MATHONSI J: The two accused persons are facing a charge of
murder the allegations being that on 24 June 2009 they wrongfully, unlawfully
and intentionally killed David Mpofu, a male adult then aged 38.
It is alleged that the deceased, who
resided at 59 Circular Drive Burnside, Bulawayo gave a lift to the two accused
persons and their colleague, who is still at large, in his Toyota sprinter
motor vehicle, silver in colour, registration number 801-918Z, at the
intersection of 12th Avenue and Herbert Chitepo Street in
Bulawayo. They purported to be going to
Magwegwe suburb.
Upon arrival at the intersection of
Hyde Park Road and Masiyephambili Drive, next to Pelandaba Cemetery, one of the
accused persons used a string to strangle the deceased after which he was dragged
from the driver's seat. It is alleged
that accused 1 took over the wheel and drove the deceased's vehicle to Luveve
Cemetery where the accused persons dumped the body of the deceased in a bush
next to the cemetery. They allegedly
drove away the deceased's Toyota sprinter motor vehicle.
The two accused persons pleaded not
guilty to the charge of murder. In his
defence outline, accused 1 stated that he knows nothing about the charge
levelled against him, he does not know the accused 2 at all, he was never at
the intersection next to Food 4 Less on the day in question and that he was
linked to the offence by virtue of a cellphone he was given by certain unnamed
individuals he had given a lift in his Ford Laser vehicle, in lieu of payment
for the lift.
In his defence outline, the Accused
2 stated that at the time of the alleged offence he was detained at Bulawayo
prison on a separate charge of plain robbery.
He stated that the police picked him up from prison about 12 September
2009 and assaulted him to force him to admit having committed the crime of
murder. He also denied knowing the
Accused 1 prior to meeting him at Bulawayo Central police station after he had
been taken from prison.
The bulk of the state evidence was
admitted by the accused persons in terms of section 314 of the Criminal
Procedure and Evidence Act [Chapter 9:07] as it appears in the state
outline. That evidence is by Nokuthula
Dube, Butholezwe Sibindi, Dingilizwe Mlilo, Misheck Katoma; Dr Lylian Ncube,
Charlton Tshabangu, Detective Assistant Inspector N. Nyoni, Detective Assistant
Inspector Albert Zhou, Detective Sergeant Chonzi and Doctor I. Jekenya.
It is proposed to deal first with
that evidence which was admitted. The
evidence of Nokuthula Dube is to the effect that she is the wife of the
deceased. On 24 June 2009 at about 1900
hours the deceased left home intending to buy some groceries in town. He was driving his Toyota Sprinter motor
vehicle, registration number 810-918Z.
When the deceased left home he had in his possession a Nokia 3310
cellphone, about R500-00 and P150-00 which items were not recovered.
The deceased never returned home and
it was not until 29 June 2009 that the police advised the witness that her
husband was dead and his body was at Mpilo Hospital Mortuary. On 16 July 2009 the witness was invited by
the police to identify the deceased's Toyota Sprinter vehicle which had been
recovered and she did that. In that
vehicle was the deceased's driver's licence and I.D. document.
Butholezwe Sibindi
who resides at 3379 Magwegwe North Bulawayo was a security guard at Dangale
Koloi Car Park. He was on guard duties
on 24 June 2009 when at midnight two men came driving a Toyota Sprinter motor
vehicle registration number 801-918Z.
The driver introduced himself as P. Dhliwayo and they paid the requisite
parking fee and left the vehicle for safe keeping. They never returned for it until several
weeks later he reported this to his employer who called the police and they
took the vehicle away on 16 July 2009.
Dingilizwe
Mlilo of Block 3/108 Mpopoma Bulawayo is employed by Bulawayo City
Council as a security guard at Luveve Cemetery.
He is the one who alerted the authorities about the body of the decased
on the morning of 25 June 2009. This
witness attended the scene with the police and observed that there were tyre
marks signifying that a vehicle had made a U-turn next to where the deceased's
body was. He observed that the body had
been dragged from the road before it was dumped.
