DISTRIBUTABLE (67)

Judgment No. SC 81/02

Crim. Appeal No. 338/01

MANDLA MANDLENKOSI NEVER MASINA v THE STATE

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, MALABA JA & GWAUNZA AJA

BULAWAYO, JULY 26 & OCTOBER 7, 2002

T C Masawi, for the appellant

M Moya-Matshanga, for the respondent

CHIDYAUSIKU CJ: The appellant in this case was charged with and convicted of murder with actual intent. The court found no extenuating circumstances and imposed the death sentence. The appellant now appeals to this Court against both the conviction and the sentence imposed on him. There are no grounds of appeal against both conviction and sentence. Mr Masawi, who appeared for the appellant was unable to make any meaningful submission on behalf of the appellant in respect of both the conviction and sentence.

A perusal of the record of proceedings reveals that Mr Masawi’s attitude is perfectly understandable. The evidence against the appellant is overwhelming and the conviction is unassailable. The appellant, on the evidence, killed the deceased in order to facilitate a robbery. The appellant denied killing the deceased and advanced no extenuating circumstances.

The learned judge in the court a quo in his judgment made a detailed and thorough analysis of the evidence against the appellant before convicting him. The evidence against the appellant was as follows.

A number of State witnesses gave evidence of the events of the day the deceased was killed. These witnesses were independent witnesses who gave their evidence well and were not shaken under cross-examination. The witnesses corroborated each other in many material respects. The court a quo found these witnesses credible and accepted their evidence. An appeal court does not readily interfere with a trial court’s finding on credibility of witnesses and does so only on very limited grounds – see S v Sibanda SC-261-97; S v Gijima SC-9-86; and S v Majada SC-154-88. There is no basis in the present case for this Court to interfere with the trial court’s assessment of the evidence.

The evidence accepted by the court a quo established the guilt of the appellant beyond reasonable doubt.

It is common cause that the deceased was murdered. The post mortem report established that beyond doubt. It reads in part as follows:

“Multiple stab wounds.

1. Two stab wounds on anterior aspect of neck.

2. One wound on the left lower sternal edge -associated left-sided haemopheumothoraxis.

3. One wound on the left lumber region – no associated bowel perforation.

4. One wound on the forehead – no associated skull fracture.

5. One wound at the back lumber region.

Conclusions:

As a result of the foregoing examination I am of the opinion that the cause of death was –

1. Left-sided haemopneumothoraxis secondary to stab wounds of the chest.

2. Haemorrhage and shock.”

That being the case, the only remaining issue is the identity of the deceased’s killer.

The appellant, in a confirmed warned and cautioned statement to the police admits to killing the deceased. The statement reads as follows:

“I admit to the charge put against me. On the day in question, I left Zibomvu area where I had visited my mother, Maria Ndlovu, and proceeded to Crossroads in Silobela. On arrival I bought opaque beer (two scuds). While I was drinking Themba Ndimane, whom I had met at Kwekwe Prison in 1998, arrived. We drank together and a lot of people who(m) I did not know arrived. They bought beer and we ended (up) drinking together. The deceased was one of these people. We drank beer until the beerhall was closed and all other people whom we were drinking with went away. I remained behind with the deceased. The deceased requested me to take him to the place where I was staying because it was late and he had no place to put up. I agreed and we left together … We were near a borehole. I decided to rob him. Therefore I drew my Okapi knife and stabbed him four times on the left side of his body. When he had fallen down, I searched him and took cash $300-00, removed his pair of shoes and further took his travelling bag which was containing grocer(ies) and a plough share and I took the property to my mother’s homestead in Zibomvu area. I left all this property at my mother’s homestead with the exception of the cash which I spent.”

There was a feeble attempt by the appellant to challenge both the admissibility and genuineness of the confession. The court a quo dismissed the challenge for a number of reasons. The appellant was unable to prove how he was coerced. The statement contained a wealth of detail that could only have come from a person involved in the killing of the deceased.

Apart from this confession, the appellant, after initially denying all knowledge of the deceased, eventually admitted that he had drunk beer with the deceased at Crossroads Shopping Centre on the day the deceased was killed.

The evidence of the State witness, Khumalo, was to the effect that he saw the deceased and the appellant leave Crossroads Shopping Centre together at about 10 o’clock in the evening. He observed them walk towards the road to Kwekwe until he lost sight of them. The appellant, a short while later, returned alone and collected both his and the deceased’s belongings. The deceased was found dead the following day.

The evidence of the State also established that some of the property of the deceased was given to the appellant’s brother by the appellant and was recovered by the police from the brother.

On this evidence we are satisfied that the appeal against conviction has no merit.

In regard to the existence or otherwise of extenuating circumstances, there is nothing that can be said for the appellant. It is clear that he deliberately killed the deceased in order to rob him of his money and property. In my view, there is nothing that lessens the appellant’s moral blameworthiness. The court a quo’s conclusion that there are no extenuating circumstances cannot be faulted.

In the result, the appeal against both conviction and sentence is dismissed.

MALABA JA: I agree.

GWAUNZA AJA: I agree.

Pro deo