The
facts that are common cause are as follows.
The
deceased was thirty five (35) years old at the time of her death and was
residing at her sister's plot at Number 8, Mariposa, Insuza, in Matebeleland
North. On 23 January 2008, the deceased was waiting for transport to take
her to Bulawayo at a bus stop at the 67km peg along the Bulawayo- Victoria
Falls Road. She had in her possession a twenty litre (20) container of
milk and a bag containing some money. The appellant came cycling along the
road. The appellant thereafter strangled the deceased with a rope in a bush
a short distance away from the bus stop. The appellant then took the bag
containing approximately twelve (12) million dollars Zimbabwean
currency. He was seen emerging from the bush by one Priscilla
Mpofu. He thereafter took his cycle, which was leaning against a tree, and
cycled along the Bulawayo Road. Using the description given by Priscilla Mpofu,
the police made a follow up. The appellant was apprehended by members of
the public and turned over to the police.
A
post-mortem examination conducted at Mpilo Hospital the following day revealed
the following injuries:
(i)
Various scratch marks and bruises on both feet and ankles.
(ii)
Multiple abrasions and bruises around the knees and upper front of both
thighs.
(iii)
The examination further revealed a 4 x 3cm wound just below the right armpit
and small wounds and scratches on the hands, wrists and shoulder.
(iv)
The vaginal opening was found bruised on the right and back of the vaginal
orifice. There were also five (5) small abrasive wounds on the vaginal canal on
the right side and on the back; a slippery semen-like fluid mixed with blood
was also detected.
The
doctor found that the cause of death was asphyxia and brain haemorrhage due to
ligature strangulation. He remarked that this was a callous rape and
murder. In the doctor's opinion, the deceased died a very painful death.
In
his defence before the court a
quo, the appellant stated that the deceased was his girlfriend and
that on the day in question he came across the deceased as she was in the act
of having sexual intercourse with another man, whose vehicle had been parked at
the bus stop. The man had then run away. Owing to a misunderstanding that
arose thereafter, he then took a rope with which he used to strangle the
deceased. Whilst admitting that he strangled the deceased, he denied that
it was his intention to kill her. He also told the court that the
statement he made to the police had been induced by assault and torture and
that it had not been made freely and voluntarily. Whilst admitting killing
the deceased, he denied raping her.
In
a confirmed warned and cautioned statement, the appellant admitted that he came
across the deceased at a bus stop and demanded money from her. He admitted
choking her with a piece of rope before raping her and murdering her. In the
statement, he also admitted that the deceased, on hearing voices, tried to
scream. He had then tightened the rope around her neck so that she would
not scream. He realised she was dead after which he removed her bag
containing the money. He had then walked back to the bus stop where he met
the witness, Priscilla Mpofu. He had then cycled away but was apprehended
by the crew of a commuter omnibus and handed over to the police….,.
In
view of the fact that the appellant was alleging that the warned and cautioned
statement had been induced by assault, the court a quo conducted a trial within a trial.
After
hearing evidence, the court a
quo came to the conclusion that the statement had been given freely
and voluntarily and that no undue influences had been brought to bear.
In
its judgment, the court a quo
believed the evidence of the State witnesses. In particular, the court
believed the evidence of John Phiri who was staying at the same plot as the
deceased and who stated that at no time had he seen the appellant at the
homestead where the deceased was staying. He also believed the evidence of
the arresting detail, Sergeant Emmanuel Ziva Chinganga, that when the appellant
was arrested, he complained that he had been assaulted by the passengers and
crew in the commuter omnibus.
As
regards the evidence of the appellant, the court a quo found that evidence improbable and
lacking in credibility. In particular, the court found that the appellant,
who claimed to have known the deceased for eighteen (18) months before the
fateful day, did not know her name, other than “MaNdlovu”, which name in any
event was not correct as the deceased's name was Sanelisiwe Ngwenya.
In
submissions before this Court, the appellant has attacked the conviction and
sentence on a number of grounds.
As
regards the conviction for rape, he has submitted that the State did not prove
beyond a reasonable doubt that he had indeed committed rape. Further, he
contended that the court a quo
misdirected itself in relying on the warned and cautioned statement which he
had challenged. He also challenged the finding by the court a quo that his version was
not credible and was not supported by the probabilities.
On
the conviction for murder, he submitted that the court a quo erred in finding that
murder with actual intent had been proved, and, further, that the court a quo had erred in
conducting a trial within a trial in respect of a confirmed warned and
cautioned statement which had already been admitted into evidence.
As
regards the sentence of death that was imposed, he has attacked the finding
that there were no extenuating circumstances in the light of the fact that this
was a crime of passion and the appellant had been tortured by the police.
It
seems to me that since the warned and cautioned statement was relied upon to a
large extent in reaching findings of fact, its admissibility should be
determined right at the outset….,.
The
statement gives a detailed account of the circumstances surrounding the rape
and murder of the deceased. In the statement, the appellant says he had
demanded money from the deceased. When he tried to search her, she ran
away and he followed her. He caught her as she was trying to go through a
fence. He then tied a rope around her neck at which stage she pleaded with
him not to kill her and instead offered him sexual intercourse. He then
raped her. When they heard voices, she tried to scream and he then
tightened the rope around her neck, killing her almost instantly. He then
took her bag containing money and went back to the bus stop to retrieve his
cycle. There he met the witness, Priscilla Mpofu.
The
warned and cautioned statement confirms that he did not know the deceased
before this encounter and that he came across her by mere chance. John
Phiri, who was staying with the deceased at the same plot, told the court he
had never seen the appellant at the plot and that the appellant could not have
come to the plot undetected as he had vicious dogs there.
Moreover,
the medical evidence shows that the deceased was attacked and was violently
raped. This could not have happened during the time the appellant says the
deceased was found having sexual intercourse with an unknown man who, on seeing
the appellant, absconded to his car and drove away. This claim is highly
improbable, and, in my view, false. On the appellant's own version, such
intercourse would have been consensual. The injuries found during the
post-mortem examination were not consistent with intercourse having taken place
by consent.
In
my view, the only inference that can be drawn is that the appellant violently
raped the deceased in the manner described in his warned and cautioned
statement.
I
am satisfied that the court a
quo was correct in coming to the conclusion that the version given
by the appellant was not credible. The appellant did not even know the
name of the deceased, whom he claimed was his girlfriend of eighteen (18)
months.
In
the circumstances, the suggestion that the appellant should not have been
convicted of rape and murder with actual intent has no merit.
