Qinisela
Sibanda (the accused) stands charged with the crime of the murder of
his girlfriend Judith Mlauzi (the deceased) who died in unclear
circumstances on 13th
of October 2015 at Galetus Village in Nyamandlovu here in
Matabeleland North.
When
this matter was initially presented to court, both the State and the
defence had opted for the lesser charge of culpable homicide. The
court registered its reservations on the correctness of the approach
opted for and the State had to reconsider its position. The result
was that the case had to proceed on the substantive charge of murder
in contravention of section 47(1) of the Criminal Law (Codification
and Reform) Act [Chapter
9:23].
The
facts in this case, which are not in dispute, are that at the time of
her death, the deceased was 33 years old. The accused was 30 years
old. The two were in love and all appeared to be well. On the morning
of 13th
of October 2015, the deceased's mother sent the deceased to conduct
some financial transaction in Bulawayo. When the deceased returned
from Bulawayo she was seen in the company of the accused by Mduduzi
Mpala, Linda Moyo and Norget Moyo.
That
was the last time the deceased was seen alive.
Later
on that day, the deceased and the accused had a quarrel leading to
the latter fatally assaulting the deceased. The accused secretly
buried the deceased's remains in a shallow grave. As fate would
have it, the deceased's remains were discovered by Professor Ncube
(a 16 year old juvenile) who was looking for cattle. The deceased's
remains were in a shallow grave. This discovery occurred three days
after the accused had buried the deceased's remains.
From
these facts, the State alleged the accused had unlawfully and
intentionally caused the deceased's death whilst the accused
admitted to assaulting the deceased. He raised the defence of
provocation and alleged that the assault he perpetrated on the
deceased was meant to moderately chastise the deceased and not to
cause her death. It was because of this that the accused offered a
plea of culpable homicide.
When
the deceased's remains were recovered, they were in an advanced
stage of decomposition. The post mortem report concluded that the
deceased had died of cervical and head traumas in unknown
circumstances.
The
post-mortem examination noted subgaleal haematoma on the left frontal
region on the scalp with haemorhagic infiltration below subgaleal
haematoma. It also noted a skull bone fracture on the left frontal
bone.
Analysis
of evidence
In
this case, there is evidently starvation of direct evidence as it is
only the accused who is privy to the actual circumstances surrounding
the death of the deceased. It is only the accused person who knows
what he used in assaulting the deceased and where on her body he
assaulted her.
Despite
this, the evidence led by the State is not without significance. The
evidence of the deceased's mother, Betty Mlaudzi, is to the effect
that when she realised the deceased had not returned home in time she
approached her other daughter, Thembie Mlaudzi, to call the deceased
on her cellphone.
Thembie
Mlaudzi testified to the effect that she indeed called the deceased's
cellphone
three times and on each of those occasions the cellphone would be
deliberately cut. On the fourth occasion, the cellphone became
unreachable. The evidence suggests this cellphone was eventually
found in the possession of the accused person. The accused person
confirmed that it was him who was constantly cutting Thembie Mlaudzi
's desperate calls.
It
is quite significant that on the very day that the deceased
disappeared, this witness had phoned the accused to enquire the
whereabouts of the deceased and the accused was categoric that he had
not seen the deceased. On the very day the deceased's remains were
discovered, the accused had beeped her on her cellphone and when she
returned the call the accused maintained that he had not seen the
deceased. It is clear that on all these occasions when the accused
faked no knowledge of the whereabouts of the deceased, the truth is
he knew that the deceased had died in his hands and that he had
secretly buried her remains in a shallow grave.
Mduduzi
Mpala's evidence, that when he was going to the shops in the
company of two other ladies he saw the accused who deliberately
avoided him by hiding, is equally quite revealing. Mduduzi Mpala, who
is the accused's cousin brother, was quite clear that on seeing
them the accused hid from him and when he turned, after bypassing and
exchanging greetings with the deceased who appeared to have been in a
jovial mood, he was surprised to see the accused again in the company
of the deceased and walking with her.
Under
cross-examination of this witness, it was suggested that the witness
could have been mistaken about the notion of the accused hiding away
from him to which he reluctantly conceded. It was only when the
accused was being led in evidence in chief, after the witness had
left the witness box, that the accused stated that he had not avoided
the young witness but that he had gone to answer to the call of
nature. It is quite curious that this pointed suggestion was never
put across to the witness to elicit his response.
