CRIMINAL LAW NOTES ON INCHOATE CRIMES – A/I MAJUTA

INCHOATE CRIMES

The word ‘inchoate’ simply means “just begun” or “incomplete”. The steps towards crime are known
as inchoate crimes. In other words, they are crimes which have been begun by a person but not
completed by him. Where conduct is directed towards the commission of a crime, it often falls short
of completion, and steps taken towards commission of the crime can be criminally punished for the
crime itself.

The inchoate crimes are incitement, attempt and conspiracy.

Incitement involves encouraging another to commit a crime.

Conspiracy involves a combination of persons who agree to commit a crime.

Attempt consists of action taken to give effect to a criminal intention.

The law punishes them because they have the potentiality of resulting in completed crimes being
committed.

INCITEMENT – SECTION 187

It is a crime for a person to incite, induce or persuade another to commit or to attempt to commit a
crime, even though no crime is actually committed or attempted as a result. To attempt to incite the
commission or attempted commission of a crime is also a crime. Eg where an inciting letter is
interrupted before it reaches its destination, the writer of the letter is nevertheless guilty of an attempt
to incite. If the crime that is incited is actually committed, then the inciter is liable for the same
punishment as the person who actually commits the crime.

If the person incited goes and actually commits the crime as a result of the instigation, then the inciter
will be guilty as an accomplice to the crime committed.

What constitutes incitement?

The Codes (section 187) states that any person who in any way communicates with another:

a) intending by the communication to persuade or induce the other person to commit a crime.

(b) realising that there is a real risk or possibility that the other person may be persuaded or induced
by the communication to commit a crime shall be guilty of incitement to commit the crime
concerned.

It will not be a defence to the charge of incitement that :

(a) the person who was incited was unresponsive to the incitement and had no intention of acting on
the incitement; or

(b) the person who was incited did not know that what he or she was being incited to do or omit to do
constituted a crime.

Ingredients of incitement

a) The incitement must consist of a communication made by the accused to the person incited.
Communication is in any manner, by word or conduct.
b) The inciter must intend to influence the mind of another to commit a crime. This is the most
vital aspect – the method he adopts in doing so is of secondary importance only and may
consist of a suggestion, a proposal, a gesture, persuasion, inducement, argument, authority,
pressure or even a mere request etc.
Mens rea.
The accused must have intended the communication to reach the person incited, in the sense that he
knew or at least foresaw the possibility that it would reach and influence his mind.
Thus, the Code says, any person who communicates with the person intending by communication to
persuade the other person to commit a crime or realise that there is a real risk or possibility that the
person may be persuaded or induced by the communication to commit a crime.

Accused must have sought to influence the mind of the person incited to the commission of a crime.
In other words he must have had the mens rea in the form of intention in respect of influencing the
person incited to commit a criminal act.

Where X incites Y to commit a single theft and Y commits an assault instead, X’s ability for
incitement depends upon whether he foresaw the possibility of the assault.

Similarly, if X incites Y to commit a single theft and Y commits a series of thefts instead, the
corresponding reasoning applies in determining whether X is liable for incitement of the series of
thefts.

It is settled law that the mens rea of the inciter is looked at as being independent to that of the actual
perpetrator. Thus, if the person incited fails to carry out instructions so that the crime is not
committed, the inciter is still liable, because the object of the incitement (if it had materialised) would
have been a crime.

In terms of section 194 of the Code, where a crime such as treason is committed by incitement, the
accused will be guilty of the completed crime of treason not merely for incitement.
CRIMINAL LAW NOTES ON INCHOATE CRIMES – A/I MAJUTA

It is not also a defence that the accused believed due to the mistake of fact, that it is physically
impossible to commit the crime incited when in fact the commission of that offence was physically
possible.

One person inside Zimbabwe and the other outside Zimbabwe – section 191 – if a person who is
inside Zimbabwe incites a person outside Zimbabwe to commit a crime, he/she shall be charged with
incitement to commit the crime concerned.

