Makaika Milanzi (2) Antony Kumbula (3) Stephen Zimowa v The State

### Preamble
Judgment No. SC 24/25
1
Civil Appeal No. SC 442/22
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REPORTABLE   (24)

MAKAIKA     MILANZI      (2)     ANTONY     KUMBULA      (3)     STEPHEN    ZIMOWA

v

THE STATE

SUPREME COURT OF ZIMBABWE

UCHENA JA, CHITAKUNYE JA & MUSAKWA JA,

HARARE: 10 NOVEMBER 2023

T. Chiguvare, for the first appellant

J. Kwaramba, for the second appellant

T. Nyahuma, for the third appellant

T. Mapfuwa, for the respondent

MUSAKWA JA:       This was an automatic appeal against the judgment of the High Court (“the court a quo”) in which the appellants were convicted of murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”) and were sentenced to death.  After hearing submissions from counsel, we dismissed the first and second appellants’ appeals against conviction and sentence and upheld the third appellant’s appeal in its entirety.  The order reads as follows:

“WHEREUPON, after reading documents filed of record and hearing counsel,

IT IS ORDERED THAT:

1.  The appeal against conviction and sentence by the first and second appellants be and is hereby dismissed.

2. By consent the appeal by the third appellant be and is hereby upheld in its entirety.

3. The judgement of the court a quo in respect of the third appellant be and is hereby set  aside and substituted as follows:-

“The third accused Stephen Zimowa be and is hereby found not guilty and is acquitted”.

We indicated that reasons for the decision would follow in due course.  We now set out the reasons hereunder.  It may be noted that the judgment preceded the promulgation of the Death Penalty Abolition Act, Number 4 of 2024 which came into effect on 31 December 2024.

BACKGROUND

On 18 July 2009 and at around 2000 hours, Christopher Mushonga (the deceased) retired to bed.  His place of residence, number 2 Crackley Lane, Mount Pleasant was under the watch of the police guard.  On that same night at about 2300 hours, the appellants went to the deceased’s residence whilst armed with pistols and bolt cutters.  Upon arrival, they scaled the wall into the yard and then proceeded to the gate where a police officer, Tirivacho Mbizi, was on guard duty.  They confronted and threatened to shoot Tirivacho Mbizi if he did not comply with their demands.  The appellants disarmed Tirivacho Mbizi of his service weapon, an AK 47 rifle with a folding butt, serial number 253, and two fully charged magazines of 30 rounds each.

The appellants handcuffed Tirivacho Mbizi with his pair of handcuffs, severely assaulted him, and stole his C118 Motorola cell phone with a Telecel line.  The appellants force- marched Tirivacho Mbizi to the cottages where they confronted Evelyn Chihuri, Trust Yaisini, Donny Nyariri, and Marian Mandizha.  They severely assaulted them, tied their hands with shoelaces, and stole their cell phones.  The appellants then marched Maria Mandizha to the main house.  They opened the main bedroom door and found the deceased asleep.  They woke him up whilst pointing their firearms at him and demanding cash.

The appellants ransacked the whole room in search of valuables.  They then severely assaulted the deceased using the AK 47 rifle butt, bolt cutters, hands, and booted feet all over his body and head.  They stole an HTC cell phone, serial number HT 828GC 00963 and a Nokia 2630 cell phone.  The appellants took keys to a navy-blue Toyota Prado motor vehicle.  They drove away in this motor vehicle leaving the deceased and other occupants locked in the bedroom.  After the appellants had left, a report was made to the police and the deceased was taken to the hospital where it was established that the assault had caused brain trauma that had led to brain damage.  The deceased’s condition gradually deteriorated and he suffered renal failure as he was undergoing dialysis three times a week.

On 15 August 2009 at about 2300 hours, the deceased died at his home.  His body was taken to Harare Hospital mortuary for a post-mortem examination.  On 17 August 2009, a full post-mortem examination was carried out.  The post-mortem examination revealed that the cause of death was cardiac failure, haemorrhage and pulmonary oedema caused by assault.

In the course of investigations, the appellants were arrested.  A Nokia 2630 belonging to the deceased was recovered from a person to whom it had been sold by the first appellant. The deceased’s HTC cell phone was recovered from the second appellant when he was arrested.