The
evidence of Admire Sibanda suggests that the shovel that was used by
the accused, in burying the deceased's remains, was clandestinely
taken from the homestead by the accused person.
Young
Professor Ncube's evidence shows that the deceased's remains were
discovered three days after the deceased had disappeared and on 16
October 2015. This discovery was immediately reported to the police.
This was before the accused's arrest on Saturday the 17th
of October 2015.
As
stated in his Defence Outline, the accused admits to assaulting the
deceased but out of anger. He said that he punched the deceased three
times on the side of the head and the deceased fell down and died.
Built in his defence was the defence of provocation.
It
is therefore necessary to deal with the legal requirements of
provocation as a defence.
Section
239 of the Criminal Law (Codification and Reform) Act [Chapter
9:23]
recognizes the defence of provocation as a partial defence if
successfully pleaded.
Put
simply, our law recognizes that in certain situations a person may be
provoked by another person's behaviour to the extent of losing
self-control over his faculties and becomes incapable of forming the
specific intent to kill his victim, and, in such situation, the
accused would then be found guilty of culpable homicide. But, if
despite an accused being provoked he is still able to retain his
intention to kill, the provocation will be taken as mitigatory. This
position is clarified in section 239(2) of the Criminal Law
(Codification and Reform) Act [Chapter
9:23]
which is framed as follows:
“(2)
For the avoidance of doubt, it is declared that if a court finds that
a person accused of murder was provoked but that –
(a)
He or she did have the intention referred in section forty-seven; or
(b)
The provocation was not sufficient to make a reasonable person in the
accused's position and circumstances lose his or her self-control;
The
accused shall not be entitled to a partial defence…, but the court
may regard the provocation as mitigatory as provided in section two
hundred and thirty eight.”
In
order for the court to closely deal with the defence of provocation,
or any other defence for that matter, the court is called upon to
thoroughly examine the circumstances the accused person finds himself
in.
In
the instant case, the circumstances which the accused person found
himself in came out clearly when he was being led by his counsel and
it was to the following:
“After
walking for some distance, a certain man emerged walking from behind
us carrying a log. When this man approached us he said, 'where are
you taking my girlfriend to?' I said I did not know that she was
his girlfriend. At that time, this man struck me with a log on the
back of my head and I ran away…,. When I ran away…, he got hold
of the deceased and pulled her demanding to go with her but the
deceased refused….,. When she refused this man released her and she
came back to me.”
The
accused went on to say that along the way this incident caused a
misunderstanding between him and the deceased. The result was a fight
between the two which led the accused to assault the deceased in the
manner already alleged.
It
will be remembered that before the accused had allegedly fought with
the deceased over this man, the deceased had told him that she had
had a love relationship which had ended long back but this man was
trying to impose himself against her.
It
is the court's view that the conduct complained of by the accused
as the cause of the assault could not have caused a reasonable person
placed in the position of the accused to have lost self control in
the manner alleged by the accused. This would be so because instead
of going with this unidentified man the deceased chose to stick to
the accused. A man who loves someone cannot punish his woman for
publicly choosing to stick with him in the manner the deceased did.
The
existence of this man was in fact doubtful as evidenced by the
accused's failure to seek clarification or the identity of this man
from the deceased which would have been the natural thing to do on
the part of the accused. To the court, this character remains
fictitious. Even if he did exist, the situation that was projected by
the accused person could not have led to the accused's provocation.
To
further demonstrate the shortcomings of the story told by the accused
person, it was only during his evidence in chief that he alluded to
himself having fought with the deceased. This fight does not feature
in both his Defence Outline or in his warned and cautioned statement.
To further compound it, the accused had nothing to show for his
alleged injury by the man he alluded to. This goes further to fortify
the court's view that this man never existed at all. This character
was created by the accused to cloud issues and we make it a specific
finding of this court that the story about the accused being
confronted and assaulted by the deceased's former boyfriend was a
concocted story - it never occurred.
This
then paves the way for us to deal with the other aspects of the
accused's evidence of the admitted assault on the deceased, with
specific reference to the cause of death as expounded in the
post-mortem report and the related injuries outlined therein.
In
his measured testimony, the accused admitted to having assaulted the
deceased using open hands (clapping her once), and thrice with
clenched fists below her right ear just above the neck, as a result
of which the deceased fell and died. The accused said that in
assaulting the deceased he was merely moderately chastising her. He
said he did not intend to kill her.
