The
two accused persons face a charge of murder, it being alleged that on
or about 29 August 2011, in a bush in Filabusi, they murdered Alphios
Mabhena an adult male.
The
State tendered the following in exhibits;
1.
The State summary, which was marked Exhibit 1, the confirmed warned
and cautioned statements for both accused persons, which were marked
Exhibit 4 and 5 respectively;
2.
The affidavit of the police officer who identified the deceased's
body, which was marked Exhibit 6;
3.
The post mortem report, which was marked Exhibit 7;
4.
The drill bit, which is the weapon that was allegedly used in the
murder, which was marked Exhibit 8;
5.
And the psychiatrists report by Dr Poskotchinova, in relation to
accused, and which was marked Exhibit 9.
The
first accused's defence counsel tendered the first accused's
Defence Outline which was marked Exhibit 2.
The
second accused's defence counsel tendered the second accused's
Defence Outline which was marked Exhibit 3.
The
State called the evidence of the deceased's wife, Sakhelene Ndlovu.
She
confirmed her husband's disappearance around the 21st
of August 2011 while doing business in Filabusi; her efforts to
locate him through the assistance of the police. She also positively
identified remains that were recovered by the police in a dis-used
mine in Filabusi as those of her husband; she also positively
identified the motor vehicle that was recovered from the accused
persons as that of her late husband. These were the material respects
of this witness's evidence.
Nomusa
Zimba, who stated that she had been the deceased's girlfriend,
confirmed that the deceased had been in Filabusi at the material time
and that he was last seen in the company of the two accused persons,
and other people, leaving Matshayimpinzi. She also confirmed that the
accused was driving a Toyota motor vehicle at that material time.
Those were the material respects of this witness's evidence.
Lazarus
Gwerena told the court that he worked for the deceased, operating a
compressor, at the mine. He told the court that he last saw the
deceased in the company of the two accused persons as they left the
mine to go and buy some drill bits. He said that it must have been in
September 2011. Pressed further by the first accused's defence
counsel as to whether he was certain that indeed it was in September
or August 2011, he then told the court that due to lapse of time he
cannot insist that it was in September but it was around that time of
the year. This witness gave his evidence well and nothing much turned
on his cross examination. We accordingly believe this witness as we
find him to be credible….,.
Ngqabutho
Ngwenya told the court that he assisted the police in recurring the
remains of the deceased from a disused mine pit. He also confirmed he
recovered a drill bit that could be exhibit. He said the deceased's
remains were intact same for the head as there was no hair.
Evans
Mangisi told the court that he bought the motor vehicle, a Toyota 2,7
petrol, from the two accused persons in Gokwe, who told him that it
was for their brother in the Republic of South Africa. He confirmed
they had brought it for accident damage repairs and he subsequently…,
interested in it. He said he gave the accused persons $40= to go and
collect the motor vehicle papers in Harare as the first accused had
told him the papers are in Harare. He also told the court that the
motor vehicle was white and the first accused had asked him to paint
it black but he refused as that was illegal. He said he later gave
the accused persons $180= to go and collect their brother so that
they could finalise the deal. Nothing much arose during the
cross-examination of this witness. He gave his evidence well and we
find that he told the court the truth.
The
Investigating Officer, Gugulethu Sibanda, testified on the matter. He
followed up on the case, landing him on Lazarus Gwerena who told him
that the deceased had last been seen in the company of the two
accused persons. He then went to look for Accused Two, found him in
his home and he admitted to the mine and led the police details to
the disused mine pit where the deceased's remains where recovered.
He also implicated Accused One. The Investigating Officer followed
upon this lead to Gokwe and recovered the motor vehicle from the
deceased's Evans Mangena who led him to the first accused person.
The accused's wife positively identified both the deceased's body
the motor vehicle. Nothing much turned on this witness testimony.
The
evidence of Dennias Ndlovu, Walter Pfava, Constable Marufu, Sibanda
Election, Debra Madewa Maniko and Dr S Pesanai was admitted into the
court record by consent in terms of section 314 of the Criminal
Procedure and Evidence Act [Chapter 9:07].
