Criminal Law

Essay Questions
Essay questions will usually require you to do more than simply to state the current law. Most
questions will call upon you to comment critically upon the law and to give your views about such
matters as the fairness of this law or whether it is socially appropriate. Where the law on a particular
point is uncertain or has not yet been decided, you will be asked to give your views on how our law
should be fashioned in this area. A few examples may be given of the way in which questions may be
formulated.
What is the current law on X? Do you think the current law is satisfactory?
This same question can be formulated in these terms: Do you think the current law on X is satisfactory?
In answering either versions of this question, you will have to start by setting out clearly and
succinctly the current law on the subject. Having done so, you will then refer to any criticisms of the law
which have been made. The next stage is to evaluate the law and any criticisms thereof to decide whether
the law is satisfactory or whether the law needs to be changed.
If you are asked a question like: “In your opinion, should the current law on abortion be
changed?” you will need to examine the pros and cons of expanding the grounds upon which women are
able to have lawful terminations of their pregnancies. The moral, social, ethical, philosophical and legal
arguments will need to be critically examined in order to reach a reasoned conclusion.
Your essays should be properly structured and the use of headings can be very helpful in
organising your ideas. The sort of headings that could be used in a question that requires you to examine
critically whether the current law should be changed are these:

Introduction
The current law
Critique of the current law
Arguments in favour
Arguments against
Evaluation of arguments
Conclusion
(In your conclusion you will set out whether or not the current law should be changed)

Why is the doctrine of versari in re illicita no longer use in our criminal law?

Clearly define versari and give an example of how it applied.

Identify how the doctrine results in unfairness and leads to the flouting of the basic principles of criminal
responsibility.

Indicate that the Zimbabwean and South African courts have ejected it.

Conclude by re-iterating that the doctrine is no longer used, as it is unfair.

How should our courts decide the liability of A for causing the death of C in the following situation:
A attempts to kill B but his blow goes astray and the blow hits and kills C?

Explain how the Zimbabwean and South African courts decide this matter using ordinary principles of
mens rea i.e. that A is guilty of the murder of C if he foresaw the possibility of C dying and took this risk,
that A is guilty of culpable homicide if he did not foresee the death but the reasonable person would have
and would have guarded against it and that A is not guilty of any crime for causing C’s death if the death
was neither foreseen nor was it reasonably foreseeable.

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 Problem questions
General guidelines
The task in a problem question is to decide whether on the facts the accused will be held
criminally liable. The relevant criminal law must be applied to the facts. In answering a problem question
you must first decide what legal points are relevant in deciding the matter. The current Zimbabwean law
on these points should then be clearly and precisely set out. Where the current Zimbabwean law is
unclear or the point has not yet been decided in Zimbabwean law, reference should be made to the law in
other legal systems, starting first with South Africa.
The next stage is to apply this law to the facts. In a problem question you must refer to the facts
in detail because the way in which the relevant law will apply will obviously depend on the facts in
question. Where it is entirely clear what the outcome will be, state your conclusion in definite terms i.e.
that the accused will be found guilty or he will be found not guilty. Where it is a borderline situation and
it is arguable as to what the outcome will be, indicate that this is a borderline case, but still go on to reach
a conclusion as to how you think the case will be decided. When applying the law to the facts make sure
that you make specific reference to the salient facts.
Where the facts are clear and comprehensive, accept the facts as given and do not alter
these facts. Sometimes the facts, however, may be ambiguous. Where this is so, deal with the case on the
basis of taking both possible interpretations of the facts. Where there are vital facts missing, deal with the
case by making some assumptions in relation to the missing facts.
Use relevant case law in support of your arguments. Wherever possible, refer to decided
Zimbabwean cases. If there is a relevant Zimbabwe Supreme Court judgment, start with this case. If there
is a case that is closely analogous on the facts, refer to the facts of that decided case and set down what
decision the court arrived at on those facts and why. Having done this you can then argue the problem
question on the basis of how the court decided the closely analogous case. In other words, you may be
able to say that the present case is so closely analogous to the decided case that it will be decided in
exactly the same way. Alternatively, you may find a somewhat analogous case, but you may then find
that there is a significant difference in the facts of the problem question. This may lead you to the
conclusion that the outcome in your problem question would be different from the decided case. When
you are arguing by analogy you should give set out briefly the facts of the decided case, the law applied
and what the outcome was. If you are citing a case decision because it sets out the law on the subject, but
the fact situation is in no way analogous to the facts in your problem, you should not set out the facts of
the decided case.

The accused has been charged with murder. Will he be convicted of this crime?
1. Set out the essential ingredients of the crime in question.
2. Closely examine the facts to determine whether the State will be able to prove all the essential
ingredients of the crime on these facts.
3. Refer to any defences that the accused will be able to raise on the basis of the given facts. List the
requirements of the defence or defences and decide whether such defences are likely to succeed on
the given facts.
4. Reach a conclusion about whether the accused will be found guilty of the crime charged. If you
decide he will not, examine whether he could be convicted of any other crimes.

What is the criminal liability, if any, of the accused?

1. Decide with what crime (or crimes) the accused could appropriately be charged.
2. Set out the essential ingredients of the relevant crime or crimes.
3. Determine on the given facts whether the essential ingredients for the crime or crimes charged have
been satisfied.
4. Refer to any defences that the accused will be able to raise on the basis of the given facts. List the
requirements of the defence or defences and decide whether such defences are likely to succeed on
the given facts.
5. Reach a conclusion about whether the accused will be found guilty of the crime charged. If you
decide he will not, examine whether he could be convicted of any other crimes.

