Court name
Supreme Court of Zimbabwe
Case number
SC 136 of 2004
Civil Appeal 32 of 2004

S v Ndlovu and Another (32/04) (SC 136 of 2004, Civil Appeal 32 of 2004) [2005] ZWSC 136 (18 May 2005);

Law report citations
Media neutral citation
[2005] ZWSC 136













DISTRIBUTABLE
(123)





Judgment
No. SC 136/04


Civil
Appeal No. 32/04











(1)
FREDDY NDLOVU (2) NELSON NDLOVU v THE STATE








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, ZIYAMBI JA & GWAUNZA JA


BULAWAYO,
NOVEMBER 30 2004 & MAY 19, 2005








Z
Moyo
, for the first
appellant





C
Nleya
, for the second
appellant





T
Mtetwa
, for the
respondent








GWAUNZA
JA: The appellants were convicted by the High Court of murder with
actual intent, and sentenced to death. They have now
appealed to
this Court against both their conviction and sentence.






The facts of the matter are as
follows:






On the night of November 26,
1999, the deceased, a twenty three year old student at the National
University of Science and Technology,
was drinking beer at Flamingo
Nightclub in Bulawayo. He was in the company of Brenda Ncube, who
worked as a cleaner at the nightclub.
Having agreed to spent the
night together, the deceased and Brenda left the night club around
02.00 a.m. While walking along
a footpath, the two were confronted
by two people – assailants – who pounced on the deceased. In
the attack that ensued, the
deceased was overpowered and fell to the
ground. He was robbed of the belt he was wearing, and some $150 00
in cash. He was also
struck on the head with a blunt instrument and
suffered fatal injuries described in the post mortem report as brain
damage, skull
fracture and head injury.





Brenda
fled the scene of the attack as soon as the assailants appeared.
She went back to the nightclub and reported what had happened.
This
led to the arrest of the appellants and the late Roy Mguni on
suspicion of the murder of the deceased. It was alleged the
three
had been at the Flamingo Nightclub at the same time as the deceased
and Brenda. It was alleged further that they had not
only observed
the deceased buying Brenda some beer,

but also that they, together with other patrons, had overheard Brenda
mentioning that she was going to spend the night with the deceased.






The
learned trial judge noted in his judgment that the appellants had not
disputed the evidence of one Busiwork Tawanda that he had
been in the
company of the two appellants at the nightclub earlier on the night
the deceased was killed. Nor had they disputed
the evidence that
the two appellants had left the nightclub soon after the deceased and
Brenda.





After
their arrests the appellants recorded warned and cautioned statements
which were confirmed by a magistrate the following day.
Neither of
them indicated the statements had not been made freely and
voluntarily. In his warned and cautioned statement the
second
appellant stated as follows:-





“I
admit the charge of killing Louis Chomuseke. I left Flamingo Night
Club in the company of Freddy and Roy to follow behind the
deceased,
after we had gathered from Brenda that he had money on him. We were
following after him with the intention of robbing
him of the money.
Freddy picked up two stones with which he hit the deceased... He
hit him on the head and the person fell down.
Freddy immediately
searched him and at the same time Roy stabbed him and removed a black
belt from him and handed it to me as well
as some money and I took
possession of them. While all this was taking place I was watching
that there were no people approaching.
We left there and ran into
town. When we later checked we discovered that we had taken $150
from him”.








The
first appellant, Freddy Ndlovu, effectively abandoned his appeal.
It was submitted on his behalf, by his counsel, that he had
no
meaningful submissions to make, since there seemed to be strong
evidence linking him to the offence. It was also submitted in
relation to the sentence passed against him that it was appropriate,
given the fact that the murder in question was committed in
the
course of a robbery.







This
concession in my view is properly made. Even though the first
appellant denied in his oral evidence that he was at Flamingo
Nightclub on the night in question, there was strong evidence linking
him to the offence.






Firstly the State’s only
witness, Brenda (who as a suspected unconvicted accomplice, was
properly cautioned) averred that she had
seen the first appellant
twice that night, firstly at the nightclub while in the company of
Busiwork Tawanda, and later at the scene
of the murder. It was her
evidence that just before she fled the scene, the first appellant had
just picked up two stones and was
threatening to hit both her and the
deceased with them. He had also shouted a warning to her not to
report what she had seen.
The court
a
quo
found Brenda to be
a fair witness who did not exaggerate facts. The learned judge
pointed out, as evidence of this, that if Brenda
had been dishonest
and determined to incriminate the first appellant at all costs, she
would have informed the court that she had
seen him not only pick up
the stones, but hit the deceased as well.




