Court name
Supreme Court of Zimbabwe
Case number
SC 58 of 2003
Crim. Appeal 185 of 2001

S v Sibanda (85/01) (SC 58 of 2003, Crim. Appeal 185 of 2001) [2004] ZWSC 58 (01 March 2004);

Law report citations
Media neutral citation
[2004] ZWSC 58



13


SC
58/03















REPORTABLE
(50)


Judgment
No. SC 58/03


Crim.
Appeal No. 185/01









MICHAEL
SIBANDA v THE STATE








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA & CHIWESHE AJA


BULAWAYO,
DECEMBER 1, 2003 & MARCH 2, 2004








J
Tshuma
,
for the appellant





S
M Ushewokunze
,
for the respondent





CHEDA JA:
The appellant lived with his wife at house no. 308 Emakhandeni
in Bulawayo, where they rented two rooms. The
appellant left for
his communal home on 17 April 1998 and returned on 19 April
1998. On that day, 19 April 1998,
his wife was found lying in
a pool of blood. She was dead.





The
appellant was charged with her murder in the High Court. He was
convicted of murder with actual intent. The trial court
found no
extenuating circumstances and sentenced him to death. This appeal
is against both conviction and sentence. The notice
of appeal is
not in the file but the Court was advised that the appeal was against
both conviction and sentence.






The State
alleged that the appellant, who was then twenty-four years old,
murdered his wife aged thirty years.






The evidence
led from one Khulumani Mhlanga (“Mhlanga”), the owner of the
house, was that on 17 April 1998 the deceased
and the appellant
were both seen at the house at about 7.30 hours. The deceased
emerged from the direction of the toilet and
proceeded to her room.
That was the last time he saw her alive. The witness left home to
meet his wife at Entumbane bus terminus,
leaving the appellant in the
house with his wife. On arriving back at the house at about
11.30 am, he saw the appellant coming
from the direction of the
toilet and they exchanged greetings. Later he heard their door
being closed and locked. Thereafter
he heard no sound or movement
from the appellant’s room.






Later in the
day the appellant’s mother visited the house and knocked at the
door of the appellant’s room. She found no-one
and left a carrier
bag containing groceries with the witness. The witness did not see
the deceased or the appellant. There was
no light, movement or
sound from their rooms between 17 and 19 April 1998. He next saw
the deceased when she was dead.





Later
under cross-examination Mhlanga said he last saw the deceased on the
morning of 16 April and he last saw the appellant
on the morning
of 17 April. He said when the body was found he observed dry
blood and there was blood oozing from somewhere.
He said the keys
he used had been stolen with his briefcase.






Detective
Assistant Inspector Abraham Malunjwa (“Malunjwa”) also gave
evidence. He knew the appellant only in connection with
this case.
On 19 April 1998 he was called to attend to the case at
Emakhandeni. He found some police details and other people
there.
The deceased’s body was in a box in the police vehicle. The box
was opened and he saw the deceased who had a wound on
her throat.
The throat had been slit open. He noticed a wound near the right
ear of the deceased. He entered the house to see
what had happened.
He saw remnants of a stone which he thought could have been used to
strike the deceased below the ear.





When
asked, the appellant said he had left his wife in the room and when
he returned the room was locked and he used his key to
open the door.
He checked and saw that the windows were closed and the curtains
were drawn. He was advised that the deceased
also had keys. He
searched for the keys and found them in a small handbag which
contained two Bibles.





Whilst
searching for a knife, Malunjwa saw two cups that had been used but
not washed. He suspected that the appellant had killed
his wife and
he arrested the appellant.






Doctor Jehenya
examined the body of the deceased the following day and also went to
the scene. There was an electrical cord
on the floor connected to a
plug in the dining-room. The other tips of the cord were naked.
He said he examined the remains of
the deceased on 20 April
1998. He said he saw some burn marks on her and there was a
pressing iron in the room which could
have been used to inflict the
burns. He observed that the neck was cut above the voice-box. The
spinal column was completely
severed.