The accused is appealing against his conviction. Will the accused succeed in his appeal?
1. List of the essential ingredients of the crime of which the accused has been convicted.

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2. Examine critically the basis of the trial court’s decision and decide
a) Whether it applied the correct law
b) Whether it properly applied the correct law to the facts
c) Whether the court overlooked or failed to give proper attention to any defences that could
have applied on the facts.
3. Reach a conclusion as to whether the appeal will succeed.

How to refer to cases, legislation, books, articles and judges in your essays
When you are writing essays in this subject you must use the methods for citing (referring to)
cases and various other legal materials which are described below. You must always give full citations
when you refer to legal materials.
You must acknowledge the source of all quotations and ideas extracted from cases, books
and articles. You must do this by giving the full details of the source of the words or ideas. To use
words or ideas of others without acknowledgement is dishonest and amounts to theft of those ideas
or, as it is called in academia, plagiarism. Those who engage in plagiarism may be brought before
the Student Disciplinary Committee. They may also have marks deducted from the marks for their
written assignments. The deduction of marks will reflect the extent of plagiarism.

How to refer to (cite) cases

Reported Judgements
High Court cases
S v Stephen 1992 (1) ZLR 115 (H)
In this case the State (S) brought a criminal case against the accused, Stephen. The case is reported in
part 1 of the 1992 edition of the Zimbabwe Law Reports (ZLR). The report of this case starts at p 115.
The “H” in brackets signifies that this was a High Court case.

If you are not typing your essays, underline S v Stephen instead of italicising this. Do not italicise or
underline the rest of the citation [1992 (1) ZLR 115 (H)]

Appeal cases
S v Dube 1992 (2) ZLR 65 (S)
In this case Dube had been convicted and was appealing against both the conviction and the sentence.
Although Dube was the appellant, the case is nonetheless reported as S (State) v Dube. The case is
reported in part 2 of the 1992 Zimbabwe Law Reports. The report of this case starts at p 65. The “S” in
brackets signifies that this was a Supreme Court case.

Some of the other law report references

RLR refers to the Rhodesia Law Reports
R & N refers to the Rhodesia and Nyasaland Law reports
SR refers to the Southern Rhodesia Law reports
SA refers to the South African Law reports
SACR refers to the South African criminal law reports
All ER refers to the All England law reports

Unreported Judgements
Trial cases
S v Moyo HH-259-93
(This is an unreported case in which the State brought a criminal case against Moyo. The case was heard
in 1993 in the High Court in Harare (HH) and the case number of this case is 259 of 1993.)

Appeal cases
S v Banana S-154-94
This is an unreported case in which Jones appealed against his conviction in the trial court. The case was
heard in 1994 in the Supreme Court and the case number of the case is 134 of 1994.

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Note carefully
With all cases you must italicise the names of the parties in typed text or underline the names of the
parties in hand-written text. Italicise or underline only the names of the parties and not the rest of the
reference.
S v Dube 1992 (2) ZLR 65 (S)
S v Dube 1992 (2) ZLR 65 (S)

How to refer to members of the judiciary

When referring to judges in written text use the following citations:
Chidyausiku CJ (This is a shortened way of referring to Chief Justice Chidyausiku.)
Sandura JA (Judge of Appeal Korsah.)
Garwe JP (Judge President Sandura.)
Hlatshwayo J (High Court Judge Hlatswayo.)

When addressing members of the judiciary in court these terms are used:
A judge is referred to as “My Lord” or “My Lady”.
A magistrate is referred to as “Your worship”.

How to refer to legislation

Acts
Sexual Offences Act [Chapter 9:21]

Subsidiary legislation
Road Traffic (Safety-belt) Regulations, 1987 (SI 147/1987)
(SI is the abbreviation for Statutory Instrument.)

How to refer to books and articles

Books
Burchell, J and Milton, J Principles of Criminal Law (Juta & Co Cape Town 1991)
Feltoe, G A Guide to Zimbabwean Criminal Law (Legal Resources Foundation, Harare 1989)
Feltoe, G A Guide to Sentencing in Zimbabwe (Legal Resources Foundation Harare 1990)

Articles
Armstrong, A “Consent in Rape Cases in Zimbabwe” in 1986 Vol 4 Zimbabwe Law Review 112
Nyandiya-Bundy, S “Child Sexual Abuse in Zimbabwe” in 1994 Vol 6 No 2 Legal Forum 5.

If you are not typing your essays, substitute underlining for the italics. Underline only what would have
been italicised if the essay had been typed.

Footnotes and endnotes

Footnotes are notes appearing at the bottom of pages; endnotes are notes appearing at the end of the text.
Footnotes and endnotes are used primarily for the purpose of giving references for quotations from and
references to cases, books and articles.

For hand-written work it is easiest to use endnotes, whereas in typed materials either endnotes or
footnotes can be used. End notes can be done in the following form provided a full bibliography is also
be given at the end in which the citations and publication details are given as set out above.
Armstrong, A 65
Feltoe, G Sentencing Guide 20
Sexual Offences Act, s 7
The Banana case at 7.