QUESTION

STATE AND EXPLAIN ANY FIVE DEFENCES THAT CAN BE RAISED BY AN

ACCUSED PERSON DURING PROSECUTION.

INTRODUCTION

Since a defence is raised by the defendant in direct attempt to avoid what would
otherwise result in liability, the defendant typically hold the burden of proof. For
example if a defendant in an assault case attempts to claim provocation, the victim of
the said assault would not have to prove that he did not provoke the complainant; on
the other hand the accused would have to prove that the complainant did provoke him.
www.wikipedia.com The writer will seek to state and explain five defences which can be
raised by an accused person, which are namely, Mistake of Law, Minority, Obedience to
superior orders, Automatism and Consent.

DEFINITION OF TERMS

Oxford Dictionary of Law (2003) 5th Edition, defines Defence as, the response by a
defendant to service of a claim.

Oxford Dictionary of Law (2003) 5th Edition defines prosecution as the pursuit of
legal proceedings, particularly criminal proceedings.

STATING AND EXPLAINING OF DEFENCES

MISTAKE OF LAW

Mistake of law is a legal principle referring to one or more errors that were made by a
person in understanding how the applicable law applied to their past activity that is
under analysis by a court. The general principle usually is, there is in legal cases an
irrebuttable presumption that people who are about to engage in an activity will comply
with applicable law. www.wikipedia.com

There is a general principle of law in Zimbabwe that ignorance of the law is no excuse
(Ignorantia juris non excusat / Ignorantia juris neminem excusat). It is best
explained the case of S v Appleton 1982 (2) ZLR 110 (S) in which FIELDSEND CJ
stated that the accused made a naked mistake of law and he was thereby found guilty.

G Feltoe in Criminal Law Guide (2006) explained that Straight or naked ignorance or
mistake of law is no excuse, but so-called “properly clothed” mistake of law or claim of
right of law can be a defence.
Exceptions to this general is (1) Reliance on advice from government official who is
purported to be conversant with that legislation as he administers it. It is arguable that
this exception should extend to reliance upon advice by a police officer and advice by a
lawyer. In the case of R v Zemura 1973 (2) RLR 357 (A); 1974 (1) SA 584 (RA).

X genuinely & reasonably believed that he was legally entitled to do what he did as he
was relying upon the erroneous advice of administration official likely to know about the
workings of legislation as he administered that statute. Defence succeeded mistake -
properly clothed mistake.

(2) The second exception is the claim of right defence. A claim of right is a "decently
clothed" ignorance or mistake of law. X takes property from C mistakenly thinking that
that property is X’s property which C has stolen from him. X is not guilty of theft
because he had no intention to steal as he thought he was recovering his own property.

Justifications in not adopting Mistake of Law as a defence in the Zimbabwean situation

are as follows: If an accused is allowed to escape liability on this basis would mean
governance of society not based on norms laid down by State, but based upon what
people think the law should be and not what the law is; If allowed, people would not try
to find out about law or deliberately refrain from doing so – must be duty for people to
familiarise themselves with law; Easy refuge for guilty, it opens doors to spurious claims
as it an easy defence to raise defence and a difficult one for State to disprove.

MINORITY

Section 230 and 231 of the Criminal Law (Codification and reform) Chapter 9:23,
provide for the defence of Minority to a criminal charge. G Feltoe in Criminal Law Guide
(2006) explained that young children may escape criminal capacity on the grounds that
they lacked criminal capacity when they did the acts in question. The issue of capacity
only arises if the child in question is below 14. Children under seven are deemed by the
law to lack criminal capacity; children between the ages of 7 to 14 are rebuttably
presumed to lack criminal capacity.

Smith and Hogan in their book Criminal Law (1988) Sixth Edition, Butterworths,
London stated that, Infants are persons under eighteen years of age. As such, they are
(with some exceptions ) incapable of making contracts or wills but the law imposes no
such limitations on their ability to commit crime. For purpose of criminal law, infants are
divided into three categories. In the Zimbabwean law as outlined by G. Feltoe in
Criminal Law Guide 2006 they are as follows: Children under seven (i.e. children who
have not completed their seventh year), Children between seven and fourteen (i.e.
children who have completed their seventh year but not their fourteenth) and those
over 14 years of age but below eighteen years.

