KAMOCHA J: The
four accused are aged 28 years, 27 years, 34 years and 33 years
respectively. They were jointly charged
with the crime of murder. It being
alleged that on 24 January 2009 at Tashas Superettee Pelandaba suburb,
Bulawayo, they did wrongfully and intentionally kill and murder Andrick
Matebese a male adult in his lifetime there being. They all tendered pleas of not guilty.
The state line was read and produced
as exhibit one while their respective defence outlines were read and produced
as exhibits 2, 3, 4 and 5. Exhibit 6 was
a spent cartridge which was found at the scene of the robbery by Constable
Godfrey Muzungu shortly after the crime was committed. The spent cartridge bore similar
characteristics to test cases fired from exhibit 10 the 9mm Z88 pistol serial
number erased FB62/2009 which was recovered from accused 3 Nomore Mehluli Phiri. The 7th exhibit was an affidavit
by Constable Binha who identified the body of the deceased to doctor Jekenya
who examined the remains of the deceased and compiled exhibit 8 the post mortem
report.
The doctor found that the deceased
had bruised back, haemorrhages on both sides of his brain, right haemothorax of
600mls of blood and that the right lung was traumatized. He remarked that severe forces were used to
inflict the injuries. He further opined
in evidence that the bruise on the back could have resulted from a fall.
Exhibit number 9 was a forensic
ballistics report relating to exhibit 10 the 9mm Z288 pistol recovered from the
third accused from which exhibit 6 the spent cartridge had been fired.
The confirmed extra curial
statements made by the accused were produced as exhibit 11, 12, 13 and 14
respectively.
In his statement the first accused
placed himself at the scene but denied assaulting the deceased. Instead he alleged that he had assaulted a
woman inside the shop by hitting her with a tin of baked beans and with an open
hand. It was his story that he had
entered the shop with the second and third accused intending to rob the
shop. He went on to state that he and
accused 3 had firearms and the third accused was the one who fired a shot at
the scene. He confirmed that Thandekile
Nkomo had gone with them. When asked who
had assaulted the deceased he said he did not know but he believed it could
have either have been accused 2 or accused 3 since they were the ones who
entered the shop with him.
His story changed when he outlined
his case. He alleged that he was nowhere
near the scene when the crime was committed as he was at his rural home in
Tsholotsho on 24 January 2009.
He averred that on 18 February 2009
he was mugged by some unknown people who viciously assaulted him until he was
unconscious. He only gained
consciousness when he was in the hands of the police. He therefore could not remember the circumstances
under which he was arrested.
The police took him for indications
at Pelandaba shopping centre where they told members of the public that he had
been responsible for the robbery that took place at Tashas Supermarket.
He went on to allege that he had
been tortured by members of the police namely Zhou, Mbano and MaNcube resulting
in him implicating all his co-accused persons.
Detective Zhou went further and threatened him with death. That caused him to sign statements without
even reading them.
In his confirmed extra curial
statement the second accused denied the allegations that were preferred against
him. He however, placed himself at the
scene of the crime. He stated in his
statement that he had proceeded to Pelandaba shopping centre with his three
co-accused to steal. On arrival they
left the first and third accused at the shops.
He himself went to wait for them in the car. After a short time they returned to the car.
In answer to the questions asked by
the recording officer he said Thandekile Nkomo was with them on the day in
question when they went to Pelandaba shopping centre and went on to tell the
police that the first and third accused were the ones who had firearms.
His story changed in the outline of
his defence case wherein he alleged that on 24 January 2009 he was not in
Zimbabwe but was in South Africa. He
only came to Zimbabwe on 17 February 2009 with the first accused.
On the way he asked the accused to
drive because he himself was feeling tired.
When the first accused was driving he hit a wild animal causing minor
damage to the car. On arrival in Bulawayo
they left the car with the 4th accused in Njube. He then proceeded to his home in Gwabalanda
where he phone his mechanic who is the 3rd accused and arranged with
him to meet in Njube the next day.
