No S.C. 21\2002
Appeal No 258\2001
CHINDUNGA v THE STATE
COURT OF ZIMBABWE
JA, SANDURA JA & ZIYAMBI JA
FEBRUARY 18 & APRIL 26, 2002
for the appellant
for the respondent
The appellant was charged with murder, the allegation being that
on 25 October 1996 he unlawfully and maliciously
killed a man called
Petro Moyo near the Epoch Mine compound in the Filabusi area of
Matabeleland. He pleaded not guilty but was
found guilty and
sentenced to death after the High Court found that there were no
extenuating circumstances. He now appeals against
the trial the State called five witnesses and produced a number of
exhibits. The witnesses were Hardlife Zhou (Hardlife),
Mlauzi (Bruce), Constable Mangombe (the Constable),
Fanuel Nyoni (Fanuel), and Trevor Ndlovu (Trevor).
exhibits included a post-mortem report, an affidavit sworn to by a
Forensic Scientist, three logs and ten notebooks.
evidence given by Hardlife and Bruce was as follows. They knew the
appellant because they once lived in the same compound
with him at
Fred Mine. On 25 October 1996, they arrived at Epoch Mine at about
after sunset, they went to the beerhall in the compound where they
bought some opaque beer which they started drinking.
seated on a bench and were watching television. The appellant and
the deceased later arrived and stood at a spot about
ten paces behind
them. They appeared to be having a friendly conversation.
Hardlife saw them but Bruce did not. There were
many people in the
deceased did not drink beer because he was a member of the Zionist
Church which did not permit its members to drink alcohol.
appellant did not drink any beer at that stage.
after a while the appellant and the deceased left the beerhall. As
they left, they seemed to be speaking to each other
in a friendly
manner. When they were just outside the beerhall gate, Hardlife
drew Bruce's attention to the fact that they had
left. Bruce looked
in the direction of the gate and saw two people just outside the gate
but did not recognise them.
five minutes later, the appellant returned to the beerhall and joined
Hardlife and Bruce who were still seated on the bench.
between them and asked them why they were drinking opaque beer. He
then gave some money to Bruce and asked him to go and
quarts of clear beer. As quarts were not available, he bought three
pints instead. He used the change to buy some meat
roasted and ate as they drank beer. They were in the beerhall
drinking beer until about 10 p.m. when the beerhall closed.
beer which they drank that night had been bought by the appellant.
However, they did not say how much beer they consumed
question was not put to either of them.
Hardlife and Bruce said that when the appellant joined them on the
bench he was wearing a white shirt which was not blood-stained.
both men could not recall the colour of the pair of trousers which
the appellant was wearing at the time. In addition, Hardlife
not recall what shoes the appellant was wearing, but Bruce recalled
that the appellant was wearing slippers.
both men said that there was nothing unusual or peculiar about the
appellants clothes or behaviour when he returned
to the beerhall.
They added that there was no indication whatsoever that anything had
happened outside the beerhall before he returned.
was their evidence that after leaving the beerhall they went to
Ndlovus Shebeen for gambling, whilst the appellant went to
Maribas Shebeen for the same reason. Thereafter, they did not
see the appellant again.
evidence was as follows. In October 1996 he lived at Fletcher Farm
in Filabusi. At about 1 p.m. on 25 October 1996
he and a man called
Dingani left the farm for Epoch Mine with the intention of gambling.
When they arrived at Epoch Mine, they
went to the beerhall in the
compound and found no-one gambling.
therefore, left the beerhall and went to a shebeen where they found
the appellant and others gambling. Shortly thereafter,
appellant sold a jacket to one of the gamblers. A while later, the
appellant left the shebeen and returned to the beerhall.
his colleague later returned to the beerhall and found the appellant
drinking opaque beer. A short while later, Trevor
left the beerhall
and went to the local market where he met the deceased but did not
speak to him. He then returned to the beerhall.
after 5 p.m. the appellant left the beerhall but returned after 6
p.m. He was wearing a white shirt with a torn pocket.
