S v WILSON 1984 (2) ZLR 129 (S)

Flynote

Criminal C law — assault — provocation as a defence to a charge of assault — provocation not a complete defence — only serves to reduce offences for which specific intent required — de minimis rule — provocation can be considered in deciding whether rule applies.

Criminal procedure — suspended sentence — refusing to bring into effect — when good cause shown — Criminal Procedure & Evidence Act [Chapter 59] — s 337(2c)(b).

Headnote

The traditional approach of our courts to the defence of provocation has been that e provocation can never be a complete defence to a charge of common assault. It can only operate to reduce an offence where a "specific" intent is required (eg murder) to one where such an intent is not required. To hold otherwise, as has been suggested by academic writers, would be coming very close to giving the impression that retaliation is justified in the eyes of the law in certain circumstances.

On the other hand, when the defence of de minimis is advanced, there is no valid basis e for excluding any provocation received as one of the surrounding circumstances to be looked at. This would not be tantamount to introducing the defence of provocation through the back door.

In terms of s 337(2c)(b) of the Criminal Procedure and Evidence Act [Chapter 59], a Court may, on good cause shown, refuse to bring into operation a suspended sentence. Where, as in this case, the degree of the accused's moral culpability was e slight, it would be inappropriate for a court on the subsequent conviction to bring into effect a suspended sentence or even to suspend it for a further period.