The
first accused person's Defence Outline is to the effect that he
bought the said motor vehicle from the deceased in exchange for 300g
of gold. The deceased had a business partner called Khumbulani Tshuma
and they sold the motor vehicle to him while together. He paid a
deposit of 100 grams of gold and later paid 200 grams to Khumbulani
Tshuma when Khumbulani Tshuma demanded it. At that time, the deceased
was said to have travelled to the Republic of South Africa. In his
Defence Outline, he said the agreement of sale was verbal. He denied
ever selling the said motor vehicle to Evans Mangisi.
In
his evidence in chief, the first accused person told the court that
he entered into a written agreement of sale with the deceased when
they sold each other the motor vehicle. He admitted to being given
$40= by Evans Mangisi to go and collect the motor vehicle papers from
Harare although he said he just wanted Evans Mangisi to give him
money when he said he was going to collect the motor vehicle papers
from Harare, since he had all the papers at his house in Gokwe. He
told the court that he never went back to Filabusi and that he never
heard of the deceased or his death. He also told the court that
later, he was given $40= by Evans Mangisi and he gave the second
accused person who had insisted sometime in mid-October the $40= as
money for busfare.
There
is an issue with the first accused's version of events where he
told the court that the second accused came to Gokwe at the time that
he (first accused) took the motor vehicle for repairs to Evans
Mangisi, but at the same time he says the second accused came
mid-October and yet he also says they took the motor vehicle to Evans
Mangisi in September. It is not clear as to what exactly transpired
here.
The
bottom line having is that the first accused person confirms that the
second accused person did come to Gokwe at the material time. I will
later show the significance of this when I assess the evidence.
The
second accused person admitted, in his Defence Outline, to committing
the offence but that he was not of mental state at the time, was
intoxicated, had diminished responsibility, and was not aware of his
actions.
I
now move to assess the facts before me. The following facts are
established in this case;
1.
That the deceased was last seen by Nomusa Zimba and Lazarus Gwerena
in the company of the accused persons.
2.
That at the time, he was driving the Toyota motor vehicle that was
subsequently recovered from the first accused person after being
implicated by the second accused person.
3.
That indications by the second accused person led the police to the
disused mine pit where the deceased's remains were found.
4.
That a drill bit was also found in the disused mine pit where the
deceased was found.
5.
That the remains found in the disused mine pit were the deceased's.
6.
That the motor vehicle found in possession of Evans Mangisi was the
deceased's.
7.
That Evans Mangisi had gotten the motor vehicle from the two accused
persons.
8.
That the two accused persons disappeared at the time the deceased
disappeared and were never seen again until January 2012 when they
were sought by the police and arrested.
The
court in this matter has to resolve Accused One's participation in
the offence as Accused Two's participation is not in issue. He does
not dispute participation but he denies liability on the grounds of
diminished responsibility.
I
will therefore assess the facts as they relate to the first accused.
The
first accused person is the one who handed over the motor vehicle
belonging to the deceased to Evans Mangisi for repairs.
He
alleges that he bought the motor vehicle from the deceased with 300
grams of gold; first paying 100 grams to the deceased then 200 grams
to his business partner Khumbulani Tshuma. In his Defence Outline, he
says the Agreement of Sale was verbal; in his evidence in chief he
says the Agreement of Sale was written but was taken by the police.
I
find that the first accused person is not telling the truth in this
respect for he says, in his Defence Outline, the agreement was
verbal. The Investigating Officer testifies, is not questioned about
the existence of a written agreement of sale at all by the first
accused's defence counsel. The Investigating Officer is excused and
the defence case opens; the first accused then says that there was a
written agreement that was taken from him by the police. If the
accused was telling the truth in this respect, he would have given
his lawyer the correct instructions in this regard and the lawyer
could have put the Investigating Officer to task on that issue. As it
is, its of no consequence because the police who are alleged to have
taken the agreement, were represented by the Investigating Officer in
court, but were never questioned on that crucial point. The only
conclusion are can is that the issue of a verbal agreement of sale
was an afterthought. I find that the accused person clearly told lies
in this regard. This leads the court to draw the inference that there
was never any Agreement of Sale at all.
The
other fact which supports our finding on the non-existence of an
Agreement of Sale is that the deceased sold the car to the first
accused and immediately disappeared with no trace. The first accused
says he left for Gokwe, never returned to Filabusi, never
communicated with the deceased and yet he was waiting for the
deceased to come back from the Republic of South Africa where he had
gone to do the change of ownership papers from August 2011 to January
2012 when the first accused person was arrested - its almost six
months. The first accused's behavior, of just staying quietly in
Gokwe and doing nothing to follow up on the deceased so that change
of ownership could be effected clearly shows that he was aware that
there was no deceased to follow up on as he knew the deceased was
dead.