The next day was 18 February 2009,
as he was still asleep the police arrived with accused 1 and 3. The 3rd accused had been
shot. He was then taken to Bulawayo
Central Police Station where he was assaulted until he was unconscious. Thereafter he was initially charged with
armed robbery but two weeks later a charge of murder was added. He allegedly was forced to admit the
charges. He claimed to have been
implicated by the first accused. He
finally stated that he would challenge the admissibility of the confirmed extra
curial statements in the circumstances.
The third accused raised an alibi
from the onset. He denied killing the
deceased in his confirmed extra curial statement, because on 24 January 2009 he
was in South Arica.
In answer to the questions by the
police he said he only started knowing Thandekile Nkomo in February 2009 from
her house through accused one was she was his girlfriend. He denied ever seeing her in January 2009 as
he did not even know her by then. He
went on to deny knowing the fourth accused.
He said the first accused came to
Bulawayo during the month of January 2009 but denied giving him his
firearm. He said the first accused had
his own firearm. Although he admitted
coming to Bulawayo once during the month of January 2009 he denied ever going
anywhere with Thandekile during that month as he had not known her yet.
He maintained his defence of an
alibi in the outline of his case alleging that he was in South Africa on the
day to offence was committed and only left that country on 10 February 2009 and
arrived in Bulawayo on 11 February 2009.
On 17 February 2009 accused 2 phoned
him requesting him to go and attend to his car which needed some repair
following an accident he had. The 3rd
accused said he was a panel beater by profession.
The following day which was 18 February
2009 he proceeded to number C42 Njube, where the second accused stayed. On arrival he noticed that the house looked
deserted but the main door and gate were wide open. He entered the house only to find two men who
turned out to be police in plain clothes standing inside the house armed with
AK47 rifles. He retreated but the two
men caught hold of him. One of them went
behind him and shot him five times on the left leg and once on his left
shoulder. He fell down and was then put
in a pick-up truck and taken to Bulawayo Central Police Station where he was
severely assaulted. He was also
allegedly assaulted at CID Homicide offices in CABS Building. Thereafter he was hospitalized in Khami
Prison Hospital but was later transferred to United Bulawayo Hospitals.
It was only after about 3 to 4
months that he was informed that he would be charged with the crimes of murder
and armed robbery when a remand court was convened at United Bulawayo Hospitals
to remand him while he was in his hospital bed.
He alleged that he had been forced
to admit the charges and would deny them.
He would also contest the admissibility of his confirmed extra curial
statement on the basis that it had been extracted from him after he was allegedly
severely tortured and threatened with death.
He denied knowing the first and
fourth accused and also denied ever owning a gun and was never in possession of
one as alleged.
It should be noted that despite the
alleged severe assaults and torture the accused flatly denied any involvement in
the commission of the crime.
The fourth accused in his confirmed
extra curial statement placed himself and all his three co-accused at the
scene. He, however, sought to minimize
the role he played. His story was that
on the day in question he had left his home in the company of his three
co-accused and Sithandekile Nkomo going to Pelandaba. They travelled in the second accused's car
driven by the second accused. On arrival
at the shopping centre he alighted from the car and went to buy a packet of 500ml
Chimombe milk and returned to the car.
He sat in the car watching television.
Accused 1 and 3 went into the shop but came out of the shop after a
while being pursued by members of the public.
Accused 3 – Mehluli fired into the air.
The second accused then allegedly instructed him to start the car. The first and third accused entered the car
and he drove away heading in the direction of Entumbane. He did not see anyone being assaulted. He only heard about the death of the deceased
when he was in Khami Prison after his arrest.
In his defence outline he stated
that he would contest his confirmed extra curial statement on the basis that it
was not made freely and voluntarily as he was allegedly severely assaulted
prior to making it.
He said he had just arrived from
South Africa in January 2009 and was delivering goods to locals in
Bulawayo. He went to the first accused's
home to make a delivery to him. The two
then decided to go out together for a braai.
They agreed to pick up accused's girlfriend Sithandekile Nkomo and the
second accused on their way.
On the way they fortuitously met the
third accused whom he had never met before. The third accused agreed to join
them for an outing.
They then drove towards Western
Commonage and went to Tashas supermarket in Pelandaba. On arrival accused 1, 2 and 3 left the car to
get drinks and he remained in the car with his girlfriend watching DVDs.
