Running head: TERM PROJECT ONE 1
Moses Nsofwa
Defences on Malicious Damage to Property
The Copperbelt University
Criminal Law (LS200)
Mr. Bongani Kandunguruzhi
2th April,2024
Defences on Malicious Damage to Property
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Malicious damage to property entails destruction or damage to property
belonging to another without the property being necessarily stolen or appropriated from
the owner (Herring, 2018). The offence is provided for under Section 335(1) of the
Penal Code Act, Chapter 87 of the laws of Zambia which stipulates that any person who
willfully and unlawfully damages or destroys any property is guilty of an offence. This
offence may be a misdemeanor or felony depending on the value of the property and
attracts stiffer penalties ranging from 2 years imprisonment to imprisonment for life.
Nevertheless, the defendant can advance various defences under the Penal Code Act.
Mental Incapacity: According to the Penal Code, section 14 which is provided
under our Zambia laws Cap 87, a person under the age of 8 is not criminally
responsible for act or omission. A person under the age of twelve years is not criminally
responsible for an act or omission, unless proved that at the time of doing the act or
making the omission he had capacity to know that he ought not to do the act or make
the omission.
The defense may be applicable in specific circumstances for cases involving
malicious damage to property committed by a minor. This defense recognizes that
minors may not have the same level of judgment, understanding, and responsibility as
adults. According to Ashworth (2006), who states that if a minor is accused of malicious
damage to property, the defense of immature age may be invoked to argue that the
minor lacked the necessary mental capacity, maturity, or understanding to comprehend
the consequences of their actions. However, it's important to note that this defense is
not absolute, and the court will consider factors such as the minor's age for example in
Zambia, according to section 14(1) and (2) of the penal code A child over 8 years but
below 12 years at the time of the commission or omission of the offence in question is
presumed by the criminal law in Zambia to be incapable of committing the offence.
Unlike for a child under eight years of age, the presumption is rebuttable by the
prosecution proving that the defendant knew that his or her act was wrong. The
presumption can only be rebutted by clear, positive proof of that (knowledge) beyond
reasonable doubt.
Self-Defence: According to Penal Code, Cap 87 section 17 the Penal Code
permits any person to use reasonable force to defend himself from any attack and
protect (or defend) his property. If one damages someone's property while defending
themselves or others from harm, it may be considered a valid defense If the defendant
damaged the property as a reasonable response to a perceived threat or attack, it may
be considered self-defence. According to Wayne (2003), this defense usually applies
when the defendant believed they were in immediate danger and acted reasonably
under the circumstances.
Insanity: As a defence to criminal charges, including malicious damage to
property. According to the Penal Code, Cap 87 Section 12, a person is not criminally
responsible for an act or omission if at the time of doing the act or making the omission
he is, through any disease affecting his mind, incapable of understanding what he is
doing, or of knowing that he ought not to do the act or make the omission. Insanity is
typically established by presenting evidence of a mental disorder or condition that
significantly impaired the person's ability to understand the nature and consequences of
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their actions, or to form the necessary intent to commit the offense. This defense is
based on the idea that individuals with severe mental illness may not be morally or
legally responsible for their actions. To successfully use the insanity defense in Zambia,
you would need to provide expert testimony, medical records, or other evidence that
supports the claim of insanity. The court would then evaluate the evidence and
determine whether the accused meets the legal criteria for insanity.
Duress or Coercion: This can potentially be used as a defense to a charge of
malicious damage to property. According to Ashworth (2006), duress refers to a
situation where a person commits an offence due to the threat or fear of serious harm or
death if they do not comply. Coercion, on the other hand, involves force or the use of
threats to compel someone to commit an offense. To successfully establish duress or
coercion as a defense to a charge of malicious damage to property in Zambia, the
accused must provide evidence to support their claim. This can include demonstrating
that they had a reasonable fear for their safety or the safety of someone else if they did
not commit the offense. It is important to note that the acceptance of duress or coercion
as a defense depends on the specific circumstances of each case, and it is ultimately
up to the court to determine the validity of the defense.
Accident/Mistake: According to Herring (2012) If the damage was the result of an
accident or a mistake, it may be a valid defense. The defendant must prove that they
did not act willfully or intentionally in damaging the property. According to Herring (2012)
If you can demonstrate that the damage was the result of a genuine mistake or lack of
intent, it might be a valid defense. However, it's crucial to show that you took reasonable
precautions to avoid causing harm or property damage.
Bona fide claim: This can be used as a defense against charges of malicious
damage to property. According to section 8 of the penal code act, chapter 87 of the laws
of Zambia bona fide claim refers to a genuine belief or assertion of a right, title, or
interest in the property. To use bona fide claim as a defense, you must be able to show
that: (a) You genuinely believed you had a legal right, title, or interest in the property,
(b). Your belief was reasonable based on the information available to you at the time,
and (c) Your action was taken in good faith within the bounds of the law. It's important to
note that a bona fide claim relies on the understanding that you genuinely believed you
had a legal right that justified your actions. If it's proven that your belief was unfounded
or that you intentionally damaged the property without a legitimate claim, this defense
may not be successful.
Conclusion
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It is important to note that the intent to cause harm or damage is a key element
in defining an act as malicious damage. In my opinion it is therefore important to note
that the availability and success of these defenses may vary depending on the specific
circumstances of each case. As legal counsel it is very critical to pay absolute attention
to detail for purpose of determining the best defense strategy to fit the situation at hand.
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References
Ashworth, A. (2006). Principles of Criminal Law. Oxford: Oxford University Press.
Herring, J. (2012). Criminal Law Text,Cases and Materials,(5th):. Oxford: University
Press.
Herring, J. (2018). Criminal Law Text, Cases and Materials, (6th): Oxford: University
Press.
The Penal Code, Chapter 87, of the Laws of Zambia
Wayne,R. L. (2003). Criminal Law. West Publishing Company: West Publishing
Company.
