SUPREME COURT OF ZIMBABWE
ZIYAMBI JA, HLATSHWAYO JA & MAVANGIRA AJA
BULAWAYO, JULY 28, & NOVEMBER 17, 2014
C Van Heerden, for the appellant
T Hove, for the respondent
MAVANGIRA AJA: On 5 October 2006 the High Court found the appellant guilty of the murder of Johannes Mapfumo Majoni with actual intent to kill him. The court a quo found no extenuating circumstances. It therefore sentenced the appellant to death. This is an automatic appeal against both conviction and sentence.
It was the State case that the appellant shot and killed the deceased. There was no direct evidence against the appellant, the State relying on circumstantial evidence. The undisputed facts are that in the afternoon of 14 April 2005 a man armed with a firearm arrived at Chinyuni Business Centre in Chirumhanzu. His head was covered with a black woollen hat which covered the forehead down to the eyebrows. A scarf covered his face from the nose down to the mouth. All that could be seen were the armed man’s eyes. He force marched two men at gun point into a room at the premises (hereafter referred to as the first room). He ordered the two men as well as a lady who was in that room to lie on the floor. He demanded money and was told that it was in the next room. He left the room closing the door behind him and stormed into the next room (hereafter referred to as the second room) where he fired a shot and demanded money. As one of the frightened occupants was putting the money in a plastic bag as ordered, one of the men who had been force marched into and was left lying on the floor in the first room bolted out of the room and went outside. The escaped man proceeded to close the gate or screen to the premises with a view to preventing the armed man from escaping. As he was doing so the armed man also ran out from the second room leaving the money behind. The armed man went towards the gate and shot the escapee who is the now deceased, as he was closing the gate. The armed man left the scene. It is the State case that the armed man was in fact the appellant.
The appellant denied having shot and killed the deceased maintaining that he was not in Zimbabwe at the time of the commission of the offence. He claimed that he had been in South Africa since 2001 until his return to Zimbabwe on 18 April 2005, some 4 days after the commission of the offence. He further claimed that the CZ pistol found in his possession at the time of his arrest was not and could not have been the murder weapon as he had acquired it in South Africa and had only brought it to Zimbabwe on his return on 18 April 2005. The appellant also denied having made any indications to the Police at the scene of the offence. It was contended on his behalf that the State had failed to prove the allegation against the appellant beyond reasonable doubt. It was further contended that the trial court ought to have acquitted him as the evidence adduced by the State failed to place the appellant at the specific area at which, and within the specific time that, the offence was committed.
The respondent on the other hand contended that the appellant’s conviction was proper in the light of the evidence led. It was contended that the circumstantial evidence relied on by the trial court passed the test set out in R v Blom 1939 AD 188 thereby justifying the conviction despite the absence of direct evidence of the appellant committing the offence.