In a short while the third accused
returned and informed them that there was a long queue and he preferred to also
wait in the car for the other friends.
As they waited accused 1 and 2 came out of the supermarket with a group
of noisy people as if there had been a fight.
He never understood why there had been noise in the supermarket. He was also allegedly unaware of the intended
robbery. Had he known he would not have
invited his girlfriend for an outing as that would have been dangerous for her.
He further alleged that when two of
his co-accused emerged from the shop with a noisy group of people the third accused
who was the owner of the car in which they were, instructed him to drive off
fearing that they might be caught up in cross-fire. He said he never disembarked from the cat let
alone entering Tashas supermarket at any point.
He was never involved in any fight at the supermarket. He had never met the deceased in his
lifetime.
The accused has confused accused 3
with accused 2. The correct position
according to the evidence is that the car they used belonged to accused
two. It was accused two who returned to
the car after seeing his relative at the shop.
All accused had indicated that they
would be challenging the admissibility of their confirmed extra curial
statements in their defence outline but later consented to their production
without demur.
The state led viva voce evidence
from 7 witnesses. In my view the key
witness was Sithandekile Nkomo. She was
an unconvicted accomplice whose house was used as a hiding place by the accused
persons. They planned the crime from
there. The customary warning was
administered to her in terms of section 267 of the code. Her evidence had to be cautiously approached.
She testified that she lived at C243
Njube, Bulawayo. She is a cross border
trader.
The fourth accused used to be her
boyfriend from 2000 to 2003 when they parted ways. Despite going their separate ways they
remained good friends. They did not have
children together. She knew the other
three accused persons through her former boyfriend.
On 24 January 2009 the fourth
accused visited her at around 1300 hours.
He arrived in a red car which he parked outside and entered the house to
have a chat with her. He then requested
her to accompany him to Entumbane and she acceded to the request.
When she got out of the house she
discovered that accused 4 had left accused 1 and 3 sitting in his car when he
entered the house. The fourth accused
then drove towards Entumbane and turned at the traffic lights and a white
Corolla went and stopped near them. Whereupon the first and third accused got
out and went to the white Corolla which was being driven by the second
accused. They entered into the Corolla
and talked to accused 2 for a long time.
Thereafter the third accused returned to the car being driven by accused
4 but accused 1 remained in the white Corolla being driven by accused 2. The two cars drove following each other
towards Manyewu Primary School in Entumbane and stopped at house opposite the
school gate. The second accused dropped
some passengers there.
The two cars then turned and
proceeded to the witness's house in Njube where the 4th accused
parked his car inside the premises. She
went into the house while accused 1, 3 and 4 went to the Corolla. They were there for a long time. Thereafter accused 4 returned to his car to
remove the car radio and papers relating to his car and gave them to the
witness for safe keeping in the house.
Thereafter he requested her to accompany him to some undisclosed
destination. She once more acceded to
the request.
She joined the four accused persons
and the five of them got into accused 2's white Corolla. The second accused drove to Pelandaba and
when they got to the clinic he turned at the second row of houses and stopped
at the end of it.
The first, second and third accused
persons got out of the vehicle and went straight to the shops while she
remained in the car with her former boyfriend – accused 4. The second accused returned to the car after
about ten minutes. He explained to the
fourth accused that he had not entered the shop because he had met his uncle as
he was about to do so. As a result only
the first and third accused had entered the shop. The second accused then joined the witness
and accused 4 in the car.
After about a period of about 7 to
10 minutes accused 1 and 3 came running to the car. They entered the car and the fourth accused
then drove away towards the traffic lights at Pelandaba. He turned left and took a right turn and
drove towards Total Garage. He then
turned into Nketa Drive and drove towards Entumbane and drove straight to the
house opposite the gate of Manyewu primary.
Accused 4 went into the premises and parked the vehicle. All the four accused persons got out of the
car and went into the house leaving her sitting in the car.
While the car was being driven away
from the scene accused 1 started telling he fourth accused that they had got
very little money from the tills because the girl who had the money had run
into the storeroom and locked herself inside.
After they had been in the house for
a while accused 4 went out to call the witness.
