S v JOCHOMA 2014 (2) ZLR 553 (H)

Flynote

Criminal law — offences under Criminal Law Code — engaging in practices commonly associated with witchcraft (s 98) — need for expert evidence to determine whether practice is one commonly associated with witchcraft — plea of guilty to such charge — may be accepted by court — no need for expert evidence in event of unequivocal plea

Evidence — judicial notice — meaning — facts of which court may take judicial notice

Headnote

The accused pleaded guilty to and was convicted of engaging in an act commonly associated with witchcraft with intention thereby to causeharm to any person, in contravention of s 98(1) of the Criminal Law Code [Chapter 9:23]. He was seen early one morning at the Chitungwiza magistrates court breaking an egg at the court gate. When confronted he ran away. The following morning at around the same time he was again observed attempting to break another egg at the same gate. When confronted, he again fled, but was pursued and apprehended. Upon being searched he was found in possession of some red and white cloths. When questioned by the trial magistrate after pleading guilty, he admitted that he engaged in a practice commonly associated with witchcraft and that he intended to cause harm to persons at those premises.

The matter was referred for review by the Chief Magistrate, who took the view that because s 98(4) of the Code precludes a court from taking judicial notice of any practice commonly associated with witchcraft, a court cannot simply convict an accused of this offence without calling expert evidence to determine whether indeed the practice which forms the subject of the charge is a practice commonly associated with witchcraft, even if the accused pleads guilty.

Held, that under both common law and s 31 of the Criminal Procedure and Evidence Act [Chapter 9:07], what is admitted need not be proved because the admission constitutes evidence of the admitted fact. Section 98(4) of the Code did not preclude an accused person from admitting that a particular conduct he engaged in amounted to "any practice commonly associated with witchcraft."

Held, further, that under s 271 of the Criminal Procedure and Evidence Act, where an accused person pleads guilty and the plea is accepted by the State (as happened in this case), the court is authorised to convict the accused without hearing any further evidence.

Held, further, that the concept of judicial notice is a rule of evidence that allows a fact to be introduced into evidence where the truth or veracity of that fact is so notorious or well-known such that it needs no proof. A court may also invoke the rule where facts are known either from the judicial officer's general knowledge of them, or from inquiries made by himself for his own information from sources to which it is proper for him to refer. Here, the magistrate did not take judicial notice of the fact that breaking an egg at the gate with the intention of causing harm to the occupants of the premises is a practice commonly associated with witchcraft. He convicted the accused on the basis of proven facts placed before him by virtue of the accused's admission. That being the case, the question of taking judicial notice of any facts in convicting the accused did not arise.