The essential facts in the case are these.
In 2004, Sarah Msebele (Sarah), the mother of the deceased
met the appellant in Ndolwane area in Bulilima. She was then employed as a
temporary teacher. They fell in love and commenced a relationship. In 2006, the
appellant persuaded her to leave employment and join him in South Africa. She
agreed and left her employment and started living with him.
In October 2006, on their way to South Africa, the
appellant was arrested by the South African authorities at the Beitbridge
Border Post on allegations of armed robbery committed in South Africa. He was
tried and sentenced to a lengthy term of imprisonment. At the time, Sarah
Msebele was pregnant with the appellant's child. She subsequently gave birth to
a son in 2007 but the child died two months after birth.
After the death of the child, Sarah Msebele moved out of
the house that she shared with the appellant and got married to another man.
The appellant was incensed by what he considered to be her betrayal. He started
writing letters to Sarah, full of vitriolic language, from Leeuwkop Prison.
During the murder trial, Sarah produced a total of nine letters which the
appellant wrote to her vowing to punish her for her perceived betrayal. The
appellant also accused her of having killed his child in order to enter into
the new relationship. In one of the letters he threatened to harm her new
husband. He also threatened to harm Sarah's mother whom he accused of using his
money and influencing Sarah.
On 1 September 2010, the appellant was released from
prison. On 8 October 2010, the appellant went to Butshe Business Centre in the
Bulilima District where Phephelani Dube, Sarah's mother has a shop. He was
wearing a face mask. The appellant proceeded to the home of Phephelani Dube. He
smashed the windows of the bedroom where Phephelani Dube was sleeping with
three of her grandchildren - one of whom was the deceased. He used a metal rod
to strike her on the head demanding money. She gave him ZAR600= and BWP300=.
She was holding on to the door in an effort to prevent him from entering the
room. He continued to strike her demanding a cell phone. She gave him the cell
phone. He forced his way into the bedroom and called Loveness, who is Sarah's
younger sister, to come out of the room with him. Loveness complied and
followed him outside. He told her to give him a cell phone if she wanted to
save her life. She gave him two cell phones one of which he took and smashed on
the ground. Shortly thereafter they both returned to the bedroom. The appellant
struck Phephelani on her legs causing her to fall. She lost consciousness and sustained
a broken leg as a result of the assault.
The appellant then called the deceased by his nickname
(Mafana). At the time, the deceased was hiding under the bed. The deceased went
to the appellant who disappeared with him into the night. Meanwhile, Loveness
had alerted neighbours on what was happening. A search was mounted for the
appellant and the deceased. The deceased's body was found in the morning in the
bush about 7 kilometres from home. The body was engulfed by fire. When the fire
was put out the skull was found to have been crushed. One of the legs was in
pieces.
The post-mortem examination revealed the following bodily
injuries:
(i) Fractured skull on the parietal region.
(ii) The body had sustained 90% burns.
The examination of the other internal organs was made
difficult due to the degree of burns sustained.
In March 2011, the appellant visited his mother, Agness
Dube. She told him of the murder of the deceased and he confessed that he had
killed the deceased and burnt his body. He told her that he had killed the
deceased to avenge the death of his son. He also told his mother that Sarah and
her mother had squandered his money. He was hurt that Sarah had left him for
another man.
During the same period in March the appellant started
sending messages to Tsepo Msebele, Sarah Msebele's brother claiming a sum of
ZAR80,000=, which he alleged Sarah owed him. He also demanded the return of
property which he claimed Sarah had kept after leaving him. When the money was
not forthcoming he began sending messages threatening that if the money was not
paid he would do more harm than he had already done. Tsepo was then resident in
South Africa. He, together with his friends effected a citizen's arrest on the
appellant. They caused him to be brought to Zimbabwe and handed him over to the
police. Upon his arrest, the police recovered the sim card from the cell phone
which the appellant had taken from Loveness.
In a detailed and confirmed warned and cautioned statement,
the appellant narrated his relationship with Sarah, and the events leading to
the murder of the deceased. He also revealed the motive for the murder of the
deceased. He gave a graphic description of the murder. This is what he said:
“I then took Blessing and went with him to the bush. I also
took one phone with a Botswana sim card. I found a steel rod and took it with
me. When I got to the bush I asked him whether he knew me? At first he said he
did not know me, I said don't you know Michael; he said he knows me but he last
saw me some time ago. I said Sarah did not tell you that I was in prison? He
said she told him. Before I killed him I said these words - God will forgive
me. I assaulted him on the head and at the back of the neck, he then fell down.
I assaulted him again, I repeated again and he died. I fetched firewood and
made a fire and threw him into the fire so that there would be no evidence. I
put a lot of firewood. I burnt him myself and left the place and went to
Tsholotsho and stayed three days. I then went to Bulawayo and stayed three days
in Gwabalanda.”
Before the trial court the appellant denied having killed
the deceased. He denied being in Zimbabwe during the relevant period. He
alleged that he was in Mozambique. He also denied being the author of the
letters in which threats were made to Sarah Msebele.
The court a quo did not believe him and rejected his
alleged defence of alibi. The court also concluded that he had written the
letters, and after a careful analysis of the evidence it found that it had
always been his wish and desire to kill and that he had accomplished what he
set out to do. The court said:
“The letters were full of obscenities, but there is a
common thread that runs through them, that is the accused was bitter about
being rejected and his desire to cause harm to Sarah Msebele and her family was
clearly manifest in the letters. He was also bitter with Sarah's mother, whom
he accused of influencing her. He clearly manifested through his letters the
desire to inflict more pain and suffering on Sarah and her whole family than
what he himself alleges to have suffered at the hands of Sarah. This he said he
would do as soon as he was out of prison. He mentioned in some of the letters
that he was about to be released from prison and would be fulfilling his
desires and wishes.”
Accordingly, the court returned a verdict of guilty of
murder with actual intent to kill.
Counsel for the appellant was constrained to concede that
the appellant had not proved the defence of alibi. She also conceded that on
the evidence the court had come to a proper conclusion as regards conviction.
In our view, the concession was proper.
The evidence against the appellant was overwhelming. The
letters showed the motive for the killing of the deceased. As the trial court
correctly found, the appellant was very bitter that the child that Sarah had
given birth to had died and that soon thereafter she had married another man.
He was unhappy at the thought that whilst he languished in prison she appeared
to be unconcerned about him despite all that he alleged he had done for her and
her mother. As a result, he kept warning her to make amends, leave her new
husband or face the consequences.
The finding by the court a quo of guilt of
murder with actual intent to kill cannot be faulted.
