Man escapes the gallows a second time

Lebogang Mosikare | Friday July 6, 2018 13:35

 

The accused, Michael Ndaba, 41, was tried for the murder of Morena Jonas on August 11, 2013 at Japane lands near Borolong village.

He was also charged with attempting to murder his mother-in-law, Chandapiwa Gile, and commonly assaulting Peter Makhaya at Japane on the same night.

Justice Zibani Makhwade later acquitted and discharged Ndaba from all the three offences because of lack of evidence after delivering his judgement.

It was for the second time that Ndaba was cleared of murder.  In January this year, the magistrate’s court cleared Ndaba of murdering his former girlfriend on account of lack of evidence to prosecute him.

Ndaba had previously spent a year in jail for the alleged murder.

In all his murder allegations, Ndaba faced the possibility of being hanged at the most, or sentenced to jail for a longer period if convicted.

Setting Ndaba free, Makhwade said it was common cause that Ndaba was well known to both the deceased and Chandapiwa Gile because he was at some point in a relationship with Chandapiwa’s child Malebogo, who is also the mother of his three children.

“On August 11, 2013, Ndaba went to Chandapiwa’s place to look for Malebogo.

Upon arrival at night, Ndaba knocked at the door of his girlfriend’s room and one of his children who had been sleeping inside the room told him that her mother had gone to Natale to buy milk for one of Ndaba’s children.

During that night, Chandapiwa was sleeping with Jonas in another room.

Chandapiwa, who testified as the first prosecution witness, told Ndaba that Malebogo was not at home,” Makhwade said.

The judge further stated that Chandapiwa testified that Ndaba who was drunk at the time, then forced opened her door and got inside her room.

“Chandapiwa testified that she does not know what transpired afterwards save to say that she saw herself admitted at Nyangabgwe Referral Hospital the following morning.

Chandapiwa also testified that at the time of the incidents, the accused and Malebogo were no longer in love,” Makhwade said.

Makhwade added that the second prosecution witness Peter Makhaya, who was allegedly assaulted by Ndaba, told the court that on August 11, 2013, he heard Chandapiwa screaming for help saying someone was killing her.

“Makhaya, who lives about 500 metres from Chandapiwa’s place, testified that he ran towards Chandapiwa’s place and saw Ndaba.

He said they started to wrestle until Ndaba ran away. Malebogo testified that she has three children with Ndaba, but their relationship ended in 2012. Malebogo also testified that Ndaba also tried to kill her in 2010.

She added that Ndaba also wanted them to reconcile, but she turned down his overtures,” Makhwade continued.

Detective constable Leburu testified that Ndaba told him that he stabbed the deceased and Chandapiwa with a knife because they attacked him with metal rods, Makhwade said.  In his testimony in court, Makhwade said, Ndaba told the court that he had agreed with Malebogo to spend the night at her place.

“Ndaba said that after he arrived at Malebogo’s place, he knocked on Malebogo’s door, but Jonas told him he was making noise and was being disrespectful.

“He said that because it was dark, he tripped and fell by the door whereupon Jonas and Chandapiwa hit him with metal rods.

“Ndaba stated that because he was carrying a knife, he stabbed both the deceased and Chandapiwa in self-defence because they were attacking him with metal rods,” the judge said. Although Ndaba was drunk, Makhwade said, he knew what he had done because he stated that the police arrested him the following morning while he was on his way to report what had transpired the previous night to his uncle.

“Having found that Chandapiwa said that she does not remember what happened clearly, there is no basis to reject the accused’s version of self-defence.

“It is probable that the accused had a conversation with the deceased and Chandapiwa…The onus of proving that the accused is guilty beyond reasonable doubt rests with the prosecution,” Makhwade said.

No evidence was led to find out the weapon that was used by the accused to commit neither the alleged offences, nor what Chandapiwa and Jonas used to assault Ndaba, Makhwade stated.

He added: “Chandapiwa cannot be relied upon. From the evidence led, there is no doubt that the accused stabbed the deceased and Chandapiwa. It is probable that he was attacked by the deceased and Chandapiwa. “The prosecution should have led evidence to the contrary. In the absence of such evidence, there is no basis to reject the accused’s version of events.” The court, Makhwade reiterated, should never compromise justice by striving to convict people based on the sensitivity of offences brought before it, or to speculate what happened.

“The onus to find the guilty or otherwise of accused persons rests with the prosecution and not the defence. The accused is therefore acquitted and discharged of all offences that he was charged with,” Makhwade said. Tears of joy rolled down Ndaba’s cheeks after journalists asked him how he felt following his acquittal during a media scrum.

The elated Ndaba who even hugged and kissed his new girlfriend responded: “The verdict has vindicated me. I always knew that I was not guilty, but honestly I was afraid that the court may rule otherwise. I praise the Lord for freeing me”.

Attorney Mbiganyi Mhizha represented Ndaba.