Court name
Supreme Court of Zimbabwe
Case number
SC 33 of 2006
Crim. Appeal 169 of 2004

S v Sango (69/04) (SC 33 of 2006, Crim. Appeal 169 of 2004) [2006] ZWSC 33 (17 September 2006);

Law report citations
Media neutral citation
[2006] ZWSC 33











REPORTABLE
ZLR (38)










Judgment
No. SC 33/06


Crim.
Appeal No. 169/04









BRIAN RUSHAMBWA SANGO
v THE STATE








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA & MALABA JA


HARARE,
MAY 15 & 18 SEPTEMBER 2006








G
Mupanga,
for the
appellant





R
K Tokwe,
for the
respondent








CHEDA
JA: The appellant was convicted on two counts of murder and sentenced
to death by the High Court. He now appeals against
both conviction
and sentence.






The
background to this case is as follows:





The
deceased woman and her two year old child went missing from the farm
where they resided at Adams Farm in the Rusape area.





About
two months later one Judith Nyika came across two human skulls. One
was of an adult, and the other was of a baby. The skulls
were a few
metres apart.





At
this scene, she noticed a Zimbabwean national registration identity
card and a CABS card belonging to Rosemary Matsika, a bag
and some
personal items.






A
report was made to the Police. Police Detectives attended the scene
and carried out investigations, as a result of which the
appellant
was arrested some six months later.





On
22 November 2002 the appellant was convicted of both counts of murder
and was sentenced to death on each of the two counts.





In
his notice of appeal the appellant submitted among other things that
nobody witnessed to having seen him committing the crime
and the
court relied on the warned and cautioned statement that was not
confirmed.






At the appeal it was also
submitted on his behalf that not enough evidence was placed before
the court
a quo
to secure a conviction, there were serious irregularities in the
admission of indications and the warned and cautioned statements
which must vitiate the whole trial, and that his right to a fair
trial and to protection of the law in terms of the Constitution
of
Zimbabwe, enshrined in ss 11 and 18, were violated.






The
respondent, while conceding the impropriety of admitting the
indications statement in evidence without going into a trial within
a
trial, nevertheless submitted that there was sufficient evidence to
convict the appellant.





I
now turn to consider the evidence on which the appellant was
convicted.





A
number of witnesses gave evidence, which was neither disputed nor
challenged by the appellant at the trial.





Taengwa
Matsika said he was the father of the deceased Rosemary Matsika, the
first deceased, and that the second deceased was Rosemary’s
son.
He learnt, sometime in April 2001, that the deceased and her son had
gone missing. In May 2001 he was taken to Wakefield Resettlement
area, to Madembu Village where he was shown the remains of two
deceased persons. He saw some personal clothing items, a national
identity card and a CABS card belonging to the first deceased. He
saw also a Death Certificate of Michael Madziwa who was the first
deceased’s late husband.





Maybe
Chinoshava was the first deceased’s neighbour. She resided at
Wakefield Resettlement.





On
31 March 2001 she was at her home at about 1630 hours when she saw
the first with the second deceased fetching water from a nearby
well.
It was her last time to see them.





On
24 May 2001 she learnt of the discovery of the remains of human
beings at Adams Farm.





She
went to the scene and there identified the two deceased through their
clothes and personal documents.





Judith
Nyika is the one who discovered the remains on 20 May 2001 while she
was looking for caterpillar worms. She saw a Zimbabwean
national
identity card belonging to the first deceased, a bag, a purse and
some clothes of a female and a baby. She reported
the matter.





The
trial court was satisfied, and rightly so, that this evidence of the
three witnesses’ laid to rest the issue of the identification
of
the two deceased persons.





The
suggestion by the defence in its heads of argument, that Rosemary
Matsika may have murdered some two deceased persons, left
her
property at the scene and disappeared is too fanciful to be believed.
There would be no reason for Rosemary to murder someone
else and
a child then leave her own clothes, identification card, CABS card
and her late husband’s death certificate at the scene,
items which
could betray her and which she would certainly need as long as she
was alive. The evidence which links the appellant
with the crime,
though circumstantial, is as follows:





Wilson
Mugodhi said the first deceased was his girlfriend. The appellant
stayed with him at Adams Farm where both were employed.
They shared
the same house but different bedrooms.





He
said he secured employment for the appellant and the relative of his
girlfriend called Shelter who later became the appellant’s
girlfriend. The deceased visited him regularly, and the appellant
visited his girlfriend Shelter at Wakefield Farm where she used
to
reside with the deceased.





The
appellant was present on 28 March when the first deceased asked for
money and was given $1 000-00 by Mugodhi to visit Mutare.





The
following Sunday morning one Artwell came looking for the appellant
in order to collect his machete, which had been borrowed
by the
appellant the previous day, but the appellant had not spent the night
at his home.





