MS S. TONGOGARA N.O.
HIGH COURT OF ZIMBABWE
HARARE April 7, 2004
Mr. P Chiutsi, for the applicant.
HLATSHWAYO J: The applicant is facing a charge of malicious injury to property in the Harare Magistrate’s Court in Case No. CRB 2141/03. The agreed facts appear in the State Outline and can be summarized as follows: the applicant, Trevor Munjoma, is a male adult aged 40 residing at 143 Enterprise Road, Highlands, and the complainant, Catherine Munjoma nee Mafuka, is a female adult aged 35 and residing at 6 Chesterfield Road, Avonlea. The applicant and the complainant have been married since 1993, but have been on legal separation since 2001 and the complainant had obtained a Peace Order barring the applicant from visiting 6 Chesterfield Road, Avonlea, the matrimonial home. On the 30th August 2002 at around 2000 hours, the applicant went to the matrimonial house, which is jointly owned and registered in both applicant and complainant’s names. After repeatedly pressing the intercom and making threats, the applicant entered the premises and smashed the bedroom, kitchen and dinning room window panes valued at Z$36 105.92.
The applicant was brought before magistrate’s court, presided over by the 1st respondent, on12 January 2004. He applied for refusal of remand on the basis that the charge preferred against him “was improper since one (a husband? A spouse?) cannot be charged with malicious injury to property where the property in question is matrimonial property”. In essence, the applicant’s submission was that the house in question was jointly owned by him and the complainant, and that, therefore, the law cannot penalize him for destroying his “own property”.
For this proposition, the applicant sought to rely on the case of State v Gashande HCH 299/90. I shall examine the reasoning in that case in detail shortly. The learned trial magistrate dismissed the defence’s application for refusal of remand, holding that on the basis of a passage in G Feltoe’s, A Guide to the Criminal Law of Zimbabwe, 2nd ed., 1997, Legal Resources Foundation p.106, a person who damages his own property may still be guilty of the crime of malicious injury to property if he owns that property jointly with others or it is partnership property and he is a partner in the firm.
The applicant has brought this matter for review on two grounds; firstly that since the State did not oppose his application for refusal or remand, it was irregular on the part of the magistrate to raise the matter mero motu and insist that there was a sound basis for the charge. In my view, it is not misdirection at all on the part of the magistrate to have acted in this manner; she was perfectly entitled to take judicial notice of the law, as she understood it. The second ground for review is that the magistrate’s decision to proceed with the matter on the basis of, and in preference to, the legal authority of a textbook “which is only of persuasive value” over case law authority is “so grossly unreasonable that the provisions of section 26 of the High Court Act [Chapter 7:06] apply.” Once more, this ground for review does not merit any serious examination, as it is self-evident that the magistrate approached the matter in a judicial manner. If she were wrong in so preferring textbook authority to case law, then the proper approach would be to appeal against such a decision; it certainly does not amount to a reviewable misdirection. However, the matter does not end there. There is still need to examine whether one spouse can be guilty of the crime of malicious injury to property with respect to matrimonial property, which is jointly owned with the other spouse.
In the case of The State v Gashande (supra) a review judgment by SMITH J, with the concurrence of GREENLAND J, the learned judge referred with approval to the South African cases of S v Seobi 1974 (1) SA 494 and S v Swiegelaar 1979 (2) SA 238 thus:
“In Seobi’s case, supra, which was a review judgment, DE VILLIERS JP held that the husband of a wife to whom he is married in community of property cannot be charged with malicious injury to property belonging to his wife. In Swiegelaar’s case, supra, which was also a review judgment, VAN VINSEN AND BAKER JJ came to the same conclusion.”at p.2.