Police officer Misheck Katoma stationed at Luveve police station attended
the scene where the deceased's body had been dumped on 25 June 2009. Together with two other colleagues they
ferried the deceased's body to Mpilo Hospital.
It was certified dead by Dr Lylian Ncube.
The deceased's friend Charlton
Tshabangu of 520 Nkulumane Bulawayo is the one who identified the deceased's
body at Mpilo Hospital Mortuary on 29 June 2009 before notifying his wife and
giving the deceased's particulars to the police.
Detective
Assistant Inspector N. Nyoni is attached to CID Homicide in
Bulawayo. His evidence is to the effect
that he witnessed the recording of warned and cautioned statements from the
accused persons. He is the one who
conducted an identification parade on 14 September 2009. He informed the two accused persons that they
had a right not to participate in the parade but the accused persons elected to
do so. The two were in positions four
(4) and eight (8) in the parade of twelve (12) participants. The identifying witness pointed them out and
positively identified the two (2) of them by touching each on the shoulder.
Detective
Assistant Inspector Albert Zhou's evidence is to the effect that he
participated in conducting the identification parade as a runner. Detective Seargent Chozi's evidence is that
during the parade conducted on 14 September 2009 he took part as a witness
guard. Nkosilathi Sibanda had no prior
contact or sight of the participants of the parade.
The evidence of Dr I. Jekenya was
also admitted. He conducted the post
mortem on the body of the deceased and compiled a report. We shall return to that report later in this
judgment.
The admitted evidence establishes
the following:
(a) On 24 June 2009 the deceased left his
home driving his silver Toyota sprinter motor vehicle at about 1900 hours.
(b) he had in his possession a cellphone and
some money .
(c) he
never returned home but was murdered by strangulation that same night and his
body was dumped in a bush next to Luveve Cemetery. He was robbed of his vehicle, cellphone and
money.
(d) His
motor vehicle was later dumped at Dangalekoloi car park in Luveve by two men
and was only recovered on 16 July 2009 as those who dumped it never returned
for it.
(e) After
the two accused persons were arrested, an identification parade of twelve (12)
people was conducted at Bulawayo Central station where the witness, Nkosilathi
Sibanda picked out the two accused persons as the people who had robbed him on
the night of 24 June 2009.
We shall return to the
identification parade later in this judgment.
The state also led evidence from two
more witnesses namely Nkosilathi Sibanda and Detective Assistant Inspector
George Zuze.
Nkosilathi Sibanda is a reporter
employed by Umthunywa Newspaper and resides at 129 Emakhandeni Bulawayo.
On 24 June 2009 at about 2100 hours,
he was proceeding home when he boarded a lift at West End garage in 6th
Avenue, Bulawayo. Another man boarded
with him and the two sat at the back seat of the vehicle which was a Toyota
sprinter, silver in colour. Inside the
vehicle were two men, the driver and a passenger sitting next to the driver in
front.
The courtesy light inside the
vehicle was illuminated and it remained so, until he alighted from the
vehicle. That way he was able to see the
occupants of the vehicle properly.
When they got to Njube turn off, the
passenger who had boarded with him alighted leaving him and the two men in the
vehicle. As they approached his
destination at Magetsini, Nkosilathi informed the driver that he was dropping
off at the bus stop. He was
ignored. Instead the driver pressed the
central lock button and locked all the doors.
The vehicle turned right at Luveve
Road and Masiyephambili turn off and drove towards Victoria Falls Road with the
witness pleading with the occupants to drop him to no avail. When they got to Emakhandeni Hall, the
witness says he pleaded again asking to be dropped off but the driver, who he
says was the Accused 1, swore to him saying he was in the habit of boarding
people's cars. When they got to the fly
over bridge on that road, the second man, who he identified as the Accused 2,
commanded him to draw closer to him, got hold of his jacket collar and struck
him with a fist on the right eye. The
Accused 2 then started stripping him of his clothes.
