S v Moyo and Anor (HCB 18 of 2002) [2002] ZWBHC 26 (28 February 2002)

REMEMBER MOYO 1st APPLICANT Judgment No. HB 26/2002 Case No. HCB 18/2002 and GILBERT MOYO versus THE STATE HIGH COURT OF ZIMBABWE KAMOCHA J BULAWAYO 1 MARCH 2002 2nd APPLICANT RESPONDENT J Tshuma for the 1st applicant N Mathonsi for the 2nd applicant H S M Ushewokunze III for the respondent Bail Application and Application for Leave to Appeal KAMOCHA J: The two applicants are brothers. They are charged with two counts of murder. Firstly, they are alleged to have taken part in the murder of Limukani Luphahla on 27 October 2001 in the Lupane area. The second charge is that of murdering Cain Nkala on 5 November 2001 at Norwood Farm after having allegedly kidnapped him from his Bulawayo home. The first applicant was arrested on 11 November 2001 while he was on his way to Harare with one Khethani Augustine Sibanda. The second applicant Gilbert Moyo - “Gilbert” was arrested the next day - 12 November 2001. After hearing submissions from counsel on both sides I granted applicants bail on the following conditions. “It is ordered that:- (1) each applicant deposits $5 000,00 with the Registrar of the High Court of Bulawayo; (2) (3) he reports once a week every Friday between the hours of 6.00am and 6.00pm at Luveve Police Station; he resides at 4735 Gwabalanda, Bulawayo; and -2- 26/02 (4) he does not interfere with state witnesses. After the above order had been issued the state counsel gave notice that he wished to appeal against the above decision in terms of the provisions of section 121(2)(a) of the Criminal Procedure and Evidence Act [Chapter 9:07] as amended by section 2 of Act 8 of 1997. The notice to appeal was only in respect of the first applicant Remember Moyo - “Remember”. The state counsel proceeded to apply for leave to appeal. Both counsel made submissions at the end of which I declined to grant the state leave to appeal. I indicated that my reasons for granting the applicants bail and refusing to accede to the application for leave to appeal would follow. These are they. The state opposed bail on the following grounds:- (1) (2) If granted bail the applicants are likely to abscond. The applicants are facing very serious offences and there is sufficient offence. evidence linking the applicants to the commission of the (3) It is not in the interest of justice that the applicants be released on bail (4) pending trial. Investigations into the matter are now complete and the applicant’s matter is ready for trial. The facts relied upon by the state are contained in two affidavits sworn to by Detective Inspector Martin Matira. Both affidavits are quoted in extenso hereunder. The one relating to Remember Moyo reads: “I, MARTIN MATIRA force No. 025856 D do hereby make oath and swear that:- (1) of this I am a Detective Inspector in the Criminal Investigation Department the Zimbabwe Republic Police and I am the investigating officer in case. I know the accused REMEMBER MOYO only in connection with this (2) case. He is an active member of MDC being the Regional Intelligence Security Officer and is employed as a driver by the party based at its Bulawayo office. -3- 26/02 On the 26th October, 2001 Nkanyiso MOYO, Spencer MGUNI and (3) Thandazani MPOFU who are all MDC activists had a fight with Limukani LUPHAHLA and Thembinkosi NGWENYA @ BHUNYA who are ZANU PF youth members based in Lupane. Nkanyiso and his sustaining some injuries. On the 27th October, 2001 gang had a meeting and phoned their MDC offices in to the accused requesting for reinforcement to gang lost the fight Nkanyiso and his Bulawayo and spoke fight their rivals. Accused addressed the matter to one Nicholas Sonny National Security officer. Masera the Deputy Lupane. On 29/20/2001 MASERA gave accused an MDC Toyota Hilux Reg Accused Remember, Khethani and Matshobana got to Lupane at about (4) 733-394R white in colour and ordered him to take with him Kethani Augustine SIBANDA, Matshobana NGWENYA for the mission in (5) 1700 hours and met witnesses Sideliwe TSHUMA, Beauty NCUBE, Ottalia NYONI from whom they enquired the whereabouts of Nkanyiso and others. They then met and accused requested for a full detail on how they (Nkanyiso and others) were assaulted by Limukani LUPHAHLA and Thembinksoi NGWENYA. Nkanyiso, Lungile, Trevor took accused Remember, Khethani and Matshobana went to Limukani’s house posing as Detectives from Hwange who had come to assist him on arresting people who were disturbing them in Lupane. The accused(s) were seen