Anastasia
Nhliziyo said she was the mother of the deceased. In December 1997
she had been invited to the house of the deceased
and the appellant
to discuss their problems, as the appellant was no longer employed.
In February 1998 they had come to her, asking
for money for rent and
food. She went to their house and found that there was no food, so
she gave them $200. She learned that
the deceased wanted to work
but the appellant did not want her to do so. This was said in the
presence of the appellant. The
appellant said to his mother-in-law,
in the presence of the deceased, “If I allow her to go and work
other people are going to
take her away from me”. The deceased
had been promised a job in the Ministry of Education, and she had
told her mother to expect
her on 19 or 20 April 1998. She later
telephoned to say she had got a job at Naran’s. She had been a
temporary teacher for
six years but the appellant had asked her to
stop working soon after their marriage.





Sergeant
Timothy Chinyoka gave evidence. He said on 19 April 1998 at
about 12.55 he was on duty at Entumbane Police Station.
Following a
report received, he went to house no 308 Emakhandeni and found
the appellant and another man on the veranda.
He spoke to them and
then asked to see the body. He found the deceased lying on her back
and there was blood on the floor near
the body. The deceased’s
neck was slit open. He checked but could not see any struggle
marks. The property in the house was
in normal condition. He
learnt that the appellant was the one who locked the two doors on
Friday 17 April 1998 when he left
for Filabusi and that he had
left his wife in the room.






Enos Maphosa
said he is related to the deceased, who was his cousin. He also
knew the appellant as they grew up together
and are distant
relatives. The deceased approached him, asking him to assist her to
get a job and told him that her husband was
not working. He spoke
to his employer, a Mr Naran, and it was arranged that the
deceased should come to meet the prospective
employer on Friday.
She did not come. Arrangements were then made for her to come on
Monday. On Monday he learnt that she was
dead.






Janethi
Mhlanga said she is the wife of Khulumani Mhlanga. She corroborated
her husband about her coming from home on 17 April
1998 and
seeing the appellant coming from the toilet. She did not see the
deceased.






The
appellant gave evidence in his defence. He said the deceased had
been his wife for one year and four months. He was not
employed in
April 1998. He believed he stopped working in November or December
1997 when they closed at Monarch. His wife was
not employed. They
lived at no. 308 Emakhandeni as tenants. He said this was a
semi-detached house, divided by a wall only,
and one could hear what
was going on at the neighbour’s house.





On
16 April 1998 the appellant spent the day at the house. His
wife visited her brother, Enos Maphosa. She was back at
about two
in the afternoon. He spent the night with his wife. The following
morning he left at 10 am and parted with his
wife. He saw
Mrs Mhlanga on the morning of 17 April and spoke to her as
he was leaving. He had been on the veranda
with his wife. He was
leaving, carrying a bag and bidding farewell to his wife. His wife
did not accompany him as she was busy
cleaning.






The
appellant said he spent 18 April 1998 at Filabusi at the Seventh
Day Adventist Church from 8 o’clock to 4 o’clock.
He
returned on Sunday 19 April and arrived at about 12 o’clock.
At the house he went to the first door, which is
the sitting-room
door on the veranda. He unlocked this door and proceeded to the
bedroom door. He found it locked. He unlocked
it. He was
shocked because he saw his wife lying on the floor facing upwards.
She was on the floor between the bed and the wardrobe.
Her throat
had been cut off. He screamed and got out of the room. He went to
look for the landlord and ran to the neighbour’s
house to call
them. He telephoned the police from a neighbour’s telephone. He
said the police were worried and they searched
for the keys and found
them. They went and tried the keys at the communal home and found
that the keys were for the communal home.
They said they would put
him under arrest. They assaulted him. They damaged his ear. He
said it was not true that his wife’s
keys were found in the house.
He denied that when he left he locked the house as stated by
Mhlanga. He said on 17 April
Mhlanga did not leave the house
as he could hear Mhlanga’s movements in his room.





The
appellant denied under cross-examination that he told his
mother-in-law that he did not want his wife to work as other people
would take her away from him.





With
this evidence before him the trial judge convicted the appellant.






It has been
argued by Mr 
Tshuma,
for the appellant, that he should not have been convicted because the
evidence relied on was mainly circumstantial and nothing positive
or
factual was established to link the appellant with the murder of his
wife.





