S v MAGUYA & ANOR 2011 (2) ZLR 248 (H)

Flynote

Criminal law — offences under Criminal Law Code — pledging of a female in compensation for death of a relative (s 94) — offence not created by the Code — conduct already proscribed under Customary Marriages Act [Chapter 5:07]

Headnote

The two accused pleaded guilty to a charge of contravening s 94 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] ("the Code"). They had pledged the complainant, their female relative and then a minor, to the family of a person who was killed by one of their relatives in 1980, as compensation. She was pledged in 2005, before the Code came into effect. The issue arose whether the charge criminalised any conduct perpetrated before the creation of the crime in question.

Held, that by virtue of s 2(2) of the Code, a reference in the Code or any other enactment to a crime mentioned in the Second Schedule shall be construed as referring to that crime as defined in the relevant provision of the Code. The crime of "pledging a female person" is specifically mentioned in the Second Schedule as corresponding to s 94 of the Code.

Held, further, that under s 11(1) of the Customary Marriages Act [Chapter 5:07], any agreement in which a person, whether for consideration or otherwise, pledges or promises a girl or woman in marriage to a man shall be of no effect. Section 11(2) made it an offence for any person to enter into any such agreement. Additionally, s 15 of that Act penalised any person who, by force, intimidation or other improper means, compels or attempts to compel any female to enter into a marriage against her will. Paragraphs (b) and (c) of s 94(1) of the Code re-enact the offences proscribed by ss 11 and 15 of the Customary Marriages Act. Paragraph (a) of s 94(1) specifically criminalises the so-called practice of "noxa surrender", by making it an offence to hand over a female to another

A person as compensation for the death of a relative of that person or as compensation for any debt or obligation. The crime of pledging females is not new and was clearly penalised under ss 11 and 15 of the Customary Marriages Act. The offence of noxa surrender is not new. Although the compensatory aspect of noxa surrender is distinct and peculiar to the offence under s 94(1) (a), the mischief aimed at by these offences is the same, viz. the non-consensual pledging of females. In practice, noxa surrender has always been treated as a species of the arrangements prohibited by s 11 of the Customary Marriages Act, and has been penalised accordingly.

Editor's note: s 11(2) and s 15 of the Customary Marriages Act were repealedwhen the Code came into effect.