As far as former nurse, Elizabeth Neis, is concerned, her troubles all began when she loaned a patient N$100 000, her life savings, on the basis of his promise to repay her when he was released from hospital. After his release, however, he simply disappeared, along with the money.
When she told her sister the story, she suggested that Neis consult an ‘alleged traditional healer or witch doctor’ about the problem.
The traditional healer, Kenneth Kasume, agreed to see her, listened to her story about what had happened and the situation she had landed in, and told her that he would be able to help her.
‘Witchcraft might be involved’
But not long after that visit, Neis’s son, who lived with his mother, found ‘a voodoo doll’ with a calabash inside the yard of the house where Neis lived with her daughter and son.
Neis and her son suspected that someone was ‘trying to cast an evil spell over their property’ and that ‘witchcraft might be involved.’ Soon afterwards, Kasume arrived at the house.
He told Neis that the house was cursed by one or more evil spirits and that he would summon help to cleanse the house with him. He also explained that she and the children would have to move from the house while they undertook the cleansing, and he arranged and paid for alternative accommodation for the family.
‘Very powerful evil spirits’
Then he gave Neis feedback about the cleansing: the evil spirits living in her house were ‘very powerful’, he said, and while he could withstand them, she would not be able to do so. Worse; if the family were to move back in someone would die.
But Kasume had a proposal. He would buy the Neis house, via his girlfriend, Josehphina Amutse, for N$200 000. In addition, he would buy Neis a substitute house of a similar size, to the value of N$2 million.
Neis agreed, and Kasume and Neis went to a law firm to complete the formalities.
No prizes for guessing that, once transfer of the property was complete, Kasume stopped paying for the rented accommodation and had plenty of excuses when Neis found suitable property for him to buy for her as he had agreed.
Up to this point, however, her family didn’t know what she had done and the depth of the hole in which she was sitting. Then her son and daughter began asking questions and at last she told them everything. When her brother-in-law went with her to lay charges against Kasume at the police station, they were told that it was a civil matter and they then started looking for a lawyer who could help.
There followed a long trial in the high court, and at the end of her case, the lawyer acting for Kasume and Amutse successfully applied for absolution from the instance in her claim that Kasume had exercised ‘undue influence’ over her.
Neis wanted to appeal, but it took her some time because of the Covid pandemic and the delays caused by legal aid as they considered whether to assign a lawyer to her for an appeal.
Eventually, legal aid agreed, and the case was argued in November 2023.
‘Swindled out of her house’
In its decision, delivered last month, three judges of the supreme court said that the high court had been wrong to grant absolution from the instance.
They noted that Neis’s daughter estimated that her mother’s house, bought by Kasume for N$200 000, was in fact worth between N$1 300 000 and N$1 500 000.
After a family meeting to discuss Neis’s predicament, her brother-in-law took Neis with him to a bail application being heard in the Katutura magistrates court. According to the evidence of the brother-in-law, this case involved a woman who was ‘allegedly swindled out of her house in similar circumstances as Neis.’
This is a particularly worrying feature to emerge from the evidence, as re-told by the supreme court. The court does not go on to make the point, but from this evidence it would seem that Neis is not to be the only person to be duped out of her home by a traditional healer, and that this might be a new scam by ‘traditional healers’.
‘Badgering the witness’
The supreme court judges said the high court was incorrect not to take seriously the evidence of two expert witnesses called by Neis’s legal team.
One was a psychologist who reported on the mental state of Neis and the supreme court was critical of the high court judge for ‘badgering’ the witness, saying her evidence was relevant on whether absolution should be granted, and that the ‘badgering’ was out of place and unwarranted.
The other key expert witness was an academic who testified on what the academic literature had to say about ‘undue influencing’ from a psychological perspective.
‘Voodoo doll a stratagem’
Did Neis establish a prima facie case of undue influence in relation to Kasume?
Acting supreme court judge Theo Frank, writing for a unanimous court, said that ‘the relationship between Kasume as prophet/witch doctor [and] Neis (as beholden to his powers) is similar to that of a religious advisor and disciple.’
He added that the ‘stratagem’ of the voodoo doll and the reference to evil spirits was ‘clearly designed to establish a special relationship of trust and dependence between Kasume and Neis, so as to render Neis incapable of having an independent opinion and to make her will pliant to the influence of Kasume.’
‘In my view,’ Frank continued, ‘Kasume did have an undue influence over Neis based on my assessment of the evidence on behalf of the appellant which at this stage needs only be done on a prima facie basis.’
Influence used ‘unscrupulously’
The court found there was also a prima facie indication that Kasume’s influence weakened the resistance of Neis and made her more pliable. This was done by invoking fear of ‘witchcraft’ and suggesting that the lives of her family were under threat unless she sold her house.
Kasume was thus her ‘saviour’ whose advice and instructions she had to follow if her problems were to be solved. Her psychological state, as evidenced from the psychologist’s report, was such that she was ‘more influenced than would otherwise have been the case.’
The court said the facts presented in evidence clearly established that Kasume had used his influence ‘unscrupulously or unconscionably’ to prevail on Neis to act as she did. Kasume knew her financial dilemma and that she had a house. He ‘tested’ her mental state with the ‘witchcraft’ stratagem and when he saw that she trusted him unconditionally, he moved forward with the rest of his plan. ‘He further knew that the purchase price agreed upon was totally unrealistically low… [and] he clearly envisaged that he would not perform an undertaking to purchase a substitute house.’
Case heads back to the high court
Clearly, the transaction was prejudicial to Neis and she would not have agreed to the arrangement if she had been ‘in a normal frame of mind’, uninfluenced by Kasume.
It thus followed that Neis had established, prima facie, that she was unduly influenced to agree to the sale of her house for N$200 000.
‘The appeal must thus succeed and I shall make such an order,’ said Frank.
What this means is that the case will now go back to the high court, with the order for absolution from the instance set aside. The trial judge must now set dates for the matter to continue. This time, however, in making a final decision, the judge must necessarily take on board the supreme court’s prima facie findings about the influence that Kasume had exerted over Neis.