BERE
J:
It has never ceases to amaze me how seemingly minor disputes
invariably end up as the foundation of serious murder cases which we
end up being seized with in these courts.
On
the evening of 2 June 2004 a dark cloud hung over Ngulubeni village
in the district of Plumtree. That evening signified a very
unfortunate development which will forever haunt the villagers of
Ngulubeni who had the misfortune of being witnesses to the untimely
death of the deceased Fanuel Mpala the then 21 year old lad who lost
his life in extremely sad circumstances.
The
state alleged that it was the four accused persons who included one
Temba Adolf Ndebele (who died before this case commenced) who teamed
up and attacked the deceased in turns leading to the deceased's
tragic death. It was alleged that the accused persons used
various weapons ranging from knobkerries, knives, an axe and bottles
in fatally assaulting the deceased person who died on the spot in
Ngulubeni village.
In
their defence outlines marked annexures I to IV all the accused
persons denied ever participating in assaulting the deceased person
and prayed for their respective acquittals.
In
support of its case the state sought to rely on the following
exhibits:
Exhibit
1-an affidavit by Pascal Max Ndlovu
Exhibit
2-post mortem report
Exhibit
3-accused number 1's warned and cautioned statement
Exhibit
4-accused 2's warned and cautioned statement
Exhibit
5-accused 3's confirmed warned and cautioned statement
Exhibit
6-accused 4's warned and cautioned statement.
It
will be noted that all the accused's warned and cautioned
statements were only tendered as exhibits in these proceedings after
the court had conducted a trial within a trial to determine the
admissibility or otherwise of such statements.
Other
than relying on the aforesaid exhibits the state also sought to rely
on the viva voce evidence of seven witnesses viz, Zamani Phuthi,
Sikhumbuzo Mpala, Kuno Ngwenya, Gilbert Ncube, Sgt Tennyson Ncube,
Det Sgt Niverd Charuma and Detective Sgt Ndebele.
In
support of their individual defences the accused persons with the
exception of accused 1 (who incidentally passed on before the
completion of these proceedings) gave viva voce evidence. In addition
they also sought to rely on indication proforma documents in their
effort to challenge the admissibility of their individual warned and
cautioned statements, which as already indicated were ruled to be
admissible after an interlocutory hearing had been conducted.
Analysis
of the evidence led
Zamani
Phuti set the tone for this trial by alleging that on the day
preceding the deceased's death accused 1 who had been seen sneaking
into the hut of Sehlapi Phuti (who turned out to be the accused's
girlfriend) bolted out of the hut when the witness and other
villagers made a surprise entrance to the hut to enquire about this
intruder who turned out to be accused 1.
The
record of proceedings will show that this witness struggled to put up
a coherent testimony of what exactly happened when he first met with
the accused persons. His evidence only became clear when the state
counsel led the witness in re-examination. It was then that the
witness revealed that on the day of the tragic assault he met the
four accused persons and Temba Ndebele drinking beer at Ngulubeni
stores.
The
witness advised the court that he was known to all the accused
persons as he stayed in the same village with them.
It
was the witness' refined testimony that when he met the accused at
Ngulubeni shops they demanded the shoes which belonged to the accused
1 which he had left in the village when he bolted out of Sehlapi
Phuti's hut. The witness said he sent a young boy to collect the
shoes from the village and handed over the shoes to accused persons.
It
was his emphatic testimony that as he was conversing with the accused
2 and 3, they uttered words to the effect that on that day they were
not going to leave for Manenji unless someone died in Ngulubeni area.
The
witness had difficulties in explaining who actually uttered these
words and where exactly they were uttered. As indicated his evidence
became coherent when the state counsel sought clarification of his
testimony in re-examination. The witness was steadfast that these
words were uttered at the shops by accused 2 and 3 who complimented
such utterances by singing a song underpinned by violence.
The
evidence of this witness did not take the state case any further as
the witness was honest enough to concede that he did not actually
witness the assault of the deceased.
Despite
the poor manner in which this witness initially presented his
testimony we are satisfied that indeed accused 2 and 3 uttered the
threats of violence in the manner put forward by the witness.
