Judgment No. HB 182/13

                                                                                                            Case No. HC (CRB) 02-05/06

THE STATE

Versus

CONRAD SIBANDA

And

FANUEL NOTSA DUBE

And

QUIET SIBANDA

And

MPILOKAMLIMU NCUBE

IN THE HIGH COURT OF ZIMBABWE

BERE J

BULAWAYO 21-23 MAY 2006; 30 MAY 2006; 24-25 OCTOBER 2006;

 3-5 JULY 2007; 11 JULY 2007; 18 JULY 2007 AND 18 DECEMBER 2013

Mkwananzi & W. Mabhaudi for the state

N. Mazibuko for accused 1

T. Khumalo for accused 2

G. Nyathi & T. Nyengera for accused 3

K. Ncube for accused 4

Criminal Trial

            BERE J:                        It has never ceases to amaze me how seemingly minor disputes invariably end up as the foundation of serious murder cases which we end up being seized with in these courts.

            On the evening of 2 June 2004 a dark cloud hung over Ngulubeni village in the district of Plumtree.  That evening signified a very unfortunate development which will forever haunt the villagers of Ngulubeni who had the misfortune of being witnesses to the untimely death of the deceased Fanuel Mpala the then 21 year old lad who lost his life in extremely sad circumstances.

            The state alleged that it was the four accused persons who included one Temba Adolf Ndebele (who died before this case commenced) who teamed up and attacked the deceased in turns leading to the deceased’s tragic death.  It was alleged that the accused persons used various weapons ranging from knobkerries, knives, an axe and bottles in fatally assaulting the deceased person who died on the spot in Ngulubeni village.

            In their defence outlines marked annexures I to IV all the accused persons denied ever participating in assaulting the deceased person and prayed for their respective acquittals.

            In support of its case the state sought to rely on the following exhibits:

            Exhibit 1          -           an affidavit by Pascal Max Ndlovu

            Exhibit 2          -           post mortem report

            Exhibit 3          -           accused number 1’s warned and cautioned statement

            Exhibit 4          -           accused 2’s warned and cautioned statement

            Exhibit 5          -           accused 3’s confirmed warned and cautioned statement

            Exhibit 6          -           accused 4’s warned and cautioned statement.

            It will be noted that all the accused’s warned and cautioned statements were only tendered as exhibits in these proceedings after the court had conducted a trial within a trial to determine the admissibility or otherwise of such statements.

            Other than relying on the aforesaid exhibits the state also sought to rely on the viva voce evidence of seven witnesses viz, Zamani Phuthi, Sikhumbuzo Mpala, Kuno Ngwenya, Gilbert Ncube, Sgt Tennyson Ncube, Det Sgt Niverd Charuma and Detective Sgt Ndebele.

            In support of their individual defences the accused persons with the exception of accused 1 (who incidentally passed on before the completion of these proceedings) gave viva voce evidence.  In addition they also sought to rely on indication proforma documents in their effort to challenge the admissibility of their individual warned and cautioned statements, which as already indicated were ruled to be admissible after an interlocutory hearing had been conducted.

Analysis of the evidence led

            Zamani Phuti set the tone for this trial by alleging that on the day preceding the deceased’s death accused 1 who had been seen sneaking into the hut of Sehlapi Phuti (who turned out to be the accused’s girlfriend) bolted out of the hut when the witness and other villagers made a surprise entrance to the hut to enquire about this intruder who turned out to be accused 1.

            The record of proceedings will show that this witness struggled to put up a coherent testimony of what exactly happened when he first met with the accused persons.  His evidence only became clear when the state counsel led the witness in re-examination.  It was then that the witness revealed that on the day of the tragic assault he met the four accused persons and Temba Ndebele drinking beer at Ngulubeni stores.

            The witness advised the court that he was known to all the accused persons as he stayed in the same village with them.

            It was the witness’ refined testimony that when he met the accused at Ngulubeni shops they demanded the shoes which belonged to the accused 1 which he had left in the village when he bolted out of Sehlapi Phuti’s hut.  The witness said he sent a young boy to collect the shoes from the village and handed over the shoes to accused persons.