by witnesses Xwayani MPOFU and Turkler NDLOVU who will testify. The accused with co-accused took Limukani into the Toyota Hilux Reg. No. 733-394R hand-cuffed him and took him to a point along the Lupane/St Lukes’’ Road where they killed him by strangulation. They then drag him to a point in the bush and set his body on fire. Limukani’s body was burnt beyond recognition. Accused Remember with his accomplice drove back to Bulawayo and (6) reported mission accomplished to Nicholas Sonny Masera who authorised payment of $3 000 each. Thembelani MKANDLA will testify to that effect and will produce the MDC Petty Cash Voucher as exhibit “ “ (7) MOYO and Trevor MGUNI before police identification parade held at Bulawayo Central Police Station by Detective Inspector KHUMALO Remember and Khethani were identified by Nkanyiso MOYO, Lungile as people who came looking for the now deceased on 29/10/2001. The photographs are produced as exhibit” “. Also witnesses Beauty NCUBE, Sideliwe TSHUMA and Ottilia NYONI who saw accused on the 29/10/2001 at Lupane enquiring for directions to any MDC supporters in the area all identified the Toyota Hilux Reg. No. 733-396R to be the vehicle accused was driving at Lupane before the kidnapping. Photos will be produced as exhibit” “. -4- 26/02 (8) Accused in his arrest confessed in his Warned and Cautioned Statement that he kidnapped and killed Limukani LUPHAHLA with his co-accused. The statement is produced as Exhibit” “. The state will also produce the MDC Petty Cash Voucher for $9 000 endorsed Mat North Operations as Exhibit” “ being proof of payment. Will produce the photos of the Toyota Hilux Reg. No. 733-394R which was recovered by Police on 04/12/2001 at Exhibit” “ the MDC vehicle which was being used by the accused person on kidnapping Limukani LUPHAHLA. (9) kidnapped from his Magwegwe West home by accused REMEMBER On 5th November 2001 at about 2015 hours CAIN NKALA was his accomplices, Khethani SIBANDA, Gilson MOYO, NDLOVU, Matshobana NGWENYA and NKALA to a point in Norwood him and later killed him by the shoes that were worn by The body was later buried in a shallow grave. Gilbert MOYO. They took CAIN Farm near Solusi University tortured strangulation using shoe laces from SAZINI MPOFU on the day in question. MOYO and Sazini MPOFU, Prince On 11/11/2001 accused Remember MOYO was arrested whilst driving to Harare with co-accused Khethani SIBANDA. They were to obtain forged travelling documents and cash of R1.5million to transport accused as they were to escape the investigations. On his arrest accused Remember MOYO was posing as Ronnie MOYO. He produced a South African Drivers’ Licence No. 60210003493 valid from 02/04/99 to 02/04/2004 bearing his South African identity numbers as 02/701206603082. Accused Remember was implicated by co-accused Khethani SIBANDA. The state will produce KHETHANI’s warned and cautioned statement as Exhibit” “ Remember was also implicated by co-accused Gilbert MOYO. The state will produce Gilbert MOYO’s warned and cautioned statement as exhibit” “ (10) Accused was arrested after having been implicated by his co-accused KHETHANI AUGUSTINE SIBANDA. Khethani SIBANDA made indications leading to the recovery of Cain NKALA’s remains at Norwood Farm on 13/11/2001 near Solusi University. (11) Accused are also being implicated by Sazini MPOFU whose shoe laces were used and found tied around the deceased’s body when it was exhumed. The state will produce Sazini MPOFU’s warned and cautioned as exhibit” ‘. The state will also produce the petty Cash Voucher for $3 5000 which Thembelani was ordered to process and pay by MASERA, the deputy National Security officer for MDC who in turn paid each accused $5 000 as a token of thanks for having killed Cain NKALA. -5- 26/02 The state will also produce indications made by Sazini MPOFU and Khethani SIBANDA leading to the recovery of Cain NKALA’s body as Exhibit” “. Accused Remember MOYO’s South African Drivers’ Licence in the name of Ronnie MOYO produced before court as exhibit” “. (12) Isaac MAPOSA has since been checked by the Police at MDC offices Harvest House and investigations have revealed that he absconded to Canada on 27/11/2001. (13) If granted bail accused is likely to abscond to Canada and stay with Isaac MAPOSA. (14) Accused was identified by independent witnesses who need to be secured by the state. (15) Also viewing the seriousness of the case accused will abscond. I therefore strongly oppose bail.” The one that follows relates to Gilbert Moyo. “I, MARTIN MATIRA Force Number 025856D do hereby make oath and swear that:- I am the investigating officer to this case. On 5th November 2001, CAIN NKALA was kidnapped from his house 1. 