PROCEEDINGS BEFORE THE COURT A QUO

Before the court a quo, the first appellant denied the charge and adopted his warned and cautioned statement as his defence.  He claimed that he was wrongly and falsely implicated. He denied conniving with any of the appellants to commit the offence.  He averred that nothing was recovered on his person or at his home upon his arrest in connection with the offence.

The second appellant averred that he knew the first and third appellants as his customers who would charge their phones at his cell phone charging business.  He stated that he never visited number 2 Crackley Lane on the night of 18 June 2009.  He denied ever assaulting the deceased and claimed that he was nowhere near the deceased’s residence.

The third appellant also denied committing the offence and averred that upon his arrest, police officers assaulted and shot him three times to extract a confession.  He claimed that he was not armed, did not resist arrest or attempt to flee when he was shot.  He stated that because of the assault and torture, he was forced to make a general statement implicating himself and others in the commission of the offence.  He also denied knowing the first appellant prior to his arrest. He stated that on the date of the alleged commission of the offence, he never went to the deceased’s residence but was at home and averred that he could not make indications as he had been severely assaulted.  He also outlined that there was nothing recovered from his home to link him to the offence and that no identification parade to identify the perpetrators of the offence was conducted.

The State led evidence from a number of witnesses including police officers.  The trial court found the witnesses credible, judging from their demeanour and the content of their evidence.  From the evidence given, the first appellant was linked to the offence by virtue of the Nokia 2630 which was traced to him.  The phone was stolen during the robbery.  The trial court found that the first appellant’s explanation for possession of the phone was not plausible.  The trial court held that when an accused is found in possession of property that was stolen in an armed robbery, as happened in ths case, and fails to give an innocent explanation for the possession, the only reasonable inference is that he must have acquired the property in the course of the robbery.

The trial court further held that the first appellant did not convince the court on a balance of probabilities that he had possessed the phone innocently or that the phone produced was not the one stolen from the deceased’s premises.  The only reasonable inference, therefore, was that the first appellant was part of the gang of robbers that attacked the deceased and in doing so, ought to have realised the risk or possibility that death could result from the conduct.  The second appellant was also found in possession of the HTC phone stolen from the deceased’s place.  The court disbelieved his denial that he knew nothing about the phone.  The same reasoning made in respect of the first appellant was thus made in respect of the second appellant.

The third appellant was not found in possession of any property stolen from the deceased’s residence.  However, he was identified by a witness, Maria Chihuri.  She identified the third appellant as the man who had grabbed her and had come face to face with her and had demanded money.  She also identified him as the one who had gone on to collect the money from the child’s cot bed.  From the evidence presented to the court, the three were found guilty of murder in terms of s 47 of the Act.

With regards sentence, the court a quo found that the death sentence was appropriate.  It reasoned that having considered the aggravating and mitigating factors and the circumstances of the commission of the offence, including the time lapse between the arrest of the appellants and the completion of the trial, the only conclusion which the court a quo reached was that there were no extenuating circumstances.  It also found that the aggravating circumstances far outweighed the mitigatory factors.  It is on account of such findings that the court found the death sentence to be appropriate.

Irked by the decision of the court a quo, the appellants lodged the present appeal on the following grounds:

FIRST APPELLANT’S GROUNDS OF APPEAL

“Against Conviction.

1.  It is submitted that the court a quo erred in fact and in law in convicting the first appellant. The state failed to prove its case beyond reasonable doubt. The basis for the appeal against conviction is as follows:

The court a quo erred in concluding that the only inference to be drawn from the circumstantial evidence was that the first appellant participated in the commission of the crime.

The court a quo failed to prove the common purpose. The degree of participation by the first appellant when the crime was committed is unknown. There is no evidence from the accomplices that implicate the first appellant.

The court a quo failed to provide direct evidence regarding the identification of the first appellant. None of the witnesses could identify the first appellant sufficiently to convince the court beyond reasonable doubt

Against Sentence

The sentence imposed by the court a quo was too harsh considering that the first appellant was convicted of murder based on a constructive intent to kill.

