(HH 645-14 & CRB 08/2000)
HIGH COURT OF ZIMBABWE
HARARE, 15 October 2014
E Nyazamba, for the State
A Mambosasa and T Musarurwa, for the defence
HUNGWE J: Sometime in 2003 the accused and two others were indicted for two counts of murder and one count of armed robbery. In the trial that followed, Joram Frank was acquitted; Pedzisai Zhoya and Jonathan Mutsinze remained. They were convicted of the two counts of murder with actual intent and one count of armed robbery. At that time - 2004, I invited submissions on extenuation from the accused and his erstwhile co-accused whereupon I made a finding that there were no extenuating circumstances surrounding the commission of the two counts of murder since both counts were premeditated and executed in cold blood during the comse of planned ro beries of business premises in one night.
Before I could pronounce sentence the record was recalled to the registry to complete certain formalities in respect of the other eo-accused who had been acquitted. I was in the meantime considering the appropriate sentence. The matter had to be postponed because on that day the record could not be located in the criminal registry. Subsequently, I was advised that even my long hand notes could not be located from my clerk's office. I ordered that the recorded proceedings be transcribed. This was done over time but again the transcribed record vanished.
As time passed, even the recording tapes where the proceedings were recorded mechanically were prematmely erased without notice. There is also an indication that there was a video recording of the accused as he made physical indications. The video recording of the accused making indica!ions was not part of the new record Post mortem examination reports of the deceased in each count were produced. There were two ballistics reports in respect of the two scenes of the crime as well as the two firearms used. Blood sample results were also produced in the proceedings.
As I pointed at the onset of this judgment, the accused's was convicted on two counts of murder and one count of armed robbery the reasons for judgment were pronounced in open court at the time. I proceed to give a rehearsed version of those same reasons on the basis of the available record of proceedings. The State Summary of the case against the accused was that accused's erstwhile accomplices, Pedzisai Zhoya and Joram Frank were employed at Craiggieburn Farm, Bindura as farm guards. The farm owner Richard Paul Dollar had an array of fire arms which he kept inside his house. He left for Harare on 27 March 1998. He stayed there until 30 March 1998. During his absence the two farm guards had gained entry into his house and stole a .38 revolver.
On 28 March 1998 around 20.00 hours the accused teamed up with the two farm guards and proceeded to Chipadze Shopping Centre, Bindura. They approached two security guards who were on duty, Lessmore Kange and Takesure Furawu. The accused shot and instantly killed Kenge. The motive of the shooting was to disarm Takesure Fura~ who was armed with a 303 riffle which they wanted to use in the robberies. They proceeded to Chiwaridze Shopping Centre around 20:30 hours. The two arrived at Chiwaridzo Bottle Store. Pedzisai Zhoya remained outside whilst the accused burst into the bottle store and ordered everyone to lie down. He demanded money from the owner of the bottle store Maslina Ganga. Willis Konje, an off duty police officer who was present, thought that the pistol was a toy. He struck the accused Jonathan Mutsinze with a beer bottle on the forehead. The accused responded by shooting Willis Konje from a point blank range. He died a few moments later. The accused proceeded to empty the contents of the till into a bag he brought for the purpose. He also took Maslina's two wrist watches and a calculator. The cash stolen in the robbery was given as ZW$5 000-00. He left the scene.