The vehicle made a U-turn at the
“Ngozi Mine” dumping site and was parked next to the road. Whereupon the Accused 1 started searching the
witness's jacket pockets. He was abandoned
at that point naked, except for his inner short, before his assailants sped off
in the Toyota sprinter motor vehicle. He
found his way back home and later made a report at Entumbane police station.
Much later when the police came
looking for him at his home, he was taken to Central Police Station where he
identified his pair of jeans and new balance trainers which had been recovered
in the Toyota sprinter.
At a later stage he was invited by
the police to identify his assailants in an identification parade of ten (10)
or more people. The police told him they
had picked up “some guys” and wanted him to have a look at them and see if his
assailants were present. He assured the
police that he had had a good look at the two assailants and was sure he could
identify them if he saw them again.
Nkosilathi told the court that he
had not seen the suspects prior to the parade and had not seen the parade being
assembled. He stated that the police did
not point out any of the suspects. He
however stated that the ten (10) or so participants were not of similar build
and were dressed differently. The
witness says he was able to quickly pick out the Accused 2 as the person who
had been sitting next to the driver and had assaulted him while holding him by
the collar. This was because the sight
of his face, which was light in complexion, was smallish with a side beard, and
his bold head had remained indelibly etched in his memory.
He also managed to pick out the
Accused 1 as the person who had been the driver. He was assisted by his clear recollection of
his build which was bigger with broad shoulders which he remembered clearly
from the way he stirred the vehicle when turning. He also vividly remembered his face with
wider cheek bones. He stated that he had
had a good look at his assailants during the ordeal as he had spent
considerable time talking to them in the vehicle.
Detective
Assistant Inspector George Zuze is the investigating officer in this case with
17 years experience in his job. In the
course of his investigations he says he interviewed Nokuthula Dube, the
deceased's wife who had told him that when the deceased left on the fateful
night, he had in his possession, among other things, his cellphone. The officer then took down the cellphone
number which he used to obtain the call history from the cellphone service
provider.
When he did, he noted that at about
midnight on the night in question a call had been made to a landline in
Gwabalanda from the deceased's cellphone.
From another service provider he was able to obtain the address where
the call was made to. He and other officers
then raided that house on the night of 10 September 2009.
He said they interviewed the
occupant, Gerald Sibanda, who turned out to be a prophet. Sibanda confirmed that on the night of 24
June 2009 he had indeed received a call from a client of his he recalled as
Moyo who stays in Cowdray Park and that the said Moyo had wanted spiritual
assistance. The prophet led the police
to No. 150 Cowdray Park, Bulawayo, the residence of Accused 1, whom they found
with his wife in the early hours of the morning. The Accused 1 also confirmed that he knew the
prophet Sibanda as they go to the same church.
The Accused 1 was then arrested.
The witness went on to say that at
the Accused 1's home they saw a Ford Laser motor vehicle, red in colour, which
was a non runner and appeared to had been off the road for a while.
He stated that when the Accused 1
was cautioned, he immediately admitted involvement in the killing of the
deceased and implicated the Accused 2 as having been with him when the crime
was committed. This led to the arrest of
the Accused 2 who by that time was detained at Bulawayo Prison on another
charge he having been detained on 8 July 2009 after killing the deceased. He produced the prison record, exhibit 7, to
that effect. Officer Zuze said Accused 1
freely and voluntarily led a team of detectives for indications and he recused
himself as the investigating officer.
After the arrest of the Accused 2,
the witness administered a caution upon him and he also volunteered to go and
show officers the scene of crime. The
team of officers was put together and went for indications with the Accused 2.
As there were other witnesses,
arrangements were made for them to participate in an identification
parade. Most witnesses failed to pick
out the accused persons except for Nkosilathi Sibanda who identified them in
the parade as having been the people who robbed him while driving a silver
Toyota sprinter.
This witness also recorded warned
and cautioned statements from the two accused persons which he says were made
freely and voluntarily without any undue influence being brought to bear upon
them. On that score his evidence is
partially corroborated by the admitted evidence of Detective Assistant
Inspector Nyoni.