RELIEF SOUGHT

A) CONVICTION

WHEREFORE, first appellant prays that the appeal succeeds and that the decision of the court a quo be set aside and substituted with the following:

“The first appellant is found not guilty and acquitted.”

B) SENTENCE

In the event of the appeal against conviction being dismissed, 1st appellant prays that the sentence imposed by the court a quo be set aside and substituted with the following:

“First accused be and is hereby sentenced to life imprisonment.”

SECOND APPELLANT’S GROUNDS OF APPEAL

“AS AGAINST CONVICTION

The court a quo erred in fact and law in convicting the 2nd appellant despite the fact that the State failed to prove its case beyond a reasonable doubt due to the following:

i. The State failed to place the second appellant at the scene of crime.

ii. The State failed to discharge the onus to prove that undue influence was not used in order to obtain the confession from the second appellant.

iii. The state witness Maria Mandizha failed to identify the second appellant as having been present on the day of commission of the crime.

The court a quo erred at law in that it solely relied on circumstantial evidence in creating a connection between the second appellant and the crime that occurred at the deceased person’s house. There is no direct evidence linking the HTC cell phone allegedly recovered at the second appellant’s place of residence and the robbery committed. Further, the court a quo erred in placing the onus on the second appellant to proffer an explanation as to why the HTC cell phone was allegedly found in his possession.

The court a quo erroneously placed credence on contradictory and insufficient evidence in respect of whether the second appellant was taken to Kahari village for indications that led to the recovery of the firearm.

AS AGAINST SENTENCE

In the event that the conviction of the second appellant is upheld, the sentence imposed by the court a quo is so egregious as to induce a sense of shock in view of the following:

The court a quo erred in finding that there were no extenuating circumstances in the matter. The second appellant was charged with murder with constructive intent and this ought to have accrued (sic) to his benefit upon sentencing.

The second appellant working in common purpose with his co-accused had no actual intent to commit murder. The degree of force and violence allegedly applied by the accused persons was not of high level and does not warrant the sentence imposed. In any event, if the warned and cautioned statement by the second appellant is to be accepted, his indication is that he remained in the cottage to watch the occupants of the house.

In its adjudication of the sentence the court a quo erred at law in not considering that the second appellant is a first offender.

RELIEF SOUGHT

CONVICTION

WHEREFORE the second appellant prays that the appeal succeeds, and the decision of the court a quo be and is hereby set aside and substituted with the following:

“The second accused is found not guilty and is acquitted.”

SENTENCE

WHEREFORE, the second appellant prays that the appeal be and is hereby allowed and the sentence of the court a quo be and is hereby set aside and substituted with the following:

“The second accused is sentenced to life imprisonment.”

THIRD APPELLANT’S GROUNDS OF APPEAL

“AD Conviction

The trial court erred in law in convicting the third appellant when the state failed to prove its case beyond a reasonable doubt in that;

It relied on the evidence of dock identification by Maria Mandizha without corroboration or benefit of an identification parade that ought to have been held prior to the commencement of the trial.

It failed to consider appellant’s submission that in the Magistrates Court case number R526/2009, Maria Mandizha had identified a different person in the form of Chrispen Sibanda as the person who participated in the assault and robbery that resulted in the death of the deceased.

AD Sentence.

In the event of the court upholding the third appellant’s conviction, the sentence imposed by the trial court is manifestly excessive as to induce a sense of shock in light of the following

The trial court erred in finding that there were no extenuating circumstances. The third appellant was charged with murder with actual intent. However, it emerged during the trial that the degree of force and violence allegedly employed does not support actual intent but constructive intent.

RELIEF SOUGHT BY THE THIRD APPELLANT

CONVICTION

WHEREFORE the third appellant prays that the appeal succeeds and that the decision of the trial court be set aside and substituted with the following:

“The third appellant is found not guilty and acquitted.”

SENTENCE

In the event of the appeal not succeeding, the third appellant prays that the sentence of the trial court be substituted with the following

“Third appellant be and is hereby sentenced to life imprisonment.”

