S V MAPURANGA & 2 ORS NEMBUDZIYACR 93

NEMBUDZIYA CR 93/10/22
TO: THE PROVINCIAL PUBLIC PROSECUTOR

MIDLANDS PROVINCE
FROM: S MAVUNGANIDZE
LEGAL OPINION
DATE: 27/06/24
RE: S v SIMBISAI MAPURANGA AND 2 OTHERS NEMBUDZIYA CR 93/10/22

(A) FACTS
Accused 1 and her two co-accused persons who are all traditional healers were called by
the deceaseds’ family for a cleansing ceremony at the deceaseds’ homestead after
having been given a green light by Chief Chireya. On the 15 th day of October 2022
accused 1 commenced the cleansing ceremony by warning everyone at the family
gathering that they should confess if they knew they possessed evil spirits which were
causing family problems and failure of which they would risk losing their lives.
The family members 28 in number all took turns to confess whilst:
(i) Holding a small axe; and

(ii) Drinking a cup of water mixed with snuff.
The whole family vomited after drinking the concoction and became drowsy but gained
consciousness after a few minutes. The two deceased persons however did not recover
and later died. The bodies of the deceased were taken to UBH where post mortems
were conducted and the causes of death were concluded as follows:
DECEASED 1
(i) Cardiac arrest
DECEASED 2
(i) Respiratory distress.

(B) ISSUES
(i) Whether there is sufficient evidence to charge the accused persons with
murder;
(ii) Whether there is a nexus between the substance consumed and the cause of
death;
(iii) Whether all the 3 accused persons acted in common purpose to kill the
deceased.
(C) EVIDENCE
(i) OWEN MANDAZA
The evidence from Owen Mandaza is as follows. Both the deceased are his uncles. The
family consulted accused 1 who is a traditional healer to come to their homestead for a
cleansing ceremony as several mysterious deaths and misfortunes had been occurring
in the family over the years. The 1 st accused instructed them to get authority from the
Chief which they did. Furthermore, that on the 15 th day of October 2022 the 1st accused
and her 2 co-accused came and conducted a cleansing ceremony which included:
(a) Confessions by all family members while holding a small axe; and
(b) drinking water mixed with snuff from a 20 litre bucket;
Owen Mandaza in his statement further states that all 28 family members did as
instructed, got dizzy, vomited and recovered after a few minutes. The 2 deceased did
not recover and later died. A report was then made to the Chief and the police. The
other witnesses’ evidence is largely similar to the evidence of Owen Mandaza and
therefore does not warrant repetition.
(ii) POST MORTEM
The post mortems conducted on both deceased indicted that they died as a result of
two different causes. One died as a result of cardiac arrest and the second as a result of
respiratory distress.
(D) LAW
(i) CAUSATION
Section 11 of the Criminal Law [Codification and Reform] Act [Chapter 09:23] clearly
states the law on causation. Section 11 of the Code states that:
“(1) A person shall not be held criminally liable for a consequence unless the person’s
conduct caused or substantially contributed to its occurrence.
(2) A person’s conduct shall be deemed to have caused or substantially contributed to a
consequence for the purposes of subsection (1) if the conduct
(a) is the factual cause of the consequence, that is, but for the conduct the consequence
would not have occurred; and
(b) is the legal cause of the consequence, that is, the consequence
(i) was a reasonably foreseeable consequence of his or her conduct; or
(ii) was brought about by a new cause supervening after his or her conduct, which cause
was itself a reasonably foreseeable consequence of his or her conduct.”
In S v Matsvaire HMA 24/2018 the learned Justice Mawadze referred to the learned author
Jonathan Burchell in his book Principles of Criminal Law 5 th Edition 2016 @ pages 52 and 95
where the author deals with the need for a causal link between the alleged act or omission
and the ultimate consequence. It was held as follows:
“Put differently the act or omission complained against the accused person should
create a causal link or connection to the now deceased’s death. There must not be
an intervening act or event to break the chain of causation.”
In the matter of S v Tembani 2007 (1) SACR 355 SCA it was held that:
“It is now well established that a two-stage process is employed in our law to
determine whether a preceding act gives rise to criminal responsibility for a
subsequent condition. The first involves ascertaining the facts, the second imputing
legal liability. First it must be established whether the perpetrator as a matter of fact
caused the victim’s death. The inquiry is whether without the act, the victim would
have died (that is whether the act is non conditio sine qua non of the death) but the
perpetrator cannot be held responsible for all consequences to determine whether
the act is linked to sufficiently, closely for it to be right to impose legal liability. This is
a question of law which raises considerations of legal policy.”
(ii) COMMON PURPOSE

Liability of a co-accused person(s) is provided for in terms of section 196 of the
Code. In terms of section 196(1):
If two or more persons are accused of committing a crime in association with
each other and the State adduces evidence to show that each of them had the
requisite men’s rea to commit it or the knowledge that it would be committed,
then they may be convicted as co-perpetrators. The conduct of the actual
perpetrators shall be deemed to be the conduct of every co-perpetrator
whether or not the conduct of the co-perpetrator contributed directly in a way
to the commission of the crime by the actual perpetrator. See S v Chauke and
Another 2000 (2) ZLR 494 (S).
(E) ANALYSIS
In the present matter the following issues are common cause:
(i) The deceaseds’ family consulted the 1st accused person for a cleansing
ceremony;
(ii) The 1st accused and 2 co-perpetrators went to the home and performed 2
rituals for 28 family members (a) confessing while holding an axe and (b)
drinking a cup of water mixed with snuff; and
(iii) After the cleansing ceremony 2 of the 28 family members died.
The central issue is therefore whether the above conduct is what resultantly caused
the death of the deceased. From the above facts the deceased are not only the ones
who drank the concoction nor confessed while holding an axe but there were other 26
members who went through the same process and lived. Further, the post mortem
conducted on both deceased indicated (a) cardiac arrest on one deceased; and (b)
respiratory distress on the second deceased. The postmortem report does not state
the drinking of the concoction as the cause of death.
It is clear therefore that there is no nexus between the substance consumed and the
cause of death. It is not clear whether the consumption of the substance caused the
cardiac attack and respiratory distress on the deceased respectively. It only amounts to
speculation and would be difficult to prove the case beyond a reasonable doubt in the
respect of all the accused persons.
Moreover, there is no evidence to prove the participation of accused 2 and 3. It is not
clear as to the role they played in the commission of the offence. None of the witness
statements point to their participation in the commission of the offence and it is not
clear as to why they were arrested. It is therefore difficult in the circumstances to
prove a case against the accused beyond a reasonable doubt.
(F) CONCLUSION
In conclusion it is my recommendation that prosecution be declined for want of
evidence. There is no evidence to prove a case against the 3 accused in light of the post
mortem reports. It cannot be proved that the accused persons caused the death of the
deceased.
I stand guided.
S Mavunganidze

S V MAPURANGA & 2 ORS NEMBUDZIYACR 93

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NEMBUDZIYA CR 93/10/22

TO: THE PROVINCIAL PUBLIC PROSECUTOR

RE: S v SIMBISAI MAPURANGA AND 2 OTHERS NEMBUDZIYA CR 93/10/22

The family members 28 in number all took turns to confess whilst:

(i) Holding a small axe; and

(i) Cardiac arrest

(i) Respiratory distress.

(ii) POST MORTEM

(ii) COMMON PURPOSE

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