The two state witnesses gave their
evidence very well. They did not try to
exaggerate anything, their demeanour was excellent and they gave a user
friendly factual account of what they witnessed. We have no reason whatsoever to fault their
evidence, subject to the comments we will make regarding the identification
parade involving Nkosilathi.
In addition to the foregoing
evidence, the two accused persons' confirmed warned and cautioned statements
were produced as exhibits 4 and 5 respectively.
In his statement Accused 1 stated as
follows:
“ I
am Vusumuzi Moyo 29-233834 F24 and Khulekani Dumisani Nkomo and Brilliant – I
admit because we boarded a motor vehicle at Food 4 Less; a Toyota Sprinter
silver in colour registration number 801-918Z heading for Magwegwe. We got to robots that are near the cemetery,
Khulekani strangled him and removed him from the driver's seat and I then took
up the driver (sic). I started driving
that car and the(n) Khulekani said we should head for Luveve cemetery where on
arrival he and Brilliant assisted each other and got out with the owner of the
motor vehicle. I had misgivings when I
saw them dragging him, I asked what the matter was and he said he will pick up
strength that is why when we left there I still had misgivings about it. I took the motor vehicle and kept it at a car
park. We left and boarded an emergency
taxi and went away. We parted
there. The car park is in New Luveve
opposite Masina beer garden.”
The Accused 2's statement is
shorter. It reads as follows:
“Khulekani
Dumisani Nkomo I do agree that I was in the company of Vusumuzi Moyo and
Ashi. We got transport at Food 4 Less
and proceeded to go and rob someone of his vehicle. Vusumuzi bound him (with) a string/cord and
we departed. We left the person in some
bush I cannot identify. Thereafter we
transported two youngmen. One of them
disembarked at Njube and we left the other at Ngozi Mine after robbing him of
his phone.”
Clearly therefore in their warned
and cautioned statements, which were confirmed by a magistrate in terms of
section 113 of the Criminal Procedure and Evidence Act in proceedings held in
camera the two accused persons confessed to the crime The procedure provided for in the Act was
followed to the letter.
The accused persons also gave
evidence. The Accused 1 stated in essence
that he knows nothing about the offence but was linked to the offencebecause of
a cellphone, a Nokia 1600 which he had been given by unnamed individuals he had
given a lift while pirating, on “a certain day”, he did not specify. It had been given to him in lieu of the fare
and he was to hold onto it as the unnamed owners would phone him on that number
to give him his money and recover their phone.
While still in possession of that
phone, he had taken advantage to make a phone call to one Shepherd. At a subsequent date he had returned the phone
to the owners and collected the pirate taxi fare. While admitting having telephoned prophet
Sibanda, whom he says he knew as “Mdawini”, he denied having phoned him on the
night of 24 June 2009 and denied that the prophet has a landline.
The Accused 1 stated that the police
had been led to his residence by three fellow worshippers of his leading to his
arrest. He stated that they had
assaulted him to admit to about 22 counts of robbery and car jacking and to the
killing in the present case. Although he
had led the police to the people who had given him the phone, he was surprised
when one of the officers started calling them by name before firing shots into
the air forcing that group of people to flee.
He said the police had then turned
on him and using threats and violence, they forced him to confess to the
killing of the deceased. He could not
mention the duress during confirmation proceedings because he was still afraid
of the police officers some of whom had remained in the court room.
Unfortunately for Accused 1 the
story is incoherent and does not make any sense at all. The cellphone stolen from the deceased was a
Nokia 3310 and not a Nokia 1600. The
deceased's cellphone was used to call prophet Sibanda after he had been killed
on a landline in Gwabalanda. If he says
he did not call Sibanda on the phone he had got from his customers but phoned
Shepherd, then it must follow that it is not the deceased's phone which was
used to phone Shepherd.