A
quick look at the 2001 calendar shows that 28 March was a Wednesday,
and Saturday was 31 March 2001. Since Artwell came on Sunday
morning, for the machete borrowed the previous day, which was
Saturday 31 March, this shows that on Saturday night when the
appellant
spent the night away from his residence he was in
possession of the machete.





It
is the same Saturday night that the appellant spent away from his
residence.





When
the appellant was asked if he visited Wakefield farm on the day he
was given the machete he said “No, I went there the following
morning”.





He
was not being truthful because Chamburuka said he went to the
appellant’s residence at 5 am and found that the appellant was
not
there.





Chamburuka
also said the machete was borrowed on Saturday and he went to collect
it on Sunday morning when he found the appellant
at his girlfriend’s
residence.





The
appellant also said the machete was recovered from him at Adams farm.
Again this was not true. The appellant was obviously
avoiding the
fact that he took the machete with him to Wakefield farm on the night
of 31 March, the night of the murder of the two
deceased persons.





In
his evidence although he used to see Shelter when Rosemary was
missing he did not even ask where Rosemary was.





The
appellant took possession of the deceased’s plates and sold them.
There was also a comb and mirror which belonged to the
deceased and
which Mugodhi positively identified.





According
to Mugodhi’s evidence the appellant disappeared after the
deceased’s plates were found in his room. The comb, mirror
and
other items were discovered later when he had disappeared. They were
found in the appellant’s bag. The appellant said he
knew the comb
and mirror very well.





It
is also clear from the evidence that the appellant left employment
and disappeared at about the same time that the first deceased’s
property was found in his room. The appellant also lied about how he
left employment at Adam’s farm.



In
his warned and cautioned statement which was admitted as evidence
after a trial within a trial, the appellant confirms 31 March
2001 as
the date when he went to Wakefield with the machete that he had
borrowed from Artwell.





He
confessed to being with the deceased that evening after 9 pm.





He
detailed how he attacked the deceased, first with a stick, and later
with the machete. His narration of what he did was so detailed
that
one could not expect the recorder of the statement to have known or
made up such details if they had not been revealed
by the
appellant himself. See
Webster
Paradzayi & Anor v The State

SC 47/87 and
S v Gwaze
1978 RLR 13 (AD).






Since
the deceased’s remains were by then old and reduced to bones, the
police could not have known that the appellant had first
struck the
two deceased with a stick. Neither could they make up the detail
that the appellant sat on a rock and smoked tobacco
while the
deceased were lying down.





The
appellant argued that the police should have called Shelter or
recorded a statement from her. The police obviously attempted
to get
Shelter’s evidence and that is why they said she was then married
to somebody else and she said she was not interested in
the case.
The appellant could have advised his counsel or even requested the
court to call Shelter.





The
appellant, or his defence counsel, did not show any interest in the
evidence of Shelter at the trial. It would not have been
proper to
force the appellant to call a defence witness if he had not expressed
the desire to call her, especially if she had indicated
to the police
that she was not interested. It would have been irregular for the
police to force Shelter to come and give evidence
if the appellant
had not called her.





The
appellant also confessed to being in possession of property
belonging to the deceased, the plates, and later sold them, a
fact
that was corroborated by the witness who purchased the deceased’s
plates.





As
for the evidence accompanying the indications, the respondent
correctly conceded that such evidence should not have been relied
on
as it was not properly obtained.





However,
even without that evidence, there was enough evidence on the record
to justify the conviction.





When
Artwell Chamburuka went to recover his machete he found the appellant
at his girlfriend’s house at Wakefield farm, the same
farm where
the deceased lived. The appellant had the machete in a bag. It is
obvious from this evidence that the appellant took
the machete with
him to Wakefield farm and was in possession of it there overnight.





The
post-mortem report confirms that a bladed metallic surface with a
cutting edge was used on the deceased’s skull.





All
the evidence, although circumstantial, points to the appellant as
being responsible for the murder. No other reasonable inference
can
be drawn which would leave out the appellant.





I
am satisfied that the trial court, having heard the witnesses and the
appellant, came to the correct conclusion that the appellant
is
guilty of the murder of both deceased persons.





I
do not find any merit in the submission that the appellant’s right
to the protection of the law, enshrined in ss 11 and 18 of
the
Constitution of Zimbabwe, was violated in view of what I said above
concerning the evidence of Shelter. The appellant was afforded
a
full trial and was legally represented. He was not denied any right
to call defence witnesses.





No
submissions were made for the appellant against sentence.





The
evidence led established that this was a most brutal murder of the
two innocent deceased by the appellant after he had raped
the first
deceased.





The
death sentence was appropriate in the circumstances.





The
appeal is accordingly dismissed in its entirety.













CHIDYAUSIKU CJ: I agree.














MALABA JA: I agree.













Pro
deo