THE State V Mehluli Bhunu AND Trust Ngwenya

### Preamble
1
HB 55.20
HC (CRB) 20/20
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THE STATE

Versus

MEHLULI BHUNU

AND

TRUST NGWENYA

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 10 & 17 MARCH 2020

Criminal Trial

K Ndlovu, for the state

N Sibanda, for the 1st accused

T Dube, for the 2nd accused

KABASA J:		The two accused are charged with murder as defined in section 47 of the Criminal Law (Codification and Reform) Act, Chapter 9:23, it being alleged that between the 19th – 20th August 2018 at the 40,5 km peg along Plumtree – Madlambuzi road, the two accused, acting in common purpose, stabbed Memory Deredza with a knife several times on the chest and neck intending to kill Memory Deredza or realising that there is a real risk or possibility that their conduct may cause the death of Memory Deredza continued to engage in that conduct despite the risk or possibility.

The state’s allegations are that on 19th August 2018 the deceased left Botswana en route to Zimbabwe with the final destination being Masvingo where he intended to return his brother-in-law’s Mazda Bongo motor vehicle which he had borrowed in July 2018 to ferry church mates from Botswana to Gokwe and back to Botswana.  The deceased entered Zimbabwe at Maitengwe border post and along the way offered a lift to the accused persons who later robbed and killed him before burning his body.

Investigations led to the recovery of the Mazda Bongo motor vehicle, the deceased’s charred remains and some other property which was in the Mazda Bongo vehicle at the time of deceased’s departure from Botswana.

In their defence both accused did not deny causing the deceased’s death.  They however claim that such death occurred as they were defending themselves from an attack by the deceased.  The attack had been occasioned by their failure to pay the fare the deceased demanded for the ride he had offered them.  A quarrel ensued due to the fare issue whereupon the 2 accused hatched a plan to get the deceased to stop the motor vehicle so they could flee and make off without paying.  Accused 2 was to ask to relieve himself, which he did and the deceased stopped the vehicle.  The two had used Tonga language in communicating about this plan so that the deceased would be none the wiser as to their intentions.

Accused 2 subsequently asked to relieve himself and the deceased stopped the vehicle.  Accused 2 disembarked and went into the bush, whereupon accused 1 attempted to also disembark but the deceased grabbed him by the neck and started assaulting him.  The deceased produced a knife with which he intended to injure accused 1 whereupon accused 1 screamed drawing accused 2’s attention who rushed back to the vehicle.

Accused 2 failed to get the deceased to stop his attack on accused 1 whereupon accused 2 disarmed the deceased and stabbed him.  The deceased let go of accused 1 and turned on accused 2.  Accused 1 then took the knife and stabbed the deceased resulting in the deceased’s death.

To prove its case the state called on the evidence of 3 witnesses.  The statements of 7 witnesses were admitted into evidence in terms of section 314 of the Criminal Procedure and Evidence Act, Chapter 9:07.

Both accused’s confirmed warned and cautioned statements were admitted into evidence by consent, so was the post mortem report, the registration book of the Mazda Bongo motor vehicle, the call history from Econet Wireless showing the use of the deceased’s cell phone by accused 1 when he called his mother and the deceased’s cell phone which was recovered from the person to whom it had been sold.

As a result of these admissions the bulk of the facts were largely common cause.  The following was therefore not in dispute:-

The deceased was the driver of the Mazda Bongo motor vehicle registration number ACS 4800 on 19th August 2018.

In that motor vehicle was a tool box, jerry can which contained diesel, groceries, a bag with deceased and his baby’s old clothes and deceased had on him a Samsung Edous cell phone whose IMEI number is 356500072240470.  In it was an Econet line 07779 062471.

On entering the Zimbabwean side at Maitengwe border post the deceased was flagged down by the 2 accused who asked for a lift and the deceased obliged.

The deceased had communicated with his wife and his brother-in-law between 1830 and 1845 hours, thereafter the deceased’s phone was unreachable.  That was the last time the deceased was able to communicate signifying that he was alive as at those times.

The deceased’s brother-in-law subsequently filed a missing person report with Plumtree police and investigations ensued.

As a result of the investigations, the Mazda Bongo motor vehicle was recovered at accused 1’s aunt’s home at Bhagani area in Plumtree on the 1st of September 2018.

The deceased’s cell phone, with which accused 1 had called his mother was recovered from Norman Mlambo Tambudzi of Plumtree who had bought it for his wife from accused 1.

Information provided by accused 1’s aunt at whose homestead the Mazda Bongo motor vehicle was recovered led the police to a house in Plumtree where the 2 accused were arrested.