Before prosecuting a person in this age group of 7-14 years, the prosecutor must obtain
the authorisation of the Attorney-General to proceed with such a prosecution (Section
231 of the Criminal Law (Codification and reform) Chapter 9:23). Explained in the cases
of Eva (1967) and S v M 1994 (2) ZLR 13 (HC) There is a rebuttable presumption
that a child between 7 and 14 years of age is doli incapax. Where such a child is
asked to plead, the trial court should question him in detail about his appreciation of
the wrongfulness of his actions.

G. Feltoe in Criminal Law Guide 2006 illustrated that in order to rebut this presumption
the prosecution would have to prove both that: the child's was sufficiently mature to
understand, and he did understand the wrongfulness of his action. These were the
same points raised by Bartlett J in the case of S v M 1994 (2) ZLR 13 (HC).

Even though the child had criminal capacity, he may still not have formed essential
intention for the crime. Mention may be drawn to the case of S v C (a juvenile) 1997
(2) ZLR 395 (H), in which a number of issue were raised. Accused was aged 14 years.

Gillespie J held, that “even if the girl was fourteen at the time of the offence, suggests
childish and inquisitive experimentation, innocent of criminality... She is not a criminal
deserving of punishment”

In sexual offences. Boys under the age of fourteen are irrebuttably presumed to be
incapable of sexual intercourse, and, therefore, cannot be guilty of rape or incest as
principal offenders. Boys under the age of 12 remain immune from prosecutions for
rape. Children over fourteen years, for children over the age of fourteen, the court will
take into account the level of maturity of a young person when deciding upon whether
or not that person formed any required intention, the case of S v MUCHIMIKWA 1985
(2) ZLR 328 (SC) comes to the fore, the 18 year old appellant was convicted of murder,
he appealed and succeeded McNALLY JA, held that ‘there are of course degrees of
maturity where teenagers are concerned, but naturally no teenager has the maturity of
an adult. Youthfulness is immaturity’

OBEDIENCE TO SUPERIOR ORDERS

This defence is provided for in section 267-268 of the Criminal Law (Codification
and Reform) Act Chapter 9:23. G Feltoe in Commentary on the Criminal Law
(Codification and Reform) Act Chapter 9:23 stated that, this defence can be a
complete defence.

Section 268 of the Criminal Law (Codification and Reform) Act Chapter 9:23,
defines:
“Disciplined force” means: the Defence Forces; or the Police Force; or the Prison
Service; or any other force organised by the State which has as its sole or main object
the preservation of public security and of law & order in Zimbabwe;

“Lawful order” means any command, direction or order (a) of a routine, permanent
or continuing nature that is properly made for any disciplined force by or under any
enactment or in terms of any authority given by or under any enactment; or (b) given
on a particular occasion or for a particular purpose by a member of rank of a disciplined
force within the ordinary and lawful scope of that member’s authority;

“Member of rank”, in relation to a disciplined force, means a member in lawful

authority over any other member

Burchell and Milton in Principles of Criminal Law stated that for the defence to
succeed as a ground of justification the following essential elements must be present:
the order must emanate from a person lawfully placed in authority over the subordinate
as in the case of Hlazo HH-63-87 (explained later in assignment); the subordinate
must have been under a duty to obey the order and lastly he must have done no more
than was necessary to carry out that order.

The case of S v MUCHAMBA 1992 (1) ZLR 102 (S), highlights a case of an order
which was so manifestly illegal which The appellant, together with other members of
the National Army had stolen goods and smuggled them into Zimbabwe from
Mocambique using an army truck. He was convicted and he appealed unsuccessfully.
Obedience to superior orders did not avail to the appellant as a defence”.