            It was his emphatic testimony that as he was conversing with the accused 2 and 3, they uttered words to the effect that on that day they were not going to leave for Manenji unless someone died in Ngulubeni area.

            The witness had difficulties in explaining who actually uttered these words and where exactly they were uttered.  As indicated his evidence became coherent when the state counsel sought clarification of his testimony in re-examination.  The witness was steadfast that these words were uttered at the shops by accused 2 and 3 who complimented such utterances by singing a song underpinned by violence.

            The evidence of this witness did not take the state case any further as the witness was honest enough to concede that he did not actually witness the assault of the deceased.

            Despite the poor manner in which this witness initially presented his testimony we are satisfied that indeed accused 2 and 3 uttered the threats of violence in the manner put forward by the witness.

            Sikhumbuzo Mpala was the next witness to give evidence after Zamani Phuti.

            Sikhumbuzo testified that he too was known to all the accused persons and that the deceased was his nephew.

            The witness’ first contact with the accused persons was on the day of the murder at around 5pm through Fanuel Notsa Dube (accused 2) with whom he exchanged greetings at his homestead.

            The witness testified that after exchanging greetings with the accused the accused enquired the whereabouts of Phathisani Dube, Thembani Tshuma and the deceased whom the accused said were wanted at the shops by his co-accused persons.

            It was the witness’ testimony that after their whereabouts had been sought by accused 2 the three, viz Thembani, Phathisani and the deceased appeared at the witness’ homestead and this coincided with accused 2’s second visit to the homestead.  The witness then gave a graphic account of what happened and it is necessary to re-state his evidence-in-chief as captured in the record of proceedings.  The witness said;

“Before Phathisani, Thembani and the deceased entered the gate Fanuel Notsa (accused 2) arrived from the shops riding his bicycle and said, “we are calling you and you are being silly” I went out of the gate and I stood with them, I said to accused 2, “Fanuel, earlier on you spoke to them there and now you are coming o make noise at the homestead.  Fanuel then answered and said “Do not talk because you will also die”.  Fanuel then turned to Fanuel Mpala (the deceased and said “You are going to die today.”

As I was watching accused 2 talking to the deceased I turned my back and saw all the boys (sic) Phathisani, Thembani and the deceased had entered the homestead.  I stood with Fanuel Notsa.  I did not say anything as I was facing the direction of the store where the accused had come from.  I saw someone tall wearing a long jacket coming from the direction of the stores.  I retreated backwards and stood at the gate of the homestead.  I saw people coming behind this person with a long jacket.  This person who was wearing the long jacket is Adolf Ndebele who was in front of these people.  I spoke to Adolf and said “Adolf, you have brought people from the stores, what are you looking for?  He replied and said, “Keep quiet, you will see what is going to happen.”

After he said that I stood by the gate with my arms stretched out (at 180⁰ angle – as indicated by witness) all the four accused and Adolf entered the yard.  Thembani was seated by the fire.  Fanuel Mpala (the deceased) was seated by the side of my bedroom hut door.  Phathisani was seated behind Thembani by the fire place.

Quiet (accused 3) entered the homestead running carrying a knobkerrie.  He was approaching Thembani.  Thembani ran away.  Quiet pursued him.  He wanted to strike him below the back of the head.  Thembani jumped over the fence of the homestead.

Quiet did not jump the fence.  He turned and came back.  As he was coming back he met up with Fanuel Mpala (the deceased) who attempted to run away but was struck at the back of the head with a knobkerrie and he fell down.  Fanuel Mpala got up when he was on his feet Fanuel Notsa Dube (accused 2) arrived.  He pulled out a knife and he stabbed him on the side of the neck.  Conrade (accused 1) who was carrying an axe joined in the assault and struck the deceased on the right side of the shoulder close to the neck.  They were holding him and as they were holding him like that Mpilo Ncube (accused 4) who was holding a bottle of coca cola struck him with the bottle on the central part of the head and the bottle got broken. … The deceased fell down.  Adolf who was holding a bottle of Chatteau pulled out a knife from his right hand side (trousers pocket) and stabbed the deceased on the upper part of the back.  The deceased was now in a lying position.

