R v Chitambala (Criminal Review Case 235 of 1939) [1939] ZMHCNR 9 (31 December 1939)

62 Vol. II] R. v. CHITAMBALA. Crim inal R eview Case N o. 235 of 1939. Witchcraft— headman encouraging a wrongful act— mere repetition o f what someone else has said is not an offence under the Witchcraft Ordinance. In order to sustain a conviction under section 12 o f the W itch­ craft Ordinance it is essential that some offence under another part o f the Ordinance be proved. On the facts o f this case (which are set out in the judgment hereunder) no other offence is disclosed. The Court agrees with the South A frican authorities on similar legislation and also distinguishes the case o f R ex v . Unsunki and Namusaka 4 N . R . L. R . 193. R obinson, A . C . J.: The conviction m ust be quashed. The charge is contra section 12 o f Cap. 31 and the essence o f it is whether the act which the headman permitted and facilitated was an act punishable by the Ordinance. The facts were that the headman facilitated, or even organised, a party to go and consult a witch doctor in Angola, i.e., outside the juris­ diction o f the Ordinance. On their return, one witness Manjimera said “ W e reported to Chitambala and told him the result o f the divining and that Nyamusanzha had been named as a witch ” . Fundulu said, “ We reported to him that Nyamusanzha had been named as a w itch responsible for the death o f Kabwita The accused him self said, “ They named Nyamusanzha as having been called a w itch by the D octor ” . On those facts and evidence it is difficult to see what act has been committed punishable by the Ordinance. In South A frica, where the wording of their Act is practically similar to Cap. 31, there is authority which I will quote. In R. v. Nywelluna (1928 T. P. D . 66) on a charge o f naming or indicating X as a wizard, it appeared that the accused had by X and others been sent to consult a witch doctor as to a certain occurrence, and returned conveying the witch doctor’s diagnosis that X was a wizard It was held that in this he had not responsible for the occurrence. contravened the section by naming or indicating X as a wizard. The point was considered in R. v. Njalo Mpambani and in R. v. Njanjante and Others (1938 E. D. L., P. H ., H. 152), where it was pointed out that while the mere conveyor o f a message, as in N ywelluna’ s case, was not an imputer, he might, by his own adoption o f the w itch doctor’ s finding and his statement in consequence, be guilty o f im puting. Thus in Mpambani’s case, where the accused having consulted a practitioner, asserted that the complainant was a witch, basing his assertion upon the inform ation he had received, he was guilty under the section. I t is clear that the evidence in this case does n ot go further than to show that Manjimera and Fundulu were only conveying the w itch doctor’s diagnosis and it follows that they com m itted no offence contra section 3 judgm ent of o f the Ordinance. The Magistrate argues that the [Vol. II MacD onell, J. in Bex v. Musunki and Namusaka reported on p. 38 of Instructions to Magistrates at the bottom of p. 43 is in point where he says that the offences set out in section 3 arc “ a species of criminal libel". The Magistrate then argues that anyone who repeats a slander, even though he says “ so and so told me ” is himself liable. That is perfectly true in a civil action for slander, i.e.; defamation by spoken words, but the learned Judge was careful to say “ a species of criminal libel ” because criminal libel is defamation by any means otherwise than solely by . . . spoken words.. (Section 168 Penal Code.) I respectfully agree with the statement of the law set out in the South African Authorities and hold that that is the true interpretation of Cap, 31. It appears to me to be good law and good sense, Therefore, by virtue of section 309 and section 300 Criminal Procedure Code I quash the conviction and order the discharge of the accused forth­ with.