Following the 2 accused’s arrest and at their indications, the charred remains of the deceased were recovered in a bushy area at the 40,5 km peg along the Plumtree – Madlambuzi road.

A post mortem carried out by Doctor Roberto Lara Diaz established the cause of death as:

“hypovolemic shock and traumatic shock

Multiple wounds

Weapon wounds”

The doctor observed the following marks of violence:-

“1.	Wound on the left lateral part on the chest of 2cm, penetrating into the cavity with vitality signs

2.	Wound in anterior part of the chest measuring 2cm with vitality signs.

3.	Wound on the right lateral part of the chest measuring 2,5 cm.

4.	Wound on the anterior part of the neck.”

The only issue, in our view, is how the deceased met his death, were these fatal injuries inflicted by the accused whilst acting in self defence?

Self defence can be a complete defence when all the requirements thereto are met.  In terms of section 253 of the Criminal Law (Codification and Reform) Act, Chapter 9:23.

(1)	”..the fact that a person accused of a crime was defending himself or herself or another person against an unlawful attack when he or she did or omitted to do anything which is an essential element of the crime shall be a complete defence to the charge if -

(a)	when he or she did or omitted to do the thing, the unlawful attack had commenced or was imminent or he or she believed on reasonable grounds that the unlawful attack had commenced or was imminent, and

(b)	his or her conduct was necessary to avert the unlawful attack and he or she could not otherwise escape from or avert the attack or he or she, believed on reasonable grounds that his or her conduct was necessary to avert the unlawful attack and that he or she could not otherwise escape or avert the attack, and

(c)	the means he or she used to avert the unlawful attack was reasonable in all the circumstances; and

(d)	any harm or injury caused by his or her conduct –

(i)	was caused to the attacker and not to any innocent third party; and

(ii)	was not grossly disproportionate to that liable to be caused by the unlawful attack.”

In considering the above, the court is not to take an armchair approach.  Section 253 (2) therefore provides that:-

(2) 	“In determining whether or not the requirements specified in subsection (1) have “	been satisfied in any case, a court shall take due account of the circumstances in which the accused found himself or herself, including any knowledge or capability he or she may have had and any stress or fear that may have been operating on his or her mind.”

There was no direct evidence on how the deceased met his death.  The 3 witnesses who testified were his wife, brother-in-law and the Investigating Officer.  The wife’s evidence which was largely common cause or not disputed was to the effect that the deceased left Botswana proceeding to Masvingo and had jerry cans full of diesel.  She last communicated with him when he was at the border and later learnt of his death from an aunt.

Whilst Mr Sibanda for accused 1 sought to poke holes in this witness’s evidence regarding the amount of money the deceased had on him, we do not find that as crucial, given the circumstances of this case.  The real issue is how or under what circumstances the deceased met his death.

The second witness, who is the deceased’s brother-in-law’s testimony only established that which was not in dispute.  The witness is the owner of the Mazda Bongo motor vehicle the deceased was driving and on the fateful day, 19th August 2018, the witness spoke with the deceased whilst the deceased was at the border and after he had completed border clearance procedures.  The last the witness heard from the deceased was around 1845 hours.  He subsequently filed the missing person report, obtained the call history from Econet of the deceased’s cellphone and was present when the Mazda Bongo motor vehicle was recovered at Colley Ngwenya’s homestead in Bhagani, Plumtree.

The Investigating Officer’s testimony established the undisputed fact that the 2 accused gave statements and made indications which led to the recovery of the charred remains of the deceased.

The evidence was therefore mainly circumstantial with the 2 accused’s confessions filling in the gap on who caused the deceased’s death and why the deceased’s body was recovered in the state it was.

We are indebted to the detailed closing submissions made by Mr Ndlovu.  The state counsel correctly articulated the provisions of section 256 of the Criminal Procedure and Evidence Act (Chapter 9:07).  The 2 accused’s confessions were made freely and voluntarily and were duly confirmed.

Although accused 2 appeared to suggest that he was assaulted by the police, there was no suggestion that he was coerced into making the statement which was later confirmed and subsequently produced by consent.  More importantly the investigating officer who recorded the statements testified and it was never suggested to him that any force or undue influence was brought to bear on the accused to make such statements.

Accused 1 equally sought to suggest that the statement was inaccurate in some respects but advised that he never raised that at the confirmation proceedings nor did he do so to his defence counsel.

The Investigating Officer could not recall who between the two accused wrote their own statement but he was positive the statements were a correct reflection of what the two accused said.  It was never suggested to him that the statement did not capture the correct version of accused 1’s confession.