2. at house number 5504 Magwegwe West Bulawayo by accused with his accomplices Remember Moyo, Khethani Augustine Sibanda, Sazini Mpofu, Prince Ndlovu, Gilson Moyo and Matshobana Ngwenya. 3. On the 11/11/01 Khethani Sibanda was arrested whilst driving to Harare with accomplice Remember Moyo. Khethani Sibanda confessed to had been involved in the kidnapping and killing of CAIN NKALA. He took me and Insp Ncube and 4. indicated where he had buried the remain of CAIN NKALA with his co-accused namely Gilbert Moyo, Remember Moyo, Sazini Mpofu, Gilson 5. Gwabalanda Bulawayo where I arrested Gilbert Moyo. I verbally Moyo, Prince Ndlovu and Matshobana Ngwenya. From the scene Khethani Sibanda directed me to house number 4734 warned and cautioned him about the case and he confessed that he was involved in the kidnapping and killing of CAIN NKALA on 5/11/01 from his house at number 5504 Magwegwe West in Bulawayo. 6. I requested him to take me for indications to the place where they buried the remains of CAIN NKALA and he indicated to me that he 7. was not familiar with the place, he might get lost. However he emphasised that it was along Plumtree road. On the 14/11/01 at about 1600 hours, a warned and cautioned statement was recorded from the accused at Z. R. P. Nkulumane by Detective Inspector Maphosa and Detective Chief Inspector Makheleni. Accused gave his reply freely and voluntarily without due influence. -6- 26/02 He wrote his reply in vernacular SiNdebele in his writing. I will statement produce the warned and cautioned statement before the court as exhibit” “. The accused wrote his warned and cautioned which alibies to be verified. 8. On the 8/11/01 accused went to MDC offices where he collected $10 000,00 from Thembelani Mnkandla the MDC Regional Secretary for Matabeleland Provinces. The money was for accused persons and Gilson Moyo. This money was a thanks token from Fletcher Dulini thanking the accused and others for a job well done of having killed CAIN NKALA. Thembelani Mnkandla will testify on this payment. I will produce the MDC petty vouchers dated 5/11/01 for $5 400,00 dated 7/11/01 for $35 000,00 before the court as Exhibit” “. 9. Accused was implicated by Khethani Sibanda. He has made indications to the recovery of CAIN NKALA’s remains. I will produce his indications and warned and cautioned statement for the accused as exhibit” “ before the court. in I will further produce the photos of the Toyota Hilux Raider white colour registration numbers 733-394R which accused mentioned in his warned and cautioned statement. This is an MDC vehicle which was used by accused and his accomplices on committing this offence, exhibit” “. Remember Moyo his elder brother implicated him. Remember Moyo 10. confessed to the kidnapping and killing of CAIN NKALA. I will produce Remember Moyo’s warned and cautioned statement before the court as exhibit” “. 11. Sazini Mpofu confessed to the killing of CAIN NKALA and made indications leading to the recovery of CAIN NKALA’s remains. He implicated the accused on this case. I will produce Sazini Mpofu’s warned and cautioned statement before the court as exhibit” “. 12. Accused was directly involved in the kidnapping and killing of CAIN NKALA. If granted bail he is likely to abscond because of the seriousness of the case. I strongly oppose bail to be granted on the accused person.” 13. I shall first turn to deal with the case of the second applicant Gilbert Moyo - “Gilbert” who is facing one count of murder of Cain Nkala. He denied any knowledge of the murder and raised an alibi. He stated that he was at his rural home when the murder was committed. He had come to visit his brother Polisani Moyo a week before he was arrested. -7- 26/02 On the night of 12 November 2001 the police led by Inspector Martin Matira went to house number 4735 Gwabalanda, Bulawayo to arrest Gilbert whom they found sleeping. His brother Polisani was also sleeping at the same house. Both were subjected to assaults with clenched fists after they had identified themselves. The applicant was asked to name the people whom he had lent some money. He said he had lent Remember Moyo a sum of $1 000,00. Remember had borrowed the money as he wanted to travel to Harare. He was arrested in Gweru on his way to Harare. The applicant was then accused of having undergone some training and was put into a