MUTEMA J: The 30 year old accused person is facing a charge of murder in
contravention of section 47 of the Criminal Law (Codification and Reform) Act,
Chapter 9:23. He is alleged to have strangled his 68 year old mother to
death by closing her mouth and nose until she died. Accused pleaded not
guilty to the charge.
The state's allegations are that the two resided at the same homestead.
They had a strained relationship engendered by the fact that accused had taken
his wife to his father's place at Chamunangana village and he would
persistently ask his mother for money to go and pay lobola for his wife, which
money was not forthcoming. As a result the two occasionally fought and
would be brought before the village head for counseling. That was the
motive why on 1 June 2012 at about 05:30 hours the accused entered the
deceased's hut in which she was sleeping and murdered her as described above.
Accused's defence is that he did not commit the offence. He averred that
on 1 June 2012 he left home for Lutumba to collect a (cell) phone from his
young brother Hardlife Ndou and to also advise Hardlife to return home because
he himself was on his way to visit his wife and that their mother (the
deceased) wanted to go away for some days and cut hay for cattle feed.
When Hardlife told him that he would only return home on the following Monday,
accused went back home, having phoned the wife to advise her that he was no
longer coming to see her. He left Lutumba around 16:00 hours and arrived
at home around 20:00 hours and went directly to sleep in his hut. He woke
up the next morning and went to water the cattle at the borehole. On
returning home around 09:00 hours he found no sign of activity and then checked
the deceased's hut, noticed that the door was not locked, opened it and saw the
deceased lying on the floor covered with a blanket. He called out to her
but got no response. He then went to Muhlaba Sibanda's homestead next
door and advised her he thought something was wrong with the deceased because
he had called out to her but she did not respond. Muhlaba Sibanda
accompanied him to the deceased's hut where she checked the deceased and
advised him that his mother was dead.
Five witnesses testified for the state.
Muhlaba Sibanda: She told the court that deceased was her
neighbour and her husband's cousin. When accused came to her homestead on
the morning in question he sat down and started crying. On asking why he
was crying accused told her that he had tried to wake the deceased but she was
not responding. Together with Matsubani Moyo and another old woman they
went to the deceased's hut. She saw the deceased lying on her left hand
wearing her clothes, covered with a blanket dead. Her stomach was
bulging. She then sent Matsubani to go and tell the headman that deceased
was dead. She had last seen deceased the Wednesday before but used to see
her daily. She thought that accused and deceased were in good
books. Accused said he had gone to Beitbridge the day before. She
surmised that it was accused who killed the deceased because the two stayed
together.
Samu Ndou: Also resides at Joko village 3 where he is the
headman. On 29 May 2012 he had met the deceased at the borehole and she
had told him that she had problems with the accused who had taken a wife and
wanted her to give him money to go and pay lobola. Accused was also at
the borehole and he told him not to pester his mother. On Saturday around
10:00 am Matsubani came to tell him that deceased had died. He uncovered
the body and noticed that she was dead. After police came he noticed that
deceased's eyes were not closed which was a sign that she had not died on her
own. Accused said he had returned from Beitbridge around 8pm and had not
checked on the deceased till the next morning when he discovered her
dead. He also surmised that it was possible that accused could have killed
the deceased in view of the misunderstanding between the two.
Rungano Moyo: Resides in the same
village with accused. Deceased was his cousin. He believes that
accused killed the deceased. On Thursday 31 May 2012 accused found him at
the borehole watering cattle. Accused told him that deceased wanted to
see him so that the two would go and cut grass for cattle. He told
accused that he would go and see the deceased but he failed to go there.
The next morning accused accompanied him to go and buy tobacco and they came
back. Accused asked him if he had gone to see the deceased. He told
accused he would see her that day after watering his cattle. This was on
Friday morning. But he failed to go and see deceased on that day.
Accused had never accompanied him to go and buy tobacco and he himself had
never gone to cut grass with the deceased. He learnt of deceased's death
on Saturday. He did not know whether accused and deceased related well or
not. He said he thought accused killed deceased because when he met
accused on the Friday, his eyes were red like someone who had been
crying. He, however, did not ask the accused why his eyes were red.
Hardlife Ndou: He
shared the same mother (the deceased) with accused but different fathers.
On 30 May 2012 accused assaulted him by clapping over a memory card. He
then ran away to Lutumba. On 1 June accused came to Lutumba and told him
to go back home since the deceased wanted to go and look for cattle feed.
Deceased had told him about her intention to go and cut grass days
before. Accused left around 4 pm saying he was going to Beitbridge to
collect his wife. He accompanied accused and left him at a vehicle bound
for their rural home so accused did not go to Beitbridge. From Lutumba to
Joko village 3 by car one takes about 4 hours. He said he was always
quarrelling and fighting with accused and whenever they did a job together for
a fee accused would take all the money for himself. Accused did not have
a good relationship with deceased as the two had a misunderstanding regarding
accused's wife whom accused did not want deceased to reprimand. Accused
had two wives and one left due to the misunderstandings. He thought
accused killed deceased because by chasing him for 500m over a memory card issue
accused wanted to kill him. He conceded that accused never threatened him
but the deceased although he could not recall the words accused used.
