No. SC 81/02
Appeal No. 338/01
MANDLENKOSI NEVER MASINA v THE STATE
COURT OF ZIMBABWE
CJ, MALABA JA & GWAUNZA AJA
JULY 26 & OCTOBER 7, 2002
for the appellant
for the respondent
CJ: The appellant in this case was charged with and convicted of
murder with actual intent. The court found no
circumstances and imposed the death sentence. The appellant now
appeals to this Court against both the conviction and
imposed on him. There are no grounds of appeal against both
conviction and sentence. Mr Masawi,
who appeared for the appellant was unable to make any meaningful
submission on behalf of the appellant in respect of both the
A perusal of
the record of proceedings reveals that Mr Masawis
attitude is perfectly understandable. The evidence against the
appellant is overwhelming and the conviction is unassailable.
appellant, on the evidence, killed the deceased in order to
facilitate a robbery. The appellant denied killing the deceased
advanced no extenuating circumstances.
judge in the court a quo
in his judgment made a detailed and thorough analysis of the evidence
against the appellant before convicting him. The evidence
the appellant was as follows.
A number of
State witnesses gave evidence of the events of the day the deceased
was killed. These witnesses were independent witnesses
their evidence well and were not shaken under cross-examination.
The witnesses corroborated each other in many material
The court a quo
found these witnesses credible and accepted their evidence. An
appeal court does not readily interfere with a trial courts
on credibility of witnesses and does so only on very limited
grounds see S
SC-9-86; and S
SC-154-88. There is no basis in the present case for this Court to
interfere with the trial courts assessment of the evidence.
accepted by the court a quo
established the guilt of the appellant beyond reasonable doubt.
It is common
cause that the deceased was murdered. The post mortem report
established that beyond doubt. It reads in part as
stab wounds on anterior aspect of neck.
2. One wound
on the left lower sternal edge -associated left-sided
wound on the left lumber region no associated bowel perforation.
wound on the forehead no associated skull fracture.
wound at the back lumber region.
As a result of
the foregoing examination I am of the opinion that the cause of death
haemopneumothoraxis secondary to stab wounds of the chest.
being the case, the only remaining issue is the identity of the
in a confirmed warned and cautioned statement to the police admits to
killing the deceased. The statement reads as
admit to the charge put against me. On the day in question, I left
Zibomvu area where I had visited my mother, Maria Ndlovu,
proceeded to Crossroads in Silobela. On arrival I bought opaque
beer (two scuds). While I was drinking Themba Ndimane, whom I
had met at Kwekwe Prison in 1998, arrived. We drank
together and a
lot of people who(m) I did not know arrived. They bought beer and
we ended (up) drinking together. The deceased
was one of these
people. We drank beer until the beerhall was closed and all other
people whom we were drinking with went away.
I remained behind with
the deceased. The deceased requested me to take him to the place
where I was staying because it was late
and he had no place to put
up. I agreed and we left together
We were near a borehole.
I decided to rob him. Therefore
I drew my Okapi knife and stabbed
him four times on the left side of his body. When he had fallen
down, I searched him and took
cash $300-00, removed his pair of shoes
and further took his travelling bag which was containing grocer(ies)
and a plough share and
I took the property to my mothers homestead
in Zibomvu area. I left all this property at my mothers
homestead with the exception
of the cash which I spent.
There was a
feeble attempt by the appellant to challenge both the admissibility
and genuineness of the confession. The court a quo
dismissed the challenge for a number of reasons. The appellant was
unable to prove how he was coerced. The statement contained
wealth of detail that could only have come from a person involved in
the killing of the deceased.
this confession, the appellant, after initially denying all knowledge
of the deceased, eventually admitted that he had
drunk beer with the
deceased at Crossroads Shopping Centre on the day the deceased was
of the State witness, Khumalo, was to the effect that he saw the
deceased and the appellant leave Crossroads Shopping
at about 10 oclock in the evening. He observed them walk towards
the road to Kwekwe until he lost sight of them.
The appellant, a
short while later, returned alone and collected both his and the
deceaseds belongings. The deceased was found
dead the following
of the State also established that some of the property of the
deceased was given to the appellants brother by the
was recovered by the police from the brother.
this evidence we are satisfied that the appeal against conviction has
In regard to
the existence or otherwise of extenuating circumstances, there is
nothing that can be said for the appellant. It
is clear that he
deliberately killed the deceased in order to rob him of his money and
property. In my view, there is nothing that
lessens the appellants
moral blameworthiness. The court a quos
conclusion that there are no extenuating circumstances cannot be
result, the appeal against both conviction and sentence is dismissed.
AJA: I agree.