APPELLANTS’ SUBMISSIONS BEFORE THIS COURT

Ms Chiguvare, counsel for the first appellant, abandoned the grounds of appeal against sentence and motivated the appeal on the grounds relating to conviction only.  She submitted that the trial court erred in placing reliance on circumstantial evidence.  She submitted that the court a quo failed to consider the evidence of one Caroline Zihoya who initially stated that she bought the Nokia 2630 cell phone from one Richard Misongwe on the morning of 18 June 2009 (the day the crime was committed) but later changed the date to 28 June 2009.  Counsel submitted that the conclusion reached by the trial court that the appellant had the phone soon after the commission of the crime was wrong.  She reiterated that the court failed to consider the totality of the evidence before it including the fact that Richard Misongwe was in the business of selling phones at Ximex Mall, Harare.  However, Richard did not testify before the court a quo as he could not be found. Counsel further submitted that the doctrine of recent possession did not apply to the first appellant in this case and the inference drawn by the trial court was not consistent with the proven facts.  She further stated that there was no circumstantial evidence that linked the first appellant to the crime. There was also no evidence that the first appellant acted in common purpose with the co-accused.

Mr Kwaramba, counsel for the second appellant, submitted that the State failed to prove its case beyond a reasonable doubt as it failed to place him at the scene of the crime.  Counsel submitted that the trial court conceded that the second appellant was not identified by any of the witnesses.  He argued that the court a quo placed reliance on circumstantial evidence which was not based on proven facts.  He submitted that the HTC cell phone which was stolen from the scene of crime was not found on the second appellant’s person.  When queried by the Court whether or not the evidence that the phone was not on the second appellant’s person was on record, counsel submitted that the evidence did not form part of the record.  He submitted that the Investigating Officer who recovered the HTC phone did not comply with the requirements of s 49 of the Criminal Procedure and Evidence Act [Chapter 9:07] and hence the court erred in not considering this.

Mr Nyahuma, counsel for the third appellant, submitted that the trial court erred in accepting the evidence of Maria Mandizha which evidence was not credible.  He submitted that when appellants, together with one Crispen Sibanda were arraigned before the Regional Court on charges of robbery, Maria Mandizha identified Crispen Sibanda as the person who had assaulted the deceased.  However, before the court a quo, Maria Mandizha identified the third appellant as the one who had assaulted the deceased.  Counsel submitted that the issue of Maria Mandizha’s credibility was raised before the trial court but this was not considered.  He submitted that the inconsistency of Maria Mandizha’s evidence pointed to the innocence of the third appellant. Counsel thus prayed that the appeal be postponed to have the record of proceedings in CRB                        R526-30/09 placed before this Court, which prayer was duly granted by consent.

At the resumption of hearing, counsel for the third appellant submitted that the record of proceedings under case number CRB R526-30/09 confirmed that Maria Mandizha identified Crispen Sibanda as the person who assaulted the deceased.  He further submitted that the judge a quo found the third appellant guilty on the basis of the identification by Maria Mandizha.

RESPONDENT’S SUBMISSIONS

Mr Mapfuwa, counsel for the respondent, conceded that before the regional court, Maria Mandizha identified Crispen Sibanda as the person who attacked her.  However, before the court a quo, she identified the third appellant and this showed that her evidence was not consistent such that the third appellant’s conviction on this evidence could not stand.

In respect of the first and second appellants, Mr Mapfuwa submitted that the court                        a quo did not misdirect itself when it convicted the appellants.  Counsel submitted that the court                   a quo found that the first appellant was the one who led to the recovery of the Nokia 2630 which had been stolen from the deceased’s residence on the day he was attacked.  He further submitted that the first appellant had admitted to Caroline Zihoya that he had previously owned the phone. Counsel submitted that the defence outline of the first appellant did not give details on how he got possession of the cell phone.  He further contended that the court a quo based its conviction on circumstantial evidence and it could not be said that it had misdirected itself because the only reasonable inference was that the first appellant was part of the gang that had attacked the deceased. Counsel further submitted that Caroline Zihoya was not certain of the date she purchased the phone and her credibility could not be attacked on that basis.

