The crimes you probably do not know you are committing: Part 1

June 3, 2021

FUNGAI CHIMWAMUROMBE AND TAKUNDA GOMBIRO

The worst place you want to find yourself is the police station as an accused person.

It is much worse being asked very uncomfortable questions over a charge you did not know exists but apparently makes everything you were “innocently” doing, unlawful and attracting criminal penalties. 

As all crimes in Zimbabwe are against the state, you will have to undergo a prosecution for the offence you are charged with to prove and confirm your guilt.

Finally, if found guilty you will be sentenced accordingly and you can get either a fine, community service, jail time all depending on the discretion of the magistrate. 

There are various categories of crimes and this article will deal with the crimes that are usually committed by citizens without their knowledge. It is important to note that ignorance of the law is not a defence and as such citizens have to be careful as to what they do and what they avoid to do. 

The article will not be exhaustive as to all the crimes, but will try as much to bring out the relevant crimes that one may find themselves in which are mostly common in certain situations.

1. DISTRIBUTING OBSCENE MATERIAL- WhatsApp

The Digital age has brought with it the quicker and instant distribution of information, pictures and videos particularly through the social media platform called Whatsapp and Facebook. People are members of several groups that share various images and videos on a daily basis. 

The most common obscene material include: dead bodies from accident scenes, images and videos of revenge porn and in other instances purely pornographic material. Section 13 of the Censorship and Entertainment Controls Act [Chapter 10:04] prohibits the distribution of any obscene material. 

The author notes that there has not been much prosecution from Whatsapp on this charge and much needs to be done to educate the law enforcement agents as well as the public on their behaviour on social media. Probably the cybercrime and cyber security bill currently in parliament will finally spring the police into life.

2. JAYWALKING- improper road use by pedestrians

Jaywalking is the loose term used to describe the conduct of pedestrians that cross the road from undesignated points particularly where there is a designated pedestrian crossing point within 150m of the pedestrian. 

The new Highway Code criminalises the conduct of crossing the roads by pedestrians from undesignated points such as zebra crossing marks or traffic lights intersections. The crime carries a sentence of a fine or imprisonment for a period not exceeding 6 months.

3. THEFT – duplicate bank transactions

There are many scenarios in which a theft can occur. Theft involves unlawfully taking someone’s property intending to permanently deprive them of that property. 

However with regard to money, if one uses someone else’s money without consent even intending to nicodemously return the same, at law that is regarded as a theft or unauthorised borrowing. 

The author observes that in our current growing paperless economy, bank systems at times collapse and in some cases duplicate transactions resulting in a bank account being credited with money that was not destined for such an account. 

If the holder of that account uses that money, they can be charged with theft if the bank decides to press charges. It is important to enquire with your bank every time you receive money that you are not expecting and make sure you do not use such money even if you intend to bring it back.

4. EXTORTION – refusing to release corpse for burial

The criminal law code makes it an offence of extortion to refuse to release a corpse for burial or dumping a corpse because there is a demand for payment of outstanding lobola or any other damages. 

It effectively criminalises this common cultural practice that saw several families hold on to a corpse refusing to conduct burial proceedings until a certain sum of money was paid. All those who participate in the process of refusing to release a corpse for burial are liable to be charged with the offence of extortion.

5. RAPE – by husband against wife

There is a misguided belief amongst certain men that once a woman is your wife you  can have sexual intercourse with her whenever you desire, whether she wants it or not. 

The law specifically protects women who have not consented to sexual activity even if the alleged offender is the husband. 

The husband can be guilty of rape even against his wife! It is important to remind all men that the consent of the woman even when they are your wife should be obtained before sexual activity. As long as the woman has refused then do not proceed to do anything at all.

6. PROPERTY GRABBING – deceased estates

The common practice of sharing the deceased person’s property  soon after the funeral in a bid to greedily benefit from the assets of the deceased before registration of the deceased estate with the office of the Master of the High Court is a criminal offence in terms of section 10 of the Deceased’s Persons Family Maintenance Act [Chapter5:0]. 

The property of a deceased person belongs to the estate of the deceased person and is shared in accordance to a procedure of law that is overseen by the Master of the High court. 

Only items such as clothes and other goods of sentimental/cultural significance can be distributed. This law was put in place to protect the surviving spouse and children of the deceased who are vulnerable to property grabbing during the funeral of the deceased leaving them significantly prejudiced.

The above crimes form part of the several crimes that people unknowingly commit to their prejudice. In this series the author will try as much as possible to enlighten the readers on what conduct constitutes a crime so that everyone is careful as to how they behave and avoid the unenjoyable process of been tried for a criminal offence.

Fungai Chimwamurombe is a registered legal practitioner and Senior Partner at Chimwamurombe Legal Practice and can be contacted for feedback at fungai@zenaslegalpractice.com and WhatsApp 0772 997 889. Takunda Gombiro is a Partner and contacted on takunda@zenaslegalpractice.com

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