S v Mgidi

• Jurisdiction: South Africa
• Judge: Lombard J and Mitchell J
• Judgment Date: 27 July 1987
• Hearing Date: 27 July 1987
• Court: Transkei Supreme Court

Mitchell J:

The accused was charged before the magistrate at H Ezibeleni with contravening s 126 of the Transkeian Penal Code (Act 9 of 1983 (Tk)) - unlawful injury to property - in that he damaged articles mentioned in the annexure to the charge sheet, 'the property of or in the lawful possession of one Thandiwe Mgidi' (the wife of the accused) 'in the value of R2 004,90'. He pleaded guilty and was questioned in terms of the Criminal Procedure Act 13 of 1983, as follows:

I 'Q. Did you on 23 November 1985 destroy by burning the articles on the attached list?

A. Yes.

Q. Were you doing that purposefully with malice?

A. Yes.

J Q. What drove you into doing that?

Mitchell J

A A. Complainant is my wife. She gone away whole day and did not return.

Q. Were you driven by jealousy?

A. Yes.

Q. You knew you were committing an offence thereby?

A. Yes.'

Because of the value of the goods destroyed the accused was B committed to the regional court for sentence.

Before the regional magistrate the accused confirmed the proceedings before the magistrate in the district court and the accused was sentenced to a fine of R1 000 or in default of payment to undergo 12 months' imprisonment of which R750 or nine months' imprisonment C were suspended for five years on condition that he commits no further act of malicious injury to property during the period of suspension and on the further condition that he compensates the complainant in the sum of R2 004,90 on or before 30 June 1987.

After sentencing the accused the regional magistrate had some D misgivings as to the guilt of the accused because the accused was married to the complainant in community of property, and under the South African common law he could not be convicted of malicious injury to property belonging to the joint estate of which he is the administrator. A number of South African judicial decisions were cited by the regional magistrate in support of this view, and he referred the case to a Judge in Chambers for a special review of the matter, and the Judge E referred the matter to the Full Court for argument and decision on the point of law raised by the regional magistrate.

The South African reported decisions concerning a common law charge of malicious injury to property, where the accused is the husband and F the complainant is the wife to whom he is married in community of property, and the charge relates to the property of the joint estate, have been consistent. The thrust of such judgments has been that the husband cannot be properly convicted of the offence of malicious injury to property when he destroys or damages property forming part of the joint estate of himself and his wife, of which he is sole administrator and part owner. See R v Van Vliet (1892) 9 SC 273 approved by the Full G Bench of the Orange Free State Provincial Division in S v Seobi 1974 (1) SA 494 (O) at 495.

Mr Madala, who appeared as amicus curiae for the accused, and to whom we are grateful for his services, argued that the South African common law decisions I have mentioned should be followed and that the H appellant could not commit the offence of malicious injury to property, it being common property and he as administrator could deal with it as he pleased.

Mr Miller...