Judgment record
Nakai Shapestone Matondora v The State
[2020] ZWSC 146SC 146/202020
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Judgment No. SC 146/20 1
Criminal Appeal No. SC 42/19
REPORTABLE (137)
NAKAI SHAPESTONE MATONDORA
v
THE STATE
SUPREME COURT OF ZIMBABWE
BHUNU JA, UCHENA JA & MATHONSI JA
HARARE: SEPTEMBER 21, 2020 & OCTOBER 29, 2020
O. Mushuma, for the appellant.
Ms K. H. Kunaka, for the respondent.
MATHONSI JA: The appellant and two co-accused were each convicted by
the High Court on 19 February 2007 of culpable homicide, armed robbery, 8 counts of
kidnapping and 7 counts of administering a noxious substance. They were each sentenced to
a total of 45 years imprisonment but the sentences of 5 years and 10 years in respect of the
charges of kidnapping and administering a noxious substance were ordered to run
concurrently.
The appellant appeals against these convictions and sentences.
THE FACTS
Except for the participation of the appellant who, although admitting being
involved raised the defence of compulsion, the facts are generally common cause. The
appellant, together with Stanslous Tsatsa, Gift Munetsi and Custon Tsatsa, who was not
Judgment No. SC 146/20 2
Criminal Appeal No. SC 42/19
accounted for, left Harare on 18 December 2003 in a Toyota Corona motor vehicle
registration number 810-824E. They proceeded to the Eastern Highlands Plantation in Honde
Valley. They were all armed with pistols.
Upon arrival, the appellant led his colleagues to the residence of his aunt,
Sheila Tendai Madenyika, who was the cashier at the plantation. They abducted Sheila and
her husband Barnabas Tsongorera before proceeding to Ernest Pfumbi’s residence. Pfumbi
was the custodian of the keys to the strong room. In the company of Pfumbi, who was made
to drive his own motor vehicle, a Mazda B2500 SDX, they proceeded to the company’s main
office where they robbed the plantation of cash in the sum of $30 625 285,71 and the Mazda
B2500 double cab motor vehicle registration number 779-3782 at gunpoint. The money was
loaded into the Mazda motor vehicle.
The appellant and his co-accused kidnapped 8 employees of the plantation,
including the deceased Phillip Laing, who was also assaulted, and took them in the two motor
vehicles. A certain noxious liquid substance was administered on the employees who were
being forced to drink it while some of it was splashed onto them resulting in them sustaining
burns. The employees were then dumped at Cumberland Valley Road in Juliasdale.
The deceased was handcuffed and tied to a gum tree. He was found dead the
following morning. The appellant and two colleagues of his were charged with murder,
robbery, 8 counts of kidnapping and 7 counts of attempted murder, alternatively
administering a noxious substance. They were found not guilty of murder but convicted of
culpable homicide and each sentenced to 15 years imprisonment.
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Criminal Appeal No. SC 42/19
They were convicted of robbery and each sentenced to 15 years imprisonment.
Having been convicted also of 8 counts of kidnapping they were each sentenced to 5 years
imprisonment. Each was sentenced to 15 years imprisonment on the conviction on 7 counts
of administering a noxious substance.
The appellant was aggrieved but took long to note an appeal to this Court. This
appeal was only filed 12 years later on 5 February 2019. As against conviction, the appellant
listed 13 grounds of appeal which were in the main defective. He listed 5 more grounds of
appeal against sentence. Fortunately, at the hearing of the appeal Mr Mushuma, who appeared
for the appellant, abandoned all the grounds against conviction except ground number 10.
The ground of appeal in terms of which the appeal against conviction is being motivated is
that the court a quo misdirected itself in finding the appellant guilty on the basis of the
doctrine of common purpose when he did not participate in the commission of the offence
although he had been present at the scene.
The appellant attacked the sentence imposed on the basis that his moral
blameworthiness was very low. As such he should have been given a sentence different from
that imposed on his co-accused. He urged this Court to interfere with the sentence and
substitute a lesser sentence.
ISSUES FOR DETERMINATION
1. Whether the appellant was properly convicted.
2. Whether the sentence imposed is appropriate in the circumstances.
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Criminal Appeal No. SC 42/19
WHETHER THE APPELLANT WAS PROPERLY CONVICTED
The appellant was convicted as an accomplice on the basis of the doctrine of
common purpose. He had raised the defence of compulsion. An accomplice is a person,
other than the actual perpetrator of a crime who, inter alia, knowing that the actual
perpetrator intends to commit a crime or realising that there is a real risk or possibility that an
actual perpetrator intends to commit a crime, renders to the actual perpetrator any form of
assistance which enables, assists or encourages the actual perpetrator to commit the crime.
