THE State V Nkosilathi Khuluza Mathema, Timothy Mduduzi DUBE, Nkosilathi Nyathi, AND Deries Mabaleka

### Preamble
1
HB 175/19
HC (CRB) 16/18
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THE STATE

Versus

NKOSILATHI KHULUZA MATHEMA

And

TIMOTHY MDUDUZI DUBE

And

NKOSILATHI NYATHI

And

DERIES MABALEKA

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J with Assessors Mr J. Sobantu & Mr M. Ndlovu

BULAWAYO 16, 17 & 30 JULY 2019

Criminal Trial

T. Hove, K. Jaravaza & Mrs C. Mndavaka for the state

Ms M. Busayi for 1st accused

Ms T. Sibanda for 2nd accused

Accused 3 deceased

H. Moyo for 4th accused

MABHIKWA J:	The 3 accused persons (originally 4) are facing a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act Chapter 9:23.

The state adduced oral evidence from five (5) witnesses.  The deceased was Emmanuel Khulekani Moyo who at the time he met his death was 26 and resided at number 238, 10th Street, Makokoba. It was the state’s case that on 24 May 2010 at about 2130 hours the deceased was walking home when he met the four (4) accused persons at the corner of 6th Street and 4th Road, Makokoba, Bulawayo.  They demanded money before assaulting him all over the body with clenched fists and booted feet.  In the process of assaulting him, accused 1 allegedly stabbed him on the thigh with a knife.  The deceased fell to the ground bleeding profusely and the four accused robbed him of his jacket and a black cap before fleeing into the darkness.  However, the deceased managed to walk up to his place of residence where he fell and lay face down at the doorway.  He was ferried to Mpilo Hospital by ambulance but regrettably died on admission.

All the accused persons pleaded not guilty to the charge of murder.  In effect, they all denied ever being at the murder scene on the night in question or ever knowing the deceased before his death.  They all claimed to have been tortured by the police who wanted them to confess and make indications about a murder they did not commit.

From the onset, I must say that this matter is one that suffered still birth in many ways.

Firstly, the murder, as already shown above, was committed on 24 May 2010, here in Bulawayo, Makokoba, and perhaps the nearest suburb to the courts.  Most of the witnesses and accused persons resided in Makokoba and Entumbane suburbs.  It however took more than nine (9) years before the trial started.  In the nine (9) years, the top four (4) state witnesses died and therefore could not be available to testify for the state.

Further, the other witness Auxilia Ngwenya, who was said to be the deceased’s customary law wife and had been listed as the state’s second witness cannot be located and she too could not testify.  The top 5 witnesses could not therefore be available.  Further to that, of the accused persons, Nkosilathi Nyathi who was accused number 3 died awaiting trial.

This on its own greatly affects the state case.

Secondly, it should have been clear as anyone’s nose on the face ,that even in the presence of all the state witnesses, the state case would hinge on the exhibits in the form of the blood stained jacket and tennis shoes, together with a cap, all allegedly found in the possession of the accused persons after the deceased’s death.  The issue of these exhibits was not handled well at all.

Just as the issue of the blood stained exhibits, it also should have been pertinently clear to any diligent police officer that the matter would also hinge on the identification of the suspects as likened to the exhibits and ultimately to the deceased.  Again that crucial part was badly handled.

The court will come back to the two issues of exhibits and identification later in this judgment.  In the circumstances, the state then called Eunice Tshabalala and Evans Tshuma, seemingly as its chief witness.  The case suffered another stillbirth on the actual evidence led

Eunice Tshabalala

The witness resided at number 239, 10th Street, Makokoba and was a neighbour to the deceased.  She was woken up from her sleep by one Auxilia Ndlovu who resided at number 238 being a co-tenant of the deceased.  The houses are just a few yards apart Eunice went out and noticed the deceased lying face down.  She asked from one Sharon, the deceased’s wife as to what had happened.  Sharon told her that maybe the deceased was drunk but at that juncture the deceased responded that he was not drunk but had in fact been stabbed by four (4) assailants.  The witness lit her phone and observed that blood was oozing out from around the deceased’s thigh towards the groin area and freely flowing on the ground.  The deceased also revealed that he did not know the attackers at all but they had pounced on him and robbed him of his jacket and cap.  He was also at the time clutching onto some $12,00 in his hand.  The witness said at the material time, she knew the jacket and cap as the deceased would often put them on.  She later saw the clothing items at the police station and identified them as belonging to the deceased.

Evans Tshuma

This witness was a member of the Neighbourhood Watch Committee (NWC) and resides at number 32477 Entumbane C.  He is currently employed as a caretaker by the Bulawayo City Council.

On or about 24 may 2010, he gathered information from residents that people, especially women, had been assaulted at the Richmond area.  As a result he went to Entumbane shopping centre with an investigative eye.  He says he saw 3 or 4 young men who looked uneasy, jittery and generally suspicious.  He called 2 of them and introduced himself as a police officer.  He asked one of them, (whom he identified in court as the 4th accused), why he had three (3) phones and why his tennis shoes were blood stained.  The young man allegedly responded that the phones belonged to him and that his tennis shoes were blood stained because he worked at an abattoir.  The witness said he was not convinced by the answers he got from the two young men, whom he identified from the dock as accused 1 and 4.

