If
it was not naïve in the extreme, it was downright utopian to hinge
the entire State case on the evidence of an accused person's
mother, son and nephew and expect that they would assist in sending
their loved one to prison even if indeed he did pump six bullets into
a hapless villager suspected of having broken into his homestead and
stolen a bicycle among other valuables.
The
whole case for the prosecution was built around Meikles Ncube, the
accused's son, Mgcini Ndlovu his nephew, Edith Gwebu his very own
mother and the ubiquitous Tongai Nyoni, a truck driver who has since
retraced his steps to his home in Zvishavane and was as
dis-interested in the whole incident he does not remember anyone that
he came across on the fateful day - perhaps a question of selective
amnesia.
Then
there was the Investigating Officer, detective Lection Sibanda, who
did not see the wisdom of even extracting finger prints from anything
that could shed light on who the perpetrator was; content only to
rough up the accused's family members, obtain statements from them
incriminating the accused person and then spend the entire period of
6 years 8 months, when the accused was a fugitive from justice,
waiting for him to surrender himself even after the accused had
contacted him using a South African number and his relatives were
available all the time to point out his address in that country.
Whatever
happened to Interpol and extradition of accused persons?
This
case was so mis-managed by those charged with the responsibility of
bringing offenders to book who displayed a lackadaisical approach to
criminality which is unprecedented. As it is, the deceased, who may
have died for nothing when the law of the jungle was applied and
vigilante justice took over, will never see real justice.
The
accused is charged with the murder of one Nkosilamandla Moyo, a male
adult who was aged 28 at the time he met his painful death on 13
April 2008, at Mbilamboyi Bus Stop in Esigodini. The accused himself
was aged 40 years at the time.
The
State alleges that there had been several break-ins at the accused's
homestead in Esigodini when he returned home from his base in South
Africa seething with anger. He was intent on finding the culprit and
meting out vigilante justice. He is said to have set about on a
manhunt for the deceased who was suspected of having stolen those
valuables from the accused's homestead. Ably assisted by his wife,
Sigezephi Sibanda, the accused had caught up with the deceased as
they boarded the same lift from Mawabeni to Mbilamboyi Bus Stop in
Long field, Esigodini. When they alighted from the motor vehicle,
driven by Tongai Nyoni, at the bus stop, the accused is said to have
confronted the deceased accusing him of having stolen from him. He
chased away his wife, his son, and nephew, Mgcini Ndlovu, saying he
wanted to deal with the deceased. Left alone with the deceased at the
bus stop, it is alleged that he shot him six times with an unknown
firearm leaving him dead.
The
gunshots echoed through the village and were heard by all the
relevant witnesses. In fact, that is the only thing the witnesses
were prepared to admit when they testified. The accused then beat a
hasty retreat leaving for South Africa very early the following
morning in the company of his loving wife. The deceased's body was
later discovered at the bus stop but it was not until 24 December
2014, some 6 years and 8 months later, that the accused was arrested
as he had eventually crept back home from his sojourn in foreign
land.
So
much for the allegations.
When
it came to proving its case against the accused, the State lined up
four witnesses who were mainly the accused's relatives. Although it
was pretty obvious that Mgcini Ndlovu and Edith Gwebu, who are the
accused's nephew and mother respectively, had given statements to
the police incriminating the accused as alleged by the State, it soon
became apparent when they took to the witness's stand where their
allegiance stood - after all blood is thicker than water. Mgcini
Ndlovu pretended to be an extremely stupid witness who kept on
swallowing his words, saying things and then reneging from them and
in the end succeeded to contribute absolutely nothing to the State
case. He claimed to have been arrested by the police who assaulted
him and detained him for a long time while eliciting a statement to
the effect that the accused committed the offence. He denied having
been in the company of the accused on the fateful day when he went to
Esigodini to identify stolen property which had been recovered. He
said he turned back on the way without giving any reason for that,
conveniently being elsewhere when the real events unfolded. Mgcini
Ndlovu denied boarding Tongai Nyoni's motor vehicle with the
accused, his wife, and son, Meikles Ncube, together with the deceased
- that way, he deprived the State of any evidence placing the accused
anywhere near the deceased or the scene of the crime.
Although
he dithered about the whereabouts of the accused at the time the
shots sounded, suggesting firstly, that he had been at home and then
appearing to say that he only returned home after the shots were
fired, nothing reliable could be gleaned from his untruthful
testimony.