There was a
blood stain below the pocket. He was then drinking clear beer and
had a lot of money. He pulled a wad of $50 notes
out of his pocket.
The wad of notes was about five to ten centimetres thick. When
this happened Trevor was about five paces away
from the appellant.
thereafter, Trevor and his colleague met the appellant at the
shebeen where he was again gambling. The appellant had
altercation with one of the gamblers called Liton. He snatched some
money from Liton. Liton then pulled out an okapi knife
the appellants hand once before running away, and was pursued by
the appellant. Trevor did not see the appellant
again that night.
evidence was as follows. The appellant is his brother-in-law
because his wife and the appellants wife are sisters.
October 1996, he met the appellant at Filabusi Garage. The
appellant had two bags in his possession and was drinking opaque
in the company of several local residents.
about 5 p.m. the appellant left his bags at Fanuels house, which
was near the garage, and went to Epoch Mine. He later returned
Fanuels house at midnight and spent the rest of the night there.
He showed Fanuel an injury on his finger and indicated that
been stabbed at the shebeen where he had been gambling.
the following morning, Fanuel, at the request of the appellant,
accompanied the appellant to a hospital in Bulawayo where the
appellant received some treatment for his injury. After the
treatment, the appellant spent about $700 buying clothes for himself,
his wife and his children.
both men took a bus to Mbalabala but dropped off at Esigodini where
each of them drank eight pints of clear beer before
Mbalabala where they consumed more beer and spent the night.
the following morning, they took a bus to Filabusi Garage. However,
just before they reached their destination, the appellant
got off the
bus and went to Filabusi Hospital for a fresh dressing of his wound.
Fanuel proceeded to Filabusi Garage where he found
looking for the appellant. He took them to the hospital where they
arrested the appellant and took him to the police
the police station Fanuel saw the white shirt which the appellant had
been wearing on 25 October 1996. It was blood-stained
and was in
one of the appellants bags. What had happened was that before
going to Bulawayo for treatment on 26 October 1996,
the appellant had
changed the clothes he had been wearing on the previous day and had
placed them in one of the bags.
was Fanuels evidence that his bus fare to and from Bulawayo, i.e.
$80, had been paid by the appellant. It was also his evidence
all the beer he consumed on 26 October 1996 had been bought by the
appellant. He added that the appellant had a lot of money
said he had won when he gambled at the shebeen on 25 October 1996.
now come to the Constables evidence. It was as follows. In
1996 he was stationed at Filabusi Police Station. He knew
appellant and the deceased as residents of Filabusi. In addition,
he knew the deceased as a storekeeper at Filabusi shopping
27 October 1996, he received a report to the effect that the
deceaseds body had been found in the bush near Epoch Mine.
drove to the scene and found the body lying on the ground. Upon
examining it, he observed a wound on the right side of the head
above the right eye. Near the body were three blood-stained logs,
ten notebooks and one empty bottle of Fanta, a well known
From the entries in the notebooks, he concluded that the deceased
had collected some money from various people at Epoch
Mine on 25
October 1996. However, he did not find any money at the scene of
the murder. He collected the body, the logs and the
returned to the police station.
was his evidence that the distance between the beerhall at Epoch Mine
and the scene where the deceaseds body was found was
one-and-a-half kilometres, and that it would take about ten to
fifteen minutes to walk that distance.
on 28 October 1996, the Constable saw the appellant in the police
cells. The appellant was wearing a white shirt,
a pair of trousers
and a pair of slippers. The constable observed some blood on the
slippers, but could not say whether or not
the shirt was
blood-stained. He also observed a stab wound in one of the
later recorded a warned and cautioned statement from the appellant.
