Crimes causing bodily harm
Murder s 47
Inciting or assisting in suicide s 50
Infanticide s 48
Attempted murder
Culpable homicide s 49
Unlawful termination of pregnancy s 60
Rape s 65
Aggravated indecent assault s 66
Indecent assault s 67
Assault s 89
When life starts and ends
[s 51]
This defines when life is deemed to commence or cease in
cases of murder, infanticide, culpable homicide and inciting
suicide.
Start of life [s 51(1)]
s 303 Criminal Procedure and Evidence Act. Life is deemed to
have commenced when a newly-born child has breathed,
whether or not it has an independent circulation at that time and
whether or not it is entirely separated from the body of its
mother.
End of life [s 51(2)]
The existing identification of the time of death with the
cessation of the heart-lung functions is extended to
brain death where a person is attached to a life-support
system and is diagnosed and confirmed as having
suffered brain death. (See also s 54(2) which deals with
the circumstances in which the High Court, on
application can order the removal of a person from a
medical life support system.)
Causing death by accelerating death
[s 52]
This provides that accelerating someone’s death will be
treated as causing that death.
Removal of person from life support system
[s 54(2)]
New provision that allows the High Court, on application from a
person such as a spouse or close relative, to order the removal
of a person from a heart-lung or ventilator machine or other life
support system in certain circumstances. The High Court can
so order on the basis of evidence by a medical practitioner
other than the patient’s doctor that–
the patient is unconscious and there is no reasonable
prospect of that person regaining consciousness; and
although the patient’s brain functions may not have entirely
ceased, that person’s life is being artificially sustained by the
life support system and there is no reasonable prospect that
the patient will ever be able to survive without being on the life
support system.
Clarke v Hurst NO & Ors 1992 (4) SA 630 (D) upon receiving
evidence that a person had been in an irreversible vegetative
state for a long period, kept alive by artificial feeding, the
court appointed his wife as curatrix personae with power to
authorise the discontinuance of the feeding, notwithstanding
that it might hasten the patient’s death. Before the heart-
attack which had brought about his present condition, the
patient (who was a medical practitioner with strong views on
an individual’s right to die with dignity) had signed a “living
will” in which he directed that in the event of there being no
reasonable expectation of his recovery from extreme
physical or mental disability, he should be allowed to die and
not be kept alive by artificial means and “heroic” measures.
The court held that if the wife authorised the discontinuance
of the feeding the she would not be acting unlawfully, viewed
in the light of society’s boni mores. Nor would her action be
the legal cause of the patient’s death.
Causing death by disposal of body [s 55]
Murder or infanticide [s 55(1) & (2)]
This lays down that a person can be convicted of murder or
infanticide where–
X, intending to kill Y, tries to kill Y; and,
mistakenly thinking that Y has died, disposes of body; and
Y dies as a result of X disposing of the body.
Thus if X attacks Y intending to kill Y and thinking that Y is dead
buries him or throws him into a river with weights attached to his
body and Y dies from suffocation or drowning, X is still guilty of
murder. This applies whether X formed the intention to dispose of
Y’s body before X attacked him or during or after the attack.
Other crimes [s 55(3)]
Where X attacked Y but did not intend to kill him and X,
mistakenly thinking that Y is dead disposes of Y’s body and
causes his death, X can be convicted of culpable homicide or any
other crime arising out of the disposal or attempted disposal of Y’s
body.
Mistaking identity of murder victim
[s 56]
This section restates the current law that mistaking the identity
of the victim is no defence to a charge of murder. In addition,
this defence will not avail against a charge of infanticide or
culpable homicide.
Thus if X, with intent to kill, attacks and kills Y thinking that Y is
Z, X is guilty of murder.
See Guide p 105 & p 222.
In S v Hove 2009 (1) ZLR 68 (H) a young unmarried mother,
killed her 5 month old baby. The child had been ill from
birth, having been diagnosed with HIV, and had been
hospitalized in various health institutions for a period of 5
months. The child had experienced excruciating pain as a
result of gaping wounds and open sores all over the body
and was always crying uncontrollably due to the endless
pain. The accused had been told by medical personnel that
there was no help they could offer the child and that the
child was facing imminent death.
The court held that the circumstances surrounding the commission of this
offence cumulatively amount to extenuating circumstances. The concept of
mercy killing cannot escape the attention of the court in certain circumstances
and as such will play a determining factor in sentencing. While murder per se
is reprehensible, this case called for mercy and therefore the accused’s moral
blameworthiness was lower. While we are all responsible for our actions, sight
should not be lost of the fact that society has a duty to accommodate and
counsel wrongdoers, thereby preventing the resultant fatal consequences
which may flow from those who are mentally and physical distressed. Such
persons should receive the court’s sympathy rather than further
condemnation. The accused would be detained until the rising of the court.
Infanticide
s 48 Code
Previously charged as murder but the circumstances
surrounding the killing were taken into account in
mitigation of sentence. Practice to sentence to up to 5 yrs
It applies to a woman who within 6 months of birth of her
child, causes its death intentionally or by conduct which
realises involves real risk to child’s life;
at a time when balance of her mind is disturbed as a result
of giving birth to child,
guilty of infanticide – prison for up to 5 yrs.
