Court name
Supreme Court of Zimbabwe
Case number
SC 61 of 2005
Crim. Appeal 108 of 2004

S v Matongo and Others (08/04) (SC 61 of 2005, Crim. Appeal 108 of 2004) [2005] ZWSC 61 (13 November 2005);

Law report citations
Media neutral citation
[2005] ZWSC 61













DISTRIBUTABLE
(54)


Judgment
No. SC. 61/05


Crim.
Appeal No. 108/04








(1)
MORGEN MATONDO MATONGO


(2)
MIKIDONALD CHAVHUNDUKA


(3)
CUTHBERT TAPUWANASHE CHAWIRA


(4)
ROSEMARY MARGARET KHUMALO


(5)
NDABA WONDER BHEBHE v





THE
STATE








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, CHEDA AJA & NDOU AJA


BULAWAYO,
MARCH 29 & NOVEMBER 14, 2005








M
Mujanja
, for the first appellant





T
Moyo
, for the third appellant





H
Moyo
, for the fourth appellant





P
Mpofu
, for the respondent





No
appearance for the second and fifth appellants





SANDURA
JA: The five appellants were charged with one count of murder and
one count of armed robbery. The allegation in the
murder charge was
that on or about 15 August 1999 and at or near Fairmile Motel in
Gweru (“the Motel”) the appellants unlawfully
and intentionally
killed Morgen Sibanda (“the deceased”), who was a manager at
the Motel. The allegation in the armed
robbery charge was that on
the day they murdered the deceased the appellants, armed with a
humane killer pistol (“the pistol”),
and by means of force and
violence, stole from the Motel $181 027.67, US$10 800.00,
1 000 Russian roubles and three
Russian passports.






All
the appellants pleaded not guilty to the murder charge. However, in
respect of the armed robbery charge the first appellant
(“Matongo”)
and the second appellant (“Chavhunduka”) pleaded guilty. The
third appellant (“Chawira”) tendered a limited
plea of guilty as
an accessory after the fact, but the prosecutor rejected it. The
prosecutor’s stance was subsequently vindicated
by the evidence,
and Chawira’s counsel conceded that the evidence led had proved
beyond reasonable doubt that Chawira was guilty
of armed robbery.
The fourth appellant (“Khumalo”) and the fifth appellant
(“Bhebhe”) pleaded not guilty to armed robbery.





Matongo,
Chavhunduka, Chawira and Bhebhe were found guilty of murder with
actual intent, and Khumalo was found guilty of murder
with
constructive intent. In addition, all the appellants were found
guilty of armed robbery.





In
respect of the murder charge, no extenuating circumstances were found
and all the appellants were sentenced to death. In addition,
a
sentence of twenty years’ imprisonment with labour was imposed on
each appellant in respect of the armed robbery charge.





In
the circumstances, all the appellants appealed against conviction and
sentence in respect of the murder charge.





In
their heads of argument the legal practitioners for Matongo, Chawira
and Bhebhe indicated that they were unable to make any meaningful
submissions on behalf of the three appellants. The same attitude
was adopted by the legal practitioner for Khumalo in respect of
the
appeal against conviction.





No
heads of argument were filed on behalf of Chavhunduka, and his legal
practitioner did not appear. In the circumstances, the
assistant
registrar was directed to investigate the apparent dereliction of
duty by the legal practitioner concerned. The same
applied to the
legal practitioner for Bhebhe, who filed his heads of argument but
did not appear at the hearing of the appeal.





In
view of the overwhelming evidence against all the appellants in this
case, the difficulty in which the legal practitioners for
Matongo,
Chawira, Khumalo and Bhebhe found themselves is understandable.





What
happened in this case was accurately set out by the trial judge in
his judgment. I shall quote the relevant passage at pp 2-5
of
the cyclostyled judgment in extenso. It reads as follows:





“We
are satisfied from the evidence led that there was a conspiracy to
rob Fairmile Motel. The evidence shows that this plan
was
hatched or conceived and agreed upon by a gang of people before
15 August 1999. This plan involved two parts. The first
part
was the subjugation of the manager, the robbing him of keys and use
of violence against him if he resisted. The second part
was robbing
those people at the Motel. …






Part
of this second phase was the use of the keys obtained from the
manager. There were means which were agreed upon for the execution
of the plan. The instruments of violence included the humane killer
pistol, butcher’s knives, electrical cords and woollen hats.
…
There were also plain coiled wires. …





The
gang went to Fairmile Motel at about half past nine that night.
It received information from within, from one of the conspirators.
…





The
manager (the deceased) then left the Motel at about quarter to eleven
and he was to use Trafford Road leading (to) Zim Alloys
to
catch transport to his home. …





When
the gang saw him leave the Motel they ran ahead and waylaid him. …
They then got into a small bush; that is where the gang
emerged.
One of these men was armed with the humane killer pistol which he
then pointed at the deceased and said, ‘Old man stop’.

Naturally and frightened as he was, the deceased turned and ran back
towards … the Motel.





However,
his assailants … chased after him, tripped him and felled him. As
he tried to get up he pulled out of his jacket which
remained behind.
He again tried to escape from his assailants, but to no avail.
There is evidence that this man put (up) a fierce
struggle for his
life. … He was, however, eventually overpowered. One of these
men struck the deceased on the head.