In that statement the appellant denied the charge. Statements
also recorded from some of the persons whose names were mentioned by
the appellant in his statement.
post-mortem report indicates that the cause of death was skull
fracture and brain laceration.
to the witnesses whose evidence I have just summarised, the State
relied upon the affidavit sworn to by Ms Vongai Chinherende,
Forensic Scientist. The relevant part of that affidavit reads as
detected on the shirt, pair of trousers and pair of slippers
belonging to the accused originated from an ABO blood group
deceased was found to be ABO blood group A.
accused was found to be ABO blood group O.
means that blood detected on the shirt, pair of trousers and pair of
slippers belonging to the accused could have originated
appellants own evidence was as follows. In 1996 he lived in
Bulawayo. On 25 October 1996 he decided to go the Mbalabala
collect the sum of $140 from a man called Phiri who owed him that
he did not have enough money for the journey, he approached a Mr
Moyo, the proprietor of Filabusi Garage who lived in Bulawayo.
gave him $12,00. He then proceeded to the bus terminus near Max
Garage, but before he got there he met an old friend, Ozwell
who gave him $100. He hoped to raise more money after selling some
of the clothes he had in a bag which he was carrying.
then took a bus to Mbalabala where he saw Phiri who paid him $60 and
promised to pay the balance after collecting the money which
workers at Epoch Mine owed him. Phiri indicated that as the workers
at the mine were receiving their wages on that day, he
would pay the
balance to the appellant on that day.
the appellant was at Mbalabala, he sold one pair of trousers for $70
but was paid only $30, after the purchaser promised to
balance at the end of the month.
then proceeded to Filabusi Garage where he bought some opaque beer
which he shared with some friends whom he had not seen for sometime.
Whilst he was at the garage, he sold a jacket for $60 but was paid
only $30 after the purchaser promised to pay the balance at
of the month. He also sold two shirts for $30.
about 4.30 p.m., he left Filabusi Garage for Epoch Mine to meet Phiri
who had earlier promised to pay him the sum of $80 at the
left his two bags with his brother-in-law, Fanuel, whose evidence I
have already summarised.
he arrived at the mine he could not find Phiri. He then went to a
shebeen where people usually gambled but did not find him.
a jacket to one of the gamblers for $50 but was only paid $20 and was
promised that the balance would be paid later.
thereafter, he saw Phiri driving his motor vehicle. When he stopped
him and spoke to him Phiri said that he could not pay
the sum due to
the appellant, but gave him $20 and advised him to go and drink some
beer at the beerhall.
the appellant entered the beerhall, he met Hardlife and Bruce whom he
had known for a long time. He found them drinking opaque
jokingly said to them Is money hard to come by these days? Why
are you drinking opaque beer? In reply one of them
The rich man is here. That was shortly after sunset.
then gave some money to Bruce and asked him to go and buy some clear
beer and meat, as Hardlife and Bruce stated in their evidence.
Thereafter, they drank beer until the beerhall closed at 10 p.m.
appellant denied seeing the deceased or going to the beerhall with
him on the day in question.
leaving the beerhall he went to Maribas Shebeen together with
Hardlife and Bruce intending to participate in gambling.
disputed the evidence given by Hardlife and Bruce which was that they
went to Ndlovus Shebeen whilst the appellant went to
it was the appellants evidence that when he gambled at the shebeen
he won a lot of money and lost only two bets.
He indicated that the
gambling involved large sums. However, he added that as the
gambling progressed, he discovered that a gambler
called Liton had
cheated him. Accordingly, he snatched the money which Liton was
holding and placed it in his shirt pocket. Liton
then tried to
retrieve the money but the appellant punched him with a clenched
fist. That blow landed on Litons mouth, causing
him to bleed
from the mouth. It also felled him.
when Liton got up, he pulled out a knife and aimed a blow at the
appellant who tried to block it. As a result, one of
appellants fingers was injured and Liton ran away.
appellant then decided to return to Filabusi Garage. He was
bleeding profusely, and as a result, his shirt, trousers and slippers
he arrived at Fanuels house, where he spent the rest of the night,
he counted his money and found out that he had more than
This included the money which he snatched from Liton.