That said, we are satisfied the accused’s confessions were correctly captured and any attempts to challenge the accuracy is but an afterthought.

In State v Edward Dima Bhebhe SC 129/02 MALABA JA (as he then was) quoted with approval BEADLE CJ in R v Sambo 1964 RLR 505 at 571 A- G, as follows:-

“If the accused mention facts in his confession the knowledge of which he could only have come by by being connected with the crime, the mention of such facts will, of course, be most cogent evidence to show that the confession is genuine.  But even if the accused may have been questioned by the police on these very facts, their mention still has considerable probative value.”

Both accused confessed to the killing and burning of the deceased’s body.  The charred remains of the deceased were recovered at the accuseds’ indications.  It is important to note that although the warned and cautioned statements were recorded after the recovery of the deceased’s remains, the Investigating Officer’s evidence established that the accused had related the exact same details before the recovery of the body.  They could only have known of such detail because they were there.  The discovery of the body burnt, with evidence of tyre wires on it dove-tailed with what the accused had said before such recovery thereby showing the genuiness of the confessions.

The confessions were therefore grounded in reality as there was evidence that the deceased had died and was burnt.

The post mortem report also showed the injuries which led to the death.  These injuries were consistent with the accuseds’ confessions that they used a knife to stab the deceased on the parts of the body which the doctor noted in the post-mortem report.

Accused 2’s statement had detail of the area where the incident occurred.  There was a big rock on the roadside inscribed MDC with white paint, such detail could only come from real knowledge.  The confessions were therefore genuine and true.

In State v Freddy Ndlovu and Another SC 136/04 GWAUNZA JA (as she then was) cited the case of State v Tsorayi 1985 (1) ZLR 138 (HC) wherein the court quoted with approval from R v Sylees (1913) 8 Cr App R on the correct approach to adopt when dealing with confessions.

“The first question you ask when examining the confession of a man is, is there everything outside it to show it was true?  Is it corroborated?  Are the statements made in fact true? Is it consistent with other facts which have been ascertained and which, in this case,” (are) proved before us?”

The recovery of the charred remains of the deceased’s body from an area the deceased had passed through on his way from Botswana and at the indications of people who could only have known because of their involvement, neatly answers all the questions posed in the affirmative.

The next question is whether the accused caused the deceased’s death whilst defending themselves.  We had to rely on the accuseds’ version as the deceased did not live to tell the tale.

Accused 1’s story is but a story, one that appears to have been created in a not so fertile imagination and meant to peddle falsehoods regarding the circumstances which led to the deceased’s death.  We say so for the following reasons:-

1.	In his warned and cautioned statement accused 1 said after stopping the deceased who was driving a commuter omnibus they both paid $10.  After they had travelled for a while he then asked the deceased for transport money to Binga and the deceased asked him if he was insane.

“I said no, and I asked because our was not enough (sic) to travel to Binga.  He held

me by the neck and said “boy say what you want.”  I cried and my friend (sic) took a

knife and stabbed him on the stomach.  He let go of m (sic) and disembarked from the vehicle and held Trust, I also disembarked from the vehicle, he ran away, fell down and screamed.  I Mehluli took a knife and cut his throat.”

This is the account he gave at the earliest opportunity he was given to tell his side of the story.  There is no mention of the deceased demanding more money and a quarrel ensuing as a result of that.  There is also no mention of the deceased delivering a volley of blows, heavy at that, on the accused and producing an okapi knife intending to stab the accused with it.

All these details, meant to support a self defence story only emerge in a defence outline prepared just before the trial commenced.

This begs the question, “if there is any truth in this account, why was such detail not given in the warned and cautioned statement, the first opportunity the accused had to tell his story?”

The answer can only be because accused 1 had not had enough time and probably influence from other inmates to craft a story which would make a defence of self defence plausible.

The defence outline also sought to make the deceased the owner of the okapi knife, suggesting that the deceased had his own weapon turned against him and met his death under these circumstances.  Nothing could be further from the truth.  We are fortified in saying so because were that true, accused 1 would have had no difficulty in stating so in his warned and cautioned statement.

It would not have made sense that after accepting the $10 the deceased would turn around and resort to the use of a knife in order to get more by way of transport fare.  Accused 1 would have us believe that the deceased attacked him when he was about to disembark in order to follow the 2nd accused who had gone to relieve himself.  If, as accused 1 said the deceased stopped because they had successfully duped him into believing accused 2 genuinely needed to relieve himself, it follows that the deceased was a sitting duck, as he was unaware of the 2’s plan.  It equally follows that the deceased would not have had reason to attack accused 1 when the accused wanted to disembark for the same reason accused 2 had disembarked.

