namely
voluntary intoxication leading to an unlawful conduct.
• The rationale is to encourage people to be responsible.
It would be contrary to public policy for a person to
scape liability completely in circumstances where he
causes harm or damage in a case of voluntary
intoxication. It is a deterrent on would be offenders.
 Mistake of fact Section 232
• To rely on this defense the accused must prove
that he was erroneously mistaken on an
important fact and that fact should relate to an
essential element of the offence he is facing.
• If its an offence requiring proof of intention the
accused must further prove that his mistake was
genuine.
• If it’s a crime requiring proof of negligence the
accused must prove that his mistake of fact was
genuine and reasonable.
Defense of Compulsion section 243
• If successfully raised it becomes a full defense.
• It is raised by an accused person who alleges that
he was compelled to commit the crime with
which he is being charged.
• One has to prove the following:
• (1) that the compulsion consisted of a threat and
that threat must relate to something that would
kill, harm or cause serious bodily injury to himself
or any other person or a threat that would cause
financial or property loss.
• (2) X must prove that he believed on
reasonable grounds that the implementation
of the threat had begun or was imminent.
• (3) He must also prove that the threat was not
brought about through his own fault.
 Self Defense section 253
• Essential Elements
• (1) X must prove that when he engaged in the
conduct he believed on reasonable grounds that
the lawful attack had commenced or was
imminent.
• (2) the means used to avert the unlawful attack
must be reasonable in all the circumstances.
• NB; Courts discouraged from taking an armchair
approach
• (3) one must prove that harm was caused to
the unlawful attacker
• What is deflected blow?
• (4) Both the harm or weapon used must not
be grossly disproportionate to the attacker.
 Defense of consent Section 245
• It is raised in offences that requires consent as
an essential element.
• Question:
• Outline offences that require consent as an
essential element.
• The mere fact that Y consented to the
conduct in question will be a full defense to X
provided the consent in question met the
following criteria:
• (i) valid consent at law should be given by a person who has
capacity to consent.
• The following groups of people are deemed to lack capacity
to consent at law e.g a girl under 16 years, mentally
disordered .
• (ii) consent must be given freely and voluntarily without
duress or undue influence.
• (iii) valid consent should be given prior to conduct it
cannot be given in retrospect.
• (iv) consent must not be induced by fraud.
• In terms of Section 246 a person cannot consent to being
killed or to infliction of serious bodily harm
 Defense of Provocation
• It is not a complete defense.
• It can only be accepted by court as partial
defense to a charge of murder.
• Provocation is not a defense whether
complete or partial to any other offence but it
can be relied upon as a mitigatory factor for
purpose of sentence.
Defense of Provocation on a charge of
murder
• Where an accused person is facing a charge of
murder and relies on defense of provocation
the court uses the following approaches:
• (1) Whether or not X had intention to kill
when he/she reacted to the provocation.
• If the answer is NO That is if he did not have
that intention then he will be convicted of
culpable homicide and not murder
• (2) If X had the intention to kill then the court
would have recourse to the second method
where it decides on whether or not X lost his
self control and killed intentionally in
circumstances where even a reasonable
person faced with such provocation would
have lost self control as a result of
provocation X will have a partial defense and
be found guilty of culpable homicide.
 Defense of claim of right
• It is applicable in offences where entitlement
is an essential element e.g theft and
unauthorized borrowing.
• Only available to an accused who believed
that he/she has a right to do something and
does not apply to strict liability offences.
 Defense of lawful authority
• It is raised by an accused person who argues
that his conduct was lawfully authorized.
• Lawful authority can be given by a person in
authority or by an Act of Parliament.
• For instance Police officers allowed to use
minimum force in effecting arrest.
• For instance Section 42 of the CPEA
 Inchoate Crime
• Relates to unfinished crime.
• Examples
• Attempted theft
• Attempted rape
• Attempted murder
• Read section 186
• It is not a defense that X believed that due to a
mistake of fact that it was physically possible to
commit the offense whereas in fact its
commission was physically impossible.
 Incitement
• (1)It is committed where X, in any manner,
communicate with another person intending
by the communication to persuade or induce
the other person to commit a crime whether
in terms of this Code or any other enactment;
• (2) realizing that there is a real risk or
possibility that the other person may be
persuaded or induced to commit the crime.
• It is immaterial to a charge of incitement that the
person who was incited was unresponsive to the
incitement and had no intention to act on
incitement or the person who was incited did not
know that what he/she was incited do
constituted a crime.
• In terms of section 194 where a crime such as
treason is committed by means of incitement X is
guilty of the actual crime and not merely
incitement.
• Read section 188 Conspiracy
 Defense of impossibility Section 261
• It can be a complete defense and succeeds as a
defense to a charge if the impossibility was
absolute that is :
• (1) if it was objectively impossible for anyone in
X’s position to have done that
• (2) if impossibility was not due to X’s own fault.
• Difficulties in complying with the law is not a
defense but in terms of Section 261 (3) when
imposing a sentence upon X for a crime the court
is allowed to take into account any difficulty
experienced by X in complying with the law.
Defense of Trivialities Section 270
• This defense allows an accused to be
acquitted if harm to a person or community
occasioned by the crime in question is so
trivial as not to warrant a conviction.
• The court will only acquit X on the defense of
trivialities if the conduct by X is of a trivial
nature in relation to the most serious conduct
prohibited by the provision of the enactment
concerned.
• THANK YOU