If a person outside Zimbabwe incites a person in Zimbabwe to complete a crime he may be charged
with incitement to commit the crime concerned.

Both parties outside Zimbabwe – section 191

If a person who is outside Zimbabwe incites a person who is outside Zimbabwe to commit a crime in
Zimbabwe, both or either of them may be charged with incitement to commit the crime as result of the
incitement both or one of them enters Zimbabwe in order to commit the crime.

Charging the accused

a) Where the accused’s incitement results in the commission of a crime by the person incited, he
should not be charged with incitement, but rather with the crime itself ( either as a principal or
as a socius ciminis)
b) A person who has been charged with and convicted of, the commission of a crime cannot be
separately charged with, and convicted of, having incited others to commit that crime.
c) Where the accused has been an attempt to incite, the accused should be charged with this.

S V TOGO 1966 RLR 499

Incitement to commit MDP. Accused was found guilty.

NKIWANI & ORS 1970 (2) SA 165- the accused person incited others to go round disturbing people
and telling them to stop work and thus causing commotion. The accused were found guilty as an
accomplice.

CONSPIRACY – SECTION 188

Conspiracy is when two or more persons agree together to does/ do an unlawful act or agreement to
do a lawful act using unlawful means. There has to be an agreement as to the criminal object. The
actual or exact ways and means of putting into place the plan before the conspiracy do not have to be
agreed upon for this offence to be committed. What suffices is that the conspirator has agreed on their
CRIMINAL LAW NOTES ON INCHOATE CRIMES – A/I MAJUTA

object, even if they have still not agreed on the full agreement on the ways to be used in executing the
criminal activity.

The offence of conspiracy is committed even where the conspirators have agreed on their object but
still negotiating towards the full agreement on the means to be used.

If the criminal object is carried out, then the conspiracy is merged into the crime, and the accused are
charged only with the commission of the crime instead of conspiracy.

What conduct constitutes conspiracy?

a) There must be a mutual agreement between the conspirators. For the crime of conspiracy to
be committed, it is not necessary that the parties agree on the time, manner and
circumstances if the particular crime is to be committed. Furthermore, it is not necessary to
know the identity of the other member to the conspiracy.
b) There must be a common purpose amongst the accused.
c) The agreement between the accused need not necessarily be a verbal one. It can be arrived at
tacitly and by conduct, but in this case, the influence of such an agreement must be consistent
with the proved facts.
d) There must be two or more parties to that agreement- even if only one of the parties is
charged.

Mens rea in conspiracy

a) Apart from agreeing, the conspirators must have intended to commit the crime in question.
b) To prove intention it must be shown that the conspirators foresaw the possibility that their
agreement would result in the criminal act.
In terms of the Code, anyone who enters into an agreement with one or more people for the purposes
of committing a crime and intending by agreement to bring about the commission of the crime or
realising that there is a real risk or possibility that the agreement will result in a crime being
committed shall be guilty of conspiracy to commit the crime in question.

It shall not be necessary to prove that the crime concerned is to be committed by one or all the
conspirators ( parties to the agreement) or that one or more of the conspirators other than the accused
did not know that the subject matter of the agreement was to commit a crime.

It will not be a defence that one believed to a mistake of fact, that it was physically impossible to
commit the crime they conspired to commit, when in actual fact, the commission of the offence was
physically possible. However, one is not liable if he/she mistakenly believes that their object was
CRIMINAL LAW NOTES ON INCHOATE CRIMES – A/I MAJUTA

unlawful but when in actual fact it is lawful. On the other hand, one will be liable if the object is
unlawful but he/she mistakenly thinks it is lawful.

Conspirators in different countries.

If a person who is in Zimbabwe conspires with another person who is outside Zimbabwe to commit an
offence in Zimbabwe, both persons may be charged with conspiracy to commit the crime committed.
The position is also the same where a person who is outside Zimbabwe conspires with a person in
order to commit an offence in Zimbabwe.

Where the conspirators who are outside Zimbabwe conspire to commit a crime in Zimbabwe, one or
both of them may be charged with conspiracy to commit the crime concerned, if as a result the
conspiracy one or both of them enter Zimbabwe in order to commit the crime.