Sikhumbuzo
Mpala was the next witness to give evidence after Zamani Phuti.
Sikhumbuzo
testified that he too was known to all the accused persons and that
the deceased was his nephew.
The
witness' first contact with the accused persons was on the day of
the murder at around 5pm through Fanuel Notsa Dube (accused 2) with
whom he exchanged greetings at his homestead.
The
witness testified that after exchanging greetings with the accused
the accused enquired the whereabouts of Phathisani Dube, Thembani
Tshuma and the deceased whom the accused said were wanted at the
shops by his co-accused persons.
It
was the witness' testimony that after their whereabouts had been
sought by accused 2 the three, viz Thembani, Phathisani and the
deceased appeared at the witness' homestead and this coincided with
accused 2's second visit to the homestead. The witness then gave a
graphic account of what happened and it is necessary to re-state his
evidence-in-chief as captured in the record of proceedings. The
witness said;
“Before
Phathisani, Thembani and the deceased entered the gate Fanuel Notsa
(accused 2) arrived from the shops riding his bicycle and said, “we
are calling you and you are being silly” I went out of the gate and
I stood with them, I said to accused 2, “Fanuel, earlier on you
spoke to them there and now you are coming o make noise at the
homestead. Fanuel then answered and said “Do
not talk because you will also die”.
Fanuel then turned to Fanuel Mpala (the deceased and said “You
are going to die today.”
As
I was watching accused 2 talking to the deceased I turned my back and
saw all the boys (sic) Phathisani, Thembani and the deceased had
entered the homestead. I stood with Fanuel Notsa. I did not say
anything as I was facing the direction of the store where the accused
had come from. I saw someone tall wearing a long jacket coming from
the direction of the stores. I retreated backwards and stood at the
gate of the homestead. I saw people coming behind this person with a
long jacket. This person who was wearing the long jacket is Adolf
Ndebele who was in front of these people. I spoke to Adolf and said
“Adolf, you have brought people from the stores, what are you
looking for? He replied and said, “Keep
quiet, you will see what is going to happen.”
After
he said that I stood by the gate with my arms stretched out (at 1800
angle – as indicated by witness) all the four accused and Adolf
entered the yard. Thembani was seated by the fire. Fanuel Mpala (the
deceased) was seated by the side of my bedroom hut door. Phathisani
was seated behind Thembani by the fire place.
Quiet
(accused 3) entered the homestead running carrying a knobkerrie. He
was approaching Thembani. Thembani ran away. Quiet pursued him. He
wanted to strike him below the back of the head. Thembani jumped over
the fence of the homestead.
Quiet
did not jump the fence. He turned and came back. As he was coming
back he met up with Fanuel Mpala (the deceased) who attempted to run
away but was struck at the back of the head with a knobkerrie and he
fell down. Fanuel Mpala got up when he was on his feet Fanuel Notsa
Dube (accused 2) arrived. He pulled out a knife and he stabbed him on
the side of the neck. Conrade (accused 1) who was carrying an axe
joined in the assault and struck the deceased on the right side of
the shoulder close to the neck. They were holding him and as they
were holding him like that Mpilo Ncube (accused 4) who was holding a
bottle of coca cola struck him with the bottle on the central part of
the head and the bottle got broken. … The deceased fell down. Adolf
who was holding a bottle of Chatteau pulled out a knife from his
right hand side (trousers pocket) and stabbed the deceased on the
upper part of the back. The deceased was now in a lying position.
God
did not let him die there. He rose from there and walked for about 8
metres (as indicated by the witness) and he fell down. All the five
took turns to assault the deceased. As he was walking to where he
finally fell the 5 were following him. When he finally fell Quiet
(accused 3) hit him again with the head of a knobkerrie and the
knobkerrie broke and Quiet remained holding the end of that
knobkerrie. He struck him on the back of the head. They all ran away,
out of the homestead …Quiet and Notsa took one of the bicycles and
cycled to their area, Maninji area. I felt hurt. I was pained. I then
screamed. God answered my prayers because as they were fleeing, my
nephew approached because he had heard the screams …”
That
was the graphic account as given to the court by Sikhumbuzo Mpala who
appeared to have been at a vantage position in witnessing what
transpired on the fateful day.