To
begin with, the following facts are common cause -





(a) The
deceased and the appellant were husband and wife. They lived
together as lodgers in the room where the deceased was found
dead;







(b) The two were not working at
the time, had financial problems and were short of money for food;







(c) The deceased was last seen by
the landlord alive before the appellant went away;







(d) Once the appellant left, the
deceased was never seen by anybody alive;







(e) The room that the deceased
and the appellant occupied remained dark for the entire period that
the appellant was away;







(f) For the
whole period that the appellant was away, no sound or movement was
ever heard from their room; and







(g) The appellant had taken his
keys for the room with him. The deceased had her own spare keys
that were found in the room where
she was lying dead.






The
above points set up a picture that needs careful examination.






In addition
to the above, there are other points given in evidence which have to
be examined together with these points. They
are –





A. THE
DECEASED’S EMPLOYMENT





The
deceased had previously worked as a temporary schoolteacher. Soon
after their marriage the evidence given is that she left
employment
because the appellant did not want her to work.





The
appellant also lost his job, and this led to financial difficulties.
The evidence led was to the effect that even the deceased’s
mother
used to help them with money for food.





When
the deceased’s mother visited them at one stage she was told by the
appellant that if he allowed the deceased to go out and
work the
appellant feared that other men would take her away from him.





Immediately
before her death, the deceased had two chances of getting employment.
Firstly, she was promised a temporary teaching
position in
Tsholotsho. The appellant was aware of this. Secondly, her cousin
had arranged for her to be interviewed for a job
at Naran’s
business. The appellant says he was not aware of this possible job.





The
deceased did not attend the interview at Naran’s as arranged. She
was already dead. If she had been still alive, she would
have
attended the interview on a Friday. This seems to be the same
Friday that the appellant left for his communal home.






B. THE
KEYS TO THE HOUSE






The
appellant had his own keys to the rooms they occupied. The deceased
had hers. The appellant says he parted with the deceased
at 10 am.
He said the deceased was cleaning the house in the morning because
she was going to leave at 3 pm.





The
appellant went away on 17 April to catch a bus to the communal
area. He returned on 19 April. He said he unlocked
the doors
to their rooms. This means he had his own keys with him. Later,
when a search was carried out, the deceased’s keys
were found in
the house. This shows that the person who locked the house did not
use the deceased’s keys as they were in a bag
in the same room
where she was found dead.





The
appellant said he had told the police that the person who killed the
deceased had also locked her inside the room using her
keys. He
denied that the keys were found in the deceased’s bag.





The
appellant denied that when he left the room he locked the house, but
Mhlanga said he heard the appellant locking the door when
he was
leaving.





Going
by this evidence, it means that the appellant locked the door when he
left. No-one was seen or heard unlocking or opening
their door
until the appellant returned and found the door still locked.






There is no
evidence to suggest that beside those who resided at this house any
other person had the keys. Even if Mhlanga’s
keys had been lost
and possibly found by someone else, it is difficult to see how that
person would have known that a particular
key was for the room or
rooms used by the deceased and her husband.






C. THE
KILLING OF THE DECEASED






Several
questions were raised about the date and time the deceased was killed
after the doctor had assumed the date given by the
police to be the
date she could have been killed. It is clear that the doctor did
not base this date on his own scientific observations
and experience.
He was given a date by the police and simply adopted that date.







However, clotted blood was
observed by the doctor and some of it was then dry and peeling off.
This suggests that quite some time
had passed since the bleeding took
place. It was certainly not recent. The evidence also shows that
this was about mid-April
and it was not hot then.






D. WHO
KILLED THE DECEASED



Although it
is clear that there is no direct evidence, everything seems to point
to the appellant as being responsible for the murder.
He was with
his wife on the morning of Friday before he left for his communal
home.





When
Mhlanga returned to the house after meeting his wife at the bus
terminus, he saw only the appellant. He did not see the deceased.

Mhlanga heard the appellant closing and locking the door of their
room as he was leaving. There was no sign of the deceased.