God did not let him die there.  He rose from there and walked for about 8 metres (as indicated by the witness) and he fell down.  All the five took turns to assault the deceased.  As he was walking to where he finally fell the 5 were following him.  When he finally fell Quiet (accused 3) hit him again with the head of a knobkerrie and the knobkerrie broke and Quiet remained holding the end of that knobkerrie.  He struck him on the back of the head.  They all ran away, out of the homestead …   Quiet and Notsa took one of the bicycles and cycled to their area, Maninji area.  I felt hurt.  I was pained.  I then screamed.  God answered my prayers because as they were fleeing, my nephew approached because he had heard the screams …”

That was the graphic account as given to the court by Sikhumbuzo Mpala who appeared to have been at a vantage position in witnessing what transpired on the fateful day.

The four legal practitioners for the four accused persons took turns to cross-examine the witness and cracks were noted in his testimony particularly when it came to reconciling his testimony in court and his affidavit statement which was recorded by the investigation officer on 6 June 2004 (about 4 days after the alleged assault).

            It is true that the cross-examination including the clarification sought by the court clearly exposed the discrepancies in his testimony.  The record of proceedings will bear testimony to this.

            There was no unanimity as to what time the assault took place as the recorded statement of the witness gave the time as “at about 21:00 hours” whilst the witness himself gave the time as around 20:00 hours.  Other witnesses gave the time of the assault as around 19:00 hours.

            Our assessment of this witness’ testimony is that the witness clearly had difficulties in reconciling the numerous discrepancies between his recorded statement and his evidence in chief here in court.  We also accept that the witness’ testimony may have been compounded by his fairly low level of sophistication as he projected himself to us a simple village man who only went as far as grade 7.  The numerous questions put to him easily confused him.

            In our critical assessment of this witness’ statement we also appreciated that quite often what may appear as contradictions in the witness’ recorded statement might be a reflection of a much more complex challenge in the collation of evidence at the initial stages of investigations.  The irony of it is that we tend to always assume that when these statements are recorded in the indigenous language, the police officer who gathered such evidence is not only able to fully appreciate the diametrix of that language but is also competent to do the actual translation of the collated evidence in the official language of record, that is, English.

            We are aware that there are many Zimbabweans (police officers inclusive) who do not understand the local languages but encounter serious challenges in the translation of that language into the accepted language of record.  There are many occasions in our courts when the prosecution or defence counsel or even the court may not agree with the interpretation of a witness’ evidence by an interpreter, for example.

            It occurs to us that witness’ recorded statements must never be looked at as some sacred document recorded in heaven but as documents recorded by police officers some of whom are stalked by the many language challenge that we are all aware of.

            It occurs to us that because we do not actually know the actual circumstances under which the recorded evidence is collated at the stage of investigations, it is imperative that where the recorded statement of a witness is in contradiction with the viva voce evidence of the witness, the latter be afforded greater weight.  This should be particularly so where the court is not afforded the opportunity to see for itself the original language in which the statement was recorded.

            We believe it is also important that when evidence is recorded in any of the local languages at the time of investigations both such an original record and the translated version must be made part of the docket to enable verification of the translation should the need arise.  The court must be able to see for itself the two statements and confirm the accuracy of the translation.

            Faced with the evidence of Sikhumbuzo Mpala and the attendant challenges with it the court had to try and look beyond it for possible corroboration.  This was particularly so given the strenuous denials of participation by all the accused persons in the assault of the deceased person.  It should be noted that all the accused persons gave diametrically opposed versions of what transpired on the evening of the tragic assault.

            It was therefore imperative that the court looked beyond the competing versions to try and get some corroboration of some sought given the undoubted discredit to which the witness’ evidence had been subjected to in cross-examination.

            The question as to when exactly the assault took place assumed centre stage in these proceedings because the court had to be satisfied that Sikhumbuzo actually saw what he claimed to have seen on the evening in question, particularly the assault itself.

