S v MAPFUMO & OTHERS 1983 (1) ZLR 250 (S)

Flynote

Criminal law — compulsion as a defence — on whom onus of proving lies — no onus as such an accused to establish — limits of defence — accused must himself have been in immediate danger of harm if unlawful act not carried out.

Headnote

Compulsion is a defence to a charge of murder, as it is to any other charge. However, as with other such legal "defences", it is for the prosecution to prove that the accused did not act as he did because of compulsion. There is no onus as such on the accused to establish the 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. Evidence sufficient to raise a defence does not have to be evidence sufficient to establish the factual basis on a balance of probabilities; all the accused must do is raise the defence as a realistic issue by sufficient material evidence, whether it be as part of the State case, in the form of his confession, or in cross-examination of State witnesses or by evidence for the defence.

For the defence of compulsion to succeed, the offence must have been induced by threats, actually believed in, of immediate death or serious bodily harm, which there was no way of avoiding other than by committing the offence. Further, the threats must, in all the circumstances, have been such that the accused could not reasonably be expected to have resisted them. Threats of some future harm will not be sufficient.

Quaere: Whether the defence of compulsion should be available at all to the perpetrator of a murder.