Tears flowed at the Pietermaritzburg High Court yesterday following the acquittal of a 28-year-old Ematimatolo, Greytown, man of the murder of the three-year-old son of his former lover.
The body of the little boy, Nduduzo Mthethwa, was found in a plantation three days after he disappeared en route home from his crèche on August 31, 2004.
Judge Kate Pillay, sitting with two assessors, said there was no medical evidence to show exactly how the child died and without this the court would be forced to speculate.
“This is a very sad case where one doesn’t really know what happened to this innocent child,” she said during her judgment.
Pillay added that the law is very clear that if a court is in doubt as to the guilt of an accused person, it has to acquit.
The case against Bonginkosi Aaron Shezi was based on circumstantial evidence.
The boy’s mother, Nokuthula Mthethwa, wept in the foyer of the courthouse, comforted by family and friends.
Nduduzo’s aunt, Gugu Mthethwa, who found his body, said she could not understand how the court could have acquitted Shezi as she personally saw him near the plantation on the day the child vanished, and he was identified in court by Nduduzo’s friend as the person who took him.
“We, the community, are now afraid for the safety of this child who identified him [Shezi] in court as the perpetrator,” she said.
Judge Pillay described the young boy who gave evidence (who was five years old at the time of the incident) as an “intelligent and impeccable” witness and accepted his evidence.
She found as a fact that Shezi did see Nduduzo on the day of his death — despite his denial that he did so — as he was seen by the boy and a teacher from the crèche.
However, she said, before the court could draw an inference that Shezi killed Nduduzo, it had to examine all the facts before it.
Nduduzo left the crèche with Shezi, but thereafter nothing was known of his whereabouts until his body was found on September 3, 2004, she said.
The medical evidence identified the cause of Nduduzo’s death as “intercranial haemorrhage”, but could not confirm if the death was the result of any unlawful act by another person.
The doctor who performed the post-mortem has emigrated and could not testify at the trial.
The judge said there was no forensic evidence to link any person to the crime.
Pillay said although she was certain police did their utmost to procure evidence, it was of concern to her that expert forensic evidence was lacking in the case.
Judge Pillay acquitted Shezi on the murder charge and of a second charge of malicious injury to property arising from an allegation that he set fire to Nokuthula Mthethwa’s possessions.
In this regard, she said, there was only the evidence of Mthethwa that Shezi confessed to her that he did it.
Following his acquittal, Shezi returned to the court cells and did not mingle with the public. He showed no visible emotion.