S v MUTIZWA & ORS 1988 (2) ZLR 74 (SC)

Flynote

Criminal law — malicious injury to property — mens rea — bona fide belief that act done was lawful — may rebut presumption of malice.

Headnote

The appellants were members of the youth wing of the ruling political party. They were members of a group of about 100 people who went to stop building operations by the complainant in their grazing area in their communal land. They acted as they did because they had been instructed by party and government officials to prevent squatters settling in their are and cutting down trees. They believed they had a right to protect their grazing area from the depredations of squatters.

Held, that on a charge of malicious injury to property the infliction of intentional wrongful injury to the property of another raises a presumption of malice, which may be rebutted by showing a bona fide belief thatthe act done was lawful. It is not necessary for the accused to show that such a belief was reasonable, although the reasonableness or otherwise of the belief provides cogent evidence as to whether it was held bona fide. In the present case, it was eminently reasonable for the appellants to believe that they had a legal right to remove the structures that had been erected in their grazing area and the presumption of malice was accordingly rebutted.