When they were all in the house accused 1 produced all the money he had
from his pockets and placed it on the table and accused 3 also did the
same. The money was counted and shared
amongst all of them and the witness. Her
share was R450 which was handed to her by the fourth accused.
After the sharing accused 1, 3 and 4
and the witness then walked from Entumbane to her house in Njube. The fourth accused collected his car radio
and documents relating to the car. He
thereafter collected his car and left with accused 1 and 3.
Accused 4 and 3 returned to her
house in the evening around 8 pm and requested her to accommodate accused 3 for
the night. She agreed. Accused 4 then left.
The next morning accused 1 arrived
and collected the third accused. After
they had left accused 4 arrived on foot and was told that accused 3 had been
collected by accused 1. Accused 4 then
told the witness that he was leaving for South Africa but was not taking his
car with him. He would leave it somewhere. Before he left he told her that she should
tell accused 1 and 3 to also return to South Africa as the police were looking
for them. She accordingly gave them the
message when they returned.
The first accused went away leaving
accused 3 at the witness's house. He
returned travelling in a white twin cab.
The two collected their belongings and left for South Africa.
They were away for some time and
only returned on or about the time they were arrested on 18 February 2009. They arrived at about 5am on a Wednesday in
the white Corolla belonging to accused 2.
The car had damaged windscreen and bonnet. The group consisted of Butholezwe accused 1,
Welcome Michael Ncube – accused 2, Mehluli Phiri – accused 3 and one Douglas
and one Maphila. Accused 2 and Douglas
went to accused 2's house in Gwabalanda.
The other three remained at her house.
Accused 2 and Douglas returned in
the afternoon and the group started working on the bonnet of the car.
Later she told accused one that she
wanted to go to Lobengula. Accused one
said he also wanted to go there. The six
of them got into accused 2's Corolla whose bonnet had been repaired but the
windscreen had not.
When they got into Masiyephambili
Drive they turned to go to Tashas Supermarket Lobengula when they got to a
certain point four of them got out of the car leaving accused 2 who was driving
and the witness in the car. When the 4
went away accused 2 drove to a spot near the hall and waited there with the witness. Because the accused's car had a damaged
windscreen he felt it could be easily be identified and decided to move it from
near the hall and went to park 3 rows of houses away.
While they were there accused 3
emerged running from a maize patch.
Accused 2 then allegedly told the witness to meet accused 3 and tell him
that he would be picked up along Masiyephambili Drive near the hill which she
did. She then returned to the car and
accused 2 drove along Masiyephambili but accused 3 was nowhere to be seen.
The second accused drove to the house
of the witness in Njube only to find that accused 3 had not yet arrived. The second accused told the witness that they
should drive along Luveve road in an effort to meet him. As they drove along Luveve road they met him
at the traffic lights opposite Entumbane shopping complex. They then drove to the house of the witness
in Njube.
Accused 3 suggested to the witness
that they should accompany accused 2 to the bus stop so that he could catch a
bus to Gwabalanda. They walked to the
bus stop and accused 2 got a lift and left.
The third accused was accommodated
at the house of the witness in Njube.
During the early hours of the morning around 4am the police arrived at
the house but the third accused was no longer there. The police allegedly assaulted every one at
that house and said they wanted the second accused. They were taken to a car where they found
accused 1 who told the police that the witness was the one who could show them
the house opposite Manyewu School. Some
police officers remained guarding the witness's house.
They proceeded to that house and
collected everybody who was in the house and amongst them was a young man who
knew where accused 2 lived. They
proceeded there and collected accused 2 and his wife.
While they were on their way to
Central Police Station and were at Emakhandeni one of the police officers in
the vehicle received a call to the effect that the third accused had been
sighted but was on the run. They drove
in that direction. When they were 3
block of houses from her house they found the police officers with accused 3
who was lying down injured on the leg.
They were then taken to Central Police Station.
She gave the registration number of
the Corolla as RCL 012 G.P.
After the 3rd accused had
left the car and went to Tashas supermarket at Pelandaba the fourth accused
told her that they had gone to look for some money from the shop meaning that
they had gone to rob the shop using firearms.
This was after a shot had been fired.
