(1) S v MATYENYIKA & ANOR

(2) S v MABIKA & ANOR

1996 (2) ZLR 536 (H)
Division: High Court, Bulawayo
Judges: Malaba J
Subject Area: Criminal review
Date: 1 November 1996
Judgment Number: HB-85-96

Criminal law — common law offences — incest — prohibited degrees of consanguinity

— what are — first cousins — not within prohibited degrees — customary law
prohibition against marriage of first cousins — irrelevant in determining criminal liability
The accused in these two cases were convicted before a magistrates court on charges of
incest. In both cases, the accused were first cousins, their parents being siblings.
Held, that the common law does not prohibit either marriage or sexual relations between
first cousins. Incest consists of intercourse between persons who may not marry because
they are too close in blood or in affinity. In this regard, the rule is that marriage between
first cousins is not prohibited because neither is related to the common ancestor, their
grandfather, in the first degree; they are more than one degree removed from the common
ancestor.
Held, further, that the customary law prohibition against the marriage of first cousins is
irrelevant in determining criminal liability. If this were otherwise, the common law would
be different for different people in Zimbabwe. Cousins who married under customary law
would commit incest but if they married under the general law they would not.
Cases cited:
R v Chavendera & Anor 1939 SR 218
Page 537 of 1996 (2) ZLR 536 (H)
R v Delport (1901) 18 SC 355
R v Tshipa 1957 R & N 751; 1958 (2) SA 384 (SR)
MALABA J: With the concurrence of my brother Cheda, I set aside the convictions and
sentences in the two cases and issued warrants of liberation for the accused. These are the
reasons for the orders. I have dealt with the two cases together in this judgment because
they raise the same question of law.
The accused in each case were charged with incest when they appeared before different
magistrates on different dates at Mberengwa magistrates court. The charge in the first
case alleged that —
“On a number of occasions during the period between August 1994 and January 1996 and
at village Vhima Chief Mataruse Mberengwa both Pritchard Matyenyika and Ndaiziveyi
Rugara or one or more of them unlawfully and intentionally had sexual intercourse
together well knowing that they were not supposed to as they are cousins.”
The charge in the second case alleged that:
“On a date to the Prosecutor unknown but during the period extending from 7 January
1996 to 5 March 1996 and at Village Mabika Maghedi Chief Mataruse, Mberengwa
Communal Lands Yananiso Mabika and Innocent Dhewha being natural cousins
unlawfully and intentionally had sexual intercourse with one another on a number of
occasions.”
The facts in the first case showed that the accused were aged 23 and 19 years
respectively. The accused in the second case were aged 20 and 25 years respectively.
They were all above the age of sexual consent. The statement of agreed facts in the first
case further revealed that the accused’s parents are blood brothers. The accused’s parents
in the second case are brother and sister. The relationship between the accused in each
case is that of first cousins.
The accused admitted that they had had sexual intercourse on divers occasions. They
were convicted of incest on their pleas of guilty. The sentence passed in each case was 12
months’ imprisonment with labour, of which 3 months’ imprisonment with labour was
suspended for 5 years on the usual conditions of good behaviour.
On perusing the records of proceedings on review, I was not satisfied that the
Page 538 of 1996 (2) ZLR 536 (H)
accused had been correctly convicted of incest. I sought the views of the Attorney-
General on the first case. He replied through a representative saying the conviction was
not being supported. What the Attorney-General said in respect of the conviction in the
first case applied mutatis mutandis to the conviction in the second case. I am grateful to
the Attorney-General’s representative for the helpful views, with which I agree.
Common law, which is the law of the crime of incest in Zimbabwe, does not prohibit
sexual intercourse or marriage between first cousins. In R v Chavendera & Anor 1939 SR
218 at 221 Russell CJ said:
“Incest is defined by van Leeuwen Roman-Dutch Law 4.37.9, as the intercourse of two
persons who may not marry one another owing to being too close in blood or in affinity,
and by van der Linden 2.7.8 as the marriage or intercourse of persons whose marriage is
forbidden by law on the ground of relationship. Voet 48.5.19 defines incest as the union
of man and woman which is unlawful by reason of blood or affinity.”
See also R v Tshipa 1957 R & N 751; 1958 (2) SA 384 (SR) at 386E; Hunt SA Criminal
Law & Procedure Vol II 2 ed p 258; Snyman Criminal Law 2 ed p 373.
Before sexual intercourse or marriage between the accused can give rise to the charge of
incest their relationship must fall within the prohibited degrees of the direct and collateral