SMITH J went on to quote BAKER J in Swiegelaar’s case, supra, ( at p. 239/p.471 of Translations) at length:
“Our common law provides that where the husband in a marriage in community of property destroys or disposes of his wife’s clothes, she is powerless. It was already decided in 1892 that in these circumstances the husband who prejudices his wife by setting a house alight, which was previously her property but as a result of the marriage in community now formed part of the joint estate, could not be found guilty of arson (R v Van Vliet 9 SC 273). The ratio is that the property which falls within the communal estate, falls under the husband’s control and “if he were willfully to destroy chattels belonging to the joint estate he could not be properly convicted of malicious injury to property”.”
SMITH J then concludes, at p.3:
“In my opinion the views expressed above apply equally in Zimbabwe”.
With respect, I find myself unable to agree with this conclusion for the simply reason that the so-called marital power of a husband is not part of the matrimonial law in Zimbabwe. Even in South Africa itself at the time when the decision in S v Gashande was made in 1990, the marital power of the husband had already been relegated to virtual oblivion six years earlier in 1984, and, with the advent of majority rule, the whole edifice of male superiority was swept away through the Matrimonial Property Act 132 of 1993. (see Hosten et. al., Introduction to South African Law and Legal Theory, 2nd ed., Butterworths, 1995 p.579).
The previous and current positions in South Africa are summarized in J R L Milton’s South African Criminal Law and Procedure: Common Law Crimes, 3rd ed., Juta & Co Ltd, 1996 p.605, with respect to susceptibility to theft of matrimonial property, an offence whose requirements pertaining to jointly owned property, would, mutatis mutandis, apply to malicious injury to property, thus:
‘In regard to (persons married in community of property), the general position seems to be that in respect of marriages entered into before 1 November 1984 the husband, being the administrator of the joint estate, cannot steal even those portions of the joint property which would loosely be regarded as belonging to his wife. Section 2(1) of the Matrimonial Affairs Act (Act 37 of 1953) appears to have created an exception by vesting the exclusive control of the assets enumerated there in the wife. Such things can probably now be stolen by the husband. In the case of marriages entered into after 1 November 1984 the provisions of the Matrimonial Property Act 1984 create a regime in which the husband enjoys no marital power over his wife. Since the immunity from liability which exists in the pre-1984 marriages rests upon the marital power, the abolition of this power must necessarily remove any immunity and thus render the husband liable to conviction of theft. A wife, whether married before or after 1984, on the other hand, can steal community property, but is usually unlikely to have the necessary intent, particularly if the thing was usually regarded as specially pertaining to herself.”
In the light of what is stated above, it is quite clear why the reasoning in a chain of South African case was so strained, as they grappled with an archaic relic of male domination, the husband’s marital power, and the requirements of basic criminal justice (See, e.g., S v Silas 1958 (3) SA 253 and R v Njokweni 1946 NPD 400). It is equally clear also that the uncritical adoption of those South African decisions premised on the husband’s marital power was, in my respectful view, a grave error which must now be corrected. Because a husband’s marital power is not part of our matrimonial law in Zimbabwe, where a spouse damages jointly owned matrimonial property, he or she can be guilty of malicious injury to property just like any other joint-owner or partner in a partnership. It would be unnecessary to inquire into whether the spouses were married in or out of community of property once the joint ownership has been proved, for, as has been shown, such a enquiry was previously necessary in South Africa in order to determine whether the husband enjoyed immunity consequent upon community of property marriages where the marital power had not been excluded, a position which was then erroneously imported into our own law. If any enquiry at all has to be made into the type of marriage property regime, it would be for the purpose of establishing whether the property in question was jointly-owned, in which case either spouse can be found liable, or it was individually and exclusively (res sua) owned, in which case neither spouse nor indeed any other person, ceteris paribus, can be found liable.
In the present case, the applicant filed a copy of the title deeds, which shows that the house is registered in the names of both spouses. In court, applicant’s legal practitioner indicated that the marriage of the parties was out of community of property. However, the marriage property regime, as has been argued above, is irrelevant for a determination of criminal liability since the joint ownership, which has been proved, is sufficient for that purpose.
Accordingly, I hereby dismiss this application for review.
P. Chiutsi Legal Practitioners; Applicant’s Legal Practitioners