police vehicle and driven around town before being taken to Nkulumane Police Station during the early hours of the morning. At the police station he was taken to a toilet where he was tortured. His head was forced into a toilet chamber while the toilet was flushed in order to choke him. Thereafter the head was pulled out and he was asked about the murder of Cain Nkala. He denied any knowledge of the murder and stated that he had only come to town for a visit since he was a communal home dweller. The torture then took another form. The police pinned him against the wall and belaboured his stomach with fists and booted feet. A button stick was used on his head and was slapped in the face. He was all the time being asked to admit that he was part of the group that committed the offence. The police also threatened to shoot him for refusing to go and make indications in front of cameras along with other co-accused and insisting that he knew nothing he could indicate. They told him that after shooting him they would claim that he was trying to escape. -8- 26/02 Later, during the ordeal the applicant was exhausted and scared for his life and agreed to do whatever the police told him. Since he knew nothing about the facts of the matter the police called in one Khethani Augustine Sibanda who was made to narrate a story about what had happened to Cain Nkala. Thereafter Khethani Sibanda was taken out of the room. The applicant was then ordered to recount what Khethani Sibanda had said while they recorded that as the applicant’s statement. The applicant still had difficulties in remembering portions of the narration and the recording officer would fill him in. The statement he was made to sign was compiled in that fashion. The statement was not confirmed by a court of law since the applicant challenged it from the on set. It remains inadmissible until a court of law rules it admissible after a trial within a trial. The state cannot rely on the confessions of the applicant’s co-accused since those cannot be used against the applicant. Such confessions can only be used against those who made them if they are found to be admissible. The state seemed to rely on the affidavit by Matira supra where he claimed that the applicant confessed that he was involved in the kidnapping and killing of Cain Nkala on 5 November 2001 from his home at number 5504 Magwegwe West in Bulawayo. But that is denied by the applicant who raised an alibi which Matira said he was going to verify. When he was requested to go and indicate the scene of the murder he told Matira that he did not know the place and would not be able to indicate it. Matira said the applicant emphasized that it was along Plumtree road. This of course cannot be correct since the murder occurred along Solusi road near Solusi. This can only -9- 26/02 suggest that applicant did not know where the murder took place that is why he said he would not be able to indicate the scene and named a wrong road all together. Plumtree road and Solusi road are two different roads leading in different directions. Quite clearly there does not seem to be any admissible evidence linking the applicant to the crime of murder that he is facing. He is therefore entitled to be admitted to bail. There was no evidence to show that he would abscond if released on bail. It is in the interest of justice that where a person is not linked to the crime he is alleged to have committed he should be granted bail pending trial, Finally the applicant cannot be denied bail because the investigations are complete and the matter ready for trial since he is entitled to his liberty until proven guilty. I now turn to deal with the first applicant Remember Moyo - “Remember” who faces two counts of murder. He was arrested in Gweru en route to Harare in the company of Khethani Sibanda. He was assaulted at Gweru Police Station after his arrest. On the way from Gweru to Bulawayo he was handcuffed, leg ironed. At a certain lay-by near Mbembesi he was pulled out of the motor vehicle, kicked, punched and slapped by Matira, Ngwenya and others. The applicant went on to state that he was kicked in the testicles, struck on the head and left side of the body. The wheels of the motor vehicle injured his jaws. He was lifted by the legs by grabbing the leg irons and he sustained sores on both his achilles tendons. Thereafter he was taken to Mbembesi Police Station where he was detained. He was chained to a ring in the cell and was handcuffed, and remained in the cells for 3 nights. He