            The witness maintained under cross-examination that when the assault took place it was not very dark, and he could see what was happening.  In this regard the following questions and answers were recorded in the record of proceedings.

“Q          -        To the best of my knowledge in June it is winter and it gets dark much earlier than 7:00 pm.

            A          -           No, it was not dark there was still light[1]

Q           -         I further put it to you that it was dark and you could not see a lot of what was happening

            A          -           It was not very dark.  I could see what was happening”²

                        Kuno Ngwenya, one of the key state witnesses for the state estimated the time of assault of the deceased to have been around 7pm and said “there was still light as it was just after sun set.”  To clarify this aspect of visibility the state counsel re-examined Sikhumbuzo Mpala and the following exchanges took place.

            “Q        -           Did any of you have a watch

            A          -           No

            Q         -           All this thing about 5 pm and 9 o’clock is guess work

A          -           Yes it is guess work.  When the sun is about to set it is around 5 pm and when I say nine it is because it was getting dark”.

            The witness’ estimation of time and visibility got corroboration from a very unlikely source, viz, accused 2.  In his evidence accused 2 told the court that in his own estimation the whole fracas took place around 20:00 hours but one could see clearly a distance between 15 – 20 metres.

            It then became clear to us that whatever time the various witnesses gave as the time of the assault, the bottom line is that visibility was still quite good.  Sikhumbuzo must have properly seen what he claimed to have seen. 

            We have had the privilege of seeing Sikhumbuzo Mpala testify here in court.  His testimony did exhibit numerous cracks as outlined.

            Naturally, the witness was devastated by the manner in which his nephew’s life was cut short.  It was a callous assault.  But beyond all the criticisms that could be laid against this witness, we are more than satisfied that on critical issues the witness told the truth with no traces of malice in his testimony.

            His story was narrated with a convincing tongue.  Although it was getting dark the witness’ account of what happened left us convinced beyond doubt that he actually saw the 4 accused plus one Adolf Ndebele taking turns to savagely assault the deceased and that when he said he saw them, he saw them from a vantage point.

            Kuno Ngwenya who was the third state witness also confirmed that he was known to all the accused persons and that they had known each other for a long time.

            Although this witness was honest enough to say he did not witness the assault of the deceased, he provided a new dimension to the state case.

            The witness was one of those who responded first to the screams for assistance by Sikumbuzo Mpala.  The witness confirmed Sikhumbuzo’s testimony that after the act the accused persons ran away from the scene of crime.

            The witness testified that he accosted both accused 2 and 3 as they were carrying each other riding a bicycle coming from the direction of the scene of crime with Sikhumbuzo in hot pursuit of the two.  On accosting the two the witness swiftly moved and punctured the bicycle thereby disabling the two to continue escaping on that bicycle.

            The witness said that Quiet out ran them but they were able to apprehend accused 2 whom they took back to the village and tied him to where the deceased was.

            The witness told the court that on getting closer to the deceased he noted a wound on the deceased’s shoulder and on the neck.  He also noted a broken knobkerrie which accords well with the testimony of Sikhumbuzo that when Quiet hit the deceased with a knobkerrie it broke and Quiet remained holding a piece of that knobkerrie.

            Further the rudimentary observations noted by this witness on the deceased reads very well with the assault observed by Sikhumbuzo on the evening in question.

            It was also the witness’ evidence that when Adolf was apprehended and a search conducted on where he had been hiding, a blood stained Okapi knife and an empty bottle of Chatteau were recovered adding further corroboration to the testimony of Sikhumbuzo that he saw Adolf stabbing the deceased with a knife.

            More importantly the significance of the recovery of the Okapi knife on Adolf renders false to the averment by Fanuel Notsa Dube that he disarmed Adolf of the knife that the later had used to stab the deceased.

            To confirm that Fanuel Notsa had also used a different knife to stab the deceased as testified by Sikhumbuzo, it is significant to note that Notsa was found in possession of his own Okapi knife whose dimensions were said to have been similar to the knife found with Adolf.