In respect of the second appellant, counsel submitted that the HTC cell phone which was stolen from the deceased’s residence on the day of the commission of the crime was recovered from the second appellant.  He submitted that the witness, Tendai Nzirawa of the Zimbabwe Republic Police, had no motive to lie against the second appellant. He contended that the HTC cell phone was also identified by the deceased’s wife and by an officer from the deceased’s wife’s workplace.  He reiterated that the court a quo was correct in convicting the second appellant based on the circumstantial evidence placed before it as the only reasonable inference was that the second appellant was part of the gang that had attacked the deceased.

Counsel further submitted that the second appellant also placed himself at the scene of the crime when he stated that he did not participate in the assault of the deceased but was guarding the residence as a sentinel.  He contended that the court a quo, faced with such evidence, had no other option but to convict the second appellant.  Concerning the appeal against the sentence, counsel submitted that both the first and second appellants’ counsel had conceded that if the convictions were found to be proper the appeals against sentence would fall away.  Counsel thus prayed for the appeals against the conviction of the first and second appellants to be dismissed in their entirety.

ISSUE FOR DETERMINATION

In our view, the sole issue for determination is as follows:

Whether or not the court a quo properly convicted and sentenced the first and second appellants.

APPLICATION OF THE LAW

Conviction

The first appellant averred that he knew the second and third appellants as his customers who would charge their phones at his cell phone charging business.  He stated that he never visited Number 2, Crackley Lane on the night of 18 June 2009.  He denied ever assaulting the deceased and was nowhere near the deceased’s residence, arguing that his conviction was based solely on circumstantial evidence.  However, he failed to give a satisfactory explanation of how he got possession of the cell phone.  The trial court was alive to the requirements of circumstantial evidence and placed reliance on the cases of R v Blom 1939 AD 188 and S v Nyamaro 1987 (2) ZLR 222 (S).  We find no misdirection on the part of the court a quo in as far as its application of these authorities to the first and second appellants is concerned.

The approach which a court must take when relying on and assessing circumstantial evidence is trite.  Where a judicial officer convicts an offender based on circumstantial evidence, there must be no other existing circumstance which would weaken or destroy the inference sought to be drawn.  The inference must be the only reasonable inference that can be drawn from the circumstances.  The essence of circumstantial evidence is that it leads to a logical inference of the existence of a fact.  Therefore, it is not regarded as less valuable than direct evidence.  In this respect see PJ Schwikkard and SE Van Der Merwe in Principles of Evidence, 4th ed at p 578.

It follows that the question this Court seeks to answer is how the first appellant got hold of the deceased’s cell phone when he notably denied ever being at the deceased’s homestead. The court a quo held that the first appellant did not convince the court on a balance of probabilities that he had possessed the phone innocently nor that the phone produced was not the phone stolen from the deceased’s premises.  The only reasonable inference therefore, was that the first appellant was part of the gang of robbers that attacked the deceased.  In the case of S v Parrow 1973 (1) SA 603 (A), which dealt with a theft offence, the sentiments expressed therein are equally applicable. In that case HOLMES JA at page 604 B-E had this to say:-

“I pause here to refer briefly to the so-called doctrine of recent possession of stolen property.  In so far as here relevant, it usually takes this form.  On proof of possession by the accused of recently stolen property, the court may (not must) convict him of theft in the absence of an innocent explanation that might be reasonably true. This is an epigrammatic way of saying that the Court should think its way through the totality of the facts of each particular case and must acquit the accused unless it can infer, as the only reasonable inference that he stole the property.  (Whether the further inference can be drawn that he broke into the premises in a charge such as the present one will depend on the circumstances).  The onus of proof remains on the State throughout.  Hence even if, after the closing of the cases for the State and the defence, it is inferentially probable that the accused stole the property, he must be acquitted unless the only reasonable inference is that he did so: for the law demands proof beyond reasonable doubt.”

The important aspects of HOLMES JA’s decision in S v Parrow supra are:

The doctrine of recent possession is based on an inference being drawn that the possessor of recently stolen property stole the property.

(2)	Failure to give an innocent explanation of his possession;

(3) The inference that he stole the property is the only reasonable inference that can be drawn from such possession.

