S v Ndlovu (80 of 2024) [2024] ZWBHC 80 (7 May 2024)

1 HB 80/24 HCBCR 1534/24 THE STATE Versus SINDISO NDLOVU IN THE HIGH COURT OF ZIMBABWE MOYO J with Assessors Mr J. Sobantu & Mr O. Dewa BULAWAYO 7 MAY 2024 Criminal Trial K. Shava for the state T. Tashaya for the accused MOYO J: The accused faces a charge of murder, it being alleged that on 19th of October 2019 and at stand number 154 Maphisa the accused person set Busani Ncube ablaze intending to kill him or realizing that there is a real risk or possibility that her conduct may cause death but continued nonetheless. Accused denies the charge. The following were tendered into the court record; state summary, accused’s defence outline, accused’s confirmed warned and cautioned statement, post mortem report and a plastic container as well as a blanket. The post mortem report gives the cause of death as bilateral pneumonia, 40% burns. The facts of this matter are largely common cause. The evidence of Candice Ndlovu, Ndabezinhle Sibanda and Dr S. Pesanai was admitted into the court record as it appears in the state summary. Charles Malaba and Mbonambi Wiseman gave evidence before the court. The evidence of Mudye Munyanyiwa was expunged from the court record. The accused and Raynos Zulu gave evidence for the defence. As I have already said, the facts of this matter are largely common cause. The accused and deceased were wife and husband respectively. On the 18th of October 2019, while they slept accused received a message from a girlfriend and this prompted a misunderstanding between the 2 of them. Deceased apologised and the issue was seemingly resolved. The following day, on the night of the 19th of October, accused and deceased were in their bedroom hut where per accused’s version deceased just decided to douse himself with some flammable liquid and lit himself. This happened after deceased had previously gotten into the way of a car and accused dragged him. When they got home, accused went outside to the toilet. He did not return so she followed him and HB 80/24 HCBCR 1534/24 found him standing. When they got into the house she went straight to sleep and she noticed that deceased was wet by the trousers. He said it was urine upon being questioned. There was no electricity so she lit a torch. Deceased then lit a match, accused does not know if he wanted to light a candle. He then ran towards accused, she then tried the door and saw the keys on the floor. She shouted for help. She later took a blanket and covered deceased with it to extinguish the flames. The rest of the witnesses came in after the fact. However all confirm that when they came in deceased was on the bed in some smoke and no longer in flames. Charles Malaba and Ndabezinhle Sibanda state that deceased upon querying told them that he had been burnt by accused. Raynos Zulu on the other hand says he never heard deceased say anything but that he could neither deny nor confirm if he said what he is alleged to have said. The only issue for determination is what caused the burning of the deceased? Is it himself as accused says, or is it accused who burnt him. We have the following issues to use in discerning what could have transpired. 1. It is common cause that accused and deceased had an altercation the previous night wherein deceased had a phone call from a girlfriend. 2. 3. Deceased however apologised and the matter seemingly rested. The following day nothing of any significance happened between the parties or to deceased which disturbed their lives. 4. Charles Malaba and Ndabezinhle Sibanda said the deceased told them accused burn him. 5. Accused upon arrest, in her confirmed warned and cautioned statement, responded to the allegations being made against her by saying; “I do not admit to the charges.” (full stop) This was after she had been told that that was an opportunity to mention her defence or else an adverse inference would be drawn from her failure to do so. This is recorded in the statement itself. Given the fact that accused was being charged with serious allegations of murder, and given that her defence in court is that deceased doused himself, it was a material fact of her defence to say I do not admit to the charge as deceased doused himself or that I do HB 80/24 HCBCR 1534/24 not know exactly what transpired but I just saw the deceased in flames. To say I do not admit to the allegations full stop, creates a problem for the accused. Refer to section 257 (c) of the Criminal Procedure & Evidence Act which stipulates that where in any proceedings against a person, evidence is given that the accused on being (b) charged by a police officer with an offence, failed to mention any fact relevant to his or her defence in those proceedings, being a fact which, in circumstances existing at the time he or she could reasonably have been expected to have mentioned when so questioned, charged or informed, as the case may be, the court, in determining whether there is any evidence that he or she may be convicted on that charge, may draw such inferences from the failure as appear proper and the failure may, on the basis of such inferences, be treated as evidence corroborating any other evidence against the accused.” We then proceed to analyse the evidence before the court. The evidence that we have is not direct at all. It is circumstantial. In circumstantial evidence I am guided by the locus classicus case of R v Blom 1939 AD 188 which sets out the cardinal rules of logic that have to be satisfied when dealing with inferential reasoning. Firstly, the inference sought to be drawn must be consistent with all the proved facts. If it is not, it cannot be drawn and; Secondly, the proved facts shall be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude the other inferences then there must be doubt whether the inference sought to be drawn is correct. We have the following proven facts; 1. The altercation of the night before the fateful event of the burning of the deceased. 2. That nothing of any significance occurred between accused and deceased, or deceased and any other person between the previous night of the altercation and the night of the fire. 3. That deceased got burnt while in the bedroom with the accused person with the door locked from inside. HB 80/24 HCBCR 1534/24 4. That when the other people came into the house they found deceased no longer in flames but with smoke. 5. That accused upon being confronted with the charges gave a bare denial and did not tell the police that she denies the charges because deceased burnt himself. Section 257 of the Criminal Procedure & Evidence Act provides that an adverse inference may be drawn in such an instance to corroborate the evidence that is already there. 6. Then there is the evidence of Charles Malaba and Ndabezinhle Sibanda as well as Mbonambi Wiseman the police officer who visied deceased at the hospital about a week later. However, before the court can assess the probative value of such evidence, this court must make a finding on whether deceased made the utterances or not. Since Raynos Zulu told the court that he did not hear deceased say anything. Charles Malaba says he found accused standing and deceased lying on the bed. He then asked deceased what had happened and deceased said accused poured fuel on him and then lit him. The evidence of Ndabezinhle Sibanda was admitted as it appears in the state summary, and it is to the effect that on the way to hospital the deceased mentioned that the accused had splashed some petrol on his body and set him on fire. Raynos Zulu says he did not hear deceased speak. Charles Malaba says he asked deceased about the fire and deceased responded by telling him that accused poured fuel on him and burnt him. Raynos Zulu says he did not talk to deceased and did not hear if anyone spoke to the deceased. Looking at his evidence Zulu does not say that deceased never said the utterances as alleged by Charles Malaba and Ndabezinhle Sibanda as a questi