            Contrary to accused 4’s poorly presented defence of alibi, Kuno testified that on that very evening he and other villagers saw Adolf in the company of accused 4 coming from Sikumbuzo’s place.  The witness said they failed to apprehend accused 4 immediately because of interference from Adolf who continuously feigned an attack against them using a bottle of Chatteau.

            Kuno’s evidence was so spot on and corroborative of Sikhumbuzo’s evidence that even Mr Mazibuko who was appearing for the accused 1 was left to suggest that Kuno must have discussed his testimony with Sikhumbuzo, a suggestion the witness denied.

            Just like aspects of Sikhumbuzo’s testimony which were in conflict with his recorded testimony, Kuno’s evidence suffered the same challenge, of particular note was the averment in his recorded statement that alleged that the witness had said that accused 2 and 3 rode on two separate bicycles as they fled from the scene of crime.  The witness disowned that part of his statement and many other aspects which were not in line with his evidence in court.

            Apart from noting that all the witnesses were giving evidence almost two years after the murder crime, we were left to wonder whether or not these discrepancies were in fact not a reflection of the shortcomings of the investigating officer or the recording police officer.

            We found Kuno to have been a fairly credible witness for basically 3 reasons.  Firstly his evidence was corroborative of Sikhumbuzo’s evidence in many respects.

            Secondly, the witness was honest enough to tell the court that he did not witness the deceased’s assault and that he only appeared at the scene of crime after the event and only in response to the screams of assistance by Sikhumbuzo Mpala who had the misfortune of witnessing the tragic assault on the deceased.

            Thirdly, despite his anger and annoyance at the death of the deceased with whom he was closely related, he was honest enough to tell the court that he did not see accused 1 that evening.  The witness was prepared not to incriminate accused 1 despite him being fully aware that accused 1 was alleged to have participated in the assault of the deceased.  To us this spoke volumes of the credibility of this witness.  His evidence was not coloured by malice.

            If there was need for further corroboration of the evidence of Sikhumbuzo and Kuno, the evidence of Gilbert Ncube was available to do just that.

            Gilbert was one of the witnesses who recovered an Okapi knife inside the jacket of Adolf where the later had been hiding.  Other than the knife the witness also indicated that they also recovered what he referred to a “big bottle of Chatteau”.

            The witness further gave evidence to the effect that in the morning, and as per the indications of Fanuel Notsa Dube, the villages with him recovered another Okapi knife which the accused had said he had used and thrown away near Sikhumbuzo’s father’s field.  He said the knife was recovered underneath a thorny tree as indicated by accused 2.

            The recovery of the knife following indications by accused 2 further confirmed the participation of this particular accused in the commission of this offence.  The witness vehemently denied the story peddled by accused 2 that he had personally handed over the knife to the villagers.  The witness went further to say a villager called Quandeni Phuti had actually recovered the knife in question.

            Sgt Tennyson Ncube who at the time was stationed at Mayobodo ZRP police station expressed familiarity with all the accused persons and got involved with this case on 3 June 2004 following a report of this murder case.

            The witness noted the wounds on the deceased at the village.  These wounds were consistent with the wounds as outlined in the post mortem report exhibit 2 and it was this officer who conveyed the deceased’s remains to Brunapeg Hospital.

            The witness told the court that in his view the deceased had been severely assaulted with inter alia an axe owing to the pronounced openings on the deceased’s body.  The witness also confirmed that there was evidence of multiple stab wounds on the deceased.

            It was as a result of his delivery of the deceased’s remains that exhibit two was compiled.  Exhibit two described the marks of violence on the deceased as follows:

“Stab wound left shoulder (3 x 1cm), neck (6 x 3 x 3cm), head (3 c 1cm), (3 x 1cm), (4 x 1cm)”.

            Dr Pesanai who compiled exhibit 2 concluded the cause of death to be (a) haemorrhagic shock, (b) multiple stab wounds and (c) assault.  The two remaining witnesses called by the state were Detective Sgt Ndebele and Detective Sgt Charuma and these were called as key witnesses in the trial within a trial which were meant to determine the admissibility or otherwise of the various warned and cautioned statements by the four accused persons.

            After a protracted enquiry the statements were admitted as part of the state evidence.