Secondly
the second appellant as the court
a
quo
correctly found,
filled the gaps in Brenda’s evidence. In his warned and cautioned
statement, the second appellant asserted that
the first appellant had
hit the deceased on the head with two stones that he had picked up,
resulting in his (deceased) falling to
the ground. According to the
statement, the first appellant had then proceeded to search the
deceased and remove the belt he was
wearing, which he had handed to
the second appellant as his share of the loot.






Thirdly
and most importantly, Busiwork Tawanda corroborated Brenda’s
evidence that it was in his company that the two appellants
were
drinking before the latter two left to follow Brenda and the deceased
upon their departure from the nightclub. As already
pointed out the
first appellant did not dispute Busiwork’s evidence.






The court a
quo
also properly
dealt with the question of Brenda’s positive identification of the
first appellant both at the scene of the murder
and at an
identification parade. At the scene of the crime, it was her
evidence that she recognised the first appellant by his
clothes and
his voice when he shouted a warning to her as she fled the scene, not
to report the matter to the police. At the identification
parade,
Brenda’s evidence was that she was able to identify him since she
had known him for about a year. For the first nine
or so months of
that year, she averred, she had observed but not spoken to him. She
had, however, in the last three months, occasionally
spoken to him.







Concerning identification,
counsel for the State properly cited
S
v Nkomo
1989(3) ZLR
117 SC as an appropriate authority. It is noted in the headnote of
that case that:-





Broadly
speaking, good identification does not need corroboration or support,
but bad identification does. Examples of good identification
includes cases where the witness has observed the accused over a
lengthy period or many times or where the accused was well-known
to
the witness.








In
casu
, Brenda’s
identification, though good in itself, was corroborated by the
evidence of Busiwork and that of the second appellant.
Thus the
first appellant’s active participation in the crime was left in no
doubt. In addition to this, the first appellant
did not help his
case when he failed to produce evidence supporting the
alibi
that he came up with for the first time at the trial. His one
witness failed to confirm that the first appellant had been at his
rural home in Filabusi, on the day the crime was committed.





Taking
all this into account, I am satisfied the State proved beyond
reasonable doubt that the first appellant hit the deceased on
the
head with stones, resulting in his death. The State also proved the
fatal attack was perpetrated in the course of a robbery.





In
the result, I find that the first appellant was properly convicted
of, and sentenced for, murder with actual intent.





The
second appellant Nelson Ndlovu, sought at the trial to dissociate
himself from his confirmed warned and cautioned statement.
It is
pertinent to note that in that statement, the second appellant not
only placed himself at the scene of the crime, he also
attributed to
himself a participating role in its perpetration. His evidence on
the first appellant’s role in the murder of the
deceased smartly
complemented that of Brenda. That he mentioned the deceased
co-accused, Roy Mguni, as having stabbed the deceased
when no
evidence of such stabbing was observed on the body, could, as found
by the court
a quo,
have resulted from a mistaken belief as to the exact role played by
Roy Mguni. It could also be evidence of the collusion by the
three,
to murder the deceased by whatever violent means possible, in order
to facilitate the robbery.


The
court
a quo
in my view correctly rejected the second appellant’s evidence that
he had not made the statement freely and voluntarily. He was
questioned closely by the court on why he had not told the magistrate
who confirmed the statement, that he had been induced through
violence by the police, to make the statement. This was
particularly so since, on his evidence, he had appeared before the
confirming
magistrate visibly in great pain from the supposed assault
by the police. The second appellant’s response to the questioning
was muddled, confused and bereft of credibility, a circumstance that
cast serious doubt on the veracity of his evidence





Despite
it being a confirmed warned and cautioned statement, the court
a
quo
nevertheless took
the precaution of calling the police detail who was alleged to have
assaulted the second appellant. The police
officer, Inspector
Tsunda, denied that the second appellant had been assaulted as a way
of forcing him to make the statement in question.
Counsel for the
respondent cited a number of authorities concerning the approach to
adopt when dealing with confessions. In
S
v Tsorayi
1985 (1) ZLR
138 (HC) at page 142 the learned judge quoted with approval a passage
from
R v Sylees (1913)
8 Cr App R 233 at 236 as follows:





“… the
first question you ask when examining the confession of a man is, is
there anything 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?”