The
accused's admitted assault must be consistent with the findings of
the post mortem report as regards the cause of death and the other
related injuries noted.
The
postmortem report concluded that the cause of death was cervical and
head traumas in unknown circumstances. In addition, it highlighted a
collection of blood on the left side of the skull. Such a collection
of blood, as the court understands it, implies such injuries were
there before the death of the deceased.
One
of the most pronounced injuries highlighted in the post mortem report
was “the skull bone fracture on the left frontal bone.”
In
the court's view, the fractured skull speaks to substantial or
excessive force having been used on the deceased's head. This kind
of force, in the court's well-considered view, cannot possibly be
consistent with the simple assault conceded to by the accused. The
accused was conservative with the truth and his story cannot possibly
exonerate him. The defence counsel must be commended for having
acknowledged and concluded that in order to bring about the injuries,
as captured in the post-mortem report, excessive force must have been
used. It is clear that the deceased must have been subjected to a
protracted assault with a hard object.
The
accused's strange appetite to mislead the court did not end with
giving the court a minimal assault on the deceased. His stout effort
to mislead the court is demonstrated by his statement in the
“Statement
of Agreed
Facts”
(annexure I) that he assaulted the deceased all
over the body
with an unknown object.
The
inconsistencies in the accused's testimony, and the actions that he
took after the deceased's death, are a clear testimony of an
example of someone who, with his eyes wide open, dives on his own set
spear. He must naturally face the consequences of his own conduct.
This
is a clear case where the accused's guilt is rooted in
circumstantial evidence.
The
law on circumstantial evidence can be traced back to 1939 where
WATERMEYER JA, in the case of R
v Blom 1939
AD 188
laid
the foundational guidelines of our present law as follows:
“(a)
The inference sought to be drawn must be consistent with all the
proved facts. If it is not, the inference cannot be drawn.
(b)
The proved facts should be such that they exclude every 'other'
reasonable inference from them save the one sought to be drawn. If
they do not exclude other reasonable inferences, then there must be
doubt whether the inference sought to be drawn is correct.”
See
also the case of S
v Marange 1991
(1) ZLR 244 (SC)
per
KORSAH JA.
Applying
these guidelines on guilt by circumstantial evidence, the proved
facts which are found to have been established in this case can be
summarised as follows.
(a)
The accused was the last person to have been seen in the company of
the deceased at or around 18:00 hours on 13 October 2015, as per the
testimony of Mduduzi Mpala and confirmed by the accused person
himself. When last seen, the deceased was in a jovial mood.
(b)
As per his own testimony, the accused person assaulted the deceased
and the deceased died on the evening of 13 October 2015.
(c)
After the deceased died, the accused person removed the deceased's
clothes and hid them.
(d)
The accused clandestinely acquired a shovel and a rope which he used
to secretly bury the deceased's remains in a shallow grave.
(e)
On the day, the accused secretly buried the deceased's remains; he
lied to the deceased's sister, Thembie Mlaudzi, that he had neither
seen nor knew the whereabouts of the deceased.
(f)
That on the 16th
of October 2015, the accused initiated a cellphone to Thembie Mlaudzi
who called him back and the accused made a fake enquiry about the
whereabouts of the deceased and purported to want to assist Thembie
Mlaudzi locate the deceased when he knew that the deceased had died
in his hands.
(g)
When the deceased's remains were fortuitously discovered by
Professor Ncube and a report subsequently made to the police, on 16th
October 2015, on 17th
of October the accused surrendered himself to the police leading to
his arrest.
(h)
That when the deceased's remains were discovered, the accused
admitted to having assaulted the deceased leading to her death. The
postmortem report's findings are inconsistent with the manner of
assault as proffered by the accused person.
The
cumulative effect of all these proven facts point to the accused as
the person who killed the deceased. In making this finding, the court
is satisfied, beyond a reasonable doubt, that the deceased must have
been subjected to a protracted assault on, among other vital organs,
the head, and, further, that in doing so the accused must have used
an object other than clenched fists.
In
subjecting the deceased to an assault as he did, the accused must
have subjectively foresaw the real possibility of him fatally
injuring the deceased and recklessly pursued with his assault leading
to the inevitable death of the deceased.
Consequently,
the accused must be found guilty of murder as informed by section
47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
