In Zimbabwe a large number of people believe in the supernatural and witchcraft. The court in S v Tshuma HB171/2022 had occasion to comment on this as follows;
“…I also recognize that large sections of the African communities in this country believe in witchcraft. The belief in the power of prophets and witch-hunters is very much a part of African culture both in urban and rural areas. Even in affluent communities the belief in the power and influence of witchcraft is embedded in African communities. Despite the apparent modernisation of the African community there is a long-held belief that witches exist and that witchcraft is a practice that can affect human conduct and behaviour. In this jurisdiction a number of decided cases have dealt with the issue of witchcraft in different circumstances…”
The court must make a finding on the existence or non-existence of certain facts before pronouncing on the rights, duties and liabilities of the parties engaged in a dispute (Tapper Cross & Tapper on Evidence 12 ed (2010)). This process is rational and the court is not in a position to make any rational finding on the supernatural.
The legal position on evidence relating to the supernatural and witchcraft is well captured in the case of Shumba v Shumba HB250/2005 where the court stated thus;
“…He, however, does not challenge the findings of Professor du Toit. His case is that there was magical tampering with the blood samples before they got to Professor du Toit’s laboratory. He submits that such tampering was carried out by goblins or other
manifestation of the super nature.
His case is that he was denied an opportunity by the trial court of calling a witness to such tampering by goblins with the blood samples between Harare and Cape Town. Ill-equipped with the capacity to call and hear evidence from goblins or some
other super-nature manifestations the court a quo, correctly in my view, dismissed the application. This appeal is, therefore, also based on the appellant’s obsessive, and possibly hopelessly distorted belief in the super-nature, goblins and other such
manifestations an area any court of law is ill-equipped to determine. The appellant is entitled to believe what he wants to, but that does not translate to anything useful in a court of law. He cannot use such belief in seeking legal remedy. There was
overwhelming scientific evidence of paternity at the disposal of the court a quo.”
In criminal cases, the belief in witchcraft cannot be a defence to a crime but can be a mitigatory factor. This is in terms of section 101 of the Criminal Law (Codification and Reform) Act Chapter 9:23 which provides as follows;
” 101 Belief in witchcraft to operate in mitigation and not as defence to crimes
It shall not be a defence to murder, assault or any other crime that the accused was actuated by a genuine belief that the victim was a witch or wizard, but a court convicting such persons may take such belief into account when imposing sentence upon him or her for the crime.”
Therefore, where evidence of a belief in witchcraft leading to the commission of an offence is presented it may only work to reduce the sentence to be imposed but has no effect on the conviction. In S v Hamunakwadi HH323/2015, the court outlined the possibility of “witchcraft provocation” but this is beyond the scope of this article.
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