Judgment No. HB 77/13
Case No. (CRB) HC 147/13
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 19, 20, 21 AND 22 MARCH 2012
Ms A. Munyeriwa state counsel
Petkar defence counsel
KAMOCHA J: The 15 year old accused was charged with the crime of murder. It being alleged that on 21 November 2010 at a bushy area near Tekwane River in Tematana area in Madlambuzi, Plumtree, he did wrongfully, unlawfully and intentionally kill and murder Angel Msebele a female juvenile in her life time there being. The deceased was aged five years at the time she met her death.
When the charge was put to him he responded by saying that he understood the charge and admitted it but that he did that with one Cecilia. He said what he was admitting was that he had lifted the child for Cecilia who had gone up the tree to tie the fibre to the tree branch and tied the fibre around the deceased’s neck and ran away. He also ran away. They left the deceased hanging from the tree branch.
When asked by the court if he knew that by leaving the child hanging from a tree branch she would die, his response was that he did not know anything as he only saw her hanging when Cecilia ran away. The court then entered a plea of not guilty to the charge.
The state outline was read and produced as exhibit l and I do not propose to reproduce it here again. I shall however, quote in toto the accused’s defence outline which reads thus:-
“Take notice that at the trial of this matter the accused person will plead as follows to the charges leveled against him –
1) He will plead not guilty to the charge of murder.
2) He will state he was walking with one Cecilia and met Angel (the deceased) and Cecilia told him that Angel had stolen her bow and arrow.
3) He will state Cecilia then got tree bark and intended to tie the deceased by her neck to a tree.
4) He will state he lifted the deceased up and put her on his shoulders as Cecilia was on top of the tree and Cecilia put the bark tree strip around the neck of Angel.
5) He will state he then saw Cecilia running away from the scene and in a panic state he left the deceased to hang as he attempted to catch up with Cecilia but to no avail.
6) Sometime later he told a friend of his by the name Kelvin to go with him to the place the deceased had died, as he intended to take the deceased down from the hanging tree (sic). When Kelvin got to the scene, Kelvin fled and told his brother who in turn told other villagers.
7) He will state he did not appreciate his action at the time he had the deceased on his shoulders as he thought he was playing a game but was surprised that Cecilia left him alone and ran away. He will state he did not have the intention of killing the deceased.
8) Surprisingly enough is the fact that Cecilia was jointly charged with the accused but that no longer seems the case Cecilia is not being prosecuted at all.
9) The accused will accordingly pray for his acquittal.”
Exhibit 3 was an affidavit by Constable Nicholas Sibanda who identified the deceased’s body to the pathologist who performed a post mortem on the remains of the deceased and compiled a post mortem report which was produced by consent as exhibit 4.
The doctor noted under marks of violence that there was haemorrhage and congestion on the vagina and anus of the deceased. There was fracture of the thyroid bone. He remarked that the post mortem findings were consistent with fracture hyode bone. He opined that death was due to asphyxia and strangulation after rape.
The other evidence produced by consent as it appears in the defence outline in terms of section 314 of the Criminal procedure and Evidence Act [Chapter 9:07] was that of Elizabeth Ncube, Tawedzerwa Shiriyapenga, Tinashe Moyo and Fiso Ncube.
The court was also informed that Bigboy Moyo who is listed as one of the witnesses to testify had unfortunately passed on. What is of significance from the evidence admitted by consent is that evidence of Elizabeth Ncube. It was her story that on the fateful day the accused arrived at her homestead in the company of the deceased at about 12 noon. She regarded the deceased as her grandchild but she did not know the accused.
Her testimony is that the deceased asked for drinking water and entered the kitchen hut to drink some water. The accused refused to get into the kitchen and remained outside. After the deceased had drank some water she asked the accused where he was going with the deceased and he told her that they were on their way to Madlambuzi. The two then left.
Around 1630 hours a search party arrived at her home and she advised the group that she had last seen the deceased in the company of the accused around 12 noon. Cecilia was not with them.
The evidence of Jacqueline Msebele who is aunt of the deceased was that the accused had been employed at their home on a Thursday but came to resume work the following day in the evening and slept there. The next morning he said he was going to his uncle at Madlambuzi and went away and only returned in the evening when people were about to go to sleep.
The next morning which was Sunday – the fateful day she left home with her disabled brother and went to church at around 10 am. She left him at the church and made her way home.
She said the church was quite some distance from their home. As she walked back home she met her mother going to church on the way without the deceased. Her mother had left the deceased with accused at home.
On arrival at home she discovered the accused and deceased were not there. She then took a rest for about an hour and the accused arrived alone. Surprisingly, the accused asked her where the deceased was. She responded by asking him how he could ask her about the deceased’s whereabouts when she had left her with him. When she asked where he was coming from he said he was coming from collecting some cicadas in the bush.
After a while she told accused that she was going to the river to fetch some water. Whereupon the accused told her that she would not find him as Kelvin would be coming to collect him so that he could show him the surrounding bush for familiarization as he was new in the area.