When state counsel pointed this out accused 1 had to come up with some explanation and this was that although they had used Tonga so the deceased would not know their plans, the deceased probably could and did understand the Tonga and so knew the 2 wanted to flee without paying.

That however does not make sense.  If the deceased understood the Tonga he would not have stopped as he would have known the recess story was just but a ploy to get him to stop so that the 2 would flee.

It therefore is more probable that the deceased did not understand what the 2 accused said to each other in Tonga and that is why he stopped when he was requested for a recess.

This makes accused 2’s version more probable that when the 2 accused spoke in Tonga it was to plot the robbery and not to make off without paying.

Accused 2’s admission that when he ran back to the motor vehicle it was because the attack on the deceased had commenced and the deceased proved difficult to subdue which necessitated the use of the knife, accords with the probabilities of the matter.

Whichever way one looks at it, the inevitable conclusion supports accused 2’s measured truth regarding how the attack on the deceased commenced.

The inescapable truth is that accused 1 was so eager to embellish the truth to the point of rendering his account not only inconsistent but also improbable.

2. 	Even if we were to accept the accused’s story, which we do not, the warned and cautioned statement shows that the deceased fled when he was under attack and he fell.  He was therefore at the mercy of the two accused and not posing any threat to them.  The fact that he is said to have screamed is proof of how vulnerable he was.  The scream was probably out of fear and a desperate attempt to alert whoever would have heard him of his predicament.

If all the accused wanted to do was get away as is suggested in the defence outline, they would have let the deceased go but that was not to be.  Accused 1 pursued him and cut his throat with a knife.  The burning of the body in order to conceal evidence is also very telling.

We have stated the requirements for self defence.  With these requirements in mind it boggles our minds as to “what attack was accused 1 under, what was he defending himself or accused 2 from.”

The answer, as correctly articulated by state counsel, is that there was no attack, it was the deceased who was under attack and who had reason to defend himself.

3.	In his defence outline accused 1 also states that after the deceased let go of him he turned on accused 2 who had managed to wrestle the knife from the deceased and had used it to stab him resulting in the deceased releasing accused 1.  Accused 2 was now the one under attack and he was armed with a knife but threw it to the ground.  It was then that accused 1 picked it up and stabbed the deceased resulting in his death.

We find this story curiously lame.  This is why, if accused 2 was able to disarm the deceased and stab him so the deceased could release accused 1, why would accused 2 not use that same knife which he was still in possession of to stab the deceased so that the deceased would release him?  Accused 2 saw it fit to wrestle the knife and stab the deceased all in a bid to rescue accused 1 but for some strange reason, failed to use that knife to save himself?

This is why we say accused 1 got all tangled up in a bid to concort a story in order to suit a manufactured defence and did a shoddy job of it.  This is to be expected, it is not that easy to weave a story and try to come up with a coherent and logical account from falsehoods.

4.	Under intense cross-examination by state counsel he sought to suggest that accused 2 was on the ground with the deceased on top of him when he stabbed the deceased.  He however did not want to acknowledge that he slit the deceased’s throat and after pre… on that he eventually said:-

“Maybe the deceased’s throat was not slit but his throat got into contact with the “knife.  I say so because when I got to deceased and 2nd accused, deceased was on top of the 2nd accused. “

How is the deceased supposed to have gotten in contact with the knife to the extent of having his throat slit?  Accused 1 was just determined to deny the truth of what happened.  His story even under cross-examination was littered with inconsistencies which was an indication that his story was not a true reflection of what happened

5.	Accused 2 in his evidence and under cross-examination refuted the self defence story.  The robbery plot was hatched when the 2 had boarded the deceased’s motor vehicle and accused 1 spoke in Tonga so that the deceased was oblivious of the devious plans the people who he had offered a lift were hatching against him.

Accused 2 repeated what he said in his warned and cautioned statement when he testified.  The evidence of a co-accused is admissible against the other.  The rider is that the court must exercise caution because of the risk that either or both may be seeking to protect himself by telling lies (State v Sambo section 22-90).

Accused 2 did not seek to minimize his role in a manner suggestive of one bent on self-prevention.  He was candid in admitting that he was the first to stab the deceased.  He was equally candid in admitting that he readily went along with the plot to rob the deceased and that when the deceased’s throat was slit he held his legs whilst accused 1 finished him off.

We are of the considered view that accused 2 could easily have alleged coercion by accused 1 who is obviously much older than him.  He could easily have said when he went to relieve himself he got back to the vehicle when the fatal blows had already been inflicted by accused 1.