When asked by Mr Jaravaza for the state if he would recognize the 3 or 4 young men if he saw them today, he said due to lapse of time, it would be difficult to recognize them.  However, he later testified that inspite of the lapse of time, he believes he could still recognize accused 1 and 4.  The court noted that the witness was trying to stretch his eyes and memory as he strenuously identified the 2 accused as they sat in the dock.  Further, he only said he believes it was them that he spoke to because of their dark complexion.  Because he was not convinced by the explanation, he apprehended accused 4 and called members of the public who assisted him to put him into a shop.  Thereafter, his colleagues were also arrested.

Nkosilathi Ncube

This witness’ evidence did not take the state case any further.  He said he was allocated a murder docket way back in 2010 as the Investigating Officer.  He was also told that there were 3 accused persons in the police holding cells.  He then started working on the necessary documentation.  The witness kept on repeating that it has been long and so he could no longer recall most of the events.  He remembers being taken to the Charge Office and being shown an exhibit which “if his memory is not failing him”, was a jacket.  He could not recall who showed him the jacket but believes it must have been a fellow police officer.  He remembers that he took the docket from the officer in charge of crime and worked on what he believed were unsatisfactory areas to complete it before taking the accused for remand.

He said that, “since it appeared that they were admitting the offence, I completed the docket much quicker before I took them for remand.”

When asked further about the jacket and its whereabouts, the witness said it was said it belonged to the deceased and he did not know what had happened to it whilst in police custody.  Thereafter, he went on a discourse stressing that exhibits are very important items and that police rules dictate that a proper handover – takeover process be followed each time they changed hands.  It was only after being reminded by the court that all that narrative did not assist the court but the whereabouts of the jacket,  that he then said he also did not know what happened to it.  In any case, he had left that station some seven (7) years ago.  Asked if he could recognize any of the accused in the dock, he answered that it had been long and he believed the accused had greatly changed to the extent that he could no longer match any name against a particular individual.

About the alleged blood stained tennis shoes, he said he was never told about them.  He never saw them and was hearing about them for the first time in court.  It should be noted that no one asked him about the cap and he never spoke about it either.

Clarkson Musa

He resides at Bulawayo’s Rose Camp but he is no longer a police officer.  His evidence also did not assist the court in any way.  All he could remember is that he received instructions to the effect that a man had been stabbed at Makokoba, carried to Mpilo and died on admission.  He and one Sergeant Maphosa went to a given address at Makokoba were the deceased allegedly resided.  There, they found and followed a trial of blood right up to the Econet booster in the same location.  They found one Khumalo, whom they asked and were told that he was alone and that he had indeed heard someone cry out as if some people were attacking him but he could do nothing and decided to stay aloof as it was at night and generally dangerous.

When asked if they had recovered any exhibits, he said it was a long time ago and he could not remember.  Asked if he had seen the accused at any stage after arrest, he again answered that he had been shown but due to time lapse, he could no longer remember or identify them.

Butholezwe Moyo

This is a police witness who again could hardly remember anything in connection with this crime. All he remembers is that he and 2 other police officers got to the station and found 2 suspects in the holding cells.  Upon interviewing the suspects they incriminated another person and claimed they were 3 in number when they committed the offence.  They were told where to find the 3rd person and they arrested him at Vundu flats in Makokoba.  But unfortunately again, he could not recall or identify the two (2) suspects he found in the cells.  He could not recall who implicated who and could not recall or identify who thy arrested at Vundu flats.

The law

At the close of the prosecution case, the 3 accused persons made applications for their discharge in terms of section 198 (3) of the Criminal Procedure and Evidence Act, [Chapter 9:07].  Suffices to point out that whilst the former section 188 (3) used the term “may” the current section 198 (3) uses the term “shall”- return a verdict of not guilty”

The following authorities are also pertinent, S v S Mpofu 2012 (1) ZLR 384 HB 81-12, where it was held that the court has no discretion but to acquit at the end of the state case if there is no evidence upon which a reasonable court would convict the accused.   The state has a duty to place before the court, evidence of probative value to establish a prima faciecase, the evidence adduced by the prosecution should be of such a degree that it calls for an answer from the accused.

The state need not prove the commission of the offence at this stage but must have adduced evidence which will justify the transfer of the onus to the accused.  See also S v Kachipare – 1998 (2) ZLR 271 as compared with A G v Bvuma and Another 1987 (2) ZLR 96 (S) and earlier case S v Hatlebury and another, 1985 (1) ZLR 1 (H).

