No S.C. 105\2002
Appeal No 207\2001
CHINGAONA v THE STATE
COURT OF ZIMBABWE
JA, ZIYAMBI JA & MALABA JA
NOVEMBER 11, 2002
for the appellant
for the respondent
The appellant was charged with murder, the allegation being that
on 9 February 1999 and at or near the Hurungwe
offices he and another person called Lovemore Dickson (Lovemore)
unlawfully and intentionally killed Mike
deceased), a taxi driver. He pleaded not guilty but was
convicted and sentenced to death. He appealed against
conviction and sentence.
hearing counsel for the appellant, and without calling upon counsel
for the respondent to address us, we dismissed the appeal
entirety and indicated that the reasons for that decision would be
handed down in due course. I now set them out.
facts are as follows. The deceased was a taxi driver. At about
8.30 pm on 9 February 1999 the taxi driven by the
deceased was hired
by two men. About an hour later, a passer-by found the taxi
stationary in the middle of the road near the Hurungwe
Council offices with its headlights on. As he approached the taxi
he heard someone in a nearby field saying give me
my four hundred
dollars. Suspecting that a robbery was taking or had taken
place, he reported the matter to a nearby police
police immediately proceeded to the scene and, as they approached the
taxi, heard a sound which indicated that some people were
away from the scene. Thereafter, they found the deceaseds body
about fifteen metres away from the vehicle. It was
lying in a pool
of blood and had a nylon rope tied around the neck. Close to the
body was a blood stained wallet which was empty.
A constable in the
Zimbabwe Republic Police then guarded the scene until the following
morning when some members of the Criminal
(the C.I.D.) arrived and took over the investigations.
five metres away from the deceaseds body, a member of the C.I.D.
found a sharp blood stained metal rod. In addition,
he found a
screwdriver some three metres away from the body.
then searched the motor vehicle and found the following items:
A black bag
an Old Mutual green folder bearing National Registration number
71-088798 G 71;
a padlock key; and
pairs of mens shoes.
The ignition key for the vehicle
was missing. However, a trail of blood was observed from the
drivers seat to the spot where
the deceaseds body was found.
The deceased had been stabbed three times in the chest and upper part
of his body.
the search, the deceaseds body was conveyed to the Karoi Hospital
as a result of enquiries the police established that the National
Registration number inscribed on the Old Mutual folder
found in the
black bag recovered from the taxi was that of Midnight Kamba
(Kamba) of Nyandoro Village in Guruve district.
Kamba who identified the black bag and one of the pairs of shoes
found in the taxi as the property of his uncle, the
added that he had given the Old Mutual folder to the appellant in
the police arrested the appellant and Lovemore at Makisi Village in
Hurungwe district. When questioned, both men denied
allegation. However, when the police searched the appellant they
found him in possession of two keys, one of which later
turned out to
be the ignition key for the taxi. The two men were then taken to
Karoi police station for further questioning.
the police station the two men made warned and cautioned statements
in which they admitted killing the deceased. Thereafter,
detailed indications of what happened from the time they hired the
taxi to the time they killed the deceased. The warned
statements as well as the indications were later confirmed by a
appellant and his accomplice subsequently appeared in the High Court
for trial and were found guilty of murder with actual intent.
Extenuating circumstances were found in respect of Lovemore and he
was sentenced to seventeen years' imprisonment with labour.
However, with regard to the appellant the trial court found that no
extenuating circumstances existed and sentenced him to death.
who appeared for the appellant, was unable to make any meaningful
submissions on behalf of the appellant. In her heads of argument
she averred that the sole purpose of hiring the taxi was to
facilitate the robbery of the said taxi. However, the difficulty
in which she found herself was understandable because the evidence
against the appellant was overwhelming.
there was the evidence of a confirmed warned and cautioned statement
and indications made by the appellant. In the warned
statement the appellant said:-
February, 1999 I went to Karoi with Lovemore Dickson who wanted to
buy a part (for) his T.V. So we did not have enough money.
were left with insufficient bus fare to Tengwe. We asked for money
from a certain friend who then advised us to hire a taxi
destination. We got a taxi which took us to Tengwe. On arrival
the taxi driver said he wanted money which we did not have
if we did not give him the money he was going to attack us with his
weapon and cause our arrest. We wanted to run away
and he held me
back intending to stab me with his screwdriver. So that is when we
attacked him, stabbed him and ran away when we
heard some noise from
people who were coming towards us. We then went home.