Again,
Evans Mangisi's testimony, that the two accused persons approached
him and said the motor vehicle was their brother's and they wanted
it repaired and later entertained the thought of buying it is
supported by Accused One's version that Accused Two was indeed
there at the relevant time. This is because the two accused persons
had stolen the motor vehicle together and taken it to Gokwe together
since it was their loot. That is why the second accused person went
to Gokwe and featured in the transaction as stated by Evans Mangisi.
There is no other reasonable explanation for the second accused's
presence; even the first accused person himself was at pains to
explain the second accused person's visit. The reason proffered by
the first accused that he had care to see how cotton is planted is
palpably false and I reject that. Also, the first accused person
confirms that there is a second batch of money that came from Evans
Mangisi and was given to the second accused person. Mangisi says it
was $180= and that it was for the second accused to go and fetch
their brother for the change of ownership of the motor vehicle.
The
first accused person says Evans Mangisi gave him $40= because he had
used his motor vehicle to carry groundnuts and he gave all the money
to the second accused who had visited but had no busfare.
This
does not make sense at all, that the second accused person sets on a
journey to Gokwe to see how cotton is planted when he does not have
enough funds to travel and is conveniently present when the
deceased's motor vehicle was being delivered to Evans Mangisi for
repairs and subsequent sale. The only reasonable conclusion that can
be drawn is that the second accused person was in Gokwe to finalise
the transaction him and the first accused had started; of robbing the
deceased, and, in the process, killing him.
Whilst
the confessions made by the accused persons were not confirmed and
whilst what they said in those confessions cannot be admitted as
evidence in this court, their indications are nonetheless admissible.
It
was the Investigating Officer's evidence that both accused persons
indicated to the police the disused mine pit that the deceased's
body was found in the pit wherein they threw his body after killing
him. The first accused said while he did indications of the pit to
the police it was already after the first accused had taken them
there and he knew the area where the pit was and the police then
forced him to point to it.
The
State case in this matter is dependent on circumstantial evidence.
In
the case of R
v Blom
1939 AD 188 it was held that in reasoning by inferences there are two
cardinal rules of logic which cannot be ignored;
1.
That the inference sought to be drawn must be consistent with all the
proved facts. It if is not, the inference cannot be drawn.
2.
The proven facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn; if they do not
excludes other reasonable inferences, there must be a doubt whether
the inferences sought to be drawn is correct.
In
this case, the following facts have been proven by the evidence
before me;
1.
The accused persons were the last seen with the deceased above.
2.
The deceased disappeared at that material time never to be seen
again.
3.
The accused person themselves also disappeared at that material time.
4.
Both the accused persons, upon arrest, pointed at the disused mine
pit in which the deceased's remains were found.
5.
The motor vehicle that belonged to the deceased was recovered from
the Evans Mangisi who told the court that he recovered it from the
two accused persons.
6.
The first accused person's assertion that he bought the motor
vehicle has been rejected by this court for the simple reason that he
lies about the agreement. Firstly, he says it was verbal, and,
secondly, he says it was written and the police took it away. The
Investigating Officer was never challenged in this regard. And the
fact that he took the motor vehicle to Gokwe at about the same time
that the deceased disappeared never too be seen again, as well as
that he never pursued the issue of the change of ownership for six
months, shows that there was never any Agreement of Sale. The first
accused person is just lying.
7.
The first accused person's lies are corroborative of the State case
for he has gone out of his way
to lie so that he escapes culpability. The authority for the
principle that an accused persons' lies can amount to corroboration
is the case of
Katerere
v S
SC55-91 and S
v Nyoni
SC118-90.
There
is therefore no other inference to draw from the facts before me,
save for the one that the two accused persons killed the deceased.
Whilst factually it cannot be proven what really transpired when they
killed the deceased and the reasons thereof, what can be clearly
inferred from the facts is that their possession of the deceased's
motor vehicle means that they killed the deceased in order to
dispossess him of his belongings….,.
Both
accused persons unlawfully and wrongfully killed the deceased.
