Judgment No S.C. 49\2002
Civil
Appeal No 319\2001
ALEX TOENDEPI NGIRAZI v
THE STATE
SUPREME
COURT OF ZIMBABWE
SANDURA
JA, ZIYAMBI JA & GWAUNZA AJA
HARARE
MAY 14 & JULY 8, 2002
R.Y.
Phillips, for the appellant
N.J.
Mushangwe, for the respondent
ZIYAMBI
JA: The appellant was convicted by the High Court of murder
with actual intent and, no extenuating circumstances
having been
found to exist, was sentenced to death. He now appeals against both
the conviction and sentence.
The evidence led at the trial was
as follows. On the 21st January 1999, the deceased,
William Lawless Dane Player was discovered to be missing from his
home at Christon Bank. On the
previous evening at about 8pm,
Maggie Madzande, who was employed by the deceased as a domestic
worker, arrived at the deceaseds
house to serve supper. She was
surprised to find the gate locked as this was unusual. On entering
the kitchen she found a note
which purported to be written by her
employer. It said:-
Maggie
dont worry to cook. I have gone with my friends. I will see you
tomorrow.
Her
employer had not done this before. He would go to her house and
inform her that he was going out. She tried to open the doors
to
the lounge and bedrooms but found them locked. That too was unusual
as these doors were usually unlocked. She then went home
and
prepared her supper. After supper she noticed that the lights at the
main house had now been switched off. This caused her and
the other
occupants of her house including Thomas Madzande her brother (who was
employed by the deceased as a gardener at the premises)
to go to the
main house to investigate. The deceaseds bedroom windows were
closed. As they knocked, they noticed that the light
in one of the
toilets was switched on. They continued knocking and the light in the
other toilet came on. They decided to ask the
neighbours to call the
Police. The Police were called and they waited some two hours after
which they decided to go home.
The
following morning the deceaseds dog, which normally slept in the
kitchen, was found locked in the house. Using a ladder they
ascertained, by looking through a trap window, that the deceased was
not in his bedroom. The deceaseds cheque book which was
normally kept in the lounge, was lying on a small table in the
bedroom. They again caused the police to be called. Police arrived
and broke into the house. The deceased was not there. A search then
began for him.
The appellant and his brother
Elijah Njirazi were arrested on the 8th February 1999.
Both accused admitted their involvement in the murder of the
deceased. The appellant wrote out a lengthy statement
in which he
set out in detail his plan to extort money from the deceased and how
he executed that plan. The following passage is
taken from his
confirmed warned and cautioned statement:-
I thought how difficult it
would be for me without money. Then as I was employed at St Gerera
Farm as a guard. I thought of a
plan to intimidate Mr Player to
give me more money. I told Justine the plan to have money. He
agreed to go with me and my young
brother. I had a gun which I
would use, the one I had at work. So one night we went and Justine
knocked. Mr Player just talked
with him and refused to open saying
Justine was drunk. So our plan failed that. (sic) Then I talked to
my younger brother and
on the twentieth of January 1999 at night we
went to Mr Player. I had written a note to Maggie the house-lady in
Mr Players
name, telling her that that night she must not cook for
him because friends had taken him to town. Maggie got out at seven
to go
get supper and (we) got in and intimidated Mr Player. We took
him out and left the note for Maggie; she came back as usual at
8
oclock and found the note. She went back to her room and we got
back with Mr Player. I told him to write a cheque and signed
one
for $15 000.00. I used Fana Wilsons ID which I had picked up in
town. Then as we wanted to go downstairs to lock him until
the next
day, I heard Maggie calling at the next plot. I knew she had
detected that something was going on in the house. I told
my young
brother Elijah that the Police would be coming at any time. We
hurried out with Mr Player and went out and waited. I
realised we
were at the side the way Police would come. So we changed direction
and went towards the Botanic garden towards Mazoe
River. We came to
the river and stopped. The river was full and I told Mr Player to
sit down and as he crouched down he grabbed
the gun. I panicked and
jumped to get it back and the trigger went off as we pulled and
struggled to possess the gun. I and Mr
Player. I saw him fall
down at the river bank and I knew he had been shot. We ran away.