Section 269 highlights when obedience to illegal orders affords complete defence,
member of disciplined force engaged on active operations, attention is drawn to an
unreported case of Hlazo HH-63-87, mentioned by G Feltoe in Criminal Law Guide
(2006) the accused person , a subordinate in the army, had been given elephant tusks
to transport by a superior. The defence of obedience to superior orders succeeded. A
reasonable person in subordinate position of X would have felt bound to carry out the
order.

G Feltoe in Commentary on the Criminal Law (Codification and Reform) Act

Chapter 9:23 stated that this defence applies to members of armed forces, namely the
army and the air force, operating both in times of war and during peacetime. The
defence is also available to members of the police force. It has even been extended to
certain persons who are subject to commands from superiors even though they are not
members of uniformed forces such as the police force. Derogating from the generality
on whom this defence should be applied a case of S v HAMADZIRIPI 1989 (2) ZLR
38 (HC) is brought to the fore. The accused was the hospital administrator at Chegutu
District Hospital. On 27 November 1988 at about 11:10 hours he was driving an
ambulance when it was involved in an accident with a bus. The accused was charged
with contravening s 6(1) of the Road Traffic Act 1976 (unlicensed driving) and s 42(1)
of the Road Traffic Act 1976 (careless driving). The accused person was convicted and
sentenced. On Review Smith J disagreed and cited that “a defence of obedience to
orders or compulsion was clearly indicated”. The correctness of this decision was also
disputed by Feltoe in his book titled, Criminal Law Guide (2006). In this regard the
defence of necessity would have sufficed
In order to try to prevent members of disciplined forces from being used as agencies to
carry out orders to commit atrocities and other human rights abuses, such as
massacring innocent civilians, the defence of obedience to orders will not apply where
the order was not so manifestly illegal that a reasonable person in his or her position
would have refused to obey it.

AUTOMATISM

Automatism can be seen variously as lack of voluntariness, lack of culpability

(unconsciousness) or excuse. Automatism means that the defendant was not aware of
his actions when making the particular movements that constituted the illegal act. It is
arguably the only defence that excludes responsibility by negating the existence of the
actus reus which uniquely allows it to be a defence to both conventional and strict
liability offences (although this argument could be extended to the status defence of
insanity too)www.wikipedia.com

G Feltoe in Commentary on the Criminal Law (Codification and Reform) Act

Chapter 9:23 stated that this can be a complete defence. It is a fundamental principle
of criminal law that no person may be held criminally liable except for voluntary
conduct. Thus accused should not be found guilty of a crime where his or her action
was involuntary. The defence of “automatism” deals with situations where the action
was performed without any control or conscious knowledge. Smith and Hogan in
Criminal Law buttressed the above mentioned point by saying, what is clear is that the
voluntariness of an act is a more fundamental element of criminal liability than the
intention to cause, or foresight of, results of the act which we normally think of as mens
rea.

Automatism is defined as a state where the muscles act without any control by the
mind, or with a lack of consciousness. www.wikipedia.com

Action to be classed as an "automaton" there must have been a total destruction of

voluntary control, which does not include a partial loss of consciousness as the result of
driving for too long. Where the onset of loss of bodily control was blameworthy, e.g.,
the result of voluntary drug use, it may be a defense only to specific intent crimes.
www.wikipedia.com.

The case of S v HURLE & ORS (2) 1998 (2) ZLR 42 (H) clearly explains point raised
above. The three accused were charged with murder. In respect of the second and
third accused, the majority of the court found that they had a constructive intent to kill
the deceased. In his deliberations Gillespie J stated that the first accused, was so
intoxicated to the extent of being incapable of appreciating the consequences of his
actions, he was incapable of directing and restraining his conduct in accordance with his
appreciation. intoxication that excludes criminal capacity or intent will permit the
perpetrator to escape conviction for murder but the crime of culpable homicide will
nevertheless be disclosed.
Furthermore, Oxford Dictionary of Law (2003) 5th Edition explained automatism as
involuntary conduct caused by some external factor. Examples of such acts are those
carried out while sleepwalking or in a state of concussion or hypnotic trance, a spasm
or reflex action and acts carried out by a diabetic who suffers a hypoglycemia episode.
Automatism is not a defence, however, if it is self induced (for example by taking of
drugs or drink).