In addition, concerning the convictions, two cardinal rules of logic govern the application of circumstantial evidence in criminal proceedings.  The first one is that the inference sought to be drawn must be consistent with all the proven facts, and that the proven facts should be such that they exclude every reasonable inference from them save the one sought to be drawn.  Therefore, the first appellant’s assertion that there was nothing recovered from his home to link him to the offence and that no identification parade to identify the perpetrators of the offence was conducted is devoid of merit.  The first appellant was linked to the offence by virtue of the Nokia 2630 which was traced to him and his explanation for possession of the phone is not plausible.  The fact that none of the witnesses could identify the first appellant is not the end of the matter.  One does not only need to be found guilty of a crime through identification.   The first appellant failed to convince the court on a balance of probabilities that he acquired the phone innocently.  The evidence against the first appellant, therefore, reached the threshold of proof beyond reasonable doubt as expounded in S v Isolano 1985 (1) ZLR 62 (S).

In addition, the first appellant never challenged State witnesses that the Nokia 2630 cell phone recovered from Caroline Zihoya did not belong to the deceased.  It was only during his testimony that he claimed that the phone he sold to Richard Misogwe had been purchased from his brother-in-law, which clearly shows the appellant was making up his defence as the trial progressed.  In another breath, he claimed to have purchased the phone from an unnamed friend of his brother-in-law.  He, without specifically stating that the Nokia 2630 that was stolen from the deceased was the one he was referring to, nonetheless claimed that the Nokia 2630 he possessed was acquired in May, before the robbery.  All this was never put to State witnesses.  It is clear that the first appellant made up his defence, if one considers his brief defence outline.  The court a quo cannot be faulted for relying on circumstantial evidence as the appellant gave a different account of events and his association with the device.

The first appellant also averred that the State failed to prove common purpose as the degree of participation by the first appellant when the crime was committed is unknown. Common purpose entails that where several persons jointly pursue a common unlawful purpose, each is liable for the actions of the others that are committed in pursuance of the common purpose. Since the codification of the criminal law, common purpose as it was known in terms of the common law is no longer part of our law.  Instead, for purposes of liability of multiple accused, the Code now provides for conspiracy (s 188) and co-perpetrators (s 196A). Section 196A provides as follows:

“196A Liability of co-perpetrators:

If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite mens rea to commit the crime, whether by virtue of having the intention to commit it or the knowledge that it would be committed, or the realisation of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator (even if none of them is identified as the actual perpetrator) shall be deemed also to be the conduct of every co-perpetrator, whether or not the conduct of the co-perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator.

(2) The following shall be indicative (but not, in themselves, necessarily decisive) factors tending to prove that two or more persons accused of committing a crime in association with each other together had the requisite mens rea to commit the crime, namely, if they -

(a) were present at or in the immediate vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime; or

(b) were associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; or

(c) engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged.

(3)    A person charged with being a co-perpetrator of crime may be found guilty of assisting the actual perpetrator of the crime as an accomplice or accessory if such are the facts proved.”

The discarded doctrine of common purpose was discussed in the case of Madzokere & Ors v The State SC 71/21.   In that case, MAKARAU JA (as she then was) had this to say at 6-7:

“Whilst the codification of the law brought with it convenience, the reform had wide-reaching ramifications. These ranged from the cosmetic, such as changing the nomenclature for some common law crimes, to the radical and fundamental. It changed the source of criminal law and supplanted itself and other statutes as the predominant source of the criminal law in the jurisdiction.

It appears to me that it was the clear intention of the law makers to make the Code and other statutes the sole sources of the criminal law in the jurisdiction after the fashion of the Napoleonic and other civil law penal codes.  This it sought to achieve through the cumulative effect of the provisions of s 3 and 9.”

Whilst acknowledging that the common law doctrine of common purpose was re-enacted in s 196 of the Code, the learned Judge further stated the following at p 11:

“In terms of s 3 of the Code as detailed above, the direct application of the common law doctrine of common purpose in establishing the criminal liability of accused persons at the material time was therefore ousted by the enactment of s 196 of the Code. The criminal liability and punishment for two or more people who allegedly acted with a common intent at the time could only be imposed in accordance with the provisions of the Code.”