(See s 195 of the Criminal Law [Codification and Reform] Act [Chapter 9:23] (the Criminal
Law Code).
Prior to the amendments to Part 1 of Chapter XIII of the Criminal Law Code
governing participation or assistance in the Commission of Crimes, which came into effect on
24 June 2016, the liability of co-perpetrators and accomplices was regulated by ss 196 and
197 of the Criminal Law Code. This is the law which was in force at the time the appellant
was tried, convicted and sentenced in February 2007. In terms of s 197 (1) of the Code:
“Subject to this Part, an accomplice shall be guilty of the same crime as that committed
by the actual perpetrator whom the accomplice incited, conspired with or authorised or
to whom the accomplice rendered assistance.”
In order to avoid liability for the crimes committed by the actual perpetrator, the
law requires the accomplice to withdraw from the crime. In terms of s 200:
“200. Withdrawal from crime by accomplice
An accomplice shall not be guilty of a crime committed by an actual perpetrator if,
before the crime has been committed, the accomplice voluntarily desists from further
incitement of, conspiracy with, or authorisation or assistance to the actual perpetrator
and either-
a) renders wholly ineffective his or her previous incitement, conspiracy,
authorisation or assistance, or
b) gives warning of the crime to a police officer or other person with authority to
prevent the commission of the crime, in sufficient time to enable the police
officer or other person to prevent its commission.”
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Criminal Appeal No. SC 42/19
The law is also very clear regarding the punishment of accomplices. They are
liable to the same punishment as if they were the actual perpetrator. Section 202 provides:
“Subject to this Code and any other enactment, a person who is convicted of a crime as
an accomplice shall be liable to the same punishment to which he or she would be
liable had he or she been an actual perpetrator.”
At the trial, evidence was led by the State, which the trial court found credible,
that, not only did the appellant participate in the criminal venture undertaken by his co-
accused on the fateful evening, he had ample opportunity to dissociate himself from the
criminal conduct. He did not take that opportunity.
To begin with, it is not difficult to appreciate why the appellant was recruited for
the criminal venture. He was a local person hailing from the same area where the crime was
to be committed and knew the place very well as he used to stay there with his father. His
father and aunt worked at the plantation and he knew the employees who had access to the
money to be stolen. He led the gang to the residences of the cashier, Sheila Tsongorera and
the Finance Manager, Ernest Pfumbi, who was the custodian of the keys to the strong room
where the money was kept.
Evidence, which the trial court found credible, was to the effect that after the
gang of robbers, two of whom were in military fatigues, had at gun point, forced the
employees to lead them to the main office and before getting there, they proceeded to
Sheila’s house. When the gang members in military uniform went inside the house the
appellant “only came to .... guard” Pfumbi in the Mazda B2500 motor vehicle parked outside
the house.
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Criminal Appeal No. SC 42/19
The trial court also accepted Pfumbi’s evidence that as they drove from Sheila’s
house, it is the appellant who was shouting instructions that they were to proceed to the main
office instead of going to the Managing Director’s house. The appellant also shouted that
they would go to the Managing Director’s house later. Indeed Pfumbi’s credible evidence
was that the appellant had an opportunity to run when he was left guarding him but he did not
because he “was a willing partner” in crime. He stood sentinel at the gate all alone when the
other gang members committed the robbery.
The credible evidence of Sheila was that even after the robbery, the two motor
vehicles stopped at some point where, again the appellant performed guard duties. He was
left guarding Sheila and her husband putting on dark glasses and making sure he hid his face
from them so that they would not see his face.
In its assessment of the appellant’s defence, the trial court disbelieved most of
what he said. It stated:
“The narration of events leading to the commission of the offence by the second
accused (the appellant herein) is corroborative of the evidence of the state witnesses.
We have no hesitation in accepting that the greater part of his testimony is true as it is
borne out by other reliable testimony before us.
The accused was however not credible when he tried to explain why he did not
dissociate himself from the criminal venture.......... Again we are not persuaded by his
reasoning as to why he did not report the matter to the police at the earliest opportunity.
On the basis of the foregoing, we find the accused’s narration of the events leading to
the commission of the offences credible and corroborated by the testimonies led by the
state. We however find unbelievable his assertions that he did not participate in the
commission of the offences willingly.”
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Criminal Appeal No. SC 42/19
The defence of compulsion was therefore thrown out as not being credible. In
any event there is a deeming provision in s 243 (2) of the Criminal Law Code from which
the appellant could not escape. It is that:
“Where a person voluntarily associates himself or herself with one or more other
persons knowing or realising that there is a real risk or possibility that they will involve
him or her in the commission of a crime, any threat made against him or her by one or
more of those other persons for the purpose of inducing him or her to commit a crime
shall be deemed, for the purpose of paragraph (c) of subsection (1), to have been
brought about through his or her fault.”
