MALABA
DCJ:
This is an appeal against both conviction and sentence of death for murder with
actual intent to kill. The court a quo found that there were no
extenuating circumstances and passed the death sentence on the
appellants.
The facts
of the case are these. The deceased who was aged 38 years at the time of
his death drove his motor vehicle from his house to town at about 7pm on 24
June 2009. At the corner of Herbert Chitepo and 12th Avenue he gave
a lift to the two appellants and an accomplice who indicated they were going to
Magwegwe. They drove along Khami Road and then into Hyde Park Road.
At the intersection of Hyde Park Road and Masiyambili Road, near Pelandaba
Cemetery, the second appellant who was sitting behind the deceased placed a
nylon cord around the deceased's neck and strangled him.
Once
satisfied that the deceased was dead they pushed the body on to the passenger
seat. The first appellant took over the car and drove it to Luveve
cemetery where they dumped the body in a bush. They took his cellphone a
Nokia 3310 and his money. The appellants drove back into town and picked
two passengers at West End garage using the stolen car. One of the
passengers was Nkosilathi Sibanda a reporter with a local newspaper.
The
appellants drove towards Luveve and one of the passengers alighted on the way
whilst Nkosilathi remained in the car. When they got to his destination
the appellants refused to stop. The first appellant instead activated the
central locking system whilst accelerating. They drove the motor vehicle
towards Victoria Falls Road and stopped at Ngozi Mine turn off.
The second
appellant proceeded to assault Nkosilathi with clenched fists and open
hands. They later stripped him of all his clothes and footwear. He
was left wearing only his underwear. They took his ZTA 35
cellphone.
The
appellants then abandoned Nkosilathi. They drove to an overnight car park
in Luveve where they left the car. The car was recovered from the car
park about three weeks later.
At about
midnight the day of the deceased's death the first appellant phoned prophet
Sibanda using the deceased's cellphone. He was seeking spiritual
assistance. The call was later traced by the investigating officer
leading to the arrest of the first appellant. The first appellant
immediately admitted his involvement in the murder of the deceased and the
robbery of Nkosilathi. He implicated the second appellant who was
arrested at Bulawayo Prison. He had been detained there on 8 July 2009 on
charges of carjacking and robbery.
The
appellants made warned and cautioned statements in which they admitted their
involvement in the commission of the offence. The statements were
subsequently confirmed by a Magistrate.
On 14
September 2009 Nkosilathi identified the two appellants at an identification
parade conducted at Bulawayo Central Police Station. The post-mortem
report shows that the deceased died of asphyxia by a ligature.
On these
facts the court a quo found that the appellants acted in common
purpose. Consequently they were found guilty of murder with actual intent
to kill.
On appeal
the appellants sought to attack the conviction on the basis that the evidence
was circumstantial and the identification parade was not organised
properly. The suggestion that the first appellant did not phone the
prophet Sibanda on the night in question is not borne out by the
evidence. The evidence shows that it was on the basis of the call he made
to Sibanda using the deceased's cellphone that the first appellant was
arrested.
The
evidence of the identification of the two appellants by Nkosilathi was
challenged on the grounds that the participants were not of the same height,
did not wear similar clothing and that Nkosilathi was escorted to the parade by
the investigating officer. They also challenged the reliability of the
evidence of Nkosilathi on identification on the grounds that the conditions prevailing
during the time he was with the assailants were not conducive to proper
identification.
In view of
the fact that the appellants confessed in their warned and cautioned statements
being with Nkosilathi in the motor vehicle and treating him in the manner he
described removes the case from that of circumstantial evidence and mistaken
identity.
In a well
reasoned judgment the court a quo came to the conclusion with which the
court agrees that the appellants committed the offence of murder with actual
intent to kill.
On the
question of extenuation the court a quo came to the conclusion that as
it was a murder committed in the course of a robbery there were no extenuating
circumstances. On appeal the appellant's legal practitioner indicated
that she had no meaningful submissions to make in respect of the finding by the
court a quo. The unanimous view of the court is that the
concession was properly made. In S v Matongo & Ors
S-61-05 it is stated that:
“The law in this regard is clear. A murder committed in the course of a
robbery attracts the death penalty unless there are weighty extenuating
circumstances”.
There are
no weighty extenuating circumstances in this case.
Accordingly
the appeal against both conviction and sentence is dismissed.
GARWE
JA: I
agree
GOWORA
JA: I agree
Kenneth Lubimbi & Partners, appellants' legal practitioner
Attorney-General's Office, respondent's legal practitioners
