IN THE SUPREME COURT OF ZIMBABWE
GWAUNZA JA, GARWE JA & GUVAVA JA
BULAWAYO, JULY 28, 2014 & JULY 30, 2014
H Malianga, for the Appellant
S Ndhlovu, for the Respondent
GARWE JA: This is an appeal against conviction for murder with actual intent and the sentence of death that was imposed consequent upon such conviction.
The deceased, Rice Phiri, was employed at New Base Construction Company, Zvishavane. He resided at Makwasha Village, Chief Masunda, Zvishavane. His place of residence was within walking distance of Zvishavane town. He would use a bush path from his homestead to Zvishavane and back to his homestead. The deceased and the appellant were known to each other as they stayed in the same area.
On 24 November 2004 the deceased finished work at about 5:00pm and proceeded to his home along the footpath. He had in his possession a satchel containing his pair of overalls inscribed with the words “New Base” at the back, a sack containing ten (10) kilogrammes of wheat meal and an unknown amount of cash. He was waylaid by an assailant and stabbed on the back with a sharp object. His property was then taken. When the police eventually recovered his body, they found two wounds – one on the back and another on the chest. The wounds appeared to have been caused by a knife or bullet. The police also recovered the satchel together with the overalls from the scene and the ten (10) kilogrammes of wheat meal from the appellant’s residence.
A post mortem examination was carried out on the 29 November 2011. At that stage the body was in an advanced state of putrefaction. The doctor was consequently unable to ascertain the cause of death.
The allegation in the court a quo was that it was the appellant who killed the deceased and thereafter took his property. In his defence in the court a quo, the appellant admitted finding the pair of overalls and sack of wheat meal at a spot on the side of the road and taking them. He further admitted that he gave the meal to his workmate Forward Machingauta to take to his house. He admitted that he took the overalls and an empty sack and inserted these in a hole in an anthill. He however denied seeing the deceased or in any way injuring him. The appellant told the court a quo he believed that the wheat meal and overalls had been dropped or abandoned by thieves who were known to frequent this area.