THE State V Meluleki Ncube

### Preamble
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HB 164.19
HC (CRB) 87/19
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THE STATE

Versus

MELULEKI NCUBE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J with Assessors Mr  P Damba and Mr E Mashingaidze

BULAWAYO 17 AND 18 OCTOBER 2019

Criminal Trial – Ex Tempore

B. Gundani for the state

M Dube for the accused

MAKONESE J:	The accused has been arraigned in this court on a charge of murder.  It is alleged that on 1st January 2018 and at 2338 Emakhandeni, Bulawayo, he assaulted Bhekimpilo Moyo intending to cause his death or realizing that there was a real possibility that death might ensue.  The accused denied the allegations and pleaded not guilty.

On 31st December 2017 Mengezi Moyo arranged a New Year’s  eve get together party at his residence at Emakhandeni.  Relatives and friends were invited to the function.  Beer was being consumed in fairly large quantities. Attendees were embroiled in misunderstandings.  One Dumisani Ndlovu who resides in South Africa had an altercation with Monalisa Nkomo.  A little while later, and after midnight,  Dumisani and one Mbekezeli Ncube demanded to have audience with the owner of the house where the party was being held.  It is alleged that Dumisani and his associate Mbekezeli forced themselves into the yard and pelted the persons there with stones and other objects.  The state alleges that in the melee that ensued, the accused person struck the deceased with a stone on the head causing him to fall to the ground.  It is further alleged that Dumisani Ndlovu struck the deceased with an axe on the head before fleeing the scene.  Dumisani and Mbekezeli are still at large.

In his defeence outline, the accused avers that he is a serving member of the Zimbabwe National Army.  On the day in question and shortly after the new  year celebrations he was asleep at his residence in Emakhandeni.  He was awakened by Mbekezeli,   his brother who told him that he had been assaulted by some people.  Accused woke up and followed his brother to a neighbouring house where the fracas was said to have occurred.  On his arrival at the scene he found a group of people outside the yard surrounding a man who was lying on the ground.  Upon enquiry he was informed that one Dumisani Ndlovu who was driving a South African registered motor vehicle had attacked the man with a sharp object on the head and sped off.  Accused was surprised when the crowd besieged him alleging that he was one of the assailants.  Accused was hit with stones.  He managed to escape in the darkness and retired to his home.  The following morning on 1st January 2018 the accused was arrested by the police on allegations of the murder of Bhekimpilo Moyo.  Accused vehemently denied the allegations indicating that he was wrongly implicated.

The state tendered accused”s confirmed warned and cautioned statement into the record.  The statement is in the following terms:

“I understand the allegations leveled against me but I do not admit because on the day that the new year had recently been celebrated I was awakened by my brother Mbekezeli Ncube while I was sleeping, he was saying they had been assaulted by some people while he was with a neighbour.  I got up intending to go and ascertain what was happening so we go to the police, when I got there I tried to talk to the father inside the yard.  They then pelted me with stones and I was struck on the arm and head and that is when I got out of the gate.  There were some people and a person lying on the ground and they were saying Dumisani Ndlovu, a South African individual (injiva) had assaulted someone with a sharp object.  That is when I ran to the house to wash and bandage, I then came back alone in the morning to assist the police to apprehend Dumisani and Mbekezeli”

Dr Sanganayi Pesanai is a duly registered medical practitioner based at United Bulawayo Hospitals.  On 2nd January 2018 he examined the remains of the deceased and recorded his findings in a post mortem report number 01/00/2018.  The post mortem report reveals that the cause of death was:

(a)	asphyxia

(b)	bronchial aspiration

(c)	head injury

(d)	assault

The state led viva voce evidence from two witnesses.  The first to testify was LEEROY SIBANDA.  He is a member of the Zimbabwe National Army based at Mzilikazi Barracks.  He is known to the accused person.  They are workmates and neighbours at Emakhandeni.  On the day in question he was at Mengezi Moyo’s residence for a new  year’s eve party.  Mengezi is his friend and neighbour.  Sometime late that evening there was an altercation.  There was a commotion involving several persons including Monalisa Nkomo, Mbekezeli Ncube and one Dumisani Ndlovu.  At some stage the fighting subsided and Dumisani Ndlovu and his associate left the residence.  After approximately 10 minutes, Dumisani and Mbekezeli returned to the scene.  People started throwing stones around.  The witness decided to leave the residence.  He jumped over the durawall into his yard.  The witness did not see how the deceased was attacked.  He later observed that deceased was lying down in front of the gate.  He was motionless. He was seriously injured.

