SC 34-14 - KWASHIRA v THE STATE

BRIGHT     KWASHIRA

v

THE     STATE

 

THE SUPREME COURT OF ZIMBABWE

MALABA DCJ, GOWORA JA & GUVAVA JA

BULAWAYO, MAY 5 & 8, 2014

M Ndlovu, for the appellant

N Ngwenya, for the respondent

GUVAVA JA:  On 3 July 2006, the appellant and an accomplice were convicted of murder with actual intent to kill and robbery of Ommund Peter Sivertsen by the High Court.  The appellant was sentenced to death on 3 July 2006.  The appellant’s accomplice, due to his age, was sentenced to twenty years imprisonment for the murder charge and five years’ imprisonment for robbery.  

This is an automatic appeal against the conviction and sentence of death imposed on the appellant.  Mr Ndlovu who appeared on behalf of the appellant submitted that he had no useful submissions to make with regard to the conviction.  On the facts of this case the concession was properly made.

The facts of the matter are these.  The appellant was aged between nineteen and twenty years at the time of the offence.  His accomplice was aged between eighteen and twenty years according to the dental assessment report prepared by Dr Makwarimba.  The deceased was seventy-one years old at the time of his death.  On 18 January 2004 the appellant and his accomplice proceeded to Modena Farm, Sherwood in Kwekwe where the deceased resided on his own.  They intended to steal from the deceased.  Upon arrival the two jumped over the electric fence using a wooden pole in order to avoid getting electrocuted.  Once they gained access into the deceased’s yard the appellant and his accomplice spent the night in the yard waiting for the deceased to wake up.  When the deceased was conducting a perimeter check of the fence in the morning, they attacked him with iron rods.  The appellant struck the deceased on the head several times with the iron rod until he fell down.  They continued to strike the deceased on the head and all over the body until he died.  The appellant and his accomplice then carried the deceased’s body and buried it in a shallow grave.  They went into the house and stole the deceased’s property.  They also took off their clothes and wore the deceased’s clothes.  They loaded the stolen property into the deceased’s truck, a Mazda B2000 registration number 623-073C and drove away from the premises.

Along the way they met Mr Andries Van Heerden who was the deceased’s neighbour.  He recognised the deceased’s motor vehicle which was being driven by the appellant’s   accomplice.  He became suspicious as he knew that the deceased did not have any employees.  He followed the motor vehicle and blocked it with his car.  The appellant and his accomplice then stopped the car.  Mr Van Heerden recognised the appellant as he once worked for him.  The appellant and his accomplice abandoned the car and left the scene.  Mr Van Heerden drove to the deceased’s home and contacted one Schalk Burger.  They forced open the gate and after a search of the yard, discovered the body of the deceased buried in a shallow grave. A report was made to the police.  The police exhumed the body and recovered the iron rods that were blood stained.  Mr Van Heerden drove the deceased’s motor vehicle with all the stolen property to his home.

The deceased was taken to Kwekwe Hospital mortuary for a post-mortem examination.  The examination by Doctor Munongo revealed that the deceased had sustained multiple bruises all over the body.  He sustained a deep cut on the head.  The cut on his head was 7 cm long and broke the cranial bone and penetrated the brain.  The deceased died due to brain injury and hypovolemic shock.

The appellant and his accomplice were arrested on 24 January 2004 at Bushdale Custom Milling, Empress in Zhombe whilst still wearing the deceased’s clothes.

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