It is alleged that sometime between
27 July and 3 August 2011, the applicant and seven (7) accomplices kidnapped
and killed the now deceased, Mgoli Ndlovu Majola. It is alleged that after the
murder they removed his tongue, brain, nose, lips and four fingers. It is
alleged that the applicant took the now deceased's tongue.
The application for bail is
opposed on two grounds, that is:
(i) Likelihood of abscondment; and
(ii) Likelihood of interference
with investigations.
The respondent filed an affidavit
deposed to by the Investigating Officer, O. Mudyazvavanhu, of the Criminal
Investigations Department, Homicide Squad, Bulawayo. What can be gleaned from
the evidence therein is that the applicant was linked to the offence by one
Nkosilathi Khumalo; that is Accused 2 in the case.
According to the Investigating
Officer, Nkosilathi Khumalo was implicated by his own sister Cecilia Khumalo.
After his arrest, Nkosilathi Khumalo indicated that he organised the murder
with his aunt, Pisi Nxumalo; that is Accused 1 in the matter. He said that he
and Pisi Nxumalo then hired the other six accomplices, including the applicant,
to carry out the murder. Xolani Ncube's vehicle was used in the kidnapping of
the now deceased from his house. He was taken to a bushy area in Richmond.
After the murder, it is alleged that Nkosilathi Khumalo and other accomplices
took the tongue to the applicant.
The inference is that the
applicant was not at scene where the murder occurred but was aware of it
because she “had requested for the parts.” There is no other evidence linking
the applicant to the offence of murder other than the statement of the
accomplice Nkosilathi Khumalo. It has been brought to my attention by counsel
for the applicant that when these ex-curial statements implicating the
applicant were taken to the Magistrates Court for confirmation the makers
disowned them resulting in them not being confirmed. In a nutshell, the State
is relying on these unconfirmed ex-curial statements in linking the applicant
with the murder.
This is evinced by the contents
of the Request For Remand Form 242 which describes how the applicant's
accomplices are alleged to have participated in the murder. There are also
allegations that they contacted an Inyanga to assist in the murder. They are
also alleged to have made “positive indications at the scene.” All these
allegations do not state participation of the applicant save for the
implication by Nkosilathi Khumalo. There is also a discrepancy on what was
taken to the applicant. In the Form 242, the accomplices took the tongue,
fingers and brain to the applicant and yet the Investigating Officer in the
sworn statement alludes to the tongue only.
The applicant is a Councillor for
Ward 9 of the Bulawayo City Council. She is an elderly woman aged 57. She owns
the immovable property that she lives in. She is a mother of four (4) children.
The parts allegedly given to her were not found in her possession. As alluded
to above, the alleged accomplice who implicated her has disowned the statement
before a magistrate resulting in the ex-curial statement not being confirmed.
The court should always lean in favour of granting bail provided that the
interests of justice are not prejudiced – S v Biti 2002 (1) ZLR 115 (H);
Attorney General v Kanoda HH200-90; S v Hussey 1991 (2) ZLR 19 (S); and Aitken
and Another v Attorney General 1992
(1) ZLR 255 (S). Although the charge here is serious, looking at all the other
relevant factors outlined above, the seriousness of the offence is not likely
to induce the applicant to abscond. The applicant is a suitable candidate for
bail. The fears raised by the respondent can be addressed by the imposition of
stringent conditions.
Accordingly it is ordered that:
(1) The applicant be and is
hereby admitted to bail in the sum of US$300=.
(2) The applicant is to reside at
Number 3755 Magwegwe North, Bulawayo until the finalisation of the matter.
(3) The applicant shall not
interfere with investigations or State witnesses in this matter.
(4) The applicant shall report
thrice a week on Mondays, Wednesdays and Fridays between the hours of 6am and
6pm at Magwegwe Police Station until the matter is finalised.
(5)
The applicant shall not leave the 40 kilometre radius of the Bulawayo Main Post
Office without a written authority of a Bulawayo magistrate.
