The State v Senzeni Jiyane and Lindiwe Ncube

The two accused persons were charged with murder of Thabile Ncube, a 4 year 6 month old child. The 1st accused (Senzeni Jiyane) was a traditional and faith healer who operated from a shrine in a bushy area near Amakhosi Centre in Makhokhoba. The 2nd accused (Lindiwe Ncube) was the deceased child's mother. The deceased was a healthy child but had a disability - she was dumb (unable to speak) though not deaf, and was attending speech therapy at Mpilo Hospital once every two months. Between 5-7 March 2019, the 2nd accused took the child to the 1st accused's shrine for treatment. The accused persons and one Munkuli Elinah Ncube (not charged) administered a concoction of raw eggs, salt and water (called "Mpofana concoction") to the child in repeated doses over three days. On 7 March 2019, the child consumed approximately 900ml of the concoction at the shrine, plus wash-down water and porridge. The child died as a result of stomach contents aspiration - the concoction went up the stomach and backwards into the windpipe/airways. There was no proper prescription of dosage, no written instructions, and no proper supervision by the 1st accused.

• Whether the accused persons negligently caused the death of the deceased
• Whether the accused intended to kill the deceased (actual intention or dolus eventualis)
• Whether expert medical evidence from a conventional Western medical doctor can be used to establish negligence by traditional healers
• The appropriate standard of care required of traditional healers when treating patients, particularly vulnerable children

Both accused found not guilty and acquitted of murder. Both accused found guilty of culpable homicide. Each accused sentenced to four (4) years imprisonment, wholly suspended for 5 years on condition that she is not, within that period, convicted of an offence involving the negligent killing of another person for which upon conviction she is sentenced to imprisonment without the option of a fine.

Traditional and faith healers are held to the same standard of care as conventional medical practitioners when treating patients. Negligence occurs when a healer, whether conventional or traditional, fails to prescribe specific dosages, times and other relevant factors when treating a patient, particularly a child. This constitutes gross negligence where the failure to take such precautions causes death. Expert medical evidence from conventional doctors is admissible and authoritative in establishing negligence by traditional healers in the absence of contrary expert evidence from the traditional healing field. Extra precaution must be taken when treating vulnerable patients such as children with disabilities who cannot easily communicate.

The court observed that imprisonment impacts more heavily on females than males, and courts tend toward leniency for female first offenders, especially where the offence is rare and recidivism is unlikely. The court noted that rejection and stigmatization by society following the child's death was punishment in itself for the accused. The court acknowledged the good intentions of the accused in trying to help the child discover her speech. However, the court emphasized that traditional healers, faith healers and prophets must be warned that courts will not tolerate negligence leading to death, particularly of children. The court noted that the legal system does not yet have a traditional healer's system of findings or reports that can be used in courts to prove cases of death (as exists in conventional pathology).

This case is significant in Zimbabwean criminal law as it establishes important principles regarding the standard of care required of traditional healers. It confirms that traditional and faith healers are subject to the same standards of negligence as conventional medical practitioners when treating patients. The case recognizes that expert medical evidence from conventional doctors can be used to establish negligence by traditional healers, and that traditional healers must prescribe specific dosages, provide proper instructions, and exercise proper supervision when administering treatments, particularly to vulnerable patients such as children with disabilities. The judgment serves as a warning to traditional healers, faith healers and prophets that courts will not tolerate negligence leading to death, and that they cannot experiment with people's lives without proper care and precautions.