The State v Likezo
The State v Likezo and Hoho v The State
The State v Likezo
In the case of the state versus Likezo, Likezo is accused of a rape case that involved a girl below 14 years of age. According to the law – Contravening s2(1)(a) – the intentional commission of a sexual harassment act with a complainant going through harsh situations as outlined in s2(2) of the Act, the accused, Mr Likezo pleaded that he was ignorant according to law clause.Here the role of the state will be to prove if the accused was ignorant of the age that the complainant had. The state found that the accused was unsophisticated and illiterate. The state found out that the accused had the knowledge that for an adult to have sex with a minor was wrong and that the complainant was minor. However, the state could not find anything beyond doubt to show that the accused had the knowledge that the complainant was below 14 years old and that she was not mature enough to give a valid consent. Moreover, the state could not prove that that accused was aware of the definitions of the offence.
The accused, however, admitted having had sex with the complainant under her consent.However, he pleaded that he knew not that the complainant had an age of 12 years. He further admitted that he was also ignorant of the law. On the side of the complainant, she said that the accused had forced her into the act by grabbing her and dragging her while covering her mouth to the nearby where he raped her. After the rape, she said she could hear the call of her grandmother but could not respond immediately. She said that she later responded after she heard her grandmother’s insisted call. Her grandmother said that it took some time to locate her granddaughter after searching for her in the neighbourhood. According to the court finding, there were some inconstancies and drawbacks on both the complainant’s side and the accused side. The court, however, could not rely on one accuse that was not confirmed by the complainant’s evidence. The court found that the accused had the knowledge of the wrong of an adult having sex with a minor, however, the court was not satisfied by the state having succeeded in discharging the onus to prove that the accused had the knowledge of the definitional of the offence that included the accused awareness of the age of the complainant and that she was below the age of giving a valid consent. Finally the accused is found not to be guilty and is released on both accounts.
Hoho v The State
In this second case, the issue of whether the law of deformation is still applicable in South Africa. An appellant by the name Luzulo Kerr Hoho was accused of compiling, producing and publishing pamphlets between the year 2001 and 2002 that defamed the premier. The speaker, members of the EasternCape provincial legislature, the chief whip of the African NationalCongress, two national ministers, legislative, legal advisor and a deputy minister. Hoho was an employee of the Eastern Cape Legislature as a researcher at that time. He is accused of alleging against worthies such as corruption and bribery, favouritism, fraud and embezzlement of funds, nepotism, murder, tribalism and racism and sexual impropriety. The storm in politics that ensued as a result of the allegations resulted in the criminal accusation of Mr Hoho for deformation crime. The deformation crime is considered a civil wrong that causes financial punishment as a consequence but does not deny the accused his or liberty. In the long run, Mr Hoho Denys being the author and he further admits that he didn’t even attempt to defend the “ the truth and public benefit”. The state called for witness to prove that Mr Hoho was not the author but Bishop court found that the statements were actually defamatory and that indeed Mr Hoho was the actual author of the pamphlets and had published them and disposed them to the public.
Even without his call for plead to defence as required by Act s107, in an event of the same. The state also called for witnesses that would prove that the claims of the defamation were wrong besides calling for witnesses to show that the actual author of the pamphlets was not the accused. The appellant also strongly disagreed claim that he was the author of the pamphlets and also called for witnesses.
The court found Mr Hoho guilty of 22 out of the 23 claimed charges and the judgement upon him were three years imprisonment, followed by suspension for five years, and further three years under correctional supervision. Bishop court denied him the application for an appeal, but the Supreme court of appeal allowed him. The supreme court of appeal wanted to establish if the law of defamation still existed or not and whether it was constitutional in granting Mar. Hoho an appeal.
Comparison and contrast with The Model Penal Code (MPC)
These two cases shows two different court scenarios and with two different forms of judgements. In the first case, the accused is found not to be guilty of kidnapping and raping under the claim by the court that the accused was ignorant of the law and the age of the complainant. In the second case, the accused is found guilty of the defamation crime after the bishop high court proves the defamation and the accused faces the full judgement of the court.
The Model Penal Code (MPC) that was developed by the American Law Institute provides that ignorance can be a defence tool if the ignorance negatives the negligence needed to establish the material element of the offence and also if the law provides a defence if the ignorance give the state of mind a defence.Therefore the accused in the first case, as proved by the state, is found not to be guilty on the ground that he is illiterate and therefore he is ignorant of the law and was unaware of the age of the complainant. These negate the accusation by the complainant.
However in the second case, the accused is found guilty of defamation. His cases allow no loopholes in the law to justify his innocence and that he was not the author of the pamphlets. The bishop high court, in fact, found out that his statements and allegations were proved to be defaming, and the state could not prove that he was not the actual author of the pamphlets.
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