Lies not proof of guilt, judge says in siblings’ verdict

Lies told by Walvis Bay resident Azaan Madisia after the disappearance of the 21-year-old Shanon Wasserfall in April 2020 cannot be taken as proof that Madisia was guilty of killing Wasserfall, High Court judge Christie Liebenberg said when he acquitted Madisia and her brother on a charge of murder yesterday.

Although Madisia told lies in an attempt to explain Wasserfall’s disappearance, and explanations that she gave during her trial were “vague and unconvincing”, the state did not prove that her version about the events that resulted in Wasserfall’s death were false and had to be rejected, Liebenberg said in his judgement.

The state’s case against Madisia (31) and her brother and co-accused, Steven Mulundu (25), on the murder charge that they faced primarily rested on the testimony of Madisia during the siblings’ trial, Liebenberg noted.

He added that the problem for the state was that if the court rejected Madisia’s version about the events that led to Wasserfall’s death as false, the state’s entire case on the murder charge “equally plunges into falsehood as no other evidence was presented from which the alleged criminality of [Madisia’s] actions could remotely be inferred”.

In the absence of other evidence – except for Madisia’s version – the court would be required to speculate in a vacuum on possible circumstances that might have caused Wasserfall’s death, but doing that would be impermissible, Liebenberg said.

He remarked: “Where no evidence was presented by the state that refutes the evidence of [Madisia], then her testimony, despite its shortcomings and contradictions, cannot be rejected as false.”

Madisia told the court she and Wasserfall got involved in a physical altercation in Madisia’s flat at Walvis Bay on 10 April 2020, after they had spent part of the day socialising with each other as friends.

According to Madisia, Wasserfall died after she had hit her head against a wall when she was pushed by Madisia and fell over a bed.

Madisia also told the court she was in a panic and phoned Mulundu to summon him to her flat to help her when it looked to her like Wasserfall had died.

She said she decided not to call the police or an ambulance, as she expected to face many questions about the events in her flat if she contacted them, and then persuaded Mulundu to help her move Wasserfall’s body from the flat. Madisia recounted that she and Mulundu transported the body from her flat on the back of a bakkie belonging to her employer, and buried the body in a shallow grave in a sandy area near Walvis Bay’s Dunes Mall.

Madisia claimed after Wasserfall’s disappearance that she had left Madisia’s flat on 10 April 2020 – leaving her baby son behind – and never returned.

Wasserfall’s disappearance remained unsolved for six months before the police received information in cellphone text messages – which turned out to have been sent by Madisia – that led them to the place where her remains were found buried in a shallow grave.

The cause of Wasserfall’s death could not be established when her remains were examined after it had been exhumed.

There is no clear evidence from which the court could justifiably infer that the killing of Wasserfall had been intentional, Liebenberg said.

He added: “It appears to me that the circumstances that led to the death of the deceased could be described as a freak accident and not something [Madisia] could likely have foreseen.”

Madisia’s reaction – trying to keep Wasserfall’s death a secret by burying her body – prompted the making of wrong decisions, but appears to have been reasonable in the circumstances, the judge also said.

Madisia and Mulundu denied guilt on charges of murder and robbery with aggravating circumstances when their trial started in February this year, but admitted guilt on a count of defeating or obstructing the course of justice in connection with their attempt to hide Wasserfall’s death by burying her body.

Liebenberg found them guilty of defeating or obstructing the course of justice, not guilty on the robbery charge, and on Madisia’s own admission of guilt also convicted her on two counts of insurance fraud not related to the death of Wasserfall.

Madisia and Mulundu, who were arrested in October and November 2020, respectively, are due to return to court for a presentence hearing today.

Legal aid lawyers Albert Titus and Tanya Klazen are representing Madisia and Mulundu, respectively.
The state is represented by deputy prosecutor general Henry Muhongo.