Listening to accused 2 and observing him gave the distinct impression of one who was stating the facts after deciding to come clean on what actually happened.

It is for these reasons that we accept accused 2’s version on how the deceased met his death.  There was no self defence, accused 1 in slitting his throat accomplished the mission  the two had set out to do, to use violence to subdue the deceased so as to make off with the deceased’s property.

Finally in giving his evidence accused 1 sought to portray a picture of one whose conscience troubled him to the extent that he decided to tell a member of the neighbourhood watch committee about what they had done.  This was not correct.  This is so because accused 1 said the neighbourhood watch member asked about the Mazda Bongo motor vehicle which was at accused 1’s aunt’s place and wanted to know how the accused had obtained it.  It was therefore not him who volunteered information because he had decided to come clean.

His deceit is also revealed when he posed this rhetorical question:-

“What we would like to know is whether if we engage in a fight with someone and that person overpowers us are we not supposed to go to the police and advise them.”

This is not what they did.  Had they done so, the investigations which entailed seeking Econet assistance to trace the deceased’s cell phone, interviews with the buyer of the deceased’s cellphone and with accused 1’s aunt would probably have not been necessary as all that was done in a quest to find out what had befallen the deceased.

If accused 1 was desirous to tell the police that they had been involved in a fight that opportunity presented itself when the 2 encountered the police road block after setting the deceased’s body on fire.

Accused 1’s deception is also revealed in his explanation for driving off with the deceased’s motor vehicle.  He had this to say:-

“We then asked each other what we were to do.  Accused 2 said let us leave the place and the motor vehicle behind.  I then suggested that we were not supposed to leave the motor vehicle behind as it had groceries.”

So the only reason why they had to take off in the deceased’s motor vehicle was because it had groceries?  So the groceries needed to be protected?

Accused 1 was demonstrably shown to be a person with very little respect for the truth.  He was economical with it to the point of incredulity.

We therefore have no hesitation in dismissing his self defence story as it was shown to be not only improbable but beyond doubt false.

Turning to accused 2, under cross-examination he all but conceded that they did not act in self defence.  When he asked the deceased to stop so he could relieve himself it was but a ploy to execute the robbery plan.  They needed the motor vehicle to stop in order to successfully carry out the plan and they spoke in Tonga so that the deceased would not know what plans they had for him.  Had the deceased been conversant in Tonga he would surely have sped off after accused 2 had disembarked or refused to stop altogether.

The responses he gave under cross-examination left us in no doubt that:-

1.	The deceased was not armed when the 2nd accused went back to the motor vehicle after feigning the need to relieve himself in order to get the deceased to stop.

2.	The okapi knife that was used to kill the deceased was not taken from the deceased.  Had it been on that dashboard all along accused 2 would have seen it as the 2 of them were sitted in the front seat with the deceased.

3.	The deceased was the one who tried to defend himself from the 2 accused’s attack but was no match for them. He was lying helplessly on the ground when his throat was slit.

4.	The deceased was killed in the course of a robbery and accused 2 fully participated.

What intention could the 2 possibly have had if not to cause deceased’s death when accused 1 pinned him down with his knee and accused 2 held his legs before slitting the deceased’s throat?

Accused 2 demonstrated how this was done, a demonstration akin to how people slaughter a chicken.

A knife is a potentially lethal weapon, it was used to stab a human being not once but four times and all four positions aimed at the upper part of the body, with such force to cause wounds that penetrated into the chest cavity and the final being the slitting of the throat.

The intention was to bring about the death of the deceased and they achieved that purpose.  (State v Robert Magwanda SC 19-02) 2002 (1) ZLR 574 (SC).

Counsel for the 1st accused referred us to the case of State v Zimondi H-H 179-15 but the circumstances therein are not the same as in casu, we do not intend to go into the facts at that case, suffice to say the only similarity is in that the murder was not witnessed by anyone and the deceased therein had several stab wounds and a knife stuck in her chest at the time she was found.

In casu the intention was to rob the deceased, the accused killed the deceased in order to rob him (State v Freddy Ndlovu (supra), the murder was with actual intent.

We are satisfied the state proved its case beyond a reasonable doubt.  The accused’s defences in so far as they sought to embellish the truth of how the deceased met his death were shown to be beyond doubt false and we reject the embellished version.

They are consequently found guilty of murder with actual intent as defined in section 47 of the Criminal Law (Codification and Reform) Act, Chapter 9:23.

National Prosecuting Authority, state’s legal practitioners

Tanaka Law Chambers, 1st accused’s legal practitioners

James Moyo-Majwabu & Partners, 2nd accused’s legal practitioners