All this does not explain that the
deceased's phone was used to phone prophet Sibanda who in turn told the police
that he had been called by the Accused 1 for spiritual assistance. This is the evidence we have already accepted
and it links the Accused 1 to the commission of the offence.
The Accused 2 stated in his evidence
that he does not know where he was on the night of 24 June 2009. He said that while in prison in September
2009 he was approached by the police who told him he was facing several charges
of car jacking and robbery. They took
him to Central Police station where charges were preferred against him after
which he was assaulted to force him to confess.
He did not sustain any injuries as a result of the assault but was able
to get medication in prison.
Accused 2 said that his warned and
cautioned statement was given under duress.
Under cross examination he said the police took him for indications
saying they would just take him to where Accused 1 had led them. The Accused 2 had a difficult time explaining
why he had raised an alibi in his defence outline that at the time the
offence was committed he was in prison.
This was after his alibi had been busted when Detective Assistant
Inspector Zuze produced the prison register showing he had only been detained
on 8 July 2009. In the end he could not give any explanation for this
disparity.
The evidence of the two accused
persons is hopelessly unreliable, incoherent and has an air of fiction in
it. It simply cannot be believed and we
reject it in toto.
This is a case where there is no
direct evidence linking the accused persons to the commission of the
offence. It is a case where there are
bits of evidence strewn all over the place and it remains for us to piece it
together and see if, circumstantially, it leads to a conclusion of guilt or
otherwise.
The law relating to circumstantial
evidence is found in Hoffman and Zeffertt, The South African Law of
Evidence, 4th ed, at pages 589-590 where it is stated:
“In
R v Blom 1939AD 288 at 202, 203 Watermeyer JA referred to 'two cardinal rules
of logic' which governed the use of circumstantial evidence in a criminal
trial;
'(1) The inference sought to be drawn must be
consistent with all the proved facts. If
it is not, then the inference cannot be drawn.
(2) The proved facts should be such that
they exclude every reasonable inference from them save the one to be
drawn. If they do not exclude other
reasonable inferences, then there must be a doubt whether the inference sought
to be drawn is correct'.”
That passage was cited with approval
in S v Vhera 2003 (1) ZLR 668(H) at 679 D-G and more recently in S v Dzira HB 149/11 at page 2-3.
The question is, can it be said that
the only inference to be drawn from the proved facts is that the accused
persons did commit the offence. The
facts proved from the evidence of the two state witnesses (not that we have
already set out those proved from the admitted evidence), are that:
(a) certain
two people driving a silver Toyota sprinter gave a lift to Nkosilathi at West
End garare and later forcibly took him to “Ngozi Mine” where they robbed him of
his clothing and cellphone;
(b) during
Nkosilathi's ordeal in the Toyota sprinter, the courtesy light was on giving
sufficient lighting for him to have a good look at those two people and he
spent a considerable time with them during which one of them drew him closer by
the collar and punched him in the face.
(c) Nkosilathi's
jeans and trainers were recovered in the Toyota sprinter which belonged to the
deceased.
(d) the
deceased's cellphone line which had been taken from him after he was killed was
used by Accused 1 to phone prophet Sibanda on his landline in Gwabalanda as he
sought spiritual healing.
(e) the
two accused persons made confessions to the police in their statements which
were confirmed by a magistrate in accordance with the law.
(f) Nkosilathi,
the victim of a robbery perpetrated using the deceased's vehicle, picked the
two accused persons in an identification parade.
In examining the evidence of identification, we are
mindful of the pronouncement of Holmes JA in S v Mthetwa 1972(3) SA 766 at 768 where he said:
“Because
of the fallibility of human observation, evidence of identification is
approached by the courts with some caution.
It is not enough for the identifying witness to be honest; the
reliability of his observation must also be tested. This depends on various factors, such as
lighting; visibility and eyesight; the proximity of the witness; his
opportunity for observation, both as to time and situation; the extent of his
prior knowledge of the accused; the mobility of the scene; corroboration;
suggestibility; the accused's face, voice, build, gait, and dress; the result
of identification parades; if any, and of course, the evidence by or on behalf
of the accused. The list is not
exhaustive. These factors; or such of
them as are applicable in a particular case, are not individually decisive, but
must be weighed one against the other, in light of the totality of the
evidence, and the probabilities.”
