S v CHINOUNDA 2013 (2) ZLR 62 (H)

Flynote

Criminal law — offences under Criminal Law Code — kidnapping (s 93) — elements of crime — no different from common law position — irrelevance of whether victim an adult or a child — consent of child — not a defence — different sentence may be imposed if victim is a child

Headnote

The common law crime of kidnapping consists of unlawfully and intentionally depriving a person of liberty of movement and/or his custodian of control. The offence is thus an attack on, and the infringement of, the personal liberty of the individual. The law is concerned with two things: the protection of personal liberty (a) from any interference and (b) from any restraints on the freedom of movement. The relevant ingredient of the crime is the absence of consent of the person who is taken, even where that person is a child. The seizure of a person with evil intent without his or her consent, however transient, is an interference with his or her personal liberty. The length of time for which a child may be removed may be of importance as showing the intention of the parties. Even a very short time may be sufficient to show that there was the intention of removing the child out of the custody of his or her parents. The time would only become irrelevant in cases where the de minimis non curat lex principle is applicable.

The intent involved in kidnapping may be said to differ according to whether the victim is an adult or a child. The case of a child, the child's consent is not relevant. Section 93 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] has not in any way altered the common law position regarding the crime of kidnapping. Consistent with the common law position, the Code, in s 93(3), provides for distinct recognition of the offence as it relates to children and addresses its implication on parental authority. The fact that the child consents to his or her removal or spiriting away is not a defence. Parental control is specifically recognised where a child is involved. The statutory provisions are consistent with Zimbabwe's regional, as well as international, treaty obligations.