Mangoma v State (Criminal Appeal SC 573 of 2016; SC 36 of 2020) [2020] ZWSC 36 (5 March 2020)

1 Judgment No. SC 36/20 Criminal Appeal No. SC 573/16 REPORTABLE (32)

TONIC MANGOMA v THE STATE

SUPREME COURT OF ZIMBABWE MAKARAU JA, MAKONI JA & MATHONSI JA HARARE: JANUARY 17, 2020 AND MARCH 5, 2020

V.J. Matenga, for the appellant Ms S. Fero, for the respondent

MATHONSI JA: This is an automatic appeal against both conviction and sentence. The appellant was convicted of murder with actual intent by the High Court sitting on circuit at Gweru on 22 September 2014. Upon conviction, the penalty of death was imposed.

After hearing argument from counsel this Court made the following order: “It is ordered that:

1. The appeal against conviction is dismissed.

2. The appeal against sentence is allowed.

3. The sentence of death imposed by the court a quo is set aside.

4. The matter is remitted to the court a quo for consideration and imposition of an appropriate sentence.”

The court stated that the full reasons f or the order would follow. Thes e are the

Reasons

2 Judgment No. SC 36/20 Criminal Appeal No. SC 573/16 NON INVOLVEMENT OF THE STATE This appeal was initially set down on 11 September 2018. The appeal could not be heard on that date because the respondent had not filed heads of argument and needed time to do so. Ms Fero, who appeared for the respondent, requested a postponement to enable her to file heads of argument. The court acceded to that request and issued the following order: “It is ordered that:- The appeal is postponed sine die to allow the respondent to file heads of argument following the late filing of the notice of appeal.”

I must add that the notice of appeal had been filed only on 7 September 2018 giving the respondent little time to file heads of argument. When the ap peal was again set down for hearing, the respondent still had not filed heads of argument. Ms Fero again appeared for the respondent and sought a further postponement of the appeal. She admitted having been served with the notice of appeal in September 2018 and being timeously served with the notice of set down. She however submitted that the matter had been allocated to someone else at the office of the National Prosecuting Authority who did not file heads of argument.

As to why that officer had not appeared before the court to explain her failure to act and why she was not making the application for a postponement herself , Ms Fero did not give a satisfactory explanation. It is clear that the office of the National Prosecuting Authority has been tardy in its handling of the matter and has not given it the attention that it deserves.

In terms of r 52(3) of the Supr eme Court Rules, 2018, where the respondent is to be represented by a legal practitioner at the hearing of the appeal, that legal practitioner shall file a document setting out the heads of his or her argument togethe r with a list of authorities 3 Judgment No. SC 36/20 Criminal Appeal No. SC 573/16 cited in support, within ten days of receipt of the appellant’s heads of argument. Subrule (5) of r 52 provides for an automatic bar against a failure to file heads of argument timeously.

The appellant’s heads of argument were filed and served on the respondent on 30 May 2018 but the respondent, even though represented by counsel, did not file its own heads of argument up to the date of the initial set down on 11 September 2018 on the pretext that the notice of appeal had not been filed and served on time. This Court gave the respondent an indulgence and postponed the matter sine die to allow enough time for the settling of the heads of argument. The indulgence was spurned.

It is the view of this Court that the respondent could not possibly expect a further indulgence of another postponement. In fact, there was nothing suggesting that the respondent was treating this Court with the respect that it deserves. While it is the right of the prosecution in any criminal appeal, to defend the conviction and indeed, the sentence of convicted persons, that right should be exercised within the confines of the law and the four corners of the rules of court . The court has always le aned in favour of according the National Prosecuting Authority the opportunity to present its cases and to be heard. In that regard they have always been indulged in the discretion of the court.

Unfortunately the leniency exte nded to that office has been completely misunderstood. It is certainly not a licence for treating the rules of court with disdain. Indeed there are no special rules governing the National Prosecuting Authority. It is a party to proceedings just like any other litigant and is required to abide by the rules. Where there has been a failure to comply or there has been a delay , a reasonable and satisfactory explanation for failure to comply or to act timeously must be rendered. 4 Judgment No. SC 36/20 Criminal Appeal No. SC 573/16 No meaningful explanation for the failure to file heads of argument was given, even after an indulgence had been extended to the respondent on a previous occasion. This is a case in which the appellant was convicted and sentenced to death on 22 September 2014. A capital sentence ha s been hovering over his head for almost six years. It is completely unacceptable in the circumstances for the respondent to behave as if it is business as usual. It is for these reasons that this Court refused the application for a further postponement and proceeded to hear the appeal as unopposed.

Factual Background

The appellant was 27 years old when he was arrested and charged with the crime of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). The State contended that on 22 September 2013 the appellant proceeded to Msoreka Mavengano Bushe’s (“the deceased”) homestead in Village 10A Zviuma Chief Nhe ma, Shurugwi at night . He found the 85 year old deceased having supper. The dece ased lived alone. It was alleged that the appellant attacked the deceased with a metal axe and metal rod inflicting fatal injuries to the head, face and left leg from which the deceased died instantly.

It was the State ’s case that after the death of the deceased, the appellant ransacked his house and took with him severa l items of property which he hid in order to conceal the offence. The deceased’s body was discovered in a pool of blood the following morning by one Itayi Melusi who made a report leading to the arrest of the appellant.

Following his arrest, the appellant made indications to the po lice which led to the recovery of a black suit, a metal rod, a big knife and a salt shaker belonging to the deceased. 5 Judgment No. SC 36/20 Criminal Appeal No. SC 573/16 The appellant also gave a warned and cautioned statement to the police but the magistrate at Shurugwi refused to confirm the first statement when it was taken to her for confirmation. This was after the appellant had alleged that he had been assaulted by the p olice to induce him to make a confession.

Subsequent to that, the police officers investigating the matter booked the appellant out of Hwahwa Remand Prison for purposes of recording a second warned and cautioned statement from him. They took the appell ant to the same magistrate at Shurugwi Magistrates Court for confirmation of the second