Judgment No. HB 61/15
Case No. HCA 500/13
MICHAEL BHEKINKOSI NDIWENI
Versus
THE STATE
IN THE HIGH COURT OF ZIMBABWE
KAMOCHA & TAKUVA JJ
BULAWAYO 9 MARCH 2015
Appellant in person
Ms N. Ngwenya for the respondent
Criminal Appeal
KAMOCHA J: After hearing the appellant and counsel for the respondent we dismissed the appeal in its entirety and indicated that our full reasons would follow in due course. These are they.
The appellant appeared in the regional court facing four counts of armed robbery to which he pleaded not guilty.
The appellant had been jointly charged with three others who were discharged at the close of the state case. Appellant was, however, found guilty as charged in respect of all the four counts. He was then sentenced as follows:-
Count 1 - 7 years imprisonment
Count 2 to 4 - 7 years imprisonment
Two years imprisonment was suspended for a period of four years on condition of future good behaviour leaving an effective sentence of 12 years imprisonment.
Counts 2 to 4 were treated as one for sentence as the three robberies were committed at the same place at the same time against different complainants. The robberies took place under cover of darkness at around 21:00 hours at Macy-Line Lodge on 1 May 2012.
The appellant and an unknown colleague of his went to Macy-Line Lodge and pretended to be prospective guests but surprisingly the appellant drew out a fire arm and ordered the witnesses to lie down, searched them and robbed them of cash and mobile phones. The accused’s pistol was a star pistol serial number 63609.
The witness told the trial court that they had spent considerable time with the appellant during the ordeal. The place was well lit and they could see the appellant clearly. Two of the three witnesses had no difficulty in identifying him at an identification parade 9 days later.
The evidence of the witnesses reads well and the trial court cannot be faulted for holding that they were credible witnesses who were worth to be believed.
In respect of the first count the accused was betrayed by his star pistol serial number 63609 whose spent cartridge case was found at T.Z. Supermarket the scene of a robbery committed on 27 April 2012. It was established that the spent cartridge had been fired from the appellant’s star pistol serial number 63609.
The appellant sought to make two submissions about the pistol. Firstly, he suggested he did not know anything about the Star pistol serial number 63609 and went on to state that he only knew something about a different firearm all altogether a CZ pistol.
When asked why he had not put that in his written defence outline and why he never raised it during the entire proceedings of the trial. His reply was that he was confused at that time.
His second submission was that the firearm, in any event, did not belong to him. It was his sister’s firearm. When asked again why he did not mention that at his trial. He sought to blame the trial court for not recording such a material fact. He was clearly being untruthful.
He did not challenge the forensic ballistics reports in court which ended up being produced as evidence by his consent.
The appellant’s suggestions on appeal were clear after-thoughts which were without merit.
When asked if he wished to say anything about the sentence since he had appealed against it also his reply was that since he had not committed the robberies he saw no need to talk about the sentence. He then pleaded for mercy and leniency from this court.
It was for the foregoing reasons that we arrived at the conclusion that the appeal was devoid of any merit and dismissed it in its entirety.
Takuva J …………………………….. I agree
Prosecutor General’s Office, respondent’s legal practitioners