rest of the appellants evidence concerning what he did on 26
October up to the time he was arrested on 27 October 1996 is
as Fanuels evidence which I have already summarised.
have set out the evidence of each witness in some detail because I
think that it is important to know what each witness said before
determining whether the appellant was properly convicted.
his judgment the learned judge in the court a
quo said the
is it that links you with this murder? There is no doubt that you
were at Epoch Mine Beer-garden on the evening of the day when
happened. There is no doubt that the deceased also got there. We
have evidence from witnesses who saw him. We have evidence
collected money from some people there
You yourself admit being
at this beer-garden although you dispute that you saw
him. We have
evidence showing that when you set off from Bulawayo you had
financial problems, you needed money. You even tried
debts from people who owed you money as you went on your way. Even
when you got there you were drinking opaque beer.
You even went
gambling in order to get money
The evidence then shows that
after you had been seen by witnesses leaving the
beer-garden with the
deceased, subsequent to that you were seen with a lot of money
is also evidence of the forensic scientist which is to the effect
that the blood-stain on your shirt matched the blood grouping
deceased. There has been no satisfactory explanation other than
your suggestion that the blood could have come from yourself
stabbed by the other person at the gambling school
There is no
suggestion that some other person could have bled whose
matched that of the deceased
learned judge then found the appellant guilty of murder with actual
convicting the appellant the trial court relied upon certain facts
which it said had been proved.
first fact allegedly proved was that witnesses had seen the
appellant with the deceased at the beerhall, and the second
was that the appellant was later seen by witnesses leaving the
beerhall with the deceased. I shall consider both findings
my view, both findings are incorrect, having regard to the evidence.
In the first place, it was only Hardlife who said that
he saw the
appellant with the deceased in the beerhall and that he later saw
them leaving the beerhall together. That evidence
corroborated by Bruce who, like Hardlife, knew both the appellant and
the deceased very well, and was sitting on the bench
was sitting on whilst watching television.
addition, Trevor, who was at the beerhall at the same time, did not
say that he saw the appellant in the company of the deceased,
he suggest that the appellant left the beerhall in the company of the
deceased. Instead, he said that he saw the deceased
at the market
and that when he himself returned to the beerhall, he saw the
appellant leaving the beerhall. Trevors version
that when the appellant left the beerhall he was alone.
was, therefore, a contradiction between Hardlifes evidence and
Trevors evidence, which the learned judge in the court
quo should have dealt
with in his judgment. Regrettably, the learned judge did not
comment on the contradiction, nor did he comment
on the credibility
of the two witnesses. He, therefore, did not explain why he
believed Hardlife, in preference to Trevor, with
regard to whether
the deceased was with the appellant when he left the beerhall.
my view, that was a grave error on a crucial matter. I say so
because one of the reasons for convicting the appellant was the
acceptance by the learned judge that when the deceased left the
beerhall he was in the company of the appellant.
am, therefore, satisfied that the evidence on which the learned judge
relied for the conclusions that the appellant was in the
with the deceased and that the two men later left the beerhall
together is unreliable.
now wish to consider the third and fourth facts relied upon by
the learned judge. The third fact was that after
appellant returned to the beerhall he was seen with a lot of money,
and the fourth fact was that at that stage the appellants
shirt had a blood stain. These facts were conclusions drawn
from Trevors evidence.
was Trevors evidence that when he was about five paces away from
the appellant, the appellant pulled out of a pocket of his
wad of $50 notes which was five to ten centimetres thick. He also
said that he saw a blood stain below the appellants
when he was about five paces away from the appellant.
seems to me unlikely that Trevor would have been able to tell, from a
distance of about five paces, that the wad of notes produced
appellant consisted of $50 notes and was five to ten centimetres
thick, and that the appellants shirt had a blood stain.
