2. That the accused did in fact so believe. The defence requires that there be a reason to believe that the complainant is above the age of 16, but not only that; the accused must actually have had that belief. This introduces some inherent checks and qualifications to the defence. “Reasonable” belief, “reasonableness” and “reasonable foreseeability” etc. are acceptable qualifications to limitation of rights, and elements to certain defences generally in many aspects of the law – both criminal and civil. The inclusion of this aspect as a defence in cases of defilement is no exception. There is therefore an element of consistency in the law – a fundamental tenant of the principle of legality in law. What must simply be borne in mind is that the law on defilement is enacted to protect young people, and so long as the defence does not detract from such protection, such defence is valid. Each case is then dealt on its own merits. A purposive interpretation of section 70 of the Criminal Code makes it clear that it seeks to protect young children from sexual exploitation. Where invoking the statutory defence does not conceal exploitation, then such defence would appear to pass constitutional muster. The High Court in Zimbabwe has held in the case of S v Mharapara HMA 26-17 as follows: “In S v Nare 1983 [2] ZLR 135 GUBBAY J, as he then was, said the rationale for the offence of having sexual intercourse with a young person is the need to protect immature females from voluntarily engaging in sexual intercourse. They lack the capacity to appreciate the implications involved, and the possibility that they may suffer psychic or physical injury. But in my view, the rational is much broader. Having sexual intercourse with a young person falls under a section of the Code that is titled “Sexual crimes and crimes against morality” [my emphasis]. Thus, it is against morality for a man to have extra marital intercourse with a girl 16 years of age and below. It is therefore for the preservation of society’s sense of morality that the offence exists.” The default position in penal law is that ignorance of the law is no defence. However, that default position can be altered by means of express provisions which render ignorance a defence. In the case of the defilement defences, there is not just an exception, but an exception with two express conditions. Such conditions provide safeguards against abuse of such a defence. In other words, it is not a walk-over defence that can be raised and that will fly in any and every case of having sexual intercourse with a young person. We would venture to say that such a defence would only hold water in a negligible number of cases – a rarely successful defence as it were. In Malawi, the court has held in Kamowa v Republic [2017] MWHC 26 in respect of the statutory defence that “The proviso should be interpreted strictly so that it does not provide opportunity to men to abuse unsuspecting girls”. In the Zimbabwean case, that caution applies both in respect of male and female adults. One must thus interrogate whether, properly taken in context and properly applied, the section 70(3) defence does not detract from constitutional protection of the rights of the 27