CHAPTER XIV
GENERAL DEFENCES AND MITIGATING FACTORS

Division B: Defences and Mitigating Factors Relating to the Mental State

PART VII
MISTAKE OR IGNORANCE OF FACT


232 Interpretation in Part VII of Chapter XIV
In this Part
“essential fact”, in relation to a crime, means any fact or factual circumstance which relates to an essential element of the crime;
“ignorance”, in relation to a fact, means complete lack of knowledge that the fact exists;
“mistake”, in relation to a fact, means an erroneous impression concerning that fact.

233 When mistake or ignorance of fact a defence to subjective crimes
(1) If a person does or omits to do anything which would be an essential element of a crime if done or omitted, as the case may be, with any form of intention, knowledge or realisation, the person shall have a complete defence to a charge of committing that crime if, when he or she did or omitted to do the thing, he or she was genuinely mistaken or ignorant as to an essential fact of the crime concerned.
(2) Subject to this Code and any other enactment, mistake or ignorance of an essential fact may be a defence to a crime referred to in subsection (1) even if it is not reasonable:
Provided that the reasonableness or unreasonableness of any mistake or ignorance may be taken into account in determining whether or not it is genuine.

234 When mistake or ignorance of fact a defence to objective crimes
If a person does or omits to do anything which would be an essential element of a crime if done or omitted, as the case may be, negligently, the person shall have a complete defence to a charge of committing that crime if
(a) when he or she did or omitted to do the thing, he or she was genuinely mistaken or ignorant as to an essential fact of the crime concerned; and
(b) the person’s mistake or ignorance of that essential fact was reasonable in all the circumstances.

PART VIII
MISTAKE OR IGNORANCE OF LAW

235 Interpretation in Part VIII of Chapter XIV In this Part

“ignorance”, in relation to a law, means complete lack of knowledge that the law exists;
“law” means this Code or any other enactment;
“mistake”, in relation to a law, means an erroneous impression as to the nature or contents of that law.

236 When mistake or ignorance of law a defence
(1) Subject to this Part, if a person
(a) does or omits to do anything which is an essential element of a crime in terms of any law; and
(b) when he or she did or omitted to do the thing, 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 not have a complete defence to a charge of committing that crime unless the person’s 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.
[Subsection amended by section 31 of Act 9 of 2006.]
(2) In any circumstances other than those affording a complete defence under subsection (1), genuine mistake or ignorance as to the relevant provisions of a law on the part of a person charged with a crime shall merely be a factor to be taken into account in the assessment of sentence.

237 Claims of right and mistakes of mixed law and fact
If in any criminal case a person charged with any crime against property raises a defence of claim of right, namely that the person believed he or she had a right to do or omit to do any thing, the court shall determine whether or not the belief arose from mistake or ignorance of fact or law and, if the court decides that the belief arose
(a) solely from mistake or ignorance of law, the court shall regard the defence as one of mistake or ignorance of law in terms of this Part; or
(b) solely from mistake or ignorance of fact, the court shall regard the defence as one of mistake or ignorance of fact in terms of Part VII; or
(c) partly from mistake or ignorance of law and partly from mistake or ignorance of fact, the court shall regard the defence as one of mistake or ignorance of law in terms of this Part.