The deceased
was neither seen nor heard of from then on until the appellant
returned from his communal home. The deceased had
been expected at
Naran’s that Friday afternoon. She did not turn up for the
interview. If she had been still alive that afternoon,
she would
have attended the interview. This brings about the conclusion that
she must have died between the time she was seen by
Mhlanga with her
husband that morning and the time she should have attended the
interview that afternoon.





It is also
noteworthy that once Mhlanga and his wife arrived at their house
there was neither noise nor movement from the rooms
occupied by the
deceased and her husband. Even the lights in their rooms were never
switched on during the nights when the appellant
was away.





No other
person was seen to come and enter the house except the appellant’s
mother, who found the door locked and went away without
entering the
rooms or seeing any one of them.





Mr Mhlanga
says he left about 9.30 am and returned at about 11.30 am.
He had left the deceased there with her husband.
In the absence of
any noise or movement heard after their return, this suggests she
must have been killed while Mhlanga was away.
No other person is
known to have come into contact with the deceased during that time.





A further
point to note is that there were electric cables which were naked at
the one end while the other end was connected to
a plug. Signs of
burning were observed on the deceased’s body. It is possible that
some electric shock could have been applied
on her which could have
stunned her, depending on the level of the electric power, in which
case she would not have been able to
shout or call for help.





It was
argued, and rightly so, that all this is circumstantial evidence, and
that there is a need for a critical analysis by the
Court before
making a finding.






E. CIRCUMSTANTIAL
EVIDENCE









Mr Tshuma,
for the appellant, submitted that the inference that the appellant
killed his wife was not the only one that could be drawn from
the
evidence. However, the trial court dealt with this point and was
satisfied that it was. The evidence led in the trial supports
that
finding.






The
appellant could not tell the court where exactly his wife was when he
left. There would have been no reason for him to lock
the doors on
leaving if his wife was in the house and alive. There is nothing to
support his suggestion that she could have been
killed outside the
house and then brought into the room dead. If he had left her
alive, she would have attended the interview at
Naran’s. The
suggestion that someone could have come and killed her and then
locked the house is also far-fetched, in that her
keys were still
inside the room. The bunch of keys that were lost or stolen did not
have the keys to the appellant’s bedroom
on it. There was no
trace of blood outside the house. The appellant had a motive for
killing the deceased. See p 940 of
South African
Criminal Law and Procedure

Vol V.





I
am satisfied that the trial court made a careful assessment of the
evidence and came to the correct conclusion. It was safe
to draw
the inference that the appellant killed the deceased as he feared
that if she went to work other men would take her away
from him.






It was
suggested by the appellant’s counsel that the appellant should be
referred for examination in terms of the Mental Health
Act [
Chapter
15:6
].
This issue was never raised at the trial. There is nothing in the
evidence to support the suggestion that there could be anything
wrong
with the appellant’s mentality. There is no history of mental
illness or any strange behaviour by the appellant. Nothing
emerged
from the trial to raise any suspicion. The appellant gave evidence
and was cross-examined. Both the court and the defence
counsel did
not observe anything that attracted attention or raised questions
regarding the appellant’s mentality. Otherwise
they would have
raised the issue of mental examination at the trial.





Accordingly,
the appeal against conviction cannot succeed and it is dismissed.






As against sentence, there is
nothing in the appellant’s favour. He was obviously a jealous
man. He clearly told his mother-in-law
his fears. The deceased
suffered under his control. Despite their poor financial position
he did not want her to work. He must
have discovered, before
leaving, that she was planning to take up employment somewhere. He
killed her to stop her from taking up
employment. She was subjected
to electric shocks and then brutally murdered. Doctor Jehenya
said her neck was almost completely
severed. After killing her, he
locked her body in the room and left so as to give the impression
that she was killed while he was
away.





In
the circumstances, the trial court rightly found that there were no
extenuating circumstances. I see no fault with that finding.






In the
result, the appeal against both conviction and sentence fails and it
is hereby dismissed.








CHIDYAUSIKU
CJ: I agree.








CHIWESHE
AJA: I agree.









Webb, Low &
Barry
,
appellant's legal practitioners