Judgment No. SC. 150/04
Appeal No. 124/04
MURIJO v THE STATE
COURT OF ZIMBABWE
CJ, MALABA JA & GWAUNZA JA
NOVEMBER 30, 2004 & SEPTEMBER 22, 2005
Mashayamombe, for the appellant
Cheda, for the respondent
JA: The appellant was charged with two counts of murder and armed
robbery. The murder charge alleged that on 3 March
Murerezi Secondary School in Mberengwa the appellant unlawfully and
intentionally killed one Rufaro Shabane. He pleaded
to murder, but offered a plea of guilty to the armed robbery charge.
After a full trial, the appellant was convicted
by the High Court of
murder with constructive intent to kill. As this was a murder in
the course of a robbery, and no extenuating
circumstances having been
found, the appellant was sentenced to death.
the appeal against conviction and the death sentence,
Mr Mashayamombe, who appeared for the appellant,
indicated that he had no meaningful submissions to make.
facts were largely common cause. The appellant and one
Godfrey Chimwala (Chimwala), who died before the
of trial in the High Court, hatched a plan to rob
Murerezi Secondary School (the school) of money. On 3 March
proceeded to the school, armed with a shotgun, serial
no. 1410419. On reaching the perimeter fence of the school,
created a hole in it through which they gained entry into
the school at 4 am. They proceeded to the headmasters house
Chimwala opened a window. The appellant, who was armed with
the firearm, entered the house first and opened the door from inside
for his accomplice to get into the house.
in the house, they woke up the headmasters wife, Charity Shumba
(Charity). On realising that there were intruders
house, one of the occupants escaped unnoticed and alerted other
teachers at the school. Meanwhile the appellant and Chimwala
ordered Charity to lead them to the bursars house. As they
reached the house, other teachers had come out of their houses.
deceased and two others were standing outside his house.
was ordered by the appellant to knock at the window to the bursars
bedroom. As she did so Chimwala, who was now holding
shouted at the teachers, ordering them to go back into their houses
lest they be killed. As he shouted at the teachers
Chimwala fired a
shot in the direction of the deceased and the other two teachers.
The shot hit the deceased on the left side of
the head. He died
from a gunshot wound and brain infection.
hearing the sound of a gunshot, the bursars roommate opened the
window and the appellant jumped into the bedroom. He ordered
bursar to take the keys to the strong room where the safe with money
was kept. She did as ordered. The bursar and Charity
force-marched to the administrative block, where the bursar was
forced to open the strong room and safe. The appellant and
took $8 000 from the safe. They also stole two bicycles and
rode away. The appellant received $2 000 of the
appellant had sought to suggest in evidence at the trial that when
the fatal shot was fired by Chimwala, he was already in the
house. The learned judge rejected his evidence and accepted that of
the bursar and Charity, to the effect that the appellant
outside the house at the time the deceased was shot by Chimwala.
learned judge also held on the evidence that the appellant foresaw
the possibility of the firearm being used with fatal consequences
the course of the robbery to prevent any interference with the
execution of their criminal plan to rob the school of money.
fact that the appellant had not himself pulled the trigger was no
defence to the charge.
Dube and Anor v S S-245-96 McNALLY JA said:
have said time and again that to carry a firearm on a robbery
expedition is to run the risk that someone will be killed.
someone is killed then, generally speaking, the one who fires the
shot, and those of his colleagues who know he is armed and who
actively dissociate themselves from the killing are guilty of murder
and whether the intent is actual or constructive are
likely to be
sentenced to death.
appellant and Chimwala acted together in the furtherance of a common
purpose to commit a robbery and the use of the firearm,
appellant knew was in the hands of his accomplice, was foreseen by
him as a real possibility. See S v Khombani and Anor 1963
(4) SA 87; Zumane and Anor v S S-32-01; and Ngulube and
Anor v S S-112-93.
would dismiss the appeal against conviction.
a closely reasoned judgment, the learned judge examined all the
factors of extenuation suggested on behalf of the appellant and
applied the correct principles of law before coming to the only
conclusion open to him in the circumstances, that there were no
circumstances justifying the imposition of a sentence
other than the death penalty. This was a murder in the course of a
In S v Sibanda 1992 (2) ZLR 438 (S) GUBBAY CJ
at 443 G-H said:
Warnings have frequently been
given that in the absence of weighty extenuating circumstances, a
murder in the course of a robbery
will attract a death penalty.
This is because, as observed in S v Ndlovu S-34-85
is the duty of the court to protect members of the public against
this type of offence which has become disturbingly prevalent.
People must feel that it is possible for them to enjoy the sanctity
of their homes, to attend to their business premises, or to
without being subjected to unlawful interference and attack.
this case the court a quo
found that the appellant was an active participant in the execution
of the criminal plan to rob the school of money and that the
thing he did not do which could only be done by one person at a time
was to pull the trigger and fire the shot that killed the
His moral blameworthiness was considered so high that the death
penalty was found to be appropriate. It is impossible
to hold that
the court a quo
was wrong in taking that view of the facts.
is no merit in the appeal. It is dismissed.
CJ: I agree.
JA: I agree.