lines of consanguinity (blood relationship).
Manfred Nathan Common Law of South Africa Vol 1 p 214 states:
“In order to tell by how many degrees of relationship persons are separated from each
other the rule of the Roman Law is that there are as many degrees as there are generations
or persons counted, not including the stem or person from whom the enumeration
proceeds. A father is related to his son in the first degree; a grandfather to his grandson in
the second degree. In the collateral line the descent is first traced back to the nearest
common ancestor. Thus two brothers are related to each other in the second degree. First
cousins, the sons of two brothers are related to each other in the fourth degree.”
After stating that Roman-Dutch law forbids sexual intercourse or marriage within the
direct line of ascendancy and descendancy (for example a father marrying his daughter, a
mother her son or grandfather his grand-daughter ad
Page 539 of 1996 (2) ZLR 536 (H)
infinitum), the learned author goes on to say it also forbids sexual intercourse or
marriages in the collateral lines as well (for example, a brother cannot marry his sister; an
uncle his niece or an aunt her nephew).
On first cousins the learned author states the law at p 215 as being that —
“The prohibition in the collateral line extends to relationships in the fourth degree, but
excludes that degree. Thus marriages between first cousins, being the children of brothers
or sisters, and so related in the fourth degree, are permitted by Roman-Dutch law.”
Voet 23.2.32 (Gane’s translation) states that marriages in the collateral line between
people who were not understood to be mutually to each in the position of parents and
children are forbidden in the second degree only; for example between brothers and
sisters; uncles and nieces; aunts and nephews.
The learned author then declares that —
“For the rest marriage between paternal and maternal cousins that is to say, the children
of brothers or sisters who stand in the fourth degree has been discountenanced neither by
Divine Law nor by the Law of Holland, and the Civil Law of Rome obviously permitted
it.”
Modern writers on Roman-Dutch law are agreed that Roman-Dutch law, on which our
common law is based, does not forbid sexual intercourse or marriage between first
cousins, because neither of them is related to the common ancestor (the grandfather) in
the first degree. They are more than one degree removed from a common ancestor.
Marriages between first cousins are also permitted under English law.
See Hunt op cit p 261; Snyman op cit p 375; H R Hahlo The South African Law of
Husband and Wife 4 ed p 69; W Ncube Family Law in Zimbabwe (1989) p 140; Joubert
Law of South Africa Vol 6 p 208.
It appears that the decisions by the prosecutors to charge the accused with the crime of
incest and of the magistrates convicting them of the same were influenced by their
considerations of customary law which prohibits marriages between first cousins (Ncube
op cit p 140). Customary law brings the blood relationship between the first cousins
within the prohibited degrees of consanguinity for the purposes of customary marriage,
but not within the ambit of the law of the crime of incest. In establishing the crime of
incest
Page 540 of 1996 (2) ZLR 536 (H)
against the accused, the State does not have to prove the existence of customary law.
Customary law is therefore not the appropriate test to apply in deciding whether the crime
of incest has been committed or not. In R v Delport (1901) 18 SC 355 Buchanan ACJ
said at p 360:
“Nor is it the true test to apply whether or not the persons are prohibited from
intermarrying, unless such prohibition is founded on the degree of kinship of the parties.
The Roman-Dutch law recognised a number of relationships which prevented marriage
between the parties, but in which there was no question of consanguinity or affinity.”
The consideration of customary law in deciding to charge the accused would lead to the
breach of the fundamental principle that the common law is the same for all persons in
Zimbabwe. As customary law does not apply to all persons in Zimbabwe, it would mean
that only first cousins who had sexual intercourse and chose to marry under customary
law would be charged with the crime of incest. Those first cousins who had sexual
intercourse and chose to marry under the Marriage Act [Chapter 5:11] would not be
prosecuted. Courts would end up administering one law of incest in respect of one section
of society and another law of incest in respect of the other section of the society: R v
Tshipa supra at 38F-G.
Customary law should therefore not have influenced the prosecution in deciding whether
to charge the accused with the crime of incest, nor should it have influenced the
magistrates in deciding that the crime of incest had been committed by the accused.
For these reasons the convictions and sentences in each case were set aside.
Cheda J agrees.