The
four legal practitioners for the four accused persons took turns to
cross-examine the witness and cracks were noted in his testimony
particularly when it came to reconciling his testimony in court and
his affidavit statement which was recorded by the investigation
officer on 6 June 2004 (about 4 days after the alleged assault).
It
is true that the cross-examination including the clarification sought
by the court clearly exposed the discrepancies in his testimony. The
record of proceedings will bear testimony to this.
There
was no unanimity as to what time the assault took place as the
recorded statement of the witness gave the time as “at about 21:00
hours” whilst the witness himself gave the time as around 20:00
hours. Other witnesses gave the time of the assault as around 19:00
hours.
Our
assessment of this witness' testimony is that the witness clearly
had difficulties in reconciling the numerous discrepancies between
his recorded statement and his evidence in chief here in court. We
also accept that the witness' testimony may have been compounded by
his fairly low level of sophistication as he projected himself to us
a simple village man who only went as far as grade 7. The numerous
questions put to him easily confused him.
In
our critical assessment of this witness' statement we also
appreciated that quite often what may appear as contradictions in the
witness' recorded statement might be a reflection of a much more
complex challenge in the collation of evidence at the initial stages
of investigations. The irony of it is that we tend to always assume
that when these statements are recorded in the indigenous language,
the police officer who gathered such evidence is not only able to
fully appreciate the diametrix of that language but is also competent
to do the actual translation of the collated evidence in the official
language of record, that is, English.
We
are aware that there are many Zimbabweans (police officers inclusive)
who do not understand the local languages but encounter serious
challenges in the translation of that language into the accepted
language of record. There are many occasions in our courts when the
prosecution or defence counsel or even the court may not agree with
the interpretation of a witness' evidence by an interpreter, for
example.
It
occurs to us that witness' recorded statements must never be looked
at as some sacred document recorded in heaven but as documents
recorded by police officers some of whom are stalked by the many
language challenge that we are all aware of.
It
occurs to us that because we do not actually know the actual
circumstances under which the recorded evidence is collated at the
stage of investigations, it is imperative that where the recorded
statement of a witness is in contradiction with the viva
voce
evidence of the witness, the latter be afforded greater weight. This
should be particularly so where the court is not afforded the
opportunity to see for itself the original language in which the
statement was recorded.
We
believe it is also important that when evidence is recorded in any of
the local languages at the time of investigations both such an
original record and the translated version must be made part of the
docket to enable verification of the translation should the need
arise. The court must be able to see for itself the two statements
and confirm the accuracy of the translation.
Faced
with the evidence of Sikhumbuzo Mpala and the attendant challenges
with it the court had to try and look beyond it for possible
corroboration. This was particularly so given the strenuous denials
of participation by all the accused persons in the assault of the
deceased person. It should be noted that all the accused persons gave
diametrically opposed versions of what transpired on the evening of
the tragic assault.
It
was therefore imperative that the court looked beyond the competing
versions to try and get some corroboration of some sought given the
undoubted discredit to which the witness' evidence had been
subjected to in cross-examination.
The
question as to when exactly the assault took place assumed centre
stage in these proceedings because the court had to be satisfied that
Sikhumbuzo actually saw what he claimed to have seen on the evening
in question, particularly the assault itself.
The
witness maintained under cross-examination that when the assault took
place it was not very dark, and he could see what was happening. In
this regard the following questions and answers were recorded in the
record of proceedings.
“Q-To
the best of my knowledge in June it is winter and it gets dark much
earlier than 7:00 pm.
A-No,
it was not dark there was still light[1]
Q-I
further put it to you that it was dark and you could not see a lot of
what was happening
A-It
was not very dark. I could see what was happening”2
Kuno
Ngwenya, one of the key state witnesses for the state estimated the
time of assault of the deceased to have been around 7pm and said
“there was still light as it was just after sun set.” To clarify
this aspect of visibility the state counsel re-examined Sikhumbuzo
Mpala and the following exchanges took place.