trial, the appellant denied that he had produced a wad of $50 notes
in the beerhall. He said that it would have been very
foolish to do
so, bearing in mind that there were many people in the beerhall at
regard to the blood stain, the appellant denied that when he went to
the beerhall his shirt was blood-stained. He insisted
shirt be produced to enable the trial court to determine whether,
from a distance of five paces, a blood stain could be
seen on the
shirt. Regrettably, the prosecutor was unable to produce the shirt
and failed to give any reasonable explanation as
to its whereabouts.
addition, it is pertinent to note that there was a contradiction
between Trevors evidence and the evidence given by Hardlife
Bruce on the condition of the appellants shirt when the appellant
entered the beerhall.
to Hardlife and Bruce, when the appellant returned to the beerhall
and joined them on the bench where they were seated,
they did not
notice any blood stain or anything unusual about his clothes. On
the contrary, Trevor said that when he saw the appellant
beerhall from about five paces away, at about the same time, the
appellants shirt was blood-stained.
learned judge should have dealt with this contradiction in his
judgment. Regrettably he did not. He did not mention or comment
on the contradiction, nor did he comment on the credibility of the
three witnesses, that is to say, Hardlife, Bruce and Trevor.
circumstances, the learned judge did not explain why he disbelieved
Hardlife and Bruce, who said there was nothing unusual
appellants clothes, and believed Trevor, who said the appellants
shirt was blood-stained.
again, that was a grave error on a crucial matter. That is so
because one of the reasons for convicting the appellant was
finding by the trial court that when the appellant returned to the
beerhall his shirt was blood-stained.
was another contradiction which the learned judge should have dealt
with in his judgment. According to Hardlife and Bruce,
appellant left the beerhall he returned after about five minutes.
But according to Trevor it took the appellant about
an hour to return
to the beerhall.
seems to me that the learned judge accepted Trevors evidence
because if he had accepted Hardlifes and Bruces evidence
would have acquitted the appellant. I say so because the Constable
said that the deceaseds body was found at a spot about
one-and-a-half kilometres away from the beerhall. It would not have
been possible for the appellant to walk that distance, kill
deceased who was sober, and return to the beerhall within five
minutes. In fact, it was the Constables evidence that it
take ten to fifteen minutes to walk a distance of one-and-a-half-
the circumstances, assuming that the learned judge accepted Trevors
evidence and rejected the evidence given by Hardlife and
the appellant returned after about five minutes, he should have given
his reasons for that decision. Regrettably he
my view, that was a grave error on a crucial matter. The time it
took the appellant to return to the beerhall was crucial in
determining whether or not the appellant was the murderer.
it is true that the appellant bought some beer and meat which he,
Hardlife and Bruce consumed in the beerhall until it closed
p.m., the appellants explanation was that bearing in mind the $100
given to him by Ozwell, the $80 he got from Phiri and
the money he
raised by selling some of the clothes he had for sale on that day, he
had enough money for that purpose. That evidence
was not seriously
is also true that on 26 October 1996 the appellant spent about $700
when he bought new clothes for himself, his wife and his
He also spent a lot of money buying some beer for himself and his
brother-in-law, Fanuel. When asked where he got that
money from he
said he had gambled and won a lot of money on 25 October 1996. He
went on to say that when he returned to Fanuels
house at about
midnight he counted the money he had won and realised that he had
more than $1 500. That sum, of course, included
the money he
snatched from Liton during the gambling session at Maribas
my view, that explanation is not unreasonable and cannot be rejected
out of hand.
now come to another fact relied upon by the trial court in
convicting the appellant, that is to say, the finding that the
found on the appellants clothes belonged to the deceaseds blood
group. That finding was based on the affidavit sworn
to by Ms
Vongai Chinherende, the Forensic Scientist. In that affidavit she
stated that the blood found on the appellants clothes
belonged to the deceaseds blood group. She did not say that on
the same clothes she also found the appellants
blood. And yet it
was the appellants evidence that when Liton stabbed his finger he
bled profusely and that, as a result, his
shirt, trousers and
slippers were blood-stained. That evidence was not seriously
any event, it was common cause that on 26 October 1996 the appellant
went to a Bulawayo hospital because his injury required
attention. It could hardly be suggested that such an injury did not
cause serious bleeding, nor could it be suggested that
appellants clothes and slippers were not blood-stained as a result
of that bleeding.
