The appellant was convicted of murder with actual intent.
The court a quo heard evidence from a number of State
witnesses, which evidence the court a quo found credible and accepted.
The State led evidence from the following witnesses –
The first State witness was Leonard Dube ('Dube'), an
accomplice witness who was properly warned by the trial court to tell the
truth.
Leonard Dube told the court that on 26 September 2007,
at between 7 and 8pm, the appellant, in the company of one Collen Tsikidze
('Tsikidze'), who is still at large, came to his place of residence.
Collen Tsikidze invited him to accompany them into town to look for some
money to drink beer. Leonard Dube asked how they were going to raise money to
buy beer, to which Collen Tsikidze indicated that he was a police officer
attached to the traffic section, and, as such, he was going to arrest those who
pirate without permits. Collen Tsikidze offered Leonard Dube bus fare as
he had no money. When they got into town, they went to Khami Bar along Robert
Mugabe Way and stood outside the Bar. They did not apprehend anyone and they
decided to go back to Edgars Stores where they had been dropped off when they
got into town. After a while, the trio decided to go back to Khami Bar. It
was around 3am when Leonard Dube suggested that they go back home since they
had not managed to arrest anyone and had not had a sip of beer. The appellant
then suggested that they go behind Allabama, just near Khami Bar. They saw a white vehicle parked behind
Allabama. They went past it and stood at a corner. Collen Tsikidze asked
how many people were in the vehicle and the appellant answered that there was
only one person. Leonard Dube deliberately contradicted him and said there were
two people in the vehicle in the hope that his colleagues would leave the
vehicle alone and proceed home. The appellant and Collen Tsikidze told Leonard
Dube that he was lying. They suggested that they go back to the vehicle to
check again. When they got to the vehicle, Collen Tsikidze went to the
driver's side and knocked on the door. The deceased, a white person, raised his
head. Collen Tsikidze produced his police identity card and informed the
deceased that he was under arrest for wrongful parking. The deceased invited
them into the vehicle so that they could go to Bulawayo Central Police Station.
Collen Tsikidze sat in the front passenger seat while Leonard Dube and the
appellant sat in the back seat. Collen Tsikidze directed the deceased
where to go and they drove past Bulawayo Central Police Station. The deceased
noticed that they had driven past the police station and began to ask whether
they were genuine police officers. Collen Tsikidze
again produced his police identity card. Leonard Dube also asked the appellant
where they were going and the appellant told him to keep quiet. After travelling a short distance further,
the appellant said:
“Lister, finish off this person, finish him off so that we
go.”
Leonard Dube asked the appellant what he meant, and the
appellant told him to shut up. At that moment, the deceased suddenly stopped
the vehicle and Collen Tsikidze pointed a firearm at the deceased. Leonard
Dube suddenly opened the door and ran away towards Chicken Inn near
Tredgold Building. He later boarded a bus home and retired to bed. At around
9am the next day, Collen Tsikidze came to Leonard Dube's place of
residence and remonstrated with him for running away the previous night. They
walked towards the gate and Leonard Dube saw a white car parked by the gate. He
saw the appellant seated in the car. Collen Tsikidze told Leonard Dube that
he was of very little help the previous night and gave him two hundred rands.
He told Leonard Dube to keep his mouth shut. Leonard Dube asked Collen Tsikidze
where they got the vehicle and he replied that it belonged to his girlfriend.
After Collen Tsikidze and the appellant had left his residence, it dawned
upon Leonard Dube that the vehicle was the one that he had seen in town the
previous day.
The second State witness to testify was
Kenneth Matanhire. He told the trial court that on 22 October 2007, Collen Tsikidze
and the appellant signed a loan agreement with him for an amount of three
thousand five hundred rands. As security for his money, the witness took
possession of the white vehicle brought by Collen Tsikidze and the
appellant. The witness further told the trial court that Collen Tsikidze
and the appellant shared the loan amount equally.
It is quite clear from this evidence that Collen Tsikidze
and the appellant were, at all material times, working together in this robbery
and murder.
The evidence of the rest of the State witnesses was
admitted in terms of section 314(1) of the Criminal Procedure and Evidence
Act [Chapter 9:07]. Nothing turns on this evidence.
The trial court found that Leonard Dube was an honest and
credible witness whose evidence is reliable.
This conclusion of the court a quo cannot be faulted.
In his defence, the appellant's testimony was that on
26 September 2007 he met Collen Tsikidze at Pumula. Collen Tsikidze
suggested that they go into town and he agreed. On their way, they invited Leonard
Dube to accompany them. When they arrived in the city, they walked around until
they came across the deceased who was parked near Pines Brothers Supermarket. Collen Tsikidze
advised the deceased that he was under arrest for wrongful parking. They
ordered the deceased to drive to the police station. When Collen Tsikidze
diverted the deceased from the route to Bulawayo Central Police Station, the
deceased panicked and stopped the car. Collen Tsikidze produced a pistol
and shot the deceased once in the head and he died. The appellant told the
trial court that Collen Tsikidze placed the deceased on the front seat and
he took charge of the motor vehicle and drove off to Nyamandlovu where they
dumped the deceased's body. Collen Tsikidze searched the deceased and
recovered seven hundred rands and gave the appellant two hundred rands.
The court a quo was not impressed by the appellant as a
witness.
It concluded that the appellant must have known that Collen Tsikidze
was armed with a pistol and was fully aware of the mission to commit robbery
using the gun. The evidence clearly established that the appellant freely
participated in the disposal of the body of the deceased. The appellant had an
equal share of the proceeds of the pawning of the deceased's vehicle. After the
deceased had been shot, the appellant remained in the company of Collen Tsikidze
and assisted him in dumping the deceased's body. The appellant gladly participated in the
sharing of the loot.
The appellant's account of the events of the fateful day is
so improbable that the trial court quite rightly disbelieved his account.
In short, the evidence clearly established the following
rôle played by the appellant in the commission of the offence –
1. The appellant was in the company of Collen Tsikidze
and Leonard Dube on the night the deceased was killed. They were looking for
someone to rob when they came upon the deceased.
2. The appellant was a former police officer.
3. His accomplice, Collen Tsikidze, effected an
illegal arrest of the deceased.
4. The appellant noticed that Collen Tsikidze had
diverted the deceased from the police station route but did nothing about it.
5. When Leonard Dube asked the appellant where they were
going, the appellant rebuked him and ordered him to shut up.
6. When Collen Tsikidze produced a pistol, the
appellant did not stop him. The appellant, as a former policeman, must have
known that that was unlawful.
7. The appellant and his accomplice, Collen Tsikidze,
dumped the deceased's body.
8. The appellant participated in the sharing of the loot.
9. The appellant was a signatory to the written loan
agreement in which they pledged the deceased's motor vehicle.
10. The appellant participated in the disposal of the
deceased's property.
11. The appellant was found in possession of the pistol
that was used in the murder of the deceased.
On the basis of the above evidence, it is quite clear that
the appellant freely participated in the commission of the offence. There is
very little difference, if any, between the appellant and Collen Tsikidze
who actually pulled the trigger and shot the deceased. Their degree of
participation in this crime is equal.
The evidence in this case establishes, beyond doubt, that
the appellant was guilty of murder with actual intent….,.
Accordingly, the appeal was dismissed and both
the conviction and sentence upheld.