“Q-Did
any of you have a watch
A-No
Q-All
this thing about 5 pm and 9 o'clock is guess work
A-Yes
it is guess work. When the sun is about to set it is around 5 pm and
when I say nine it is because it was getting dark”.
The
witness' estimation of time and visibility got corroboration from a
very unlikely source, viz,
accused 2. In his evidence accused 2 told the court that in his own
estimation the whole fracas took place around 20:00 hours but one
could see clearly a distance between 15 – 20 metres.
It
then became clear to us that whatever time the various witnesses gave
as the time of the assault, the bottom line is that visibility was
still quite good. Sikhumbuzo must have properly seen what he claimed
to have seen.
We
have had the privilege of seeing Sikhumbuzo Mpala testify here in
court. His testimony did exhibit numerous cracks as outlined.
Naturally,
the witness was devastated by the manner in which his nephew's life
was cut short. It was a callous assault. But beyond all the
criticisms that could be laid against this witness, we are more than
satisfied that on critical issues the witness told the truth with no
traces of malice in his testimony.
His
story was narrated with a convincing tongue. Although it was getting
dark the witness' account of what happened left us convinced beyond
doubt that he actually saw the 4 accused plus one Adolf Ndebele
taking turns to savagely assault the deceased and that when he said
he saw them, he saw them from a vantage point.
Kuno
Ngwenya who was the third state witness also confirmed that he was
known to all the accused persons and that they had known each other
for a long time.
Although
this witness was honest enough to say he did not witness the assault
of the deceased, he provided a new dimension to the state case.
The
witness was one of those who responded first to the screams for
assistance by Sikumbuzo Mpala. The witness confirmed Sikhumbuzo's
testimony that after the act the accused persons ran away from the
scene of crime.
The
witness testified that he accosted both accused 2 and 3 as they were
carrying each other riding a bicycle coming from the direction of the
scene of crime with Sikhumbuzo in hot pursuit of the two. On
accosting the two the witness swiftly moved and punctured the bicycle
thereby disabling the two to continue escaping on that bicycle.
The
witness said that Quiet out ran them but they were able to apprehend
accused 2 whom they took back to the village and tied him to where
the deceased was.
The
witness told the court that on getting closer to the deceased he
noted a wound on the deceased's shoulder and on the neck. He also
noted a broken knobkerrie which accords well with the testimony of
Sikhumbuzo that when Quiet hit the deceased with a knobkerrie it
broke and Quiet remained holding a piece of that knobkerrie.
Further
the rudimentary observations noted by this witness on the deceased
reads very well with the assault observed by Sikhumbuzo on the
evening in question.
It
was also the witness' evidence that when Adolf was apprehended and
a search conducted on where he had been hiding, a blood stained Okapi
knife and an empty bottle of Chatteau were recovered adding further
corroboration to the testimony of Sikhumbuzo that he saw Adolf
stabbing the deceased with a knife.
More
importantly the significance of the recovery of the Okapi knife on
Adolf renders false to the averment by Fanuel Notsa Dube that he
disarmed Adolf of the knife that the later had used to stab the
deceased.
To
confirm that Fanuel Notsa had also used a different knife to stab the
deceased as testified by Sikhumbuzo, it is significant to note that
Notsa was found in possession of his own Okapi knife whose dimensions
were said to have been similar to the knife found with Adolf.
Contrary
to accused 4's poorly presented defence of alibi, Kuno testified
that on that very evening he and other villagers saw Adolf in the
company of accused 4 coming from Sikumbuzo's place. The witness
said they failed to apprehend accused 4 immediately because of
interference from Adolf who continuously feigned an attack against
them using a bottle of Chatteau.
Kuno's
evidence was so spot on and corroborative of Sikhumbuzo's evidence
that even Mr Mazibuko who was appearing for the accused 1 was left to
suggest that Kuno must have discussed his testimony with Sikhumbuzo,
a suggestion the witness denied.
