Judge advocates for vernacular in court

Court Reporter
High Court judge Justice Francis Bere has advocated for courts proceedings to be conducted in vernacular, saying it will make it easy for the courts to deal with the evidence.
Justice Bere said this on Wednesday while responding to submissions by Thamsanqa Khumalo of Khumalo and Company Legal Practitioners representing one of the three men from Mayobodo in Mangwe District who are being accused of fatally axing and stabbing a relative of the girlfriend of one of them.

Justice Bere is in Bulawayo to deal with partially heard cases.
The three accused are Fanuel Notsa Dube, Quiet Sibanda and Mpilokamlimu Ncube.

Their alleged accomplices Conrad Sibanda and Themba Adolf Ndebele are now late and the three have been in remand prison since 2004 when the offence was allegedly committed.

It is alleged Dube, Sibanda and Ncube killed Fanuel Mpala, who was a cousin of Sehlaphi Phuthi.
Phuthi was the late Sibanda’s girlfriend.

In most instances, accused persons dispute contents of warned and cautioned statements alleging that they would have signed them under duress after being assaulted by the police.

Khumalo, representing Dube, on Wednesday raised concerns about his client’s warned and cautioned statement and evidence of the key witness Sikhumbuzo Mpala which he said was inconsistent.

Justice Bere in response said there was a need to consider conducting court proceedings in local languages.
“That situation could not have arisen if we had an appetite for our vernacular languages and proceedings were conducted in our indigenous languages. Go to Russia or other countries — proceedings are not done in foreign languages,” said Justice Bere.

“We cannot pin witnesses onto documents whose origin is not clear and whose contents are questionable.”
Justice Bere said if the suggestion would by any chance be put to a vote, he would advocate for it.

“If this is put to a vote I will be one of those who would vote for it because that would open other avenues. Imagine being taught the Criminal Procedure and Evidence Act in IsiNdebele or Shona or any other indigenous language, that is very possible, but it is only a question of creating the correct mindset,” he said.

Justice Bere said the country’s legal fraternity uses English language because of some form of “colonisation”.
He said his sentiments were brought about by inconsistencies that usually characterise proceedings pertaining to statements recorded by police and how accused persons tend to disown some of them.

The new Constitution observes all local languages as official while the English language becomes the language of record.
“We are bound by law to pretend we do not understand our indigenous languages, mine being Shona but don’t you think the outcome of some cases would have been different from the ones done in a foreign language?”

In relation to Dube’s statement to the police, Justice Bere said it was written in English and the court was left with the option of assuming that the police officer who recorded it was conversant in both IsiNdebele and English languages.

Quiet Sibanda and Ncube were represented by Tungamirai Nyengera of Mcijo, Dube and Partners and Kossam Ncube of Ncube and Partners Legal Practitioners.

The lawyers are pushing for the acquittal of their clients citing inconsistencies in the State’s case, with specific mention to Mpala’s testimony.

They queried Mpala’s presence at the scene of the crime, saying his claims that he observed the attack on his cousin were questionable.
Ncube said there were two conflicting versions of events and as such it was not safe for the court to convict his client.

Justice Bere postponed the matter to Monday for judgment.
“It is not easy to convict anyone and also not easy to set them free. Judgment in this matter will be delivered on Monday,” he said.
Prosecuting, Whisper Mabhaudi from the Attorney General’s Office, submitted that the accused should be found guilty of murder with actual intent because they planned to attack the victim.

He alleges that on June 2 2004, at about 9pm, the accused teamed up to assault Fanuel Mpala with fists, knives, knobkerries, bottles and an axe.

The victim died on the spot as a result of multiple injuries.
However, the court established that the post-mortem report stated that he had multiple stab wounds yet allegations are that he was also axed, which is not consistent.

It is alleged that the accused persons had gone to recover Sibanda’s property which he had left at his girlfriend’s homestead when he fled from the woman’s relatives the previous night.

They were allegedly led by Ndebele, who was a member of the Neighbourhood Watch Committee, who according to the accused attacked the victim.

The alleged attack occurred at Mpala’s homestead.