Stanford Clemence Gutsa: Is a detective sergeant in the Zimbabwe Republic
Police with 16 years in the force, 6 of which he spent as a detective. He
knows accused only in connection with this case.
After receiving the report of deceased's death he visited the scene with other
police officers. Accused showed him the hut where deceased was. He
made a body search on deceased and noticed that deceased was bleeding from the
nose and mouth. She was lying with her head slightly tilted to her left
shoulder. He recovered two pieces of letters under the body. He
took the letters and the body to Beitbridge Hospital mortuary. Thereafter
the body was ferried to United Bulawayo Hospitals for a post mortem.
He did not see any signs of struggle in deceased's hut. He opined that
deceased had died two days before because the body was in an advanced state of
decomposition as a pungent smell emanated from it. Accused said he had
arrived home from Beitbridge where he had gone to see his wife and found
deceased motion less. Initially deceased's death was treated as sudden
death but because the pathologist stated the fractured femur could have been
caused by assault, coupled with villagers' averments that accused and deceased
did not see eye to eye, he then arrested the accused for murder.
The evidence of the other ten state witnesses listed in the notice was admitted
in terms of section 314 of the Criminal Procedure and Evidence Act, Chapter
9:07 and the state then closed its case. The defence then applied for
discharge of the accused at that stage in terms of section 198 (3) of the same
Act.
Section 198 (3) provides:
“(3)
If at the close of the case for the prosecution the court considers that there
is no evidence that the accused committed the offence charged in the
indictment, summons or charge or any other offence of which he might be
convicted thereon, it shall return a verdict of not guilty.”
In S v Kachipare 1998 (2) ZLR 271 (SC) it was held that the
wording of section 198 (3) of the Criminal Procedure and Evidence Act made it
clear that where, at the end of the state case, there is no evidence upon which
a reasonable court might convict, the court has no discretion: it must
discharge the accused. The court may not exercise its discretion against
the accused if it has reason to suppose that the inadequate state evidence
might be bolstered by defence evidence.
In the instant case the evidence adduced by the state this far is entirely
circumstantial, concerned mainly with motive and opportunity. In R v
Bloom 1939 AD 188 at 202 – 203 the court referred to two cardinal
rules of logic which govern the use of circumstantial evidence in a criminal
trial, viz
“(1)
The inference 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.”
We may add here that this is a process of reasoning where the court is enjoined
to look at the various strands of circumstantial evidence, not individually,
but in their totality and determine whether the inference sought to be drawn is
the only reasonable one consistent with the proven facts to the exclusion of
other competing possible inferences.
In casu the inference sought to be drawn is that it is the accused who
murdered the deceased. On the evidence, is this the sole reasonable inference
to be drawn? We think not for the following reasons:
Granted, the accused may have had the opportunity to do so since he was the
only one residing with deceased at the homestead at the relevant time but that per
se does not support the inference sought to be drawn. The likely
motives on accused's part which were hazarded or ascribed to him by the
witnesses, viz that he was pestering the deceased for lobola money or
that he was issuing threats to her or that because he chased Hardlife Ndou for
500m over a memory card are on their own so weak that one would need to move a
mountain to elevate them to a motive for murder.
Crucially, we note that despite accused not being truthful regarding his going
to Beitbridge as contended by the state, it if true remains of no moment when
standing alone for he could have just panicked in an endeavour to distance
himself from the scene. In any event, whether he went there or returned
at Lutumba is neither here nor there if account is had of the fact stated by
Hardlife that one takes about four hours by car from Lutumba to Joko village 3
and accused left at 16:00 hours. This means that accused got home around
20:00 hours which corroborates accused's version that he got home around that
time.
Also crucially is the issue of the post mortem result that the cause of death
was unascertained due to the advanced state of decomposition of the
corpse. As we speak, no one can put a finger on the exact cause of
deceased's death let alone the time of her death. The pathologist's
remarks re: fractured left femur indicate that that could have been caused by
old age with the possibility that she fell and sustained the fracture or was
assaulted. This does not point solely at the accused.
Another crucial piece of evidence which the state missed relates to the two
letters recovered from underneath deceased's body. Had their authorship
and contents been ascertained, perhaps a clear motive, depending on the
outcome, would have been easily established.
From the foregoing it is clear that on the evidence led so far, no reasonable
court acting carefully might properly convict: Attorney-General v Mzizi
1991 (2) ZLR 321 (S) at 323 B.
In the result, the application for discharge of the accused at the close of the
state case must succeed and accused is accordingly found not guilty and
acquitted.
Criminal Division of the Attorney
General's Office, state's legal practitioners
Messrs
Cheda & Partners, accused's legal practitioners