We have warned ourselves against the
risks attendant upon identification. We
have noted that the parade itself was not properly conducted especially as it
would appear that one
of
the investigators is the one who led the witness to the parade although the parade
itself was conducted by someone else. We
have noted that the participants were just clustered together dressed
differently and not of the same build.
In spite of all this our view is
that the identifying witness- whom we have found to have been impressive indeed
and who stated that his eye sight was perfect- spent a long time very close to
and had close contact, with the suspects in the vehicle. He was therefore able, in view of proximity,
opportunity and contact to observe them.
His picking them out can therefore be relied upon.
In any event this is not a case
which hinges entirely on identification.
There are other pieces of evidence linking the accused to the
offence. The Accused 2 was fingered by
the Accused 1 who was connected by the prophet after a phone call in the middle
of the night seeking spiritual healing, presumably following of the killing of
the deceased. Therefore the only
inference to be drawn is that the two accused committed the offence. We are therefore satisfied that the state has
proved its case against both accused persons beyond a reasonable doubt.
As
to the intent of the accused persons, we examine the post mortem report in
which DR I Jekenya observed the following marks of violence on the deceased's
body:
“(a) Right
forehead bruises
(b) Sandy
soil in the nostrils and around the mouth and between the lips and teeth.
(c) There
is 4mm wide neck groove which is deeper on the front about a centimetre
below
the voice box. The groove runs from the
front going backwards traversely on both sides of the neck and ends at the back
of the neck near the midline. It is
about 2mm deep below the voice box (deepest part) and becomes more superficial
as it goes backwards.”
The doctor remarked that the
findings are consistent with ligature strangulation with a rope or cord.
In S v Chigwanda 2002(1) ZLR 574(S) at 581 D –F the Supreme Court
stated:
“For a trial court to return a
verdict of murder with actual intent, it must be
satisfied beyond reasonable doubt
that:
(a) either the accused
desired to bring about the death of his victim and succeeded in completing his
purpose; or
(b) while pursuing another
objective, foresees the death of his victim as a substantially certain result
of that activity and proceeds regardless.”
We agree with Ms Munyeriwa for the state that by
strangling the deceased the way the accused persons did, they intended the
death of the deceased or at least foresaw the death as a substantially certain
result.
The two accused persons clearly
acted in common purpose and were indeed a tug team from the moment they
attacked the deceased to the time they disposed of his body and right up
through the robbery of Nkosilathi.
Therefore the conduct of one is imputed on the other.
Accordingly both accused persons are
found guilty of murder with actual intent.
Extenuation
This was a murder committed in the
course of a robbery. The accused persons
planned and prepared well for the robbery of the deceased. They set about isolating their victim by luring
him to a place far away from the hustle and tumble of the city centre in
Magwegwe.
They clearly intended to rob him if
his vehicle. Given that they were a gang
of three they could have easily over powered the deceased and divested him of
his vehicle without resorting to killing him.
They elected to kill him and their
conduct is unforgivable whichever way one looks at the matter.
Extenuating circumstances are those
facts associated with the crime which serve in the minds of reasonable men to
diminish, morally, the degree of the accused persons guilt. They are facts which have a bearing on the
commission of the crime which reduce the moral blameworthiness of the accused.
In the present case the only thing
which propelled the two accused persons was greed and sheer evilness and
nothing else.
We are therefore unable to find
extenuating circumstances in this case.
Sentence
The
two accused persons shall be returned to custody where the sentence of death
shall be executed on each of them according to law.
Criminal Division, Attorney General's Office, the state's
legal practitioners
Marondedze, Mukuku, Ndove and partners, 1st
accused's legal practitioners
Mabhikwa, Hikwa and Nyathi, 2nd
accused's legal practitioners