The witness flatly denied that the accused was present when the deceased was attacked.  He maintained that he observed that accused only arrived at the scene when the deceased had already been injured and was lying on the ground.

The court makes a finding that the evidence of this witness was credible and consistent.  He was not shaken under cross-examination.  We accept his evidence as an accurate reflection of the events as he perceived them.

The state then led evidence from a juvenile, ALFRED MLAUZI.  He was aged 11 years at the time of the offence.  The deceased was his uncle.  He is known to the accused as he resides in the neighbourhood.  This witness gave evidence that directly contradicted the first state witness.  The witness averred that when the commotion began he climbed up a mango tree. His vision was partially obscured by leaves.  He contended that he saw Dumisani Ndlovu carrying an axe.  He observed Mbekezeli Ncube carrying a stone.  An unidentified person was in possession of a knife.

The witness stated that he climbed the tree because he was afraid of being attacked by the persons who were fighting.  The witness stated that from his vantage point he observed the accused attacking the deceased with a stone on the head.  The deceased fell to the ground.

The accused who had been wearing a mask removed the mask and pretended to be surprised at what had just happened to the deceased.

The evidence of this witness is fraught with inconsistencies and improbabilities.  The incident occurred at night around midnight.  The first witness stated that the source of lighting was moonlight.  This witness indicated that there was a light bulb affixed next to the wall which illuminated the residence.  The witness gave the impression that there were about 25 persons at the scene at this party.  He was the only one who was able to identify the accused as the assailant.  The evidence of the witness is in conflict with the testimony of the first witness who indicated that accused only arrived at the scene after the deceased had been attacked and had fallen to the ground.  The witness did not explain why he climbed a tree when he was not a party to the violent conflict.  In any event, the witness was only 11 years old.  He had no reason to be involved in a fight involving drunken adult persons.  For the most part, the evidence of this witness sounded fictitious and suspicious.  The issue of the accused and others wearing balaclavas only emerged late in his testimony.  Nowhere in the outline of the state case was it alleged that accused wore a mask at the time of this incident.  What complicates, this piece of evidence is that if the accused was indeed, hiding his face behind a mask how was the witness able to positively identify him?  The evidence of this witness is not credible.  There is danger of fabrication and false incrimination.

The evidence of the juvenile is a story for the movies.  It is a typical case of a movie theme for a cartoon network.  In criminal cases, the state bears the burden of proof beyond reasonable doubt.  The state is required to prove all the essential elements of the charge.  The guilt of an accused may not be inferred.  The evidence led by the state at the close of the state case must establish a prima facie case.  Such evidence must be of a standard that a reasonable court exercising its mind correctly, could or might convict. See; Attorney General v Makamba 2005 (2) ZLR 54 (5) and Attorney General v Bvuma & Another 1987 (2) ZLR 96 (5)

It is inappropriate for the court to place an accused on his defence in order to buttress a weak state case.  The state case in this matter is so weak and discredited that no court applying its mind correctly could convict. The defence has applied for discharge at the close of the state case in terms of section 198 (3) of the Criminal Procedure and Evidence Act (Chapter 9; 07). The state argued that the state had established a prima facie case. We do not find favour with the argument by the state. There were several persons directly involved in the scuffle. One wonders why  none of these potential witnesses were not called by the state.

We are satisfied that the accused person is entitled to his acquittal.  In the circumstances, the accused person is found not guilty and acquitted on the charge of murder.

National Prosecuting Authority, state’s legal practitioners

Samp Mlaudzi and Partners, accused’s legal practitioners