DELICTUAL ACTIONS IN CUSTOMARY LAW

Share

General aspects

Customary law is basically the collection of traditionally accepted legal rights and duties of black Zimbabweans who live a traditional way of life.

 

In general law there is a clear differentiation between crime and delict. In customary law, on the other hand, there is almost no distinction between crime and delict. Most wrongs in customary law are dealt with by extracting compensatory damages. The primary emphasis is upon the correcting of the upset equilibrium and the restoration of social harmony. In customary law, where the wrong is serious the damages may be partly penal and partly compensatory e.g. with homicide there is a penalty payable to the Chief and damages to the guardian or family of the person killed.

 

Whereas, in general law, liability is based upon fault, in customary law, liability is based upon causation and not fault (although damages may be reduced where there was an absence of fault.) In customary law, unlike in general law, a parent will be held vicariously liable for the delicts of his children.

Specific customary law delicts

Unlawful killing

This is treated as a serious delict for which damages are payable to the dead person’s family, to the Chief and to the court. As part of these damages, the D’s family would have to give the family of the dead person a young girl as compensation to ward off the avenging spirit of the dead (ngozi). The giving of a young girl as compensation is now illegal and, if it is done, the authorities will take action to protect the girl. It is also illegal to extort payment of compensation from the family of the person responsible for causing the death by dumping the body at the homestead of that family and refusing to bury the body until compensation has been paid.

Rape

This is a serious delict. However, it is not the raped woman who will claim damages for the rape. If she is married, her husband can claim damages for adultery against the person who raped her. If the woman is unmarried, her guardian can claim damages for seduction.

Assault

This consists of causing of harm to another, either intentionally or accidentally. Traditionally the amount of damages increases if the offender assaults a person to whom they owed special respect such as their sekuru or father.

Wife and child beating

Although, traditionally, a man was entitled to discipline both his wife and his child by beating them, customary law did not allow him to beat his wife excessively. A wife, whose husband beats her excessively and for no reason, can claim damages from her husband for assault. Under general law, a husband has no right to beat his wife and, if he does so, he can be found guilty of assault.

Unreasonable criticism of wife

Under customary law a wife can also claim damages from her husband if he criticises or nags her unreasonably, or if he constantly causes quarrels between them.

Harm caused by animals

A person is held liable for harm caused by his animals. For instance, if cattle trample the maize in the P’s field, P can claim damages from the owner of the cattle. If D’s bull kills a person, the family of the deceased may be able to claim damages from the owner of the bull.

Defamation

This consists of damaging another’s good name and reputation in the community by saying something untrue about a person in public, or writing something untrue about someone and showing that written statement to others. The traditional courts would nearly always investigate whether the defamation resulted in a disturbance of peace in the community. The most serious form of defamation is to make a false accusation that a person is a witch. Under general law, it is a criminal offence under the Witchcraft Suppression Act [Chapter 9:19] to make an accusation that a person is a witch.

Speaking disrespectfully to another

Damages can be claimed from a person who speaks disrespectfully to P and this has resulted in a breach of the peace. If P is a person to whom D owes special respect, the court will order D to pay extra damages as, for example, where a man speaks rudely to his mother-in-law or father-in-law.

Lying

A person who has lost money because of a lie that another person told has the right to claim damages from the liar.

Quarrelling

A traditional court could order a person who is very quarrelsome to pay damages and to keep the peace in the future.

Adultery

A husband can claim damages from a man who commits adultery with his wife. Only the male spouse can bring an action for damages for adultery and only the male adulterer would be sued. See Gwatidzo vv Masukusa (2000) at 415C.

Persuading wife to leave husband

P can claim damages from a person who has persuaded P’s wife to leave him.

Seduction

The guardian of a minor girl has the right to claim damages from the person who has seduced her. If she is a major, however, then the seduced woman may herself claim damages for seduction. The legal age of majority is 18.