The application of this defence can best be described in the case S v EVANS 1985 (1)
ZLR 95 (SC), The appellant was charged with and convicted of culpable homicide
arising out of a collision between two railway trains allegedly caused by his negligent
driving of one of the trains. In his defence he testified that he had suffered a “black-
out” due to the stress and irregular hours of his work. He appealed against both
conviction and sentence. DUMBUTSHENA CJ in summing up he stressed that, “There
is a preponderance of probabilities in his favour. The evidence raised, in my view, a
reasonable possibility that he was not to blame for the accident. There was no culpa on
his part”. Both the conviction and sentence were set aside when defence of Automatism
was raised.

In concluding, G Feltoe in Criminal Law Guide (2006) stated that there are two
species of automatism: sane and non-sane automatism. Because of the wide coverage
of the Mental Health Act provisions many of the cases which previously would have
been treated as instances of sane automatism will now result in the returning of special
verdicts under the Act. There are, however, certain residual cases of sane automatism.
These are mostly confined to motor accidents caused by sudden and unforeseeable
events such as where X, without any forewarning, suffers a heart attack whilst he is
driving his car, and this causes him to lose control over his vehicle and have an
accident. In such an instance if X is charged with negligent driving or culpable
homicide, he will escape liability on the basis of sane automatism. However, X will not
escape liability if he is negligent in causing the accident. He would be negligent if he
continues to drive when he knows he is very tired and he falls asleep at the wheel and
causes an accident.

In the case of non-sane automatism the onus is on the defence to prove on a balance
of probabilities that X was insane at time he committed the crime, which is contrary to
the general rule that the prosecution has to disprove any defence after a proper
foundation has been laid for that defence.

Burchell and Milton in Principles of Criminal Law to buttress the above explained
that, the cause of the state of automatism is irrelevant in so far as non-liability is
concerned, a distinction is made for the purposes of onus of proof and the effect of the
verdict of ‘not guilty’, between automatism resulting from mental disease and and
automatism due to some other cause.
CONSENT

G Feltoe in Criminal Law Guide (2006) explained that as crimes are wrongs against
the community, the fact that a person consented to the commission of the crime upon
him is not normally a defence to a crime. The defence consent is thus has very
restricted application in criminal law. But there are certain circumstances in which
consent is a defence. The maxim volenti non fit injuria (that to which man consent
cannot be regarded as an injury) is the starting point as regard to consent as a
defence.

Burchell and Milton in Principles of Criminal Law have this to say in terms of
requirements for the defence of consent to succeed which are: the complainant’s
consent in the circumstances must be recognized by law as a possible defence; it must
be real consent and it must be given by a person capable in law of consent. Under the
Zimbabwean law those mentioned are persons incapable of giving consent: Children
under 7; Girls under 12 deemed incapable of consenting, for rape Girls & boys under 16
for “statutory rape” & indecent assault; girls 12-14 rebuttably presumed incapable of
consenting for purposes of rape, Insane persons don’t have capacity to consent;
Unconscious person unless prior consent; Drunk persons if don’t realise what they are
doing.

Sections 241 – 251 of the Criminal Law (Codification and Reform) Act Chapter
9:23, provides for the defence of consent. In that code crimes are grouped as
those that require absence of consent such as Rape, Aggravated indecent assault
and Indecent assault. For consent to avail as a defence the alleged victim must have
consented prior to the conduct, not as ratification afterwards; must be capable in law of
giving such consent and able to understand the nature and possible consequences of
the conduct and to give informed consent; his / her consent must be real and is not
induced by threats, force, fraud or mistake intentionally or knowingly induced by the
person charged with the crime, case of R v McCoy (1953) SA (2) 4 SR brings to light
the last point is applied, in this case a young air hostess failed to fasten her sitting belt
when the plane landed, thereby contravening regulations on security. In reprimanding
her, the General Manager threatened to dismiss her, another option was for her to be
canned and she agreed in writing and was thereby canned six strokes. The court held
that, consent as ground of justification was inadmissible since it was out of fear of
losing her job. Allowing consent in such a case would be contra bonos mores
(contrary to generally recognised morals prevailing in society).