My brother was shocked and I did not
know what to do. As we
approached St Gerera, I stopped my brother and I prayed saying Jesus
forgive me I have caused the death
of Mr Player. That was not my
aim but it has happened. Forgive me to have included my innocent
young (brother). Amen. I cried
as we went to sleep. In the
morning I went to the bank. I was given $15 000.00. I telephoned
Thomas as if I was Chris one of
Mr Players boyfriends. I told
him to take the BMW to George Hotel for I said we had a breakdown.
I did not wait I went back.
As investigations went on I ran away.
One day I telephoned Christon Bank Police and told them that I would
come and I was the
one who had committed the crime. I telephoned Mr
Players house I told the man who answered the phone that I had
committed the
crime by the river. The man said they had searched
but found nothing. Then I did not know what to do. I thought of
buying poison
to kill myself. Then I could not. I went to find a
house in St Marys until the Police got me.
On the 22nd January,
two days after the deceased was killed, the appellant arrived at
Maggies house. He was acting strangely. He said he
had come to
visit their child. He was in a hurry to leave and showed no interest
when she tried to relate to him the events of the
previous two days.
Maggie later learnt that the appellant was arrested that same evening
but had escaped from custody.
The following Monday, the 25th
January, the appellant telephoned Maggie telling her that she would
never see the deceased again. He told her that he wanted to
commit
suicide as he did not know why he had done this. He did not
disclose what he had done. She next saw him on the day
he was finally
arrested. On that day the appellant wept and asked for forgiveness
from Maggie her mother and brother for what
he had done.
Patience Matombo who is married
to the appellants brother was selling mealies by the roadside on
the 29th January. The appellant came up to her and said
that he had come to say farewell because he had killed a white man.
He described
to her how he, in the company of the second accused
person, had bound the deceased and forced him to write a cheque after
which they
had taken him to the river where he had shot the deceased
using the gun which was issued to him for his duties as a crop guard.
He had then thrown the body into the river.
Thomas Madzandes evidence
related to the events of the 20th and 21st
January and was corroborative of the evidence given by Maggie. He
spoke of the unusual happenings at the deceaseds residence
on the
night of the 20th, the search for the deceased and the
report to the police. The next morning he went, in the company of a
neighbour, to make a report
to the police. He returned with the
police including one Sgt Mugumbate. They had to break the doors in
order to gain entry into
the house. Later that day, he received a
telephone call from a person named Chris stating that the deceased
had had a breakdown
and that he was to take the deceaseds BMW
motor vehicle to George Hotel. He complied with this request on the
advice of the
police but no one came to collect the vehicle.
The deceaseds body was found
in the Mazoe river on the 11th February, 1999. A post
mortem examination performed 4 days later revealed that the cause of
death was: fractured skull; brain
laceration; haemorrhage; gun
shot wounds.
The
303 rifle issued to the appellant was examined by an expert firearms
examiner, Charles Hayley. He found that the weapon was in
good
condition and had been fired although it was not possible to
determine when. It was his evidence, having seen photographs of
the
body of the deceased, that the injury to the head was consistent
with having been caused by a shot fired from such a rifle.
A bullet
from a pistol would not cause such an injury and the possibility of
the injury to the deceased having been caused by the
body hitting
objects in the river as it was carried downstream was so remote as
to be non existent.
In his defence outline, the
appellant sought to lay the blame for the killing of the deceased on
Sgt Mugumbate (hereinafter referred
to as Mugumbate) who was,
at the time of the deceaseds death, the Officer-in -Charge of
Christon Bank police base. At the
time of the trial, Mugumbate was
deceased. The appellant alleged that he had had a homosexual
relationship with the deceased commencing
in 1990. In or about
December 1998 he decided to report the matter to the police as the
deceased had repeatedly failed to fulfil
certain promises and the
relationship was causing problems in his married life. He reported
the matter to Mugumbate who advised
him that the deceased was
influential and would not be prosecuted. He further revealed to the
appellant that he himself was having
a similar relationship with the
deceased. Mugumbate and the appellant then hatched a plan to extort
money from the deceased by threatening
to report him to the police.