S V WOODS & ORS 1993 (2) ZLR 258 (S)

The accused persons conspired to commit murder. The accused with the others conspired to kill by
means of a Renault 5 m/v booby-trapped with explosives. 6 of them were believed to be members of
the military of the ANC of SA who were residing in a surburb in Bulawayo. In the execution of this
plan, one ANC Obert Mwanza, an elderly unemployed man was blown up and killed. The court held
that where persons have participated in conspiracy to kill and have rendered significant assistance to
the actual perpetrator prior to the murder, the conspirators are guilty of murder as accomplices even
though they were present at the scene of murder. For such conspirators to dissociate from the crime
and escape liability for murder they would have to take steps to neutralise the significant aid they had
given previously.

S V CHINYERERE 1980 ZLR 3

A conspirator who withdraws from the conspiracy before the crime before the crime is committed
may be found guilty of conspiracy to commit the offence even if the crime is subsequently
committed. The accused was found guilty of conspiracy.

ATTEMPT – S 189 of the Code.

An attempt to commit a crime is occasioned by conduct which :

a) Is done or omitted with the object of committing that crime; and

Attempt to commit an offence are classified into two:

a) completed attempts

b) uncompleted attempts.

Completed attempts

This is where one has the requisite intention to commit an offence but due to some circumstances does
a physical act designed to effect to his mens rea but fails to achieve the full intention.

For example, where X intends to kill Y and shoots at Y but he is not accurate and the bullet misses Y.
It is clear that X is guilty of attempted murder. He has the requisite intention for murder and has done
the physical act designed to give effect to his intention. ( use of inadequate means/ impossibility)

Attempts to complete the impossible

What is the legal position where an accused attempts to commit a crime which is physically incapable
of being committed.?

e.g where X intends to pick a pocket but is empty or where X intends to procure an abortion on a non-
pregnant woman.

The legal position is that the accused is liable even if the means used in the attempt to commit the
crime is incapable of effecting the object.

R v DAVIES 1956 (3) SA 52 (AD) – the foetus was already out when the accused attempted to effect
an abortion. In finding the accused guilty of the attempted abortion the court said the fact that an
accused’s criminal purpose cannot be achieved, whether because the means are inadequate or object is
unattainable, does not prevent an attempt provided what the accused intended was a crime.

The intention of the accused is the determining factor.

Uncompleted attempts

This is where a person either changes the mind or desists in their efforts to give effect to the original
criminal intention or their intent before they can execute the criminal plan to finality.

Where one changes their mind while still in the preparatory stage, he will not be liable for an attempt.

If it had gone beyond sufficiently the preparatory stage it becomes an attempt for which one is
criminally liable. There is a thin line between the two. See the case of R V HLATWAYO 1933 TPD
441.
CRIMINAL LAW NOTES ON INCHOATE CRIMES – A/I MAJUTA

Two tests were developed to distinguish between the mere preparation and attempt. The first test is
the Proximity test. The second test is the Equivocality test.

The proximity test requires that one be in the final stages of executing his criminal activity. He can be
guilty of an attempt.

The equivocality test requires that one would be guilty of an attempt even though he/she is in the final
stages of executing the criminal act. The only reasonable inference that can be drawn is that he/she
would have gone ahead and carried out the crime had he not been stopped or interrupted.

For example where an arsonist in his car planning to set on fire on materials to commit arson when the
police arrest him, he would be guilty of attempted crime under the equivocality test.

Any person intending to commit a crime realising that there is a real risk or possibility of a crime
may be committed does an act or fails to do anything that has reached at least the commencement of
the execution of the intended crime shall be guilty of attempting to commit the concerned crime.

In terms of the Code, a person shall not be guilty of attempting to commit an offence if before the
execution of the intended crime, the person changes their mind and voluntarily desists from
proceeding further. Where a crime such as treason is committed when one makes an attempt, one will
be guilty of the completed crime of treason and not merely for attempt.