1. Question: At what stage did
you tie the deceased with a rope.
strangled him when we heard people coming, fearing that he would cry
Question: What made you remove deceased from his vehicle?
got out of his vehicle on his own the moment we tried to run away
from him leaving our bags and shoes.
Question: Where did you get the weapons you used to stab deceased?
of the weapons we used was a steel knife for Lovemore which he had.
The other one is a screwdriver for the deceased
which he had removed
from under his seat.
Question: Where did you put the vehicle key?
snatched the car keys from his hands and took them to our home.
In the court
the admissibility of the warned and cautioned statement was
challenged by the appellant who alleged that after his arrest he was
assaulted by the police and forced to sign a statement which had
already been prepared by them. He added that when he appeared
before the provincial magistrate for the confirmation of the
statement he informed him that he had been assaulted and showed him
the injuries which he had sustained. These allegations were denied
by the provincial magistrate when he testified.
carefully considering the appellants evidence, Lovemores
evidence and the evidence given by the provincial magistrate,
learned trial judge said:-
testimony of the accused in this respect has the hallmarks of
fabrication, exaggeration and falsehood. In the result, this court
accepts that the accused persons made the statements
voluntarily without any undue influence.
In my view,
that conclusion is unassailable, having regard to the evidence led at
the trial. It is highly improbable that the
police would have made
up such a statement for the appellant.
there was the evidence that the ignition key for the taxi was found
in the appellants possession. Although the appellant
he was found in possession of the key, the denial had no substance
and the learned judge correctly rejected it. In
fact, the appellant
said that he was not searched by the police when they arrested him at
Makisi Village, which is hardly likely.
there was Kambas evidence that the black bag and the pair of brown
shoes found in the taxi belonged to the appellant.
In the black bag
was found the Old Mutual folder which Kamba said he had given to the
appellant in 1996. The learned judge found,
correctly in my view,
that Kamba was a credible witness who found it rather difficult to
testify against the appellant who is his
the circumstances, the appellants guilt was proved beyond
to the courts finding that there were no extenuating circumstances
in respect of the appellant in this case, it is
important to bear in
mind what constitutes extenuating circumstances. In
S v Letsolo
1970 (3) SA 476 (AD) at 476F-H, HOLMES JA had this to say on
circumstances have more than once been defined by this Court as any
facts, bearing on the commission of the crime, which
reduce the moral
blameworthiness of the accused, as distinct from his legal
culpability. In this regard a trial court has to consider
there are any facts which might be relevant to extenuation, such as
immaturity, intoxication or provocation (the list is
such facts, in their cumulative effect, probably had a bearing on
the accuseds state of mind in doing what he did;
such bearing was sufficiently appreciable to abate the moral
blameworthiness of the accused in doing what he did.
In deciding (c) the trial court
exercises a moral judgment. If its answer is yes, it expresses its
opinion that there are extenuating
that text to the facts of the present case, the finding by the trial
court is unassailable. The court found that in respect
there were extenuating circumstances. These were that at the time
of the commission of the offence he was about eighteen
years of age,
and that generally he appeared to be an immature person with a low
intellect. However, this did not apply to the
appellant who, at the
time of the commission of the offence, was about twenty-eight years
old and had had four years of secondary
event, sight should not be lost of the fact that this was a murder in
the course of a robbery. As GUBBAY CJ said in S
1992 (2) ZLR 438 (S) at 443F:-
have frequently been given that, in the absence of weighty
extenuating circumstances a murder committed in the course of
robbery will attract the death penalty.
circumstances, the appeal was devoid of merit and had to be dismissed
in its entirety.
JA: I agree
JA: I agree