Moffat Mungazi
Trust Maanda
Legal Position
IGNORANCE of the law is not an excuse.
(Ignorantia legis neminem excusat) is a legal principle which holds that a person who is unaware of a law may not escape liability for violating that law merely because he was unaware of its content.
The full meaning of the legal principle of ignorantia legis nemi nemi excusat is that ordinarily, an accused person cannot raise the defence that he made a mistake of law.
It is impossible, even for someone with substantial legal training, to be aware of every law in operation, but the principle ensures that one should not choose to be wilfully blind to the law, and claim that as the basis of exculpation.
The reasoning behind this doctrine is that if ignorance were an excuse, a person charged with criminal offences or a subject of a civil lawsuit would merely claim that he or she was unaware of the law in question to avoid liability.
Persons would commit offences and plead ignorance.
The law, therefore, imputes knowledge of all laws to all persons within the jurisdiction.
The doctrine assumes that the law in question has been properly promulgated and made available to the public.
If there was no such doctrine, it is hard to imagine how many would rape, kill, maim, and enter into illegal contracts, on the basis that they are ignorant of the law, and get away with it.
The law in Zimbabwe, however, has created an exception to the rule. An exception exists where the mistake of laws arose from the incorrect legal advice of a Government official.
In the State v Davy 1988 (1) ZLR 38 (SC) it was stated that: “It necessarily follows that in my opinion the rule that ignorance or mistake of law is no excuse, which judicial officials have applied for so long in this country in conformity with both English law and the decisions of the South African courts prior to the advent of de Blom’s case supra remains valid.
“Its strength has hardly been shaken. It is, however, subject to the exception that where the appellant acted upon incorrect advice as to the law, given by a government official who is primarily responsible for the administration of the particular statute to which the matter relates, his ensuing mistake of law is a good defence.”
Similarly, in the State v Zemura 1974 (1) SA 584 (RA), the court stated that: “When an appellant is given advice on an administrative matter by a responsible public official whose duties include the administration of a particular statute to which the matter relates and where the appellant genuinely believes that the official is sufficiently familiar with the Act his department administers to be competent to give the advice sought, then if the appellant bona fides acts on that advice he should be permitted to set up as an exception to the ignorantia juris rule, the defence of a “claim of right” should that advice prove to be wrong and this notwithstanding the fact that the claim may involve setting up the defence of a mistake of law.”
The defence is applicable where one commits a crime genuinely relying on defective advice given by a Government official administering a particular statute as to the true legal position.
The defence does not seek to confer any rights, but excuses an accused person from criminal liability on account of having made a genuine mistake of the law.
The defence has since been codified in Section 236 of the Criminal Law (Codification and Reform) Act, Chapter 9:23.
That section provides that if a person does or omits to do anything which is an essential element of a crime in terms of any law when he or she did not know that his or her conduct was unlawful because he or she was genuinely mistaken or ignorant as to the relevant provisions of the law; the person shall have a complete defence to a charge of committing that crime if his or her mistake or ignorance as to the relevant provisions of the law was directly brought about by advice given to him or her by an administrative officer whom he or she had reason to believe was charged with the administration of the law concerned and was familiar with its contents.
The mistake or ignorance of the relevant provisions of the law must be genuine and brought about by advice given by an administrative officer charged with the administration of the law concerned, who was familiar with its contents.
It is not in the interests of justice and public policy for Government officials charged with administration of particular statutes to give incorrect advice and a person who has relied on that advice is prosecuted for following the advice.
In all other circumstances, ignorance of the law is not a defence.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646.
