TAKUVA
J:
The
accused is charged with murder. The allegations are that on 21
January 2015 and along a footpath which runs along a railway line
between Westgate and Nketa 7, Bulawayo, the accused did wrongfully,
unlawfully and intentionally kill and murder Trymore Nunurayi a male
adult during his lifetime therebeing.
The
accused has pleaded not guilty to the charge.
The
facts relied upon by the State are as follows:
On
21 January 2015 at approximately 18:30 hours the now deceased was
walking home along a foot path which runs along National Railways of
Zimbabwe, Westgate Electrical Yard, Bulawayo, when he was attacked by
the accused and four other men. The assailants assaulted him with
fists, booted feet and stones. The deceased was then robbed of his
property that included an HTC cellphone.
Despite
the brutal and savage attack on the deceased, he managed to soldier
on until he got home, where on arrival he was promptly taken to Mpilo
Hospital for treatment. Unfortunately on the 27th day of January 2015
whilst still admitted in hospital, deceased succumbed to the severe
injuries that he had sustained during the attack by the accused and
his colleagues.
After
his sad demise, deceased's cellphone was recovered leading to the
arrest of the accused who had given it to Qoqani Ndlovu (Qoqani) who
later sold it to Chalet Luphahla.
In
his Defence Outline, the accused stated that on the day in question
he was nowhere near a footpath that runs along a railway line between
Westgate and Nketa 7 Bulawayo.
Further,
he stated that he knows Mkhululi Dlomo, Qoqani, Trust, Prince Sibanda
and Brian Sibanda.
He
admitted that sometime in January 2015 he was in the company of
Mkhululi Dlomo (Mkhululi) at Manor Glass Hotel drinking beer. Whilst
there Mkhululi informed him that he i.e Mkhululi had a cellphone to
sell. Mkhululi then negotiated with Qoqani to sell the cellphone on
his behalf. Mkhululi then gave Qoqani the cellphone. He was shocked
when late in March 2015, he was arrested on allegations of murder.
The
evidence of Constable Madombi and Dr Jekenya was formally admitted in
terms of section 314 of the Criminal Procedure and Evidence Act
[Chapter 9:07] (the Act) as summarised in the State Outline.
The
evidence of Dr Jekenya is to the effect that he examined the body of
the deceased at Mpilo mortuary on 29 January 2015 and put his
findings in a post mortem report number 22/13/2015 in which he
concluded that the cause of death was:
1.
Epidural haematoma.
2.
Skull fractures.
3.
Head injury (assault).
The
post mortem was produced in term of section 278(2) of the Act.
The
doctor noted the following marks of violence on the deceased's
body:
(a)
Right thumb and index finger.
(b)
Left parietal occipital area bruises.
(c)
Right temporal bruise.
His
examination of the skull revealed the following injuries:
“12cm
fracture of the left parietal bone extending to the right parietal
region and left temporal region.
Brain:
left parietal huge epidural haematoma compressing the brain.”
The
pathologist also noted under other remarks that;
“severe
force were used”.
Chalet
Luphahla's evidence was expunged from the record as he is now late.
It
was also formally admitted that the HTC phone is the one that was
handed over to Qoqani. Over and above these admissions, the State led
evidence from the following witnesses;
(a)
Fisiwe Zikhali.
(b)
Detective Sergeant Ndlovu.
(c)
Detective Inspector Kudakwashe Chibira.
I
propose to deal with the evidence of these witnesses first because it
is either common cause or indisputable.
Fisiwe
Zikhali is the deceased's wife. She told the court that on the 21st
January 2015 the deceased arrived home with serious injuries on his
body and his clothes were blood stained. An ambulance took him to
Mpilo Hospital where he was admitted into the Intensive Care Unit.
Deceased's condition deteriorated until he died on 27 January 2015.
On
23rd March 2015 and at CID Homicide Bulawayo offices, she identified
an HTC cellphone that had been recovered as her late husband's
phone.
Before
going to hospital, the deceased told the witness that he was attacked
by five men who beat him up and took his cellphone.
