QUESTION

CITING RELEVANT LAWS EXPLAIN WHY WAS IT NECESSARY FOR THE

CRIMINAL LAW (CODIFICATION AND REFORM) ACT CHAPTER 9:23 TO
CREATE THE NEW CRIME NEGLIGENTLY CAUSING SERIOUS BODILY HARM.

INTRODUCTION

On the advent of the Criminal Law (Codification and Reform) Act Chapter 9:23 there
were certain new crimes which were created of which Negligently Causing Serious
Bodily Harm was one of them.

Section 90 of the Code created the crime of negligently causing serious bodily harm.

The negligent infliction of death was already punishable under the law as Culpable
homicide. It was also felt that similarly the negligently infliction of serious bodily injury
should also be punishable. G. Feltoe Commentary on Criminal Law (Codification and
Reform) Act 2012.

The writer seeks to allude to relevant laws why it was necessary to create the crime of
Negligent Causing Serious Bodily Harm.

DEFINITION OF TERMS

Section 90 of the Code

Negligently Causing Serious Bodily Harm defined:
Any person who by any act whatsoever causes serious bodily harm to another person
negligently failing to realise that serious bodily harm may result from his or her conduct
or negligently failing to guard against that possibility shall be guilty of negligently
causing serious bodily harm.

Section 88 of the Code

Bodily Harm defined:
Means any harm causing pain or discomfort to the body, or any impairment of the body
or its functions, whether temporary or permanent.

According to Burchell J and Milton J 1994: 297

Negligence defined:
Indicates that the conduct of a person does not conform to a prescribed standard

CITING OF THE RELEVANT LAWS

It was necessary to uphold the physical safety of members of the society such that
there was need to create the crime of negligently causing serious bodily harm under
section 90 and 91 of the Code.

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Previously accused were exonerated for negligently assaulting someone because of the
doctrine of aberration ictus i.e. the deflected blow which was explained by G Feltoe in
Criminal Law Guide 2005 which he stated that if X did not see or foresaw that he blow
might go astray and hit Y a third part not X’s intended target he was not to held
accountable.
Under Common Law Intention was supposed to be the object of the crime for
prosecution to secure a conviction and lack of it was not punishable.

Decided unreported cases which were cited were:-

 Chavirima HH-345-83, X intended to assault B with a spearhead but the blow
deflected and landed on c a Constable who had intervened X was found not
guilty of Assault in respect of C as had no intention to Assault him.
 Jiri HH358-83, X aimed a blow at a man but instead hit his niece, he had no
intention to assault his niece. He was found not guilty of the assault.
Citing the above cases G Feltoe went on to ask “Should we have an offence of
Negligence Assault”. It was long overdue, it was necessary to have such a crime.

CONCLUSION

The creation of the offence of Negligently causing serious bodily harm meant that any
person who fails to guard against the possibility of Negligently causing serious injury of
another shall be guilty of an offence.
At the end of a successful prosecution for this crime it would be possible for the court
to award compensation to the victim in terms of Part XIX, section 363 of the Criminal
Procedure and Evidence Act 9:07.

If the court can award compensation at the end of a successful prosecution of this
crime, this would avoid the need for victims to bring separate civil actions for
compensation, something that impoverished victims will often be unable to do because
of the expense of mounting such actions. G Feltoe Criminal Law Codification and
Reform) Act Commentary 2004.

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BIBLIOGRAPHY

Criminal Law (Codification and Reform) Act Commentary 2012 G Feltoe

Criminal Law Guide 2005 G Feltoe

Burchell J and Milton J Principles to Criminal Law

Criminal Law (Codification and Reform) Act Commentary 2004 G Feltoe

Criminal Law (Codification and Reform) Act Chapter 9:23

Criminal Procedure and Evidence Act Chapter 9:07 (2007)

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