After she and accused 2 had located
accused 3 along Luveve road he told the second accused that accused 1 may have
been apprehended at Tashas Supermarket in Lobengula which turned to be the
correct.
The witness finally emphasized that
all the 4 accused persons were at Tashas Supermarket at Pelandaba on 24 January
2009. She had no reason to lie against
any one of them.
The witness was cross examined by
all the legal practitioners representing the four accused persons but was not
shaken at all. Her account of what
happened remained intact. She gave her evidence clearly and in a straight
forward manner. Under cross examination
she denied that accused 3 was shot while she was present and emphasized that he
had already been shot when they found him with the police. She also told the court that all the people
who had been picked up by the police had been assaulted including herself and
the second accused's wife. She, however,
told the court that her evidence was not as a result of the assault. She was merely narrating what took place.
She was a truthful witness who was
worth to be believed. Her evidence was
corroborated on all material points by other witnesses who testified for the
state.
The evidence of Detective Inspector
Admire Mutizwa confirmed that the forearm recovered from accused 3 at the time
of his arrest was the one that fired the spent cartridge that was found at the
scene of the crime at Pelandaba Tashas Supermarket. That evidence placed the third accused at the
scene.
Mthokozisi Gumbo was a security
guard at a butchery at the shopping centre went into the toilet at the shopping
centre and found 3 men who appeared to be planning to rob the shops as he
noticed one of them cocking a firearm.
One of them was saying they had to act fast. He came out of the toilet to go and close shop
where he was employed.
The 3 men came out of the toilet and
went towards Tashas supermarket but one of them later moved away from the shops
going towards the car park. Two of them
remained at the shop.
Mthokozisi Gumbo confirmed
Sithandekile's story that the second accused returned from the shop after
seeing his uncle.
Mthokozisi Gumbo said accused 3 had
a firearm thereby corroborating ballistic evidence that the firearm fired the
spent cartridge at the scene. Gumbo said
the accused fired into the air when the crowd was about to apprehend him. The third accused was one of the armed
robbers.
Pauline Mpofu who was employed at
Tashas Supermarket as a cashier told the court that on 24 January 2009 she was
on duty at the Pelandaba branch which was what is called a counter shop. At about 1730 hours when the shop was about
to be closed she saw a person assaulting one of the customers by the corner of
the shop. While she was still stunned by
what was happening the man went to her side of the counter. She noticed that he had a gun in one
hand. He was still pushing and shoving
the woman customer he was assaulting.
He then ordered everybody to sit
down including the deceased who moved from the fridge and sat down. The deceased was a security guard at Tashas
Supermarket Pelandaba.
The person pushed the woman customer
towards the door to the storeroom and ordered her to open it. When she said she did not work there he
ordered her to sit down too.
The person then turned to the
workers and said, “Where are the Keys?”
The workers did not answer because the person with the keys had locked
herself inside the storeroom. That
infuriated the person who then struck the deceased with an open hand. He also struck one Chieza with an open hand.
He then ordered the deceased to get
up and took him to the storeroom door and ordered him to open it. The deceased tried to open it and knocked at
the door but the lady inside did not open.
The person then removed him from there and made him sit down and kicked
him once in the face while he was sitting down.
The kick knocked him down.
The person then dragged a worker
called Shelter and ordered her to open the till but she said she had no keys to
the till. The person then rented his
anger by hitting Pauline Mpofu with a tin of baked beans on the head. He then opened the till himself took some
money and left. She later heard a gun
being fired.
The witness said the person who was
doing all these things was accused 1.
She said she had seen the accused and could not be mistaken. She was vehement that he was not in South
Africa on that day but was at the scene.
Her evidence therefore corroborated that of Sithandekile. The accused himself corroborates this
evidence in his extra curial statement wherein he admits assaulting a woman
with a tin of baked beans.
The evidence of Shelter Manto which
was admitted in terms of section 314 of the Code is also corroborative. The accused kicked the deceased on the
head. The court accordingly makes a
specific finding that accused 1 delivered the fatal blow.
Constable Godfrey Muzungu was at the
shops when the robbery took place. He is
the one who recovered the spent cartridge fired from accused 3's pistol. He told the court that the robbers left the
scene in a white small car at a very high speed confirming Sithandekile's
evidence that the robbers had used a white Corolla.