In casu, the appellants embarked on a pre-planned robbery whilst armed with pistols and bolt cutters.  The deceased’s residence was guarded by an armed police detail.  The appellants pounced on the unsuspecting guard at night.  They disarmed the police officer of his service weapon, an AK 47 folding butt rifle serial number 253, and two fully charged magazines of 30 rounds each.  The appellants handcuffed the police officer with his pair of handcuffs, severely assaulted him, and stole his C118 Motorola cell phone with a Telecel mobile sim card.  The appellants force-marched the police officer to the cottages where they confronted Evelyn Chihuri, Trust Yaisini, Donny Nyariri, and Maria Mandizha.  They severely assaulted them, tied their hands with shoelaces, and stole their cell phones.  The ordeal which the occupants were subjected to can only be described as brutal, merciless and movie-style.  The appellants were co-perpetrators together with others.  They went to the deceased’s premises to commit robbery, thereby exhibiting a common design.

In respect of the second appellant, the evidence against him was equally overwhelming as in the case of the first appellant.  The second appellant was also found in possession of an HTC cell phone that had been owned by the deceased.  Evidence confirming that the cell phone belonged to the deceased’s wife was rightfully adduced in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The only reasonable inference to be drawn is that he was part of the gang of robbers that attacked the deceased and that is why he could not give a reasonable explanation for the possession of the cell phone. Therefore, the second appellant’s conviction is unassailable.

Regarding the third appellant, the concession by counsel for the respondent was properly made. The court a quo erred in not considering at all the contradiction in the testimony of Maria Mandizha. Before the regional court, Maria Mandizha identified a different person as the one who assaulted her. However, before the court a quo, she identified the third appellant as her assailant. The third appellant’s conviction was unsafe in that regard as there was no other incriminating evidence against him. As a result, we did not hesitate to set aside the conviction.

SENTENCE

Sections 42 and 43 of the Criminal Procedure & Evidence Amendment Act No. 2/16 (the Act) operationalized s 48 (2) of the Constitution.  The Act amended ss 336, 337, and 338 of the Criminal Procedure and Evidence Act, which sections deal with the nature of punishments which the court may impose following a criminal conviction including the death sentence for the offence of murder.  On 24 June 2016, the General Laws Amendment Act No. 3/2016 was promulgated.  It, inter-alia, amended the Code.  Section 8 (2) of Part XX of the said Act amended s 47 (2) and (3) which provided for punishment for murder.  The amendment sought to synchronize the penalty provisions for murder with s 48 (2) of the Constitution, more particularly by defining, without limit, the factors which the court must take into account when determining the existence or otherwise of aggravating circumstances in the commission of a crime of murder (emphasis added).  One of the factors listed in s 8 (2) of the amendment No. 3/2016 as aforesaid is that it is an aggravating circumstance where the murder is committed in the course of a robbery.

In casu, the court a quo’s finding was that the appellants proceeded to the deceased’s home where they assaulted the deceased which resulted in death due to the injuries he sustained from the attack.  It should, however, be noted that the fact that an accused person had been convicted of murder in circumstances of aggravation did not bind the court to pass the death sentence.  Section 8 (4) of the General Laws Amendment Act 3/16 aforesaid provides that the imposition of the death penalty and other lesser penalties as set out therein is subject to the provisions of s 337 and 338 of the Criminal Procedure & Evidence Act.  Section 337 of the Criminal Procedure & Evidence Act provides that this Court “may” pass a death sentence upon the offender where it finds that the murder was committed in aggravating circumstances.  Section 338 is an exclusionary provision that spares the classes of persons listed therein from being sentenced to death whatever the circumstances of the case.  In terms of the repealed law, therefore, the court was obliged to pass the death sentence in this case where all accused persons are over 18 years old unless extenuating circumstances are found to be present.

In the case of R v Mharadzo 1966 ZLR 240 (A) at 241 G-I a case cited with approval by CHIDYAUSIKU CJ in S v Siluli SC 146-04, Beadle CJ at p 8 stated as follows:

“Where, on the evidence, it is possible to do so, I would with respect, suggest that it is desirable for trial courts to make a positive finding on the precise state of mind of the accused, before determining the question of whether or not extenuating circumstances exist because here, this question of the actual state of mind of the accused is, I think, a factor of considerable importance. I do not wish it to be inferred from this, that, the court must necessarily find that where only a constructive intent to kill is proved, that this court must necessarily find that this is a circumstance of extenuation, but I do suggest that, where only a constructive intent to kill is proved, the court will examine the other features of the case very carefully indeed before rejecting a plea that the offence was committed in extenuating circumstances.”

