Ngonyani v. R. Crim. App. 715-D-70; 29/1/71; Saidi J.

 

Ngonyani v. R. Crim. App. 715-D-70; 29/1/71; Saidi J.

The appellant was charged with a naming any person as being a witch c/ss4 (a) and 5(2) of the Witchcraft Ordinance, Cap. 18. It was alleged that appellant had named one Philipo Kazurai and one Victoria d/o Joseph as being a wizard and witch respectively – before a TANU Branch Secretary who summoned the alleged wizard and witch for questioning in the presence of the appellant – who repeated the allegations giving instances of children who had suddenly died and other persons who had some troubles, all of which were attributed to witchcraft practiced by these two persons. The appellant would not be liable to conviction if what he was said in the course of communicating information to or obtaining advice from a court, a member of the police force, a local council, a native authority or any public officer. The issue was whether the statements of the appellant were thus privileged.

            Held: (1) “The persons to whom this “privileged communication ma be made or from whom advice may be sought are listed in section 4 as the local court, a member of the police force, a local council, a native authority, or any public officer. In the present case the information was communicated to the branch secretary of TANU in the locality of the appellant. Considering the position TANU occupied in

            Tanzania, it is obvious that a TANU officer should be taken to be a public officer, although law has not been specifically amended to this effect. Invariably reports of any serious events or incidents affecting any member of the public in any part of mainland Tanzania are reported first of all to TANU officers, and from there they go to the police and later on to the Government. TANU officers therefore exercise power and influence which require them to the included in the “privileged agents” in section 4 to whom reports of witchcraft may be made or from whom advice on matters arising from witchcraft may be sought. Although TANU officers have not yet been included in this list, the court should not fail to a take judicial notice of this situation and take it for granted that they are public officers for this purpose.” (2) The TANU branch secretary was public officer and therefore the appellant’s statements were privileged. (3) Appeal allowed.