In S v Noormohamed – 2012 (1) ZLR 367 (H) it was held that section 198 (3) of the Criminal Procedure and Evidence Act is clear that if at the close of the state case, the court considers that there is no evidence that the accused committed the offence charged or any other offence of which he might be convicted of thereon, it has no discretion but it shall retain a verdict of not guilty. There is no longer any controversy in our law as to whether in the exercise of its discretion, the court may not discharge the accused if it has reason to suppose that the inadequate evidence adduced by the state might be supplemented by the defence evidence.  That discretion was taken away. Once the court considers that;

a)	There is no evidence to prove an essential element of the offence,

b)	There is no evidence upon which a reasonable court acting carefully and judiciously, might properly convict, and

c)	The evidence adduced on behalf of the state is so manifestly unreliable that no reasonable court could safely act on it. The court is obliged in terms of section 198 (3) to acquit.

See also Attorney General v Makamba 2005 (2) ZLR 54 (S), where it was held that in dealing with applications for discharge at the closure of the state case, there is a sound basis for granting such an application where the above 3 considerations are shown. Where in his application, the accused has managed to show the above requirements, he shall be entitled to his discharge.   However, where it is reasonably argued for the state that the evidence so far adduced was sufficiently probative of the essential elements of the offence charged, for a reasonable court acting carefully to convict, the accused would not be entitled to such discharge.  The position at the close of the state case should be one where there is evidence of essential elements of the commission of the offence having been established.

Though rare, there surely have been exceptional cases wherein the court has to discharge the accused to avoid grave injustice that may occur if the accused is not discharged.  In some cases, the Superior Courts, when such matters are finally brought on appeal, have shown their displeasure and outrage, such as in Isaura Masinga vs Ms Sande (NO) and Prosecutor General HH-372-19.

In Isaura Masinga’s case, the court showed extreme outrage at the grave injustice that had resulted from the failure to discharge the accused at the closure of the state case, given the somewhat “absurd” circumstances of that case.  It was held to be a “typical example of exceptional circumstances or compelling reasons for a superior court to intervene and stop a harmful trial.”

Even in those circumstances, the court still had the mind to caution as follows:

“This court will ordinarily not sit in judgment over a matter before an inferior court except in very rare circumstances where a grave injustice would occur if it does not intervene.  While it is correct that this court has review jurisdiction over unterminated proceedings it is always slow to intervene in unterminated proceedings of an inferior court except in cases of gross irregularities in the proceedings or where it is apparent that justice may not be attained by any other means.”

In casu, and as already stated elsewhere in this judgment, the state case just could “not walk” right from the beginning, even baring the death and non availability of five (5) state witnesses and one accused person.  The forensic evidence of a blood stained jacket and tennis shoes as well as a cap would have been very crucial to link the arrested persons to the deceased’s death.  Even with the now advanced technology, including DNA testing, that can be done almost a stone throw away at the University of Science and Technology (NUST), the blood stained exhibits were not properly preserved as evidence, let alone sent for DNA testing.  Surely the test results, would have almost certainly secured the state case and made the state burden much lighter. On the other hand, it could have quickly assisted the accused leading to an earlier release.  Society is getting advanced and sophisticated at a fast pace.  For Investigating Officers to continue relying on the indications that an accused is admitting an offence or that certain witnesses would go to court and tell it orally that certain clothes held as exhibits indeed belonged to the deceased with nothing more to it is just but suicidal.  Those should by now be considered as   lame and archaic investigative skills.

As it stand in this case, the Investigating Officer and other state witnesses hardly recall the now missing blood stained jacket and did not even see the blood stained tennis shoes or the cap.

As for the identity of the suspects, it is not even clear how many were connected to the Makokoba murder at the time of arrest.   Even the cleverest of the state witnesses, Evans Tshuma, said he never mentioned any name of any suspect at the time of the recording of his statement by the police.  He could only assume that the police inserted the names themselves because he knew no one.  In fact after being shown that the statement he admitted making and signing, and which he adhered to in court, revealed that the people he spoke to were in fact accused 1 and 2, not accused 4 as he stated in court, he came clean and said he therefore was not sure and could not remember “who was who?”

As for the rest of the state witnesses they were emphatic that they could not match the names and the bodies of the accused, neither could they identify them now as they stand in the dock.

This was a clear case again, where an identification parade was required at the time.  The procedure and requirements of an identification parade have been repeatedly outlined in case authorities for time immemorial.  It is procedure very crucial in some cases, and yet so simple that any diligent investigator can easily follow even from a reading of decided cases.  Surprisingly, and regrettably many investigating officers avoid it and cripple their cases in the process.  It was clear that the witnesses, including Tshuma, never knew the accused in person or by names at the time of their respective arrests and at the time statements were recorded.

I am satisfied that this is one case where the state case was nowhere near a prima facie case.  I am satisfied also that though usually slow to discharge the accused at the closure of the state case, the court at the same time has a legal duty to avoid a possible gross miscarriage of justice and serious prejudice to the rights of the same accused.

Accordingly, and as conceded even by the state, all 3 accused persons are found not guilty and discharged at the close of the state case.

National Prosecuting Authority, state’s legal practitioners

Ndove & Associates, 1st accused’s legal practitioners

Majoko & Majoko, 2nd accused’s legal practitioners

Joel Pincus Konsson & Wolhuter, 4th accused’s legal practitioners