The court a quo found that apart from the contradictions in the appellant’s
defence that he was acting under the influence of an unknown substance when he drew the
sketch plan of Honde Valley, there were many features in the appellant’s own testimony
pointing to the fact that he knew of the criminal venture the gang was undertaking well in
advance. For instance, he did not query why the other gang members were accompanying
him and Stanslous Tsatsa to collect a motor vehicle Stanslous claimed to have purchased or
why they were armed.
He saw them engaging in target practice with a firearm along the way and did
nothing. He saw them purchasing diesel along the way. One can add that he saw the army
uniforms they carried quite early during the trip before two gang members put them on.
Clearly he voluntarily associated himself with the gang. He is deemed to have brought
about any threats, real or imagined, that were subsequently made against him through his
own fault. The defence of compulsion would therefore not be available to him. I do not
agree with Mr Mushuma for the appellant that the defence of compulsion had any merit.
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Criminal Appeal No. SC 42/19
In any event, this is a matter that was decided entirely on the credibility of
witnesses. The court a quo embraced the evidence of state witnesses while finding that of
the appellant incredible. That finding by the trial court was a factual finding which an
appeal court can only interfere with if it is shown to have been irrational. As stated in the
seminal judgment of KORSAH JA in Hama v National Railways of Zimbabwe 1996 (1)
ZLR 664 (S) at p 670 C-D:
“The general rule of the law, as regards irrationality, is that an appellate court will not
interfere with a decision of a trial court based purely on a finding of fact unless it is
satisfied that, having regard to the evidence placed before the trial court, the finding
complained of is so outrageous in its defiance of logic or of acceptable moral
standards that no sensible person who had applied his mind to the question to be
decided could have arrived at such conclusion.”
The appellant has not shown any misdirection on the part of the trial court in its
assessment of the evidence. Neither has he shown that the findings of the trial court on
credibility are irrational. There is therefore no basis for interference on appeal. The appeal
against conviction cannot succeed.
WHETHER THE SENTENCE IMPOSED IS APPROPRIATE
Mr Mushuma did not motivate the appeal against sentence with any degree of
enthusiasm. In his heads of argument he only adverted to the fact that the appellant’s moral
blameworthiness was low and that he should be visited with a sentence different from his
co-accused. He did not elaborate. Neither did he expand on that in submissions made at the
hearing of the appeal.
I have already made reference to the penalty provision in s 202 of the Criminal
Law Code that a person convicted as an accomplice is liable to the same punishment as an
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Criminal Appeal No. SC 42/19
actual perpetrator. There is no merit therefore in the submissions urging the imposition of a
different sentence on the appellant.
More importantly, it is trite that sentencing is the province of the trial court.
Indeed when assessing sentence, the trial court is involved in the exercise of judicial
discretion. As such an appeal court is not at liberty to substitute its own discretion as there
are only limited entrenched grounds for interference. The views expressed in Barros &
Anor v Chimponda 1999 (1) ZLR 58 (S) at p 62 F-G, 63A apply with equal force to the
sentencing discretion of the trial court. The court said:
“It is not enough that the appellate court considers that if it had been in the position of
the primary court, it would have taken a different course. It must appear that some
error has been made in exercising the discretion. If the primary court acts on a wrong
principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes
the facts, if it does not take into account some relevant consideration, then its
determination should be reviewed and the appellate court may exercise its own
discretion in substitution, provided always it has the materials for doing so. In short,
this Court is not imbued with the same broad discretion as was enjoyed by the trial
court.”
The guiding principle in an appeal against sentence, is that punishment is pre-
eminently a matter of the discretion of the trial court. An appeal court should always be
careful not to erode that discretion. See S v Rabie 1975 (4) SA 855 at 857 D-F. Therefore an
appeal court cannot, in the absence of material misdirection, substitute the sentence arrived at
by the trial court with a sentence it prefers.
It was within the power and authority of the sentencing court to treat the appellant
the same way as his co-accused. It has not been shown why the sentence imposed induces a
sentence of shock. Significantly, it was within the sentencing discretion of the trial court to
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impose, on the appellant, the sentence that was imposed. The appeal against sentence cannot
succeed as well.
In the result, it be and is hereby ordered that the appeal be and is hereby
dismissed in its entirety.
BHUNU JA: I agree
UCHENA JA: I agree
Mushuma Law Chambers, appellant’s legal practitioners
The National Prosecuting Authority, respondent’s legal practitioners