In
my view, there is substance in the submission made for the
respondent that ample corroboration of the second appellant’s
confession
was to be found in the evidence of Brenda and Busiwork, as
well as the postmortem report. The second appellant confirmed
Brenda’s
evidence that she and the deceased left the nightclub
first, leaving Busiwork in the company of his drinking companions,
the appellants.
Busiwork averred his companions had followed soon
afterwards. The postmortem report gave the cause of death as skull
fracture
caused by a blunt instrument, something that is consistent
with the second appellant’s assertion that stones had been used to
hit
the deceased on the head. Other corroboration is to be found in
Brenda’s evidence, completed by the second appellant’s, that
the
first appellant had picked up stones and hit the deceased with them
on the head.





In
addition to this was the evidence concerning the belt that the
deceased was wearing on the day he was killed. The deceased’s
body was found with no belt on. Ackim Garikayi told the court
a
quo
that the second
appellant had given him a black male belt to sell on his behalf. He
had duly done so. In his confession the second
appellant said he
had been handed the deceased’s belt as part of his share of the
loot. Clearly, therefore the second appellant’s
confession was
corroborated in material respects by other evidence.





The
court
a quo
in my view correctly, also considered the fact that the second
appellant’s confession was consistent with other facts which had
been ascertained. He was at the nightclub and in the company of his
two co-accused and Busiwork. Together with the former he
had
followed the deceased and Brenda and was at the scene of the crime.





The
court
a quo
was also correct in its finding that the second appellant’s warned
and cautioned statement contained details that only he would
have
known. It is an established principle of law
1
that if an accused mentions in his confession facts the knowledge of
which could only have come to him by being connected to with
the
crime, the mentioning of such facts would be regarded as strong
evidence of the genuiness of the confession. In
casu,
the deceased’s body was found with no belt on it. The second
appellant stated in his warned and cautioned statement that the
belt
had been removed from the deceased’s body and given to him. He
could not have known of the missing belt unless he had been
at the
scene of the murder and had personal knowledge of the circumstances
surrounding its loss. The second appellant’s warned
and cautioned
statement was coherent, properly sequenced, and filled gaps in
Brenda’s evidence. There is merit in the respondent’s
submission that he had been able to relate the true events because he
had participated in them by occupying the strategic position
of
sentinel while his colleagues committed the offence. He clearly
acted in common purpose with them.





All
in all, I am satisfied the court
a
quo
properly accepted
the second appellant’s confession as a true version of what
happened on that day.





The
second appellant sought to raise what the court
a
quo
correctly found to
be a false
alibi.
For the first time, in Court, he mentioned having had a tooth
extracted on the day before the murder, and spending the whole of
the
following day at home. He failed to explain why he had not informed
the police, and his lawyer, of what would have been a very
strong
defence. This evidence in addition to having clearly been an
after-thought, was effectively discredited by the evidence
of Brenda
and Busiwork, which he did not dispute. He was at the nightclub on
the night in question, he followed Brenda and the
deceased and he
stood guard while his co-accused, with whom he was acting in common
purpose, killed the deceased in order to rob
him. He was given a
share of the loot. His conviction in my view was properly arrived
at.





The
court
a quo
found no extenuating circumstances in the case. I am satisfied this
finding is sound.





The
appellants set out to rob the deceased, because they believed he had
money. Robbery by its nature entails the use of violence
on the
victim. The use of stones in hitting the deceased on a vulnerable
part of his body, and with such force as to cause almost
instant
death, is suggestive of a clear intention to kill. As correctly
argued for the State, had death not been intended, the
appellants,
who could easily have overpowered the deceased, since they
outnumbered him, could have robbed him without assaulting
him. The
inference is also inescapable, that the appellants murdered the
deceased in the manner they did, in order to eliminate
the
possibility of identification.




That
they killed in order to rob suggests a total disregard of and lack of
respect for, human life.





I
am satisfied the court
a
quo
properly convicted
them of murder with actual intent and sentenced them accordingly.
The appeal is without merit and is accordingly
dismissed.








CHIDYAUSIKU
CJ: I agree.














ZIYAMBI
JA: I agree.








Bulawayo
Legal Projects Centre
,
first appellant's legal practitioners


Sansole
& Senda
, second
appellant's legal practitioners


Attorney-General’s
Office
, respondent's
legal practitioners



1
See
R
v Sambo

1964 RLR 565