They planned to do so on the 20th January 1999. On the
evening of that day the two, wearing masks provided by Mugumbate and
accompanied by the second accused, the
appellants brother, went to
the deceaseds house and executed the plan in the manner described
by the appellant in his warned
and cautioned statement save that in
the defence outline he said that when they arrived at the river, the
deceased grabbed the rifle
from the appellant and during the ensuing
scuffle Mugumbate shot the deceased with a pistol and rolled the body
into the flooded
waters of the Mazoe river as it had rained a few
hours before. The appellant and his brother were warned not to
mention the killing
to anyone. In return, Mugumbate undertook to
frustrate investigations and also to ensure that the cheque was not
stopped before
its encashment. The appellant was given the identity
card of one Fana Wilson so that they could encash the cheque the
following
day. He was also requested by Mugumbate to telephone the
deceaseds residence and ask that the deceaseds vehicle be
brought
to Avondale. The plan was that Mugumbate would drive the car
away and sell it. Thereafter he would report it stolen. The
appellant
telephoned the house and asked for the vehicle as
instructed but the plan failed because members of the neighbourhood
watch committee
had insisted on accompanying Mugumbate to the police
station.
The following day, the appellant
cashed the cheque. He was given $3 000 by Mugumbate who retained the
remaining $12 000. After
his arrest on the 22nd January,
1999, he was taken to the police base for questioning. Mugumbate
facilitated his escape from the cells. He was given
a national
identity card for his use in the event of a road block as well as a
passport for his brothers use. He was advised to
call Mugumbate
regularly to update him as to the progress of the investigations and
to receive advice as to how to evade the police.
In the event that
investigations were successfully carried out, Mugumbate would steal
the docket from the police. For these reasons,
he did not disclose
to the police the role of Mugumbate in the murder of the deceased.
This
defence was, not surprisingly, dismissed by the court a
quo. Neither the
appellant nor any of the witnesses had made any prior mention of
Mugumbate. Maggie, whose evidence the court accepted
to be reliable,
told the court that the appellant had wanted to commit suicide
because of what he had done and asked forgiveness
from her. Indeed,
Maggie is the mother of the appellants child and no reason was
disclosed as to why she should lie against the
appellant. Patience
was also found by the court to be a reliable witness. Similarly, no
reason was given as to why she should lie
against the appellant who
is her brother-in-law.
The
firearms examiners evidence established that the injury to the
deceased could not have been caused by a pistol.
The
evidence of the appellants guilt was overwhelming. Indeed Mr
Phillips,
who appeared for the appellant was, understandably, unable to make
any submissions against the correctness of the conviction.
Accordingly
the appeal against conviction is dismissed.
I
turn now to the question of sentence. The trial court found that
there were no extenuating circumstances and passed the death
sentence. It is trite that an appellate court will not interfere
with the finding of a trial court that no extenuating circumstances
exist unless there was a misdirection or irregularity:-
The
principle is well settled that the question as to the existence or
otherwise of extenuating circumstances is essentially one for
decision by the trial Court; and that, in the absence of misdirection
or irregularity, this Court will not interfere with a finding
that no
extenuating circumstances were present, unless it is one to which the
trial Court could not reasonably have come.
S
v Masuku And Others
1985 (3) SA 908 (A) at 912D; S
v Mateketa 1985 (2)
ZLR 248 (S) at 255D.
No
misdirection was alleged and none is apparent on the record. This
was a callous killing committed in the course of extortion and
in
furtherance of a premeditated course of action. The possible
intervention of Maggie was thwarted by the note which was left in
the
kitchen. The deceased was forced to write a cheque for $15 000 and
was thereafter taken to the river and shot. The following
day, the
appellant brazenly cashed the cheque and utilised the proceeds.
Indeed, counsel for the appellant was unable to make any
submissions
in favour of the appellant. It cannot be said that the conclusion
that no extenuating circumstances exist was one to
which the trial
court could not reasonably have come.
The
killing in this case was akin to one committed in the course of a
robbery. In respect of the latter, this court has said:-
We
have said time and again that to carry a firearm on a robbery
expedition is to run the risk that someone will be killed. If
someone
is killed, then generally speaking, the one who fires the
shot, and those of his colleagues who know he is armed and who do not
actively
disassociate themselves from the killing are guilty of
murder and whether the intent is actual or constructive, are likely
to be
sentenced to death. See S
v Mubaiwa 1992 (2) ZLR
362 (S); S v Sibanda
1992 (2) ZLR 438 S; S
v Chareka & Anor
S-40-93; S v Ngulube &
Anor S-112-93; S
v Kusaya & Anor
S-95-94; S v Beaton
S-95-95.
See
Dube v The State S 245-96.
Accordingly
the appeal against sentence is devoid of merit and it is also
dismissed.
SANDURA JA: I agree
GWAUNZA
AJA: I agree
Pro Deo