            Of significance was the evidence of Ndebele that contrary to the allegations by accused 1 against them, they had in fact found the accused person to have been particularly co-operative.  He testified that it was through such co-operation that this particular accused person led them to one Hantema Maphosa’s homestead where the accused himself took the axe which was hidden under the granary and alleged after proper warning and cautioning that it was the axe he had used to strike the deceased.

            It is difficult really to imagine the truthfulness of the remaining accused’s defences as captured in their defence outlines in the light of the overwhelming evidence by the state.

            The accused number 2’s alleged saintly approach in disarming Temba Adolf Ndebele and attempting to push the murder of the deceased squarely on this individual was rendered so hopeless by the credible evidence of Sikhumbuzo Mpala and other state witnesses.

            That blood stained Okapi knife was recovered from where he had hidden it spoke volumes about his stout effort to deceive the court on the actual role he played in the assault of the deceased.

            This accused was the most visible of all the accused persons as he appeared to have played a frontline role in laying the foundation of the fatal assault that followed.

            He together with accused 3 uttered serious threats to both Sikhumbuzo and the deceased before the fatal assaults.  He appeared to know what was in store for the deceased that day.

            The accused number 3’s attempt to disown his own defence outline right in the later stages of the proceedings did not project him in good light particularly given the flimsy reasons he gave for doing so.

            We found it to be inconceivable to accept the story told by the accused that his erstwhile legal practitioner had misunderstood his instruction from the accused person.

            It was even more curious to us that he even made an abortive attempt to disown his confirmed warned and cautioned statement which was consistent with his instructions to his erstwhile defence counsel.

            The accused’s evidence in court was far from convincing as it could not withstand the heat offered by the state evidence.  We concluded, his evidence was a hopeless attempt to deny the obvious and to simply fail to be man enough to face the natural consequences of his conduct on the day he participated in the assault of the deceased.

            Both his original defence outline, his confirmed warned and cautioned statement were consistent with the evidence tendered by the prosecution.

            The accused number 4’s defence of alibi was poorly put across as it did not follow the very basic approach that such a defence requires.

            The accused lacked the conviction of sustaining such a defence by failing to present to court tangible evidence in support of such a defence.

            Where such a defence is raised it is very basic that evidence be tendered to sustain it.

            Perhaps the accused must have fully appreciated the futility of such a defence as he stared the insurmountable evidence presented by the state against him.  The accused clearly lacked his own conviction in doing more.

            The accused tried to be smart by minimizing his own participation in the assault of the deceased.  What he alleged he did would not make sense if his explanation is juxtaposed with the credible evidence of Sikhumbuzo and other witnesses.

            In any event, it is not the level of his participation which determined his guilty or otherwise.  It is his decision to participate in common purpose with his co-accused.  He had long formulated the intention to actively participate in the gang assault of the deceased.  We are satisfied that what all the accused managed to do in this case was to indulge in phantom conspiracy to mislead the court.

            The assault on the deceased was well planned and effectively executed.

            Evidence abound that the plan to fatally assault the deceased was long made and this is consistent with the prophesy of his death made by accused 2 and 3 and repeated by accused three just before the assault began.

            The military approach with which the accused and Adolf entered the deceased’s homestead was a clear indication the plan to fatally assault the deceased had been well made and nothing was left to chance.

            The weapons used in the assault were lethal and it is not possible to come to any other decision except to conclude that the accused could only have intended to murder the deceased in the manner they did it.

            Perhaps before I conclude this judgment there is an issue of extreme concern that I must address.

            We have noted with extreme concern the casual or lackadaisical approach by the prosecution in the handling of exhibits.  Those exhibits which are recovered and alleged to have been used in the commission of crimes are not meant to decorate exhibit rooms at the police stations or courts but are meant to be used during proceedings or trials.

            Several exhibits were referred to in this case and none was produced.  One then wonders why a great deal of time and energy is expended in recovering such exhibits in the first place.  There is certainly need to improve the movement of such exhibits from the forensic examination centre to the relevant stations and to the courts.

Verdict                        -           All accused – guilty of murder with actual intent.