GARWE JA:
This is an appeal against the sentence of death imposed on the appellant by the
High Court sitting on circuit at Gweru.
The facts of this case are as follows. The appellant and the mother of
the two deceased children were known to each other. On 21 November 2011,
the deceased's mother, one Lydia Mangena, escaped from her thatched house
through a back window. This was shortly after 9:00pm. A man had
tried to break into her hut and, fearing for her life, she had then jumped out
of the hut and, although she was pursued by the man for a distance, managed to
escape. She then went and made a report to one Austin Marume, a member of
the local neighbourhood watch committee. At about the same time, she
noticed that the hut from which she had escaped and in which her two minor
children, Pretty Kangausaru, aged six years, and Nigel, aged twenty
three months, had been sleeping, was on fire. Together with Austin Marume
she ran back to her homestead. She found her uncle having retrieved
Pretty Kangausaru from the inferno. Pretty however had sustained severe
burns. The other child Nigel was burnt beyond recognition. Pretty
died on the way to Mnere Hospital.
It is common cause that in either case the cause of death was “hypovolaemia 20
Burns.”
In the court a quo the appellant denied being present at Lydia
Mangena's homestead on the night in question. He told the court he had
left his homestead at about 7:00pm in order to go fishing at a place called
Mataga.
What was in issue before the court a quo was the identity of the
person who set on fire the hut in which the two children had been sleeping.
Lydia Mangenga gave evidence and narrated how she knew the appellant.
They had attended the same school years previously. She had then left for
Karoi where she continued her education. She had then returned to
Mberengwa in 2009 after the death of her father and was staying at her late
father's homestead together with the two children.
From August 2011 until shortly before the fateful event, the appellant had
approached her and made advances which she turned down. At one stage he
even threatened her and showed her his Zimbabwe National Army identity
card. Subsequently the appellant had taken her cellular handset.
With the help of neighbours the cellular phone was recovered from one Claris
Keto. Following the recovery, the appellant had then approached her and
assaulted her at the local business centre. The appellant was arrested
and placed on remand for having perpetrated the assault on her.
It was her evidence that on the night in question the appellant came to her hut
and knocked. On the second knock she asked who it was. The man
outside responded that he was Desire Dewa and that he had come to ask for
forgiveness for the assault and threats that he had previously issued.
She told the court she knew his voice very well. Thereafter, when she
jumped out through the window, she saw the appellant at a distance of about
three metres in full moonlight. She was able to see that he was, inter
alia, wearing his yellow and green T-shirt. Her evidence was that,
owing to the moonlight, visibility was so good one could see for a distance of
about a hundred metres.
The court a quo believed her evidence on identification. It
found that she knew his voice very well and that she could not have wrongly
identified him. The court also accepted her evidence that the appellant
in fact identified himself when she asked who it was. The court a quo
also believed her evidence that after she jumped out of the hut through the
back window, she not only saw the appellant but also identified the yellow and
green T-shirt that he was wearing. That the appellant had such a T-shirt
was not in dispute.
Abiot Sibanda, a state witness, also gave evidence to the effect that the
appellant was at the local bottle store when it closed at 8:00pm. This
was contrary to the claim by the appellant that he had left the area at about
7:00pm to go fishing at Mataga.
In my view, the court a quo cannot be faulted for coming to the
conclusion that the appellant was correctly identified as the person who came
to the homestead that night and eventually set the hut on fire. Clearly,
the deceased's mother Lydia knew the appellant very well and there is very
little chance that she may have been mistaken in her identification of the
appellant as the person who set the hut alight.
The evidence established clearly that the appellant came to the homestead just
after 9:00pm on the night in question. The evidence also established that
the appellant must have been unhappy when his advances were spurned.
Whilst no-one actually saw the appellant torch the hut, the inference from all
the facts is irresistible that it must have been him, and no-one else, who had
the motive to set the hut on fire.
Appellant's counsel conceded during submissions that the evidence against the
appellant was overwhelming and that the conviction was unassailable. In
my view the concession was properly made.
On the question of extenuation, the court a quo found that the
appellant, having been spurned by Lydia, had decided to set on fire the hut in
which the children were left sleeping. He was aware that Lydia was
staying with the two children and, when Lydia escaped, he would have known that
the two young children were inside the hut. It was the finding of the
court a quo that the appellant set the hut on fire because his
advances had been rejected and he decided to get even with Lydia by burning the
hut in which her two young children were sleeping.
The court a quo found nothing extenuating in the circumstances
surrounding the commission of the offence.
I agree with the court a quo. This was a sadistic act,
perpetrated on two innocent children by the appellant following the realisation
that nothing, not even threats, were going to make Lydia change her mind and
have an affair with him. The two young children sustained severe burns as
a result of which they died. Nigel, the younger of the two, was burnt
beyond recognition.
Mr P. Madzivire, appellant's counsel, also conceded that this was a
callous and gruesome murder and that he was unable to point to any
circumstances of extenuation.
I am satisfied that the conviction and sentence were proper. Accordingly,
the appeal against both conviction and sentence is dismissed.
GWAUNZA JA:
I agree
GUVAVA JA:
I agree
Joel Pincus, Konson & Wolhuter, Appellant's Legal
Practitioners
The Attorney-General's Office,
Respondent's Legal Practitioners