She
noticed that the deceased had injuries on his right palm with the big
and index fingers almost severed. She also observed that the deceased
was bleeding profusely from an injury on his head. She had married
the deceased in 2007 and their marriage was blessed with three
children.
Sibusisiwe
Ndlovu is a detective sergeant in the Zimbabwe Republic Police
attached to the Criminal Investigations Department. She is the
investigating officer in this case.
Her
evidence is that on the 27th day of January 2015, she was allocated
this matter to investigate. In the course of her investigations, she
established that the deceased had been attacked by unknown assailants
on his way home and that he was robbed of his HTC cell phone with an
Econet line number 0775 233 189. She made a court application for an
order compelling Econet (Pvt) Ltd to supply the call history of the
line and IMEI numbers of the handset belonging to the deceased.
After
the court order had been granted, call history and IMEI numbers were
made available enabling her to establish that the deceased's
handset was being operated by one Chalet Luphahla. The witness was
taken off the case and assigned other duties in Harare. Upon her
return, she discovered that a lot of developments had occurred in the
investigations and she resumed her duties as the investigating
officer.
Kudakwashe
Chibira is a Detective Inspector in the Zimbabwe Republic Police. At
the time of the commission of the offence, he was attached to CID
Homicide Bulawayo. He testified that on 16 March 2015, and in the
course of his duties, he was assigned to follow up on the cell phone
hand set stolen from the deceased. He contacted Chalet Luphahla at
Manor Hotel after which they proceeded to his place of residence
namely house number 47062/5 Mpopoma Bulawayo where he recovered the
handset. He also noted that the cell phone's serial number HT
113PY08960 IMEI 355797043568684 matched that of the handset stolen
from the deceased.
After
interviewing Luphahla he established that one Qoqani sold the handset
to Luphahla. He then booked the cellphone as an exhibit.
The
next witness was Detective Sergeant Mehluli Sibanda who stated that
on 17 March 2015 at CID Homicide offices in Bulawayo he was on night
shift when he was handed over Luphahla the buyer of the stolen phone.
He teamed up with Detective Assistant Inspector Matsika in order to
locate the person who had sold the cell phone to Luphahla. After
interviewing Luphahla, they learnt that the seller was Qoqani who
frequented Manor and Waverley Hotels. They roped in Luphahla and went
to Waverley Hotel Bar where Luphahla pointed out Qoqani as the seller
of the cell phone. They arrested him and upon interview, he indicated
that the cell phone was given to him by the accused, Mkhululi and one
Prince Sibanda.
Qoqani
then led the witness and his workmate to Royal Night Club where he
pointed out the accused whom they arrested. Subsequently, they
arrested Mkhululi Dlomo inside Pumula Bar, Prince and Brian Sibanda
at Vundu Flats in Makokoba. He however, could not remember where they
arrested Trust but he was certain that all suspects were arrested in
bars and beer halls.
Detective
Assistant Inspector Matsika gave evidence similar to the last witness
in all material respects. Consequently, no useful purpose will be
served by repeating his evidence.
The
undisputed evidence outlined above prove the following facts; that:
1.
The deceased was severely assaulted by 5 men on his way home from
work on the night of the 21st January 2015.
2.
The assailants inflicted serious injuries on the deceased's body.
3.
The deceased died from injuries reflected in the post mortem report.
4.
Severe force was used to inflict those injuries.
5.
The assailants robbed the deceased of his HTC cell phone which was
subsequently recovered from Luphahla with the assistance of Econet
(Pvt) Ltd.
6.
Luphahla bought the cell phone through Qoqani.
7.
Luphahla led detectives to Waverley Hotel where they arrested Qoqani.
8.
Qoqani led detectives to Royal Night Club where they located and
arrested the accused.
9.
After accused's arrest, Mkhululi Dlomo was arrested next in Pumula
Bar, Pumula, Bulawayo.
10.
Detectives later arrested three other suspects namely, Trust, Brian
and Prince Sibanda.