The
post mortem (report) shows that he had bruises on the head and it is
as a result of that blow that his brain got damaged. …





However,
(the) evidence shows that he still continued to struggle. There was,
therefore, need to press him down on the ground.
It was at that
stage that the firearm was pointed at him and one of these accused
persons … took out electrical cords and used
them to tie his hands
behind his back. His legs were also brought up towards his back and
tied to the already tied hands. He
was then asked where the keys to
the office and the safe were.





In
agony for his life, he told his assailants that the keys were in his
jacket. One of these assailants went and collected the jacket,
searched it and found the keys to the office.





That
was not enough for them. They asked him to produce the safe keys.
He did not have them. He then … told them that the
keys could be
found with Paul Mafigu on the Reception (desk).





(Although)
they had got what they wanted, they still wanted to kill him.
Evidence shows that they could not have left him alive
as it was
feared he was making noise and therefore likely to attract
passers-by. Therefore, to silence him, a woollen hat (was)
stuffed
into his mouth. To deprive him of oxygen by suffocation, a black
and white striped scarf was tightly tied over the mouth
which had
been stuffed with this woollen hat, over the nose and eyes (and)
round the neck. He had been wearing a … tie which
was then used
to strangle him. …





He
was then in that state, having died on the spot, lifted and left on
another spot which was a shallow pit. However, that place
was still
near the place where his body could easily be seen.





He,
still tied in the manner we have described, was pulled over (on) his
stomach one hundred and fifty-eight metres and dumped in
a culvert. …
We are satisfied from this evidence that those who were present at
the time over the long period of the struggle
up to the succumbing of
the deceased had the actual intent to kill him.”






The
evidence led at the trial established beyond reasonable doubt that
those who were present at the scene of the murder were Matongo,
Chavhunduka, Chawira and Bhebhe. I agree with the learned trial
judge that the four men had the actual intent to kill the deceased.





However,
Khumalo was not at the scene but remained at her house in Gweru,
where she lived with Chavhunduka and Bhebhe, and where
the armed
robbery had been planned during the course of several meetings held
by the appellants. Nevertheless, she knew that the
men who went to
the scene were armed with dangerous weapons which could cause death,
in the event that the robbers encountered resistance
from the victim
or victims of the robbery. Although she pleaded not guilty to armed
robbery, after the evidence had been led her
legal practitioner
conceded that she could not escape the conviction for armed robbery.
That evidence showed that after the robbery
she shared the proceeds
of the robbery equally with the other appellants, and that she buried
the pistol and the woollen masks used
in the commission of the
offences in her daughter’s garden.





Finding
Khumalo guilty of murder with constructive intent, the trial judge
said at pp 14-15 of the cyclostyled judgment:





“However,
as party to the plan to commit armed robbery, she would have foreseen
the possibility of violence being perpetrated against
the person to
be robbed, should he resist. She was aware that the instruments
which were in the possession of her accomplices were
dangerous
instruments.






We
are, therefore, satisfied that she did foresee the possibility of
death resulting, should the acts of violence using these instruments
be perpetrated against the person to be robbed. Indeed, when they
returned, (the) fifth accused’s shoes had bloodstains. But
she is
shown by credible evidence … that she was not perturbed by the
sight of the blood. …





She
would (should?), therefore, be found guilty of murder with
constructive intent to kill.”






In
my view, the learned judge’s reasoning cannot be faulted.






Finally,
I wish to deal with the finding by the trial court that no
extenuating circumstances existed in respect of all the appellants.

The only appellant who challenged that finding on appeal was Khumalo.
It was submitted on her behalf that she should have been
spared the
death penalty because she was found guilty of murder with
constructive intent.





That
submission was rejected by the trial court. The law in this regard
is clear. A murder committed in the course of a robbery
attracts
the death penalty unless there are weighty extenuating circumstances.





As
GUBBAY CJ said in S v Sibanda 1992 (2) ZLR 438 (S) at
443 F-H:





“Warnings
have frequently been given that, in the absence of weighty
extenuating circumstances, a murder committed in the course of
a
robbery will attract the death penalty. This is because, as
observed in
S
v Ndlovu
S-34-85
(unreported):





‘… it
is the duty of the courts to protect members of the public against
this type of offence which has become disturbingly prevalent.

People must feel that it is possible for them to enjoy the sanctity
of their homes, to attend at their business premises, or to
go
abroad, without being subjected to unlawful interference and
attack.’”





The
trial court found that no extenuating circumstances existed which
justified the imposition of a sentence other than the death
sentence.
The circumstances in which this Court would interfere with such a
finding were set out by GUBBAY CJ in
S
v Woods & Ors
1993
(2) ZLR 258 (S) at 284 A-B, as follows:





“In
deciding whether or not extenuating circumstances exist which allow
of the imposition of a sentence other than death, the trial
court
exercises what is essentially a moral judgment. On appeal, this
Court cannot substitute its own view. It may only interfere
if
persuaded that the conclusion of the trial court could not reasonably
have been reached; or where that court had regard to wrong
factors,
or had mistakenly excluded factors proper to be taken into account,
or had, in some other way, erred in principle.”





Applying
those principles, I am satisfied that the trial court, in finding
that no extenuating circumstances existed in respect
of all the
appellants, considered all the relevant facts, and did not err.





In
the circumstances, all the appeals are dismissed.








CHEDA
AJA: I agree.








NDOU
AJA: I agree.








Pro
deo