The appellants severely assaulted the deceased using the AK 47 rifle butt, bolt cutters, hands, and booted feet all over his body and the head.  A reasonable inference can be drawn that there was real risk or possibility that the deceased might die as a result.  Therefore, the sentence that was imposed was justified.

In light of the above authority, the court a quo, having found that the first and second appellant were guilty of murder, sentenced them to death.  The Constitution of Zimbabwe, 2013 under s 48 provides for the right to life as follows:

“Every person has the right to life. A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances, and the law must permit the court a discretion whether or not to impose the penalty…” (My own emphasis)

The issue of discretion also comes into play.  Section 48 (2) (a) of the Constitution makes it discretionary for the Court to impose the death sentence in the circumstances.  In determining whether or not the appellants were properly sentenced, the sentiments expressed in Director of Public Prosecutions, Gauteng v Pistorius 2018 (1) All SA 336 (SCA) are a guiding principle in that:

“…when dealing with the question whether the sentence imposed by the trial court was appropriate, this court said '[t]he test for interference by an appeal court is whether the sentence imposed by the trial court is vitiated by irregularity or misdirection or is disturbingly inappropriate'. The Constitutional Court reaffirmed this approach in S v Boggards [2012] ZACC 23; 2013 (1) SACR 1 (CC) para 41 when it said 'ordinarily sentencing is within the discretion of the trial court. An appellate court’s power to interfere with sentences imposed by courts below is circumscribed. It can only do so where there has been an irregularity that fails justice; the court below misdirected itself to such an extent that its decision on sentence is vitiated; or the sentence is so disproportionate or shocking that no reasonable court could have imposed it.”

The following remarks have also been made by G Feltoe, Reid-Rowland, and B Crozier in Sentencing Murderers;

“It is imperative to note that the death penalty may be imposed only if the court decides that there are aggravating circumstances. This determination must be made by the judge and the assessors with reference to the aggravating circumstances listed in the Criminal Law Code or other aggravating factors that they decide are present.”

In S v Ndlovu SC 34/85, it was held that it is the duty of the courts to protect members of the public against this type of offence because of its prevalence.  In the absence of weighty mitigating circumstances, murder during the course of robbery will attract the death penalty.  The court has the discretion to impose the death penalty by weighing any aggravating factors against mitigating factors and deciding whether to impose the death penalty, taking into account all these factors.  The aggravating factors must outweigh the mitigating factors such that the imposition of the death penalty is justified.  In the present circumstances, the aggravating circumstances outweighed the mitigating factors.

The deceased and other persons at his residence were subjected to a brutal and lengthy attack by the appellants during the robbery.  The appellants ought to have realized the risk or possibility that death could result from the misconduct.  The use of the butt of a gun and bolt cutters to assault the deceased all over his body and the head was brutal.  The deceased succumbed to the injuries he sustained during the assault as confirmed by the post-mortem report.  The assertion that the court a quo was too harsh considering that the first appellant was convicted of murder based on a constructive intent to kill is devoid of merit.  In any event, the common law term of constructive or legal intention was superseded by the term realisation of real risk or possibility by virtue of s 15 (4) of the Code.  The circumstances under which the crime was committed justified the sentence.

From the above, we hold the view that the deceased was murdered in aggravating circumstances that warranted the death penalty.  The court a quo correctly exercised its discretion by imposing the death sentence and its findings cannot be faulted in this regard.

DISPOSITION

It is for the above reasons that we dismissed the appeals by the first and second respondents and allowed the appeal by the third appellant.

UCHENA JA			 : 	I agree

CHITAKUNYE JA		: 	I agree

Muvirimi Law Chambers, 1st appellant’s legal practitioners

Honey & Blanckenberg, 2nd appellant’s legal practitioners