being so, one wonders why the Forensic Scientist did not find some of
the appellants blood on the appellants clothes
In my view, that fact alone renders the whole examination by the
Forensic Scientist unreliable.
any event, it was incorrect for the learned judge to say there is
no suggestion that some other person could have bled whose
group matched that of the deceased. I say so because it was the
appellants evidence, as well as Trevors, that during
evening of 25 October 1996, the appellant fought with Liton at a
gambling session, and punched him in the mouth, thereby causing
to bleed from the mouth. In the circumstances, the possibility that
the appellants clothes had some of Litons blood and
blood belonged to the deceaseds blood group could not be ruled
there was no evidence on how the appellants clothes and slippers,
the appellants blood sample and the deceaseds
blood sample were
conveyed to the Forensic Science Laboratory.
already stated, in his warned and cautioned statement the appellant
denied the charge. The Constable who recorded that statement
that he also recorded statements from some of the persons whose names
were mentioned by the appellant in his statement. In
my view, the
fact that the prosecutor did not call most of those persons as
witnesses, strongly suggests that their statements confirmed
appellant said about them in his statement.
other matter which I should deal with concerns the three logs found
at the scene of the murder. The first log was 37 centimetres
had a circumference of 15.5 centimetres and weighed 300 grams. The
second log was 37 centimetres long and weighed 325 grams.
circumference was not given, but presumably it was the same as the
circumference of the first log. The third log was 36 centimetres
long and weighed 260 grams. Its circumference was not given. All
the three logs were blood-stained.
the commencement of the trial, the prosecutor informed the court that
in his view the three logs were initially one log which
three pieces. No reason was given for that opinion, and the trial
proceeded on that basis.
my view, that was wrong. Right from the beginning of the trial the
assumption was made that the deceased was murdered by one
assaulted him with a log which broke into three pieces. The court
was, therefore, not alive to the possibility that
the deceased was
murdered by three people who, before committing the offence, broke
the log into three pieces. After all, many
people at the mine knew
that the deceased had collected a lot of money on that day.
I wish to deal with the law very briefly. In my view, the appellant
gave a reasonable explanation of what he did during
the night in
question. That explanation cannot be rejected out of hand.
I said in S v Kuiper
2000 (1) ZLR 113 (S) at 118B-D:-
test to be applied before the court rejects the explanation given by
an accused person was set out by GREENBERG J in R
v Difford 1937 AD 370.
At 373, the learned judge said:-
rests on the accused to convince the court of the truth of any
explanation he gives. If he gives an explanation, even if that
be improbable, the court is not entitled to convict
unless it is satisfied, not only that the explanation is improbable,
beyond any reasonable doubt it is false. If there is any
reasonable possibility of his explanation being true, then he is
to his acquittal
in R v M
1946 AD 1023, DAVIS AJA said the following at 1027:
I repeat, the court does not have to believe the defence story;
still less has it to believe it in all its details; it is sufficient
if it thinks that there is a reasonable possibility that it may be
comments apply to the present case with equal force.
as the learned judge convicted the appellant on the basis of
circumstantial evidence, I wish to refer to the principles
in R v Blom
1939 AD 188. At 202-203 WATERMEYER JA referred to two cardinal
rules of logic which governed the use of circumstantial evidence.
He said the following:-
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
inference sought to be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be drawn.
proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they
exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.
the present case, and for the reasons already set out in this
judgment, it is clear beyond doubt that the proved facts do not
exclude other reasonable inferences.
the circumstances, the appeal is allowed and the conviction and
sentence are set aside.
JA: I agree
JA: I agree
Godlonton & Gerrans,
appellant's legal practitioners