NAME: TINASHE TANYANYIWA

REGISTRATION NUMBER: R081119D

PROGRAM: LLBS (1)

LECTURER: PROFESSOR G. FELTOE

COURSE: CRIMINAL LAW

YEAR: 2009

QUESTION: David Ngoni is a poacher. One day is hunting illegally in a national parks game
park when he thinks he sees an antelope moving in some bushes. He shoots at this
object and hits it. When he goes to the bushes he finds, to his horror, that the object
is not an antelope but a fellow poacher, Farai Murapa, who is a close friend of his.
The bullet he fired had hit Farai in the head and killed him instantly. He was
unaware that Farai was also out hunting on that day.

David is charged with murder. The judge convicts him, finding that although he did
not have intention to kill Farai, he was grossly negligent in shooting at the object
without first making sure that it was indeed an antelope and not a person. He was
therefore guilty of murder. But even if he had not been negligent in causing the
death, he was still automatically criminally liable for the death of Farai he was
engaged in an illegal enterprise.

Giving reasons, decide whether the judge was correct in convicting David of
murder.
It is a well established norm that for one to be criminally liable their conduct which is at the heart of the
charge should be recognized by law. In the facts of the present matter Mr. Ngoni is clearly liable for the
death of Farai and was subsequently convicted of murder. Zimbabwean law recognizes that for one to be
convicted of murder two essential ingredients must be glaringly apparent, that is, actus reus or unlawful
killing of a person and mens rea which is the intention to kill. What remains to be determined is whether
the judge was right in convicting the accused of murder and one is of the opinion that the judgement
passed was inappropriate.

An analysis of the facts will reveal that the accused acted in violation of Section 131 of the Parks and
Wildlife Act (Chapter 20:14) which states that anyone caught hunting game illegally shall be convicted1.
However, the accused was charged not with contravening the statute but of murder. One submits that
although the accused committed a criminal offense by killing Farai, he lacked the mens rea. As he was
hunting game he mistook Farai to be game and unfortunately shot the deceased who died instantly. In
light of these facts it ca be seen that Mr. Ngoni lacked the requisite intention to kill Farai. According to
the Criminal Law (Codification and Reform) Act (Chapter 9:23) one cannot be convicted of murder if it
cannot be proved that they had intention to commit murder2.

This view is seconded by C.R Synamn in Criminal Law (Second Edition), who is of the opinion that a
court cannot convict a person and punish him because it is of the opinion that his conduct is immoral or
dangerous to society or because in general terms, he “deserves” to be punished3. However, it would seem
that the honourable judge applied the grossly unfair vesari in re illicit rule. This rule is based on the
premise that since the accused was engaged in an illegal activity he becomes liable for any consequences
resulting fro that illegal action. This doctrine has no merit and has been thrown out in a number of
Zimbabwean and South African cases, for example, S .v Van Der Mesch4. Here the Appellate division
held that it should not be used as it is contrary to the basic principle that a person cannot be convicted of a
crime he had no intention of committing.

Thus one is of the view that the judge passes an erroneous judgement by convicting the accused of murder
as he lacked the necessary mens rea. Murder is defined as “unlawfully and intentionally causing the death
of a human being who is alive” and a look at the facts of the matter will show that the accused did not
intend to kill the deceased. He however acted negligently in failing to foresee that the might wound a kill
a person in the gaming vicinity as he went about his illegal hunting escapade. Thus, one believes that the
correct charge to be leveled against the accused is culpable homicide.

1. Parks and Wildlife Act (Chapter 20:14)

2. Criminal Law (Codification and Reform) Act (Chapter 9:23)
3. C.R Synamn, Criminal Law (Second Edition)
4. S v. Van Der Mesch
The fact that Ngoni kills Farai after mistaking him for being an antelope make him liable for culpable
homicide and not murder. The test for culpable homicide is whether the accused had legal intention, that
is, did the accused engage in conduct whilst realizing that there was a “real risk or possibility” that the
harm might eventuate or the relevant fact or circumstance might exist 5. Mr. Ngoni knew his conduct was
illegal and he should have foreseen the possibility of encountering another human being, be it a park
ranger or another poacher. Hence, he is negligently liable.

Furthermore, there a number of cases which point to mistake of fact resulting in a charge of culpable
homicide and not murder. S v. Mbombela6 equally depicts this. The accused killed his nephew thinking
he was a goblin. The accused was charged with culpable homicide. Similarly Mr. Ngoni mistook Farai to
be an antelope and based ob the doctrine of precedence he should be charged with culpable homicide.
Negligence is the blameworthy absence of subjective awareness ad is present when the accused carelessly
does not avert a certain possibility as what occurred in the present case. Burchell and Milton are of the
view that the state of mind whether it be intention or negligence has to exist in respect of every such
circumstance which is an element of the crime in question before liability can ensue7. In this case the
accused had a negligent state of mind and hence liable for culpable homicide.

Thus, the judgement in this case is erroneous as the accused did not have the requisite elements one has to
possess to be charged with murder. He did not have the mens rea needed for one to be guilty of murder.
However, the accused did act negligently and his carelessness resulted in loss of life and should
accordingly be punished for that carelessness. Hence, the appropriate charge would be culpable homicide.

5. Professor G. Feltoe, Commentary on the Criminal Law (Codification and Reform) Act (Chapter 9:23)
6. S v. Mbombela 1983 (1) SLR 269
7. Burchell and Milton Principles of Criminal Law (2nd ed) pp 1-92.