Just
like aspects of Sikhumbuzo's testimony which were in conflict with
his recorded testimony, Kuno's evidence suffered the same
challenge, of particular note was the averment in his recorded
statement that alleged that the witness had said that accused 2 and 3
rode on two separate bicycles as they fled from the scene of crime.
The witness disowned that part of his statement and many other
aspects which were not in line with his evidence in court.
Apart
from noting that all the witnesses were giving evidence almost two
years after the murder crime, we were left to wonder whether or not
these discrepancies were in fact not a reflection of the shortcomings
of the investigating officer or the recording police officer.
We
found Kuno to have been a fairly credible witness for basically 3
reasons. Firstly his evidence was corroborative of Sikhumbuzo's
evidence in many respects.
Secondly,
the witness was honest enough to tell the court that he did not
witness the deceased's assault and that he only appeared at the
scene of crime after the event and only in response to the screams of
assistance by Sikhumbuzo Mpala who had the misfortune of witnessing
the tragic assault on the deceased.
Thirdly,
despite his anger and annoyance at the death of the deceased with
whom he was closely related, he was honest enough to tell the court
that he did not see accused 1 that evening. The witness was prepared
not to incriminate accused 1 despite him being fully aware that
accused 1 was alleged to have participated in the assault of the
deceased. To us this spoke volumes of the credibility of this
witness. His evidence was not coloured by malice.
If
there was need for further corroboration of the evidence of
Sikhumbuzo and Kuno, the evidence of Gilbert Ncube was available to
do just that.
Gilbert
was one of the witnesses who recovered an Okapi knife inside the
jacket of Adolf where the later had been hiding. Other than the knife
the witness also indicated that they also recovered what he referred
to a “big bottle of Chatteau”.
The
witness further gave evidence to the effect that in the morning, and
as per the indications of Fanuel Notsa Dube, the villages with him
recovered another Okapi knife which the accused had said he had used
and thrown away near Sikhumbuzo's father's field. He said the
knife was recovered underneath a thorny tree as indicated by accused
2.
The
recovery of the knife following indications by accused 2 further
confirmed the participation of this particular accused in the
commission of this offence. The witness vehemently denied the story
peddled by accused 2 that he had personally handed over the knife to
the villagers. The witness went further to say a villager called
Quandeni Phuti had actually recovered the knife in question.
Sgt
Tennyson Ncube who at the time was stationed at Mayobodo ZRP police
station expressed familiarity with all the accused persons and got
involved with this case on 3 June 2004 following a report of this
murder case.
The
witness noted the wounds on the deceased at the village. These wounds
were consistent with the wounds as outlined in the post mortem report
exhibit 2 and it was this officer who conveyed the deceased's
remains to Brunapeg Hospital.
The
witness told the court that in his view the deceased had been
severely assaulted with inter
alia
an axe owing to the pronounced openings on the deceased's body. The
witness also confirmed that there was evidence of multiple stab
wounds on the deceased.
It
was as a result of his delivery of the deceased's remains that
exhibit two was compiled. Exhibit two described the marks of violence
on the deceased as follows:
“Stab
wound left shoulder (3 x 1cm), neck (6 x 3 x 3cm), head (3 c 1cm), (3
x 1cm), (4 x 1cm)”.
Dr
Pesanai who compiled exhibit 2 concluded the cause of death to be (a)
haemorrhagic shock, (b) multiple stab wounds and (c) assault. The two
remaining witnesses called by the state were Detective Sgt Ndebele
and Detective Sgt Charuma and these were called as key witnesses in
the trial within a trial which were meant to determine the
admissibility or otherwise of the various warned and cautioned
statements by the four accused persons.
After
a protracted enquiry the statements were admitted as part of the
state evidence.
Of
significance was the evidence of Ndebele that contrary to the
allegations by accused 1 against them, they had in fact found the
accused person to have been particularly co-operative. He testified
that it was through such co-operation that this particular accused
person led them to one Hantema Maphosa's homestead where the
accused himself took the axe which was hidden under the granary and
alleged after proper warning and cautioning that it was the axe he
had used to strike the deceased.
