S v Moyo & Anor (HB 52 of 2017; HC CRB 33 of 2017; HC CRB 34 of 2017; PLUMTREE CR 124 of 2015) [2017] ZWBHC 52 (8 March 2017)

1 HB 52-17 HC (CRB) 33-34-17 PLUMTREE CR 124-5-15 THE STATE versus BATHOBILE MOYO and NOMALANGA MOYO HIGH COURT OF ZIMBABWE MATHONSI J BULAWAYO 7 AND 8 MARCH 2017 Criminal Trial W Mabhaudhi for the state H Malinga for the 1st accused N Mlala for the 2nd accused MATHONSI J: At the time that the events of 18 May 2015 unfolded the accused one was married to Nicholas Dube, a man employed and based in South Africa. She was staying at their homestead in Ngwana Area in rural Plumtree together with her four school going children and her 97 old year mother in law, Sibuko Ndebele who met her tragic death on the morning of that day while sheltering under the roof of her own bedroom, the victim of mechanical asphyxia, restriction of neck vessels, strangulation and head trauma and contusion. The accused two was aged 21 and employed as a maid at the nearby homestead of Yebo Sibanda. The two accused persons have been brought before this court charged with murder in contravention of s47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The state alleges that on 18 May 2015 they each or one of them wrongfully, unlawfully and intentionally killed Sibuko Ndebele (the deceased), a female adult in her lifetime there being. The two accused persons pleaded not guilty of the charge. The accused one stated in her defence outline that on the day in question she woke up early to prepare food for her school going children notifying the deceased that she would check on a cow that had broken its leg the HB 52-17 HC (CRB) 33-34-17 PLUMTREE CR 124-5-15 day before. Upon her return she found the deceased seated next to her bedroom but she subsequently went to fetch water in the company of Esnath Mguni. During the course of the morning the deceased had called lier to inform her that the accused two had arrived having been sent by someone to request permission to use a donkey. She engaged the accused two in discussion before the two of them proceeded to the vegetable garden leaving the deceased still rooted next to her bedroom. Later Solomon Ndlovu arrived at their home performing debt collection duties as he demanded R10-00 that she owned him. Unable to extract anything from her Solomon Ndlovu departed accompanied by the accused two. At that stage she says she proceeded to fetch firewood, made a fire and prepared porridge to feed the deceased. It was while she was taking the porridge to the deceased’s bedroom that after forcing, her way in, she beheld the deceased lying on the floor next to her bed. She was not responding causing her to call neighbours for assistance. The accused one denied killing the deceased. In her defence outline the accused two stated that she knew the deceased and the accused one as relatives of her former employer, one Yebo Sibanda and they lived in the same line. On the fateful day she indeed went to their homestead to enquire about donkeys as well as to fetch seedlings to plant in her garden. Whilst there she did talk to the deceased before proceeding to the garden with the accused one to fetch seedlings. The two of them chatted for a long time in the garden until they were interrupted by Solomon Ndlovu who was demanding his money from the accused one. At that stage she got the seedlings and proceeded to Yebo Sibanda’s homestead where she resided. She later learnt of the passing on of the deceased. She denied killing the deceased and craved for her acquittal. In terms of s278 (2) of the Criminal Procedure and Evidence Act [Chapter 9:07] the state produced the post mortem report compiled by Dr Roberto Trecu, a pathologist at United Bulawayo Hospitals, following an examination of the body of the deceased on 20 May 2015. The doctor observed the following marks of violence: HB 52-17 HC (CRB) 33-34-17 PLUMTREE CR 124-5-15 “(1) Superficial furrow around the neck, knot on the back, no oblique, transversal, introglotic, no ascending. (2) (3) Two abrasion (s) on the neck, left side. Conjuctival haemorrhage (both eyes).” He concluded that the cause of death was mechanic asphyxia, restriction of the neck’s vessels, as a result of strangulation. He also noted head trauma and contusion. In short the evidence of the medical specialist ruled out death by hanging. This is because the furrow that he observed was not oblique or at an angle or of an ascending or upward fashion as would occur when a person hangs from the roof while being pulled down by the force of gravity. Rocket science is therefore not required to show that the deceased was strangled from the back of the head, hence the knot at the back using the black belt found tied round her neck. The belt itself was produced as exhibit 5. It is 129cm long and weighs 30g. Even without the medical evidence, it was physically impossible for the deceased to hang herself from the roof after tying the belt twice round the neck with a knot at the back and then lifting herself to the roof. Note that according to Reginald Mabuzane, the police officer who attended the scene, the roof was 2 ½ meters from the floor where the body was lying. Melta Moyo whose homestead is directly opposite that of the deceased, the two are separated by a road running in between them, testified that she was at her home minding her own business when she was called by the accused one who was standing outside the perimeter fence to her homestead at around midday. The accused one desired her presence to assist her feed the 97 year old deceased person who was refusing to take her porridge. Upon arrival there she was shocked to find that the person she was supposed to help feed was lying on the floor of her bedroom by the right side motionless. She could not fathom how someone in that state could be fed. She did not see any porridge at the scene but all the time the accused one was wailing. She immediately retreated to call Esnath Mguni at her homestead to come and witness the strange development with her. Upon their return people had already gathered at the deceased’s homestead having been attracted by the wailing of the accused one. HB 52-17 HC (CRB) 33-34-17 PLUMTREE CR 124-5-15 Melta Moyo stated that the deceased stayed at that homestead with only the accused one and her children. When she arrived for the first time after being called by the accused one, only the accused one and the deceased were present. Vumani Moyo, the young brother of the accused one who lives elsewhere, happened to be passing by the deceased’s homestead at that particular moment. This witness did not see the accused two upon her arrival there. Esnath Mguni corroborated the evidence of Melta Moyo in respect of being called to the scene by Melta. She also confirmed that when this happened the children were at school. When the police arrived at the scene later that afternoon she was able to enter the room where the deceased was lying dead. She observed that a black belt had been tied around the deceased’s neck from behind her back. Siphathisiwe Khuphe stated that the deceased was her maternal grandmother. She lives at a homestead which is located about 300 to 400 metres from the deceased’s homestead. At about 0700 hours on that day she had passed through the deceased’s homestead on her way to a brick moulding place. She greeted both the deceased and the accused one who was by the kraal. The deceased was in good spirits, healthy and appeared very clever. At about 1100 hours, she passed by on her way back home. Hungry and in a hurry to get home and have some tea she did not stop to converse with anyone. She however observed that at the homestead there was now a visitor in the form of the accused two who was sitting with the accused one by the side of the kitchen which was near the vegetable garden. They were lost in conversation. The deceased was by then seated next to her house. She had also observed Solomon Ndlovu at Melta Moyo’s homestead as the two of them were also conversing standing next to the graves at that homestead. She assumed that they were discussing b