Then
came the dramatist herself, Edith Gwebu, the mother of the accused
person. A very old but clever woman; this witness also reneged from
her statement electing to volunteer evidence which was not asked of
her, like that the accused had never owned or held a gun in his hands
ever since she gave birth to him. One would have thought that the
accused was always under her watchful eye and did not live in South
Africa. More importantly, Edith Gwebu insisted that when gunshots
were fired the accused had been sitting at home next to her in a
round hut while enjoying his supper. Again, this deprived the State
of any evidence linking the accused to the shooting and presented the
accused with an alibi - Christmas come early indeed.
Tongai
Nyoni was next to wade away from his statement to the police.
Appearing very timid and incoherent, the dreadlocked driver said he
did not remember much except that he gave a lift to the deceased at
Mawabeni Shopping Centre, although he did not even remember the
deceased's name. He denied giving a lift to the accused and his
wife putting the final nail in the coffin of the State case….,.
It
is, however, the failure of the State to impeach any of the three
hostile witnesses and to allow their evidence to remain intact and
part of the State case which came as a surprise.
As
it is, the State case, as presented to us, is that the accused did
not board a lift with the deceased as alleged; he did not alight at
Mbilamboyi Bus Stop with the deceased and the accused's family
members; and when the six gunshots sounded he was at home with his
mother conveniently enjoying a meal.
Presented
with that kind of a sitter, counsel for the accused person gleefully
made an application for discharge at the close of the State case on
the basis that the State had failed to establish a prima facie case
upon which the accused person could be put to his defence. He
submitted that the State case always depended on circumstantial
evidence. When both Mgcini Ndlovu and Edith Gwebu testified that he
was at home when the shots that presumably killed the deceased were
fired, there was no inference that could be drawn to the effect that
he is the one who fired the shots.
We
agree.
In
terms of section 198(3) of the Criminal Procedure and Evidence Act
[Chapter 9:07]:
“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.”
It
is a provision which has been relied upon by legal practitioners
repeatedly over the years even those that have nothing else to do but
would want to appear to have done it. In that regard, the courts have
pronounced themselves over and over again on an application for a
discharge at the close of the State case in formulating the test to
be applied in relating to such an application. See S v Hartlebury and
Another 1985 (1) ZLR…,.; Attorney General v Bvuma and Another 1987
(2) ZLR 96 (S)…,.; Attorney General v Mzizi 1991 (2) ZLR 321
(S)…,.; Attorney General v Tarwirei 1997 (1) ZLR 575 (S)….,.; S v
Kachipare 1998 (2) ZLR 273 (S)…,.
The
essence of those judgments is that the court will acquit an accused
person at the close of the State case where:
(i)
There is no evidence to prove an essential element of the offence;
(ii)
There is no evidence on which a reasonable court, acting carefully,
might properly convict; or
(iii)
The
evidence of the State is so manifestly unreliable that no reasonable
court could safely act on it.
In
the present case one does not even go beyond the first question as
there is no evidence that has been led pointing to the accused as
having fired the shots that killed the deceased.
Counsel
for the State submitted that such evidence exists in the form of the
testimony of Detective Sibanda who says that he observed Northstar
tennis prints at the scene and similar ones at the accused's
homestead. This is the same witness who was quick to admit that
Northstar tennis shoes are very common and could have belonged to
anyone. In any event, he did not recover any such tennis shoes from
the accused. Of course there is a lot that Detective Sibanda did not
recover during his investigations - including the murder weapon.
This
is a case in which nobody witnessed the killing of the deceased, and,
as such, there is no direct evidence of the offence. The State case
is therefore essentially circumstantial.
In
our law, the guiding principle is that circumstantial evidence
depends upon facts which are proved by direct evidence from which the
court is required to draw inferences. Indeed, means, motive and
opportunity are examples of circumstantial evidence. To show that the
accused person had the means, a motive, and the opportunity assists
in persuading the court of his guilt and raises a prima facie case
against him for him to answer. However, where the conviction of the
accused is dependent upon circumstantial evidence, the inference
sought to be drawn must be consistent with the proved facts and the
facts should be such that they exclude every reasonable inference
from them except that which is sought to be drawn. See S v Edwards
1949 SR 30; R v Blom 1939 AD 188…,.; S v Vhera 2003 (1) ZLR 668
(H)…,.; S v Phiri HB19-16; HOFFMAN and ZEFFERT, The South African
Law of Evidence, 3rd
edition…,.