was denied blankets and mosquitoes attacked him severely. All this was -10- 26/02 done in order to extract a confession to the two charges of murder. In addition to being forced to falsely confessing to committing the offences he also was being forced to falsely implicate certain people. The applicant was adamant that he did not participate in the abduction and murder of Cain Nkala and Limukani Luphahla. In as far as the murder of Limukani Luphahla is concerned Matira averred that evidence would be led from Nkanyiso Moyo, Lungile Moyo and Trevor Mguni. But these witnesses are alleged to have had a fight with the deceased earlier. They are in fact also co-accuseds to the murder of Limukani. They are all on bail. These co-accuseds do not seem to say that they saw the applicant murder Limukani. Matira alleged that these co-accuseds indentified the applicant. No useful purpose was served by such an identification parade since they were identifying a colleague. Although there are witnesses who said they saw the applicant in the Lupane area on the fateful day their evidence does not say that they witnessed the applicant murder Limukani. The state cannot rely on the confessions made by the applicant’s co- accuseds. The applicant’s alleged confessions are inadmissible at this stage. It seems to me that there is no sufficient evidence at this stage to directly link him to the murder of Limukani. More evidence may be led at the trial to establish that. But at the moment the applicant should be presumed innocent until proven guilty at the trial. As regards the abduction and murder of Cain Nkala the state seems to depend on the confessions of the applicant and his co-accused. But these are inadmissible. Those made by his co-accused cannot be used against him. His alleged confessions -11- 26/02 seem to have been extracted illegally. The evidence of Matira is purely speculative and hearsay. He has no independent direct admissible evidence linking the applicant to the murder. It has not been shown that if granted bail the applicant would abscond. I hold the view that there is no sufficient admissible evidence linking the applicant to the commission of these serious offences. The state claimed that it was not in the interest of justice that the applicant be released on bail pending trial. I do not agree. Quite to the contrary, justice demands that the applicant be granted bail. He is entitled to his liberty until proven guilty. The fact that investigations are complete and the case is ready for trial should work in the applicant’s favour. He can no longer interfere or hinder any investigations as they are complete. In the light of the foregoing I granted both applicants bail on the conditions set out on page 1 and 2 of this judgment. The state then indicated that it wished to apply for leave to appeal against the granting of bail to Remember Moyo only. The state submitted that the court had erred in granting bail to Remember when there was evidence of two witnesses who saw him participating in the kidnapping of Limukani. The further submission was that the court had not taken cognisance of the degree of participation and involvement of Remember. Finally the state’s complaint was that the court should not have taken into account the findings it made in the Spooner’s case. -12- 26/02 I do not agree with the state counsel that there is evidence from two witnesses saying they saw Remember participating in the murder of Limukani. The witnesses said they saw Remember in the Lupane area. That is what is contained in paragraph 5 of Matira’s affidavit in respect of Remember. The state contended that Remember should not have been granted bail in the light of his degree of participation. That then made his case different from the cases of other accused who have already been granted bail. I was unable to find any direct link of Remember to the commission of the murder of Limukani. Similarly he was not directly linked to the murder of Nkala. Matira’s evidence was mere speculation and hearsay. I see nothing wrong with the court relying on its earlier findings in a hearing involving the same people. The case is the same and so is the evidence. In conclusion I hold a view that there is no direct admissible evidence to link Remember to the crimes. It seems to me, therefore, that the application for leave is devoid of any merit and is accordingly dismissed. Webb, Low & Barry applicants’ legal practitioners Criminal Division of the Attorney-General’s Office respondent’s legal practitioners