The accused person is facing a charge of rape and another
of murder in contravention of sections 65 and 47 of the Criminal Law Code
[Chapter 9:23]; the allegations being that on 27 August 2010, and at, or next
to, a tributary that flows into Jeqe River in Esikhoveni, Esigodini, he
wrongfully, unlawfully and intentionally had sexual intercourse with
Simangaliso Ncube, a female juvenile then aged fifteen (15), without her
consent and thereafter unlawfully and intentionally killed her.
It is alleged that the deceased and the accused were
residents of Vukuzenzele One Village in the Esikhoveni Area of Esigodini. The
deceased lived with her grandmother, one Gladys Masuku, who was then aged 73.
The accused, who was then aged 30 years, had offered to give Gladys Masuku some
vegetables from his garden.
On 27 August 2010, while Gladys Masuku was away from home,
the accused proceeded to her homestead, where, upon arrival, he asked the
deceased to accompany him to his garden to collect vegetables for her
grandmother. When they got to a tributary along Jeqe River, the accused grabbed
the deceased and pushed her to the ground forcing her to lie on her back,
raised her skirt and removed her panties, before raping the deceased. After the
act of rape, the accused throttled the deceased until she became unconscious.
Thereafter, he used a stone to strike the deceased a number of times on the
face. After doing that, the accused allegedly picked up another stone which he
placed on the deceased's chest before making good his escape. The deceased's
body was only discovered at the scene two days later, on 29 August 2010.
The accused person pleaded not guilty to both charges of
rape and murder.
In his Defence Outline, he stated that he had a blackout,
as he sometimes did, at the time. He cannot state how the offences were
committed but was only informed of his actions by the police and his relatives.
The accused went on to say that he has no recollection of what transpired owing
to the blackout. He re-iterated that he has a long history of mental illness
which he may have inherited from his late mother who also suffered from mental
illness. He has been treated for the mental disease, mainly by traditional
healers, and, at times, he was attended to at Esigodini Hospital.
The bulk of the evidence of the State was admitted by the
accused person in terms of section 314 of the Criminal Procedure and Evidence
Act [Chapter 9:07] as it appears in the State Ooutline. That is the evidence of
Alice Masuku, Sibongile Tshuma, Philip Mwinde and Doctor A. D Casteiianos.
We shall deal first with that evidence which was admitted.
The evidence of Alice Masuku is to the effect that she was
nine (9) years old at the time the deceased, who was her cousin, met her death.
The accused person was their neighbour. On the morning of 27 August 2010, the
accused person had come to their homestead and inquired about the whereabouts
of her grandmother as he wanted to give her some vegetables. When the accused
was advised that her grandmother had gone to a wedding ceremony at Bambanani
Business Centre, he insisted on the deceased accompanying him to his garden to
collect the vegetables. Initially, the deceased refused to go with the accused
suggesting, instead, that the witness and Simelweyinkosi Phiri should accompany
him. The accused was however adamant that he wanted the deceased to come with
him constraining the deceased to comply. The deceased never returned and when
her grandmother came back that afternoon, the witness told her that the
deceased had left home in the morning proceeding to the gardens.
Sibongile Tshuma's admitted evidence is that the deceased
was her niece and the accused stayed in the same village as herself and the
deceased. On 27 August 2010, Gladys Masuku came to her home in the evening to
inform her that the deceased had not returned home from the gardens. The two of
them looked for the deceased that evening without success. She is the one who
discovered the body of the deceased on 29 August 2010. She observed that the
deceased was lying on her back and had injuries on the face. There was a big
blood-stained stone on her chest and her grey panties were a few metres away
from the body.
Philip Mwinde is a police officer stationed at Zimbabwe
Republic Police, Esigodini. He witnessed the recording of the accused's warned
and cautioned statement on 1 September 2010.
Dr Casteiianos is the pathologist who conducted the post
mortem on the body of the deceased and compiled a report, exhibit 3. That
report records that the deceased suffered multiple deep wounds on the face and
multiple bruises all over the body. Her skull had a depressed fracture with
brain laceration. In addition, the doctor observed evidence of sexual abuse,
namely, the hymen had lacerations on the vagina entrance, as indicated, with
haemorrhage. There was also semen. She concluded that the deceased was raped
before she died.
Gladys Masuku is the grandmother of the deceased who lived
with her. Her evidence was corroborative of that of the other admitted
evidence. She is a neighbour of the accused. She never requested, and was not
promised, any vegetables by the accused. She would not want any because they
had their own garden of vegetables. The deceased was an exceptionally well-behaved
child. Gladys added that the accused used to attend church and had no history
of mental illness whatsoever. She knew him very well from the time that he was
born. Although she interacted regularly with the accused, he never showed any
signs of mental disorder.
Gift Mapfunde is an Assistant Iinspector in the police
force and was the investigating officer in the case. He stated that after receiving a report of a
missing person, they looked for the accused but could not locate him as he had
disappeared from the village. When he was finally arrested, he exhibited signs
of shabbiness and unkemptness consistent with someone who had been sleeping in
the bush and had not taken a bath for days. As far as he was concerned the
accused had no mental illness.
The State witnesses gave their evidence very well, in a
dignified and credible manner. We have no reason to disbelieve them, and,
accordingly, embrace their evidence.