Can be convicted of this crime on charge of murder.
But should be charged with murder if it clear that it did not
fall under the parameters of infanticide.
Typical situation where infanticide may
apply
Young unmarried mother who is unemployed – the
father of child refuses to take responsibility – the
parents of the girl are likely to throw her out when they
find out about the pregnancy – she has no means of
supporting a baby – she conceals pregnancy and gives
birth in a secret place.
Poverty stricken family – unable presently to support a
large number of kids – an extra is child likely to create
an intolerable strain – she secretly gives birth and kills
the child soon after it is born.
To decide whether balance of mind disturbed as a result of
giving birth to child, the court takes into account any
pressure or stress from which suffered arising out of
the effects which the birth had, or which she believed it
would have, on her social, financial or marital situation;
the difficulties which were created, or which believed
would be created, in caring for child in the social,
financial or marital situation in which child was born;
the difficulties which she had, or which believed would
have, in caring for child due to her inexperience or
incapacity;
any other relevant circumstances or consideration,
whether based on psychological effects on woman's
mind arising from the birth itself, or otherwise.
Court can return special verdict Mental Health Act if a
mental disorder that made her not responsible at law for her
actions.
Confusing provision
Disturbance of mind disturbed as a result of giving birth
BUT factors that are taken into account are not only
circumstances of giving birth but also various socio-
economic factors relating to woman such as difficulties
that would face in her circumstances in supporting the
child.
S v Kachipare 1998 (2) ZLR 271 (S)
Kachipare, who was the employer of a 17-year-old
domestic worker, persuaded a girl to kill her own child,
telling her that she didn’t have means to look after a baby
and if she took the baby to the Kachipare household she
would be chased away. Kachipare related how she herself
had killed her own baby when she was at school and how
a former housemaid of hers had also killed her baby.
Kachipare was convicted of murder whereas the girl was
convicted of infanticide.
As no extenuating circumstances were found to exist,
Kachipare was sentenced to death. The sentence
imposed on girl for infanticide was 2 years wholly
suspended.
Outcry but…..
It was proved that K was responsible for the removal from
the deceased baby of lip, brain and voice box, probably
after girl has left for communal lands and it was
suggested that the possible motive for K coercing the girl
into killing that baby was that subsequently K would be
able to sell the human parts profitably in South Africa.
Inciting or assisting mother to kill her own child
Controversy whether a person who incites or assists a woman
to kill her own child should be charged as an accomplice to
infanticide or should be charged with murder. The person
inciting or assisting may be her lover who has impregnated her
or a relative, friend or employer.
Various reasons why the inciter or assister should be charged
with murder rather than as an accomplice to infanticide.
Offence of infanticide was created in order to allow mothers
who kill their children in disturbed states of mind due to
birth to be found guilty of a lesser offence than murder.
Recognises fact that the blameworthiness of mother is far less
than a murderer because the mother has killed in a disturbed
state of mind brought about by the stress arising out of the
giving of birth.
Only mother of the child can commit infanticide.
The person who incites or assists a mother who is in a
disturbed state of mind to kill her child is not suffering
from any disturbed state of mind.
e.g. boyfriend encourages his girlfriend to kill her newly
born child because he does not want to have to support
the child. The boyfriend is not in the predicament of the
mother and is not under her stress. His motive in inciting
her to kill was entirely selfish and his actions are very
blameworthy. He is using his girlfriend whom he knows to
be in an agitated mental state to kill her baby. To find him
guilty as an accomplice to infanticide will mean that the
maximum sentence that could be imposed upon him
would be 5 years in prison, which would be completely
inadequate.
This is different from a case where woman assists a man
to rape a woman. A woman is guilty of rape as
accomplice although she cannot commit this crime as
actual perpetrator as only a man can commit rape. In this
situation, the blameworthiness of the woman is great as
she facilitated the rape by the man. Neither party is
suffering from any mental disturbance.
Where the person inciting or assisting a young mother to
kill her own child is an older relative or a person who has
influence or authority over the mother, again the moral
blameworthiness is very high if that person uses his or
her influence or authority to persuade the mother to kill
her own child.
S v Kuyeri S-188-95
Kuyeri, aged 45, who was a relative of 16-year-old girl. He
impregnated the girl. After baby born, the girl suggested to
Kuyeri that the baby be killed. Kuyeri strangled baby and
buried it.
Girl found guilty of infanticide and sentenced to 3 years’
imprisonment. Kuyeri found guilty of murder – no
extenuating circumstances – he was sentenced to death.
Appeal Court said borderline case – agreed with trial court
that disparity in sentences imposed on girl and Kuyeri
could not be taken into account. The fact that a far less
severe sentence was imposed on the girl in no way affected
whether there were extenuating circumstances in relation to
Kuyeri. His moral blameworthiness was not reduced by
lesser sentence imposed on girl.