In
addition to the above evidence, the State led evidence from Qoqani.
He is an acquaintance of both accused and Mkhululi Dlomo.
Apparently,
the trio patronized the same bars in Bulawayo. At the relevant time,
the witness was employed at Usher Clothing as a machinist. He would
however occasionally engage in vending cigarettes, juice cards and
other wares in and outside bars. He would also frequent bars to
“while up time”; drinking beer. This is how he met the accused
and Mkhululi Dlomo. He denied that he knew Prince and Brian Sibanda
before their arrest.
Sometime
in January 2015, he was approached by the accused and one Mkhululi
Dlomo at Manor Hotel Bar. The two were in possession of an HTC
cellphone which they were selling. The witness agreed to look for a
buyer. Unfortunately, the buyer he found did not have sufficient
money that was required by the two. He told the accused who then
advised him to bring whatever amount the buyer had and the balance
later. He received $10,00 or $12,00 which he handed over to the
accused. After a long time, the accused returned to collect the
balance but the witness informed him that the buyer had not brought
the balance. The accused and Dlomo argued over the price of the phone
with one saying it should be sold for $25,00 while the other said the
selling price should be $30,00.
Although
the witness could not say who between the 2 handed over the phone to
him, he vividly remembered that both were actively involved in the
sale and the deposit was received by the accused.
Under
cross examination, he was questioned to some length over his
statement to the police which seems to contradict his viva voce
evidence.
He
explained that the police wrote the statement in English and simply
asked him to sign it without explaining its contents to him.
After
the evidence of this witness the State closed its case and the
accused immediately applied for discharge at the close of the State
case in terms of section 198(3) of the Criminal Procedure and
Evidence Act (Chapter 9:07).
The
application was unsuccessful and the accused then gave evidence in
his defence.
Accused
adhered to his Defence Outline which he adopted as part of his
defence. His version is that in November 2014 he met Mkhululi Dlomo
and they became acquaintances. He met Mkhululi at Manor Hotel on 21
January 2015. In fact he said he found Mkhululi drinking beer there
and he bought his own beer and they started drinking beer together.
Mkhululi then produced a cellphone and told him that it was for sale.
This was his first time to see Mkhululi in possession of that phone.
Mkhululi then called Qoqani and told him to look for a buyer, which
he eventually did and brought some money that he handed over to
Mkhululi Dlomo.
He
denied taking part in the sale of the phone as he was just seated
there watching. Further, he denied retuning to Qoqani to ask for the
balance.
He
admitted that he was arrested at Royal Night Club and detained. Upon
his arrest, the police asked him who his friends were and he told
them they were: Brian Sibanda, Prince Sibanda and Trust Ndlovu. The
police also asked him where Mkhululi was and he told them he was
resident in Pumula.
After
that he was detained and assaulted by the police.
His
friends were subsequently arrested and brought to Central Police
Station. He flatly denied assaulting and robbing the deceased, but
admitted that Dlomo was his friend.
Under
cross-examination he was asked why Qoqani would give such damning
evidence against him and his answer was:
“I
think he forgot since he said he can no longer recall the seller”.
The
Issues
1.
Whether or not the deceased was robbed and murdered?
2.
Whether or not the accused participated in the sale of the deceased's
phone?
3.
Whether or not the accused is the perpetrator of this crime?
On
the evidence, we entertain no doubt that the first issue has been
established by the State beyond a reasonable doubt. The post mortem
report makes it clear that whoever inflicted those injuries intended
to kill the deceased.
Deceased's
wife identified the handset recovered by the police as belonging to
her late husband. It follows therefore that whoever took that phone
did so violently.
In
order to determine the second issue, the court is enjoined to
scrutinize the evidence of a single witness, namely, that of Qondani
Ndlovu. In addition the court will also apply the doctrine of recent
possession.
The
Law
(a)
The onus in criminal matters
It
is trite that no onus lies on an accused to prove his innocence –
see S v Machakaire SC30-92; S v Mapfumo & Ors 1983 (1) ZLR 250
(S) at 253 (ZS).