That compliment cannot, regrettably, be extended to the
accused person who tried to feign mental illness but failed dismally. Although
he claimed that he had a history of mental illness and suggested that when he
committed the offences, he was in a state of automatism there was nothing,
other than his say so, pointing to such illness. He was examined by two medical
doctors whose reports point to no signs of mental illness. Although he claimed
to have been a patient at Esigodini and Ingutsheni Hospitals, not a single
medical record was produced. In fact, when asked about his medical records he
claimed that they were destroyed in a fire caused by his deranged mother.
As it turns out, his mother died in 1992 and even if he
were to be believed that would mean that the fire she started must have
occurred 18 years before the offences. It means, therefore, that he did not
gather any other medical record during that period. It is clear that the
accused was not being truthful and that the issue of mental illness was an
afterthought and his desperate effort to try and escape the consequences of his
conduct.
In any event, his confirmed and warned and cautioned
statement, which he submitted to the police on 1 September 2010, was produced.
In that statement he stated:
“I admit to the charges of raping and killing Simangaliso
Ncube. I left my homestead on 27 August 2010 at around 1100hours and got to
Alice and Simangaliso's place of residence. I found them in the house. I asked
the whereabouts of their grandmother, MaKhanye. Simangaliso said she had gone
to a wedding. I then asked Simangaliso to go with me to the garden so that I
can give her some vegetables. We went together, myself and Simangaliso, but we
did not go to the garden. We crossed Jeqe River and joined a stream which is
from the mountain. Whilst in the stream I grabbed Simangaliso and made her to
fall. She tried to ask what I was doing to her telling me to let her free but I
continued and raped her once. After that I strangled her with my hands and took
a stone and struck her four times on the head and she died. I picked another
stone which was bigger and placed on top of her so that she does not stand
again. I left and went back home.”
The contents of that statement are consistent with and
corroborative of all the other circumstantial evidence which has been placed
before us.
There is no direct evidence of the commission of the
offence led by the Sstate. In other words, nobody witnessed the accused rape
and thereafter kill the deceased as alleged. It is a case in which reliance is
made on circumstantial evidence. What we have to do is to put that evidence
together and see whether, circumstantially, it leads to the conclusion of guilt
or otherwise.
In S v Vhera 2003 (1) ZLR 668 (H)…, this court stated the
following on circumstantial evidence:
“The approach to circumstantial evidence is captured by the
learned authors HOFFMAN and ZEFFERT, supra (The South African Law of Evidence,
3rd edition, pages 478-479 in the following terms;
'The possibility of error in direct evidence lies in the
fact that the witness may be mistaken or lying. All circumstantial evidence
depends ultimately upon facts which are proved by direct evidence, but its use
involves an additional source of potential error because the court may be
mistaken in its reasoning. The inference which it draws may be a non sequitur,
or it may overlook the possibility of other inferences which are equally
probable, or, at least, reasonably possible. It sometimes happens that the
trier of fact is so pleased at having thought of a theory to explain the facts
that he may tend to overlook inconsistent circumstances or assume the existence
of facts which have not been proved and cannot legitimately be inferred. In R v
Blom 1939 AD 188 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.
The second rule in R v Blom is, of course, a statement of
the criminal standard of proof.'
From the above, it is clear that the cogency of
circumstantial evidence usually arises from the number of independent
circumstances which all point to the same conclusion.”
What, therefore, are the proved facts from which an
inference of guilt may be drawn?
It has been proved that the deceased was at home minding
her own business on the morning of 27 August 2010 when the accused came and
took her away under the guise of going to collect vegetables. She was a reluctant participant as she tried
to avoid going away with the accused but he persisted. The deceased did not
return home after she had been led away by the accused and no vegetables found
their way to her home. Instead, her battered body was found at a tributary of
Jeqe River two days later by a search party. According to the medical evidence,
before she was brutally killed she had been raped.
The last person to be seen with her was the accused person
who has not rendered any evidence to disprove those facts.
The question which arises therefore is; can it be said that
the only inference to be drawn from those proved facts is that it is the
accused person who raped and killed the deceased?
In our view, there can be no other inference than that the
accused person did commit the offences. We are therefore satisfied that the State
has proved its case against the accused person beyond a reasonable doubt.
As to the intent of the accused person, we examine the post-mortem
report in which Dr. A. R. Casteiianos observed the following marks of violence
on the deceased's body:
“Multiple, deep wound(s) on the face, (6) multiple bruises
(on) body…, depressed skull fracture…, brain laceration…,. The post mortem
findings show multiple rib fractures, head injury second to depressed skull
fracture. There are also signs of rape on the genitals with vital signs
indicating that she was raped before she died.”
For a trial court to return a verdict of murder with actual
intent, it must be satisfied beyond a 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, forsees the death of
his victim as a substantially certain result of that activity and proceeds
regardless.
See S v Mugwanda 2002 (1) ZLR 574 (S)…,.
Here is an accused person who went about identifying his
victim with care. He first inquired after her grandmother and when he confirmed
she was out of the way, he pounced. He isolated the victim from everyone and
led her to a place by the river where he ravished her. Having satisfied
himself, he set about obliterating the evidence by battering the victim. The
blows on the deceased were directed to none other than the most vulnerable part
of the body, the head, so as to achieve a speedy termination of life. The
victim was a 15 year old who was lying on the ground when she was attacked and
did not pose any danger whatsoever to the accused.
Where a person meticulously plans an attack on a defencelss
girl, then sexually attacks her before callously killing her, when he was not
under any risk of attack or threat, they can only desire bringing about the
death of the victim.
Accordingly, the accused is found guilty of
murder with actual intent. He is also found guilty of rape.