The evidence of Pauline Mpofu and
Shelter Manto was that accused one did not find a lot of money from the
tills. That piece of evidence
corroborates Sithandekile Nkomo who told the court that while the car was being
driven away accused 1 informed the fourth accused person that he had not looted
a lot of money because the lady with the money had locked herself in the
storeroom.
The investigating officer Detective
Assistant Inspector Albert Zhou told the court that accused 1 was arrested by
members of the public after he had been involved in yet another robbery at
Tashas Supermarket in Lobengula on 18 February 2009. Members of the public had administered
instant mob justice by assaulting him severely until he was unconscious. When the accused was handed over to him he
was semi-conscious with a swollen face – his eyes opening slightly.
The accused was later taken for
interviews to establish whether or not he had been involved in other robberies
which had occurred the previous month.
The accused implicated accused 2 and 3 and led the police to house
number C243 Njube where he alleged the two could be found.
During the early hours of 19
February 2009 the police raided house number C 243 Njube but the two accused
where not there. The witness left some
police officers guarding the house. The police then picked up Sithandekile
Nkomo to go and indicate accused 2's house in Entumbane just opposite Manyewu
School. They found accused 2's relatives
who informed the police that he lived in Gwabalanda. They drove towards Gwabalanda but before
getting there one of the officers guarding C 243 Njube called him and reported
that accused 3 had arrived at the house and there was a gun battle between him
and the police. He u-turned and
proceeded to the scene but by the time he arrived the police has lost sight of
the accused who had hidden himself at number C143. The police condoned off the area and started
searching for the accused. On realizing
that he net was closing on him he jumped in the neighbouring property.
The police opened fire at him
forcing him to drop the pistol he had and surrendered. The witness went closer to him and picked
it. It was loaded with 11 rounds and one
of them was already in the chamber. The
witness discovered that the accused had been shot on the leg. He then took the accused into the truck and
proceeded to number 7069 Gwabalanda where he arrested the second accused who
was taken to the police station while accused 3 was taken to United Bulawayo
Hospitals for treatment.
The accused's pistol was the one
that had been used to fire the spent cartridge which was picked up by Constable
Godfrey Muzungu at Tashas Supermarket Pelandaba.
The witness went on to tell the
court that Sithandekile was the one who gave shelter to the accused persons
during the period they committed the crimes.
The getaway car was recovered at her house.
The witness gave his evidence well
and is worth to be believed. He was not shaken
under cross examination.
The court finds that all the state
witnesses testified well. Their evidence
is accepted. Wherever their evidence
conflicts with that of the accused persons the court prefers theirs.
All the accused persons fared badly
in their respective cases. They
contradicted themselves and were clearly being untruthful in numerous
respects. They are not worth to be
believed.
Accused 1 tried to distance himself
from the scene and told the court that he was at his rural home in Plumtree on
24 January 2009 which was contrary to what he had said in his defence outline
wherein he had said he was in Tsholotsho.
In his confirmed extra curial statement he confirmed being at the scene
assaulting a woman with a tin of baked beans.
That is where the truth lies.
That is confirmed by the victim of the assault Pauline Mpofu. The court has already found that he was at
the scene and delivered the fatal blow.
The second accused denied ever being
at Tashas Supermarket in Pelandaba on the day in question. He said he was at his house in Gwabalanda
contradicting what is in his defence outline wherein he alleged that he was in
South Africa on 24 January 2009 which is clearly false. The truth is found in his confirmed extra
curial statement wherein he stated that he went with his co-accused to steal
from the supermarket.
The third accused maintained his
alibi that he was in South Africa on 24 January 2009. His story is completely false. There is overwhelming evidence that he was in
the country. He teamed up with his
co-accused and went to Tashas Supermarket Pelandaba and fired a shot from his
pistol when members of the public wanted to apprehend him and accused 1. He had gone into the shop with accused 1. Both of them were armed with firearms.
The fourth accused's story had a
ring of truth in it. He however, was
untruthful by suggesting that they teamed up to go to Pelandaba for a
braai. The truth was that they had gone
there to rob Tashas Supermarket of some money.