She was at the river for sometime. On her return home she met accused and Kelvin as she was going to Manstara’s home – (her uncle’s home). That was between 4 and 5 pm. The accused then said Kelvin should tell her what they had seen as he himself was unable to do so in Isindebele. Kelvin then told her that accused had said he had seen clothes that looked like those of the deceased down the road. She did not pay much attention to that. She then told them to go and look for the deceased.
She later saw her mother Belina Magama, Fiona Mpofu, Bigboy and the two boys going to search for the deceased.
After sometime she saw the accused who came running and told her that he had been sent to inform her that the deceased had died. The accused continued running until he disappeared. She then heard people crying and screaming and proceeded to where they were. On arrival as the scene she observed the deceased hanging from a mopane tree branch. She was hanged with fresh mopane fibre which had been made into a rope. Her hands were tied together in front of the body. Feet were also tied according to her. The tree branch from which she was hanged was not very high. It was between 1m and 2 metres high. Her feet were about 60cm from the ground.
The evidence of this witness was corroborated in all material respect. It was clear and she was worth to be believed.
The next witness was Belina Magama the deceased’s grandmother. She told the court that when she left home to go to church she left deceased and accused still having their breakfast. She had, however, told the deceased to go to her grandfather Willy Manstara after breakfast. When she returned from church the deceased had gone missing.
She then joined the search party. The search party had difficulties in understanding the accused who spoke in Tonga. So they decided to go to his uncle’s home to get the services of someone to interpret for them. They passed through Elizabeth Ncube’s homestead where it was confirmed that the accused had passed through there around 12 noon with the deceased saying they were going to Madlambuzi.
When they got to the homestead of the accused’s uncle they found the wife Portia Dube but the uncle was not there. Speaking through Portia Dube the accused said he did not know where the deceased was but that a certain white bearded man came and took the child away. Fiona then asked accused through the interpreter to lead then to the place where he said he had seen deceased’s clothes hanging from a tree. He and Kelvin led them to the scene where they found the deceased hanging from a mopane tree branch not very high from the ground. Her hands and feet were tied with fresh mopane fibre which was made into a rope.
This witness and Jacqueline put the deceased’s age at 5 years when she met her death as opposed to 4 years recorded by the doctor.
Fiona Mpofu was part of the group that went to search for the deceased. She corroborated the evidence of the two witnesses who testified before her. Speaking through his uncle’s wife who acted as an interpreter the accused told them that a certain white bearded man came home and took away the deceased from home but he managed to escape. The accused, however, agreed to show them where the deceased was hanged.
This witness’ story varied on whether or not the deceased’s feet were also tied together. The variation is not material. The witness testified well and is worth to be believed.
Kelvin Vundla is now aged 14 years. He is in grade 7 at Tsukulu School in the Madlambuzi area of Plumtree. He told the court that on the fateful day the accused asked him to accompany him t go and look for his uncle’s foot print to see if he (uncle) had gone to a place known as Kandamhlophe. He took him to a path that led to where the deceased was hanging from a mopane tree. When they were near there he told Kelvin to look in the direction of where she was hanging. He looked and saw her. He then panicked and ran away.
What emerges from Kelvin’s evidence is that the accused pretended to go and look for his uncle’s foot print when in fact he wanted him to see the deceased hanging so that he would say he had discovered the deceased’s body by chance. The accused had lied to Jacqueline that Kelvin was taking him to familiarize himself with the local bush. The rest of Kelvin’s evidence is similar and corroborative of the evidence given by other witnesses. Kelvin was a good witness who is worth to be believed.
Portia Dube the lady who acted as an interpreter was the last witness to give evidence. She is related to the accused through her husband who is accused’s uncle.
She told the court that the accused had come from Binga and had not been long in the area. He had been with them for only 4 days and got a job on the fifth day.
It was her testimony that when the accused arrived with the search party he told her that he was left with the child when her aunt and grandmother went to church. When they went to play they met a white bearded man who threatened him with an Okapi knife. He ran away leaving the child behind. He did not know where the white bearded man went with the child. The accused never mentioned the name of Cecilia Ncube on that day and all witnesses said he did not. This witness was also credible and is worth to be believed.
All the state witnesses testified well and truthfully. Their testimony is accepted by this court.
The accused had no defence witnesses but gave evidence himself. He completely departed from his defence outline and disowned it. He also disowned what he told the court when the charge was put to him.
His explanation for the sudden change was that all he told his lawyer to write in his defence outline is what the police told him after assaulting him under his feet and he even had difficulty in walking. He said that was what was recorded in his extra curial statement.
The accused then sought to now adopt the story that the deceased was abducted by a bearded man. His story does not need any serious consideration and is hereby rejected.
The accused is a dangerous young liar. He made serious allegations against Cecilia who had to be arrested by the police but was only absolved from further prosecution at a later stage. He now admits that what he said about Cecilia was a pack of lies. He is also telling a pack of lies about the bearded man. He is simply an unbridled young liar.
This court finds that he took advantage of the deceased as she was left with him and raped her as noted by the doctor in the post mortem report. When he realized that the rape was going to be discovered he decided to destroy evidence by killing her. He then went on to hang her with mopane fibre to a mopane tree branch.
He intended to kill and proceeded to make sure that she died by hanging her on a tree branch. He is clearly guilty of murder with actual intent.