It
is difficult really to imagine the truthfulness of the remaining
accused's defences as captured in their defence outlines in the
light of the overwhelming evidence by the state.
The
accused number 2's alleged saintly approach in disarming Temba
Adolf Ndebele and attempting to push the murder of the deceased
squarely on this individual was rendered so hopeless by the credible
evidence of Sikhumbuzo Mpala and other state witnesses.
That
blood stained Okapi knife was recovered from where he had hidden it
spoke volumes about his stout effort to deceive the court on the
actual role he played in the assault of the deceased.
This
accused was the most visible of all the accused persons as he
appeared to have played a frontline role in laying the foundation of
the fatal assault that followed.
He
together with accused 3 uttered serious threats to both Sikhumbuzo
and the deceased before the fatal assaults. He appeared to know what
was in store for the deceased that day.
The
accused number 3's attempt to disown his own defence outline right
in the later stages of the proceedings did not project him in good
light particularly given the flimsy reasons he gave for doing so.
We
found it to be inconceivable to accept the story told by the accused
that his erstwhile legal practitioner had misunderstood his
instruction from the accused person.
It
was even more curious to us that he even made an abortive attempt to
disown his confirmed warned and cautioned statement which was
consistent with his instructions to his erstwhile defence counsel.
The
accused's evidence in court was far from convincing as it could not
withstand the heat offered by the state evidence. We concluded, his
evidence was a hopeless attempt to deny the obvious and to simply
fail to be man enough to face the natural consequences of his conduct
on the day he participated in the assault of the deceased.
Both
his original defence outline, his confirmed warned and cautioned
statement were consistent with the evidence tendered by the
prosecution.
The
accused number 4's defence of alibi was poorly put across as it did
not follow the very basic approach that such a defence requires.
The
accused lacked the conviction of sustaining such a defence by failing
to present to court tangible evidence in support of such a defence.
Where
such a defence is raised it is very basic that evidence be tendered
to sustain it.
Perhaps
the accused must have fully appreciated the futility of such a
defence as he stared the insurmountable evidence presented by the
state against him. The accused clearly lacked his own conviction in
doing more.
The
accused tried to be smart by minimizing his own participation in the
assault of the deceased. What he alleged he did would not make sense
if his explanation is juxtaposed with the credible evidence of
Sikhumbuzo and other witnesses.
In
any event, it is not the level of his participation which determined
his guilty or otherwise. It is his decision to participate in common
purpose with his co-accused. He had long formulated the intention to
actively participate in the gang assault of the deceased. We are
satisfied that what all the accused managed to do in this case was to
indulge in phantom conspiracy to mislead the court.
The
assault on the deceased was well planned and effectively executed.
Evidence
abound that the plan to fatally assault the deceased was long made
and this is consistent with the prophesy of his death made by accused
2 and 3 and repeated by accused three just before the assault began.
The
military approach with which the accused and Adolf entered the
deceased's homestead was a clear indication the plan to fatally
assault the deceased had been well made and nothing was left to
chance.
The
weapons used in the assault were lethal and it is not possible to
come to any other decision except to conclude that the accused could
only have intended to murder the deceased in the manner they did it.
Perhaps
before I conclude this judgment there is an issue of extreme concern
that I must address.
We
have noted with extreme concern the casual or lackadaisical approach
by the prosecution in the handling of exhibits. Those exhibits which
are recovered and alleged to have been used in the commission of
crimes are not meant to decorate exhibit rooms at the police stations
or courts but are meant to be used during proceedings or trials.
Several
exhibits were referred to in this case and none was produced. One
then wonders why a great deal of time and energy is expended in
recovering such exhibits in the first place. There is certainly need
to improve the movement of such exhibits from the forensic
examination centre to the relevant stations and to the courts.
Verdict-All
accused – guilty of murder with actual intent.
[1]
P 55 of transcribed record. Cross-examination by Mr Mazibuko for
accused 1
2
P 60 of transcribed record. Cross-examination of witness by Mr
Mazibuko for accused 1
