Court name
Supreme Court of Zimbabwe
Case number
SC 71 of 2004
Crim. Appeal 189 of 2002

S v Kanhumwa and Others (Crim. Appeal No. 189/02 ) (SC 71 of 2004, Crim. Appeal 189 of 2002) [2004] ZWSC 71 (28 November 2004);

Law report citations
Media neutral citation
[2004] ZWSC 71













REPORTABLE (69)


Judgment
No. SC 71/07


Crim.
Appeal No. 189/02








(1)
IRVINE KANHUMWA (2) GATSI KANHUMWA





(3)
BUSANI TSHUMA v THE STATE








SUPREME COURT OF
ZIMBABWE


CHIYAUSIKU CJ,
ZIYAMBI JA & MALABA JA


BULAWAYO, NOVEMBER 29,
2004








J Dhalamini, for
the first appellant





C T Hikwa, for
the second and third appellants





A Gaibie,
for the respondent






CHIDYAUSIKU  CJ:







The appellants in this case were charged with and convicted of
murder with actual intent. They were sentenced to death. They

appealed to this Court against both conviction and sentence. After
hearing counsel, the Court dismissed the appeal against both

conviction and sentence. The Court indicated that reasons for
judgment were to follow. The following are the reasons for
judgment.







Before going into the reasons for judgment, I wish to express my
regret at the delay in handing down these reasons. When the
appeal
was dismissed the record was inadvertently filed away, most probably
because officers thought the matter had been finalised.
It was only
discovered that reasons for judgment had not yet been handed down
during a routine check of the records of condemned
prisoners last
week.







The three appellants were represented by three different counsel
during the appeal. All the three counsel for the appellants

submitted that the evidence against the three appellants was so
overwhelming that conviction was inevitable. The three counsel
also
submitted that as the murder was committed in the course of a
robbery, a finding of no extenuation was equally inevitable.







In my view, the concessions by the three appellants’ counsel
were properly made. The evidence against the appellants
though
circumstantial proves the guilt of the appellants beyond any doubt.
The killing of the deceased in the course of the robbery
was cruel,
cold-blooded and there is nothing that is mitigatory of the conduct
of the appellants.







The facts of the case and the evidence against the appellants are
very briefly as follows.







On 12 February 2000 the three appellants, acting in common
purpose, broke into the home of the deceased and her husband.
The
deceased, Mary Anagostopoulos, an elderly woman, resided with
her husband at No. 91, 9th Street, Gweru. The
appellants subdued the deceased and her husband before strangling the
deceased with a cord, and making
off with about Z$70 000.00 and
US$500 in cash, a Seiko wristwatch and a bunch of keys.







According to Emmanuel Anagostopoulos, the husband of the
deceased, some intruders broke into their home on the night of
the
murder. He heard his wife screaming out. He went to check what
was going on in the bedroom. He was accosted by a tall
man wearing
a balaclava who was holding a knife. Immediately a second masked
man appeared on the scene and struck him on the
head a couple of
times and he fell down. The intruders left him lying down and
exited. He called out to his wife who gave no
response. He
proceeded to the bedroom which he found ransacked and discovered his
wife lying on the floor. An ambulance was
called and upon its
arrival it was confirmed that his wife was dead.







Emmanuel Anagostopoulos also gave evidence that a bunch of
keys that opened most of the doors in his house went missing.
He
later identified the bunch of keys to his house that went missing
when they were produced as an exhibit in court.







In short, the evidence of Emmanuel Anagostopoulos was that a
robbery occurred at his residence during which his wife was
killed
and that his bedroom was ransacked; he identified the keys to his
house which had been recovered by the police; and that
there were two
assailants in his home when the robbery took place.







Subsequent investigations by the investigating police officer
revealed that access to the house had been gained through a hole
that
had been cut in the perimeter fence. The investigating officer’s
evidence was that he recovered a Bible in the possession
of the first
appellant. In the Bible was a handwritten entry of the details of
the robbery. Upon interrogating the first appellant,
the
involvement of the second and third appellants in the offence was
revealed to him.







The investigating officer arrested him and the other two
appellants. The three appellants confessed to the crime and made
indications at the scene of the crime. The indications by all the
appellants were videotaped and produced in court. The confessions

and the indications were challenged on the basis that they were made
under duress and stage-managed. The court a quo dismissed
the challenge and placed reliance on the confessions and the
indications. The evidence on record supports the conclusion
that
the confessions and the indications were made freely and voluntarily.







After the indications, the second appellant took the investigating
officer to the first appellant’s house, where they found
the
first appellant’s wife and maid. As a result of talking to
them, a bunch of keys was recovered hidden in a maize field
in the
first appellant’s garden. The bunch of keys was identified in
court by the deceased’s husband as the bunch
of keys to his
house that went missing the day of the robbery. The keys unlocked
most of the doors at the deceased’s residence.







A bolt cutter was also recovered at the home of the first
appellant. Forensic tests established that this was the bolt cutter

that was used to cut a hole in the perimeter fence at the deceased’s
house.







The evidence of independent witnesses, which was found by the court
a quo to be credible, placed the three appellants in the
vicinity of the scene of the crime on the night that the deceased was
murdered.
This in effect disproved the alibis of the three
appellants.







Thus, apart from the confessions of the three appellants and the
indications made by them, there was other cogent evidence implicating

the three appellants in the commission of the murder.







On the basis of this evidence, this Court was satisfied that the
court a quo was correct in convicting all the three
accused of the murder of the deceased. The evidence supporting the
convictions is simply
overwhelming.







As regards sentence, there is nothing on the record that can be
said for any of the three appellants. This was a killing of
an old,
defenceless woman in the process of a robbery. The murder was
cold-blooded and cruel and nothing can be said in favour
of any of
the three appellants. Accordingly, the court a quo’s
finding that there were no extenuating circumstances cannot be
faulted.







It was for these reasons that the appeal against both conviction
and sentence was dismissed.



















ZIYAMBI JA: I agree.



















MALABA JA: I agree.















Pro deo