Sithandekile told the court that he told her that they had gone to make
money through robbery.
He tried to underplay the role he
played when he in fact played a vital role of driving the gate-away car from
the scene. That was a role which needed
a very experienced driver. The accused
is an experienced driver since he is in the business of transporting goods from
people working in South Africa to their homes in this country. Umalayitsha.
That seems to be the reason why he had to drive the car although the
owner was present. He had returned to
the car after seeing his uncle at the shop.
He would have drive his car if there had been no prior arrangement that
the fourth accused would drive it when getting away from the scene.
This court makes a specific finding
that the accused persons carefully planned to go and rob Tashas Supermarket at
Pelandaba. During the robbery the
deceased was kicked on the head causing hemorrhage on both sides of the
brain. |The kick to the head could have
independently caused the death of the deceased according to Doctor
Jekenya. The right lung was traumatized
resulting in right haemothorax of 600mls of blood which could also have
independently resulted in death. It is
however not clear how this injury was inflicted. Doctor Jekenya opined that it could have
resulted from a fall. The doctor
concluded that death was due to the combined effect of the two following the
assault.
What then are the accused guilty
of? Although the accused persons took
the firearms to go and commit the robbery they did not use the weapons. Accused 1 had the firearm in one hand while
he assaulted his victim in the shop using the other hand. Accused 3 who was guarding the entrance armed
with another firearm also did not use is on the people. Both accused according to Constable Muzungu
did not fire at members of the public who attempted to apprehend them. Instead accused 3 fired into the air.
The state counsel conceded that it
could not be said the accused persons subjectively foresaw the possibility of
their actions causing death and were reckless as to whether death resulted or
not. Consequently it was submitted that
the intention to murder was not proved.
The concession was, in my view, proper.
The state counsel further submitted that the accused were guilty of
culpable homicide. There is merit in the
submission which was supported by the legal representatives of all the accused
persons.
In the result all the four accused
persons are found guilty of culpable homicide.
Sithandekile Nkomo is hereby
discharged from all liability to prosecution for this particular offence in
terms of section 267(2) of the Criminal procedure and Evidence Act [Chapter
9:07].
Sentence
All that needed to be said in favour
of each accused had been put forward by their legal representatives. Their personal circumstances have been taken
into account.
Other than that nothing further can
be said in the accused persons favour.
They carefully planned the robbery
and in the process they caused the death of the deceased who was doing his work
at the supermarket. The deceased did not
resist them in any way. He did not try
to foil the robbery instead he went to the door of the storeroom. He knocked at the door and tried to open it
to no avail. He had no control over the
lady who had locked herself inside.
There was therefore no need to assault him. The assault was a vicious one. The doctor opined that severe force was used
to inflict the injuries.
A life was unnecessarily lost. This court always guards jealously the
sanctity of human life.
Regrettably the crime of armed
robbery seems to be on a sharp increase.
There is now a high frequency of cases where innocent people are being
killed during robberies. There is need
to curb this by imposing deterrent sentences to deter the offenders and others
with like minds.
Had the accused been convicted of
murder there was a likelihood that capital punishment would have been imposed
since the killing was during the commission of a robbery. The law provides that a person found guilty of
is liable to life imprisonment or any other less sentence depending on the
circumstances.
This is a culpable homicide
committed during the commission of a robbery which is a bad one committed with
contempt in broad day light.
The accused committed it out of
greed rather than need.
The accused acted a gang and
allocated each other roles to play during the commission of the offence.
In the circumstances the justice of
the case will be met by the following sentence.
Each accused
is sentenced to:-
1)
25
years imprisonment;
2)
The
pistol recovered from accused 3 shall be forfeited to the state;
3)
The
Toyota Corolla registration number RCL 012 GP used in the commission of the
offence shall be forfeited to the state.
Criminal Division, Attorney General's
Office, applicant's
legal practitioners
Lazarus & Sariff, 1st and 4th
accused legal practitioners
Marondedze, Mukuku, Ndove &
Partners, 2nd
accused's legal practitioners
James, Moyo-Majwabu & Nyoni, 3rd
accused's legal practitioners