In
S v Makanyanga 1996 (2) ZLR 231 (H), it was held that “proof beyond
a reasonable doubt demands more that that a complainant should be
believed and the accused is disbelieved. It demands that a defence
succeeds wherever it appears reasonably possible that it might be
true. This insistence upon objectivity far transcends mere
considerations of subjective persuasion which a judicial officer may
entertain towards any evidence …”
Put
differently, if an accused gives some explanation, he must be
acquitted even if the court is not satisfied that his explanation is
true if nonetheless, the explanation might reasonably be true.
No
onus however rests on an accused to prove the truthfulness of his
story. Even if he gives an explanation which is improbable, an
accused cannot be convicted unless the court is satisfied beyond
reasonable doubt that it is false.
On
the other hand, it should also be noted that proof beyond reasonable
doubt cannot be subject to exact measurement. It certainly does not
mean proof to an absolute degree of certainty. It means that there
should be such proof as leaves no reasonable doubt in the mind of an
ordinary man capable of sound judgment and of appreciating human
motivations. It means a high degree of probability not proof beyond a
shadow of a doubt.
In
terms of section 269 of the Criminal Procedure and Evidence Act, a
court may convict an accused on the basis of the uncorroborated
evidence of a single competent and credible State witness. The
section provides:
“Sufficiency
of one witness in criminal cases except perjury and treason
It
shall be lawful for the court by which any person prosecuted for any
offence is tried to convict such person of any offence alleged
against him in the indictment, summons or charge under trial on the
single evidence of any competent and credible witness …”
Over
the years, the courts have realised the obvious risk which attaches
to convincing an accused on the basis of the uncorroborated testimony
of a single witness – see S v Mokoena 1956 (3) SA 81 (A) at 85 –
86 where it was laid down that the uncorroborated evidence of a
single witness should only be relied upon if the evidence was clear
and satisfactory in every material respect. Slight imperfections
would not rule out reliance on that evidence but material
imperfections would.
However,
in Sauls & Ors 1981 (3) SA 172 (A) the South African Appellate
Court held that no rule of the thumb is to be applied when deciding
upon the credibility of a single witness' testimony. What is
required is for the court to simply weigh the evidence and consider
its merits and demerits. It must then decide whether it is satisfied
that the testimony is truthful, despite any shortcomings, defects or
contradictions in it. See also S v Nyabvure SC-23-88; S v Nhemachera
SC-89-86.
Such
evidence must be clear and satisfactory in every material respect –
S v Zimbowora SC-7-92; S v Mupfumburi 2014 (2) ZLR 560 (H).
What
the law requires is that the court should take the most attentive
note of the witness i.e. his apparent character, his intelligence,
his capacity for observation, his powers of recall and his
objectivity. The evidence must then be weighed carefully against the
objective probabilities of the case and against all the other
evidence which is at variance with it.
In
S v Ncube & Anor HB-48-03 it was held that where a conviction
relies on the evidence of a single witness, discrepancies in the
witness' evidence are not necessarily fatal. The discrepancies must
be of such magnitude and value that they go to the root of the matter
to such an extent that their presence would no doubt give a different
complexion of the matter altogether. Discrepancies whose presence do
not usher in that change should be regarded as immaterial and as such
of no value in the determination of the truth or otherwise of the
matter at hand.
Bearing
these principles in mind, I proceed to assess the credibility of
Qoqani, as a witness.
This
witness is not the complainant in this case. He therefore has no
interest to serve. It was accepted that there is virtually no bad
blood between him and the accused. To the contrary, they are friends.
He was adamant that the accused took the deposit, quarreled with
Dlomo over the purchase price and that the accused returned to
collect the balance.
When
the police quizzed him about the source of the phone, he immediately
took them to the accused. The arresting details corroborated Qoqani
on this aspect.
Why
would the witness do that if accused was just a spectator when the
phone was sold?
Granted
there are some discrepancies in the witness' statement to the
police and his viva voce evidence but these do not change the
complexion of the matter.
For
example he was grilled on the contents of “his” statement to the
police which suggested that he led the police to the other suspects'
residences. It turned out that this statement is not only inaccurate
but that the police are clearly to blame and not the witness because
it is a fact that no suspect was arrested at his residence.
This
is common cause.
The
witness was also quizzed on why in his statement he said the two
removed a SIM card and yet in his evidence he said he did not see
this.
His
explanation was that he believed the 2 removed the SIM card because
when they showed him the phone for the first time it had a line.
Again
it is clear that whoever recorded that statement put it as a fact,
when the witness had not said so.
In
our view these are immaterial discrepancies which have no value in
the determination of the truth or otherwise of the matter at hand.
At
the heart of this matter is the identity of the person or persons who
gave Qoqani the phone.
On
this crucial point, Qoqani's evidence was not shaken at all.
Qondani did not know the deceased during his lifetime. Further, he
did not exaggerate his evidence by example exonerating Dlomo so as to
leave the accused as the sole possessor and seller of the phone. He
could have easily said it was the accused who produced the phone from
his pocket and handed it over to him. He could have said it was the
accused who removed the SIM card. The fact that he did not seek to
bolster his evidence makes him a credible witness in our view.
On
the other hand we are satisfied beyond a reasonable doubt that the
accused's story is false. We are not satisfied that his explanation
might reasonably be true for the following reasons:
(a)
the accused was in the company of Dlomo on the day in question at the
time the sale was conducted;
(b)
the accused was arrested following Qoqani's revelation that he was
the seller;
(c)
there is a high degree of probability that Qoqani would not have
falsely implicated the accused;
(d)
no cogent reasons have been advanced to discredited Qoqani's
evidence;
(e)
Qoqani had no interest to serve except to tell the police the source
of the phone.
For
these reasons we find Qoqani to be a competent and credible witness.
However,
the same cannot be said about the accused who we find to be an
incredible witness. His whole defence is a bare and bold denial of
all the positive evidence presented by the State.
(b)
The Doctrine of Recent Possession
The
doctrine is to the effect that if three (3) requirements are
satisfied the court may, (not must) infer that the accused stole the
goods which were found in his possession. It is simply a common sense
observation on the proof of facts by inference. The requirements are:
1.
That the goods were stolen.
2.
That the goods were recently stolen and (time is of the essence).
3.
That the accused has failed to give an innocent explanation.
However,
it should be stressed that there is no onus on the accused to give an
explanation and he may escape conviction even though he has given no
explanation or false and/or conflicting explanations. It is simply a
matter of deciding whether, having regard to all the proved facts and
circumstances (including the explanation or lack of one), the State
has discharged its onus.
In
S v Kawadza 2005 (2) ZLR 321 (H) it was held that the doctrine of
recent possession is based on an inference being drawn that the
possessor of recently stolen property stole the property. It may be
relied on where if he cannot give an innocent explanation of his
possession and the inference that he stole the property is the only
reasonable inference that can be drawn from such possession.
There
is no reason why the doctrine cannot be used in any case of which
theft is a component like robbery.
If
the only inference that can be drawn from the totality of the
evidence is that he stole the goods, then he can be convicted of the
robbery of those goods and others robbed from the complainant at the
same time. See also S v Parrow 1973 (1) SA 603 (A) and R v Samson AD
106-69.
In
casu, the accused is facing a charge of murder committed in the
course of a robbery.
We
have found based on the evidence of Qoqani that the accused was in
possession of the stolen phone. That the phone is stolen property is
common cause. It is also not in dispute that the phone was sold
within the same month that it had been stolen, namely January 2015.
Therefore the phone was recently stolen. The accused did not give any
explanation for the possession since he denied that possession.
However,
on the evidence of Qoqani, that denial is false.
There
is an undeniable link between the robbery and the deceased's
murder. In our view, the following facts have been proved by Qoqani's
evidence, namely that:
1.
He knew the accused and one Mkhululi Dlomo very well prior to the
commission of the crime. 2. He was given deceased's phone to sell
by the duo. 3. He sold the phone to Luphahla who paid a figure of
$10,00 or $12,00. 4. He heard the accused and his friend Dlomo
arguing over the selling price. 5. After a long time the accused
returned to fetch the balance but could not, due to the fact that the
buyer had not brought it. 6. He sold the phone in January 2015, the
same month it had been stolen from the deceased. 7. He unequivocally
identified the accused as the seller at Royal Night Club, and the
accused was immediately arrested.
8. He successfully led detectives to Pumula Beerhall
where Mkhululi Dlomo was arrested.
Applying
the law to these proved facts we find that the only reasonable
inference is that the accused robbed the deceased of his cell phone
on the 21st day of January 2015. We also find that it is the accused
in the company of unknown accomplices who assaulted the deceased
causing severe injuries which caused his death on 27 January 2015.
From the severity of the force used and the seriousness of the
injuries sustained by the deceased we entertain no doubt that the
accused intended to kill the deceased.
Reasons
for Sentence
After
an accused has been found guilty the court is faced with the most
difficult and morally most demanding task of formulating a sentence
that will benefit both the individual offender and society. An
American judge once said;
“In
no other function is the judge more alone: No other act of his
carries greater potentialities for good or evil other than the
determination of how society will treat its transgressors”.
See
Kaufuman I. R 'Sentencing: The Judge's Problem: Federal
Probation' – Vol XXXIV No. 1 (March 1960) p 3.
In
order to sentence rationally, the judicial officer must have
information on the offender as a person, on his strengths and
weaknesses, on his characteristic behaviour patterns, on his family
background and on the socio-economic environment where he grew up and
lived. The objective is to ensure that the dual goals of protection
of the community and rehabilitation of the offender are fulfilled.
Bearing
these principles in mind, we take into account the mitigatory factors
pointed out by accused's counsel.
Firstly
we take into account that the accused is 21 years old according to a
dentist's age estimation. This means that in January 2015 he was 19
years old. We accept that youthfulness is a mitigatory factor in that
youthful offenders lack maturity and sophistication.
Secondly,
we take into account that the accused is a first offender and an
unsophisticated rural boy who is a Grade 5 drop out. His up-bringing
leaves a lot to be desired. His father died when he was a toddler and
the mother re-married leaving him in the custody of his paternal
grandmother. After dropping out from school, he migrated to Bulawayo
where he lived with an uncle who later left Bulawayo to venture into
farming. The accused was left homeless and he then became a vendor at
Godini bus terminus.
Thirdly,
the accused spent two and half years in custody pending this trial.
These
are the mitigating factors we found.
What
is aggravating in this matter is that the murder was committed in the
course of a robbery. This makes him liable to death had it not been
for the fact that he was less than twenty-one years at the time of
the commission of the crime.
See
section 48(2)(c)(ii) of the Constitution of Zimbabwe.
Murder
in the course of a robbery has always been considered by these courts
as a very serious offence. In this regard I agree with MALABA DCJ (as
he then was) when he stated in S v Kadzinga 2012 (1) ZLR 48 (S) that:
“This
court has warned in numerous cases that those who commit murder in
the course of robbery are themselves responsible for the creation of
circumstances relating to the commission of the crime which in many
cases would not in the mind of a reasonable person reduce the degree
of their moral blameworthiness for the purposes of avoiding the
mandatory sentence of death …”
Another
aggravating feature is that the deceased suffered a painful death
from the severe injuries sustained during the brutal and savage
attack by the accused. The fatal blows were directed at the
deceased's head.
Finally,
it is aggravatory that a young life was needlessly lost. The courts
will never tire in discharging their duty of upholding the sanctity
of human life. The only sure way of protecting society from such
criminals is to remove the perpetrators from society for a very long
time.
In
the circumstances, the accused is sentenced to 35 years imprisonment.
National
Prosecuting Authority, State's legal practitioners
Mathonsi
Ncube Law Chambers, accused's legal practitioners