All
the evidence of the State relevant to the issue having been that of
the accused's relatives who turned hostile, the State had the
option to impeach the witnesses in terms of section 316 of the
Criminal Procedure and Evidence Act [Chapter 9:07].
Where
a State witness has become hostile and departed from the statement
made to the police because of his or her relationship to the accused
or for any other reason, the State may really have no choice but to
impeach that witness with a view, not to persuade the court to accept
the evidence contained in the statement to the police, but simply to
destroy his or her reliability for both sides. Failure to do so
leaves the evidence of that recalcitrant witness sitting in the State
case and causing havoc to it.
The
procedure for impeachment involves the production of the original
statement of the witness and making available to the witness the
details of where and when the statement was made in order to identify
it. When that has been done, the witness must then be asked if he
made the statement. If the statement was signed, the witness must be
made to admit his signature. Once the witness has admitted making the
statement, the statement should then be put to that witness in order
to solicit an admission that he had said the words in the statement.
Where the witness admits saying the words in the previous statement,
the procedure is that the statement may be used without further
proof. On the other hand, if the witness denies using the words
contained in the statement, State counsel must then call witnesses
who recorded and/or witnessed the making of the statement to prove
that indeed the statement was made. In the process of impeachment,
the witness must be made to explain the discrepancies between the
previous statement and the hostile testimony in court. If the
witness's explanation is not acceptable, the correct procedure is
to impeach the witness in terms of section 316 of the Criminal
Procedure and Evidence Act [Chapter 9:07].
See
S v Chari 1989 (1) ZLR 231 (S); S v Muhlaba and Others 1973 (1) RLR
178 (GD).
It
is when the State has made an application for the witness to be
declared hostile, and the court has done so, that the State counsel
may then proceed to cross-examine his own witness. Before the
declaration of hostility, the State counsel cannot go beyond merely
pointing out the discrepancies and seeking an explanation from the
witness.
It
is that procedure which the State failed to adhere to when Mgcini
Ndlovu, Edith Gwebu and Tongai Nyoni became hostile. The State
allowed them to waffle and abandon their statements without pointing
out the discrepancies and without even producing the original
statements they had made. In short, the State did nothing about the
patent betrayal with the result that the hostile evidence is now the
only State case.
In
the end, what is left is the testimony of the Investigating Officer
who did not witness the attack on the deceased and was nowhere near
the scene.
Counsel
for the State submitted that there are “pieces of evidence” which
the accused should be put to his defence to explain. These are the
footprints at the scene which Detective Sibanda said were similar to
those found at his homestead after he had absconded and the telephone
call he made to the good detective from South Africa when he heard
the police were anxious to interview him. Although he undertook to
avail himself at the end of the month he never did.
For
counsel for the State to even allude to such evidence is indicative
of the height of desperation the State was forced to scale. Surely,
the accused's response by telephone cannot lead to any inference
useful to the State. Even the footprints are useless evidence in the
manner they were presented. One needs go no further than Detective
Sibanda's own admission that the Northstar tennis shoe is very
common and used by several people. Therefore, there are several other
inferences that can be drawn from that fact.
In
any event, while it is permissible for the court to rely on evidence
of footprints, there are a number of precautions to be observed
before such evidence is used. For instance, the witness must tell the
court by what characteristics or peculiarities or marks he recognised
the footprints as being those of the accused. It is the ability to
give a precise and detailed description of the unique features of the
print which points to reliable identification. Needless to say that
Detective Sibanda's evidence does not even begin to meet the
requirements. All this leads us to the inescapable conclusion that
the State has not made a prima facie case against the accused person
for him to be put to his defence. In fact, there is absolutely no
evidence to prove that it is the accused who fired the shots that
killed the deceased. The State case was not helped by the failure to
locate the murder weapon or even to do the elementary follow up of
crucial witnesses like the lady who employed the disinterested Tongai
Nyoni and knew the locals. She was in the motor vehicle driven by
Tongai Nyoni and would have easily identified the accused and his
family.
Accordingly,
it is ordered that;
(1)
The State has failed to prove a prima facie case upon which the
accused could be put to his defence.
(2)
The accused person is hereby found not guilty and acquitted of the
charge of murder.