Crimes that do not require absence of consent are where the alleged victim
consented to any conduct which is likely to cause harm to his or her person, proprietary
rights or other interests, his / her consent will be a complete defence if: the interests of
the community as a whole are not adversely affected by the conduct to any substantial
degree; he consent given prior to the conduct, not as ratification afterwards; he / she is
capable in law of giving such consent and is able to understand the nature and possible
consequences of the conduct and to give informed consent; his / her consent was real
and is not induced by threat, force, fraud or mistake intentionally or knowingly induced
by the accused; the giving of the consent is not contrary to any law or to public policy.

Consent cannot be a defence in the following circumstances: It is not lawful to a person

to consent to being killed, the best known example is a case of murder which was a
case of mercy killing (euthanasia) at the request of the suffering party and it was
unlawful, R v Hartmann (1975) SA (3) 532 C and it is not lawful for a person to
consent to the infliction of serious bodily harm upon him or her.
There are some exceptions to this rule, however. For instance, a person can lawfully
consent to the carrying out of a major medical operation for therapeutic purposes
provided that the treatment is carried out competently in accordance with recognised
medical procedures; the patient consented prior to the conduct, not as ratification
afterwards; the patient is capable in law of giving such consent and able to understand
the nature and possible consequences of the conduct and to give informed consent; the
patient’s consent is real and is not induced by threats, force, fraud or mistake
intentionally or knowingly induced by the person charged with the crime. ; Consent to
sporting injuries that is a person who takes part in any lawful sporting activity shall
be deemed to have consented to undergo the risk of sustaining any injury or
destruction or loss of property which is normally inherent in participation in such
sporting activity; Consent to medical treatment for non-therapeutic purposes;
Consent to injuries from customary or religious practices and Consent given
on behalf of other persons, subject to this part, where a person is incapable in law
of giving consent to anything, whether because of minority, unconsciousness, insanity
or otherwise, consent given by the person’s parent, guardian, spouse or any other
person capable in law of giving consent on his or her behalf shall be as effective as if
the consent had been given by the person himself or herself.
Burchell and Milton in Principle of Criminal Law clarified as to the issue of Mistake as
to consent in which he explained that where consent has not been given or is invalid
the wrong doer may nevertheless escape liability on the grounds of a bona fide but
mistaken belief in the existence or validity of the consent. The wrongdoer’s mistake
means that fault (mens rea) in the form of knowledge of the unlawfulness of the
conduct concerned is absent.

CONCLUSION

In the case of S v MAPFUMO & OTHERS 1983 (1) ZLR 250 (SC) the court
established that, there is no onus as such on the accused to establish a defence. Once
there is some material, whether adduced by the defence or emerging from the
prosecution case, suggesting that such a defence may be available, the Court must
consider it. In the interest of justice it is relevant that a person be given a fair trial and
by raising his or her defence to a charge it serves to that end.
BIBLIOGRAPHY

Burchell and Milton, Principle of Criminal Law, (2005) Juta, Pretoria.

G Feltoe, Criminal Law Guide (2006), Legal Resources Foundation, Harare.

G Feltoe Commentary Criminal Law (Codification and Reform) Act Chapter 9:23 (2010),
Legal Resources Foundation, Harare.

Smith and Hogan Criminal Law (1988) Sixth Edition, Butterworths, London.

Criminal Law (Codification and Reform) Act Chapter 9:23, Printflow, Harare.

Oxford Dictionary of Law 5th Edition (2003) Oxford University Press, Oxford.

South African Law Reports (1975) (Volume 3).

South African Law Reports (1953) (Volume 2).

Zimbabwe Law Reports (1983) (Volume 1).

Zimbabwe Law Reports (1985) (Volume 1).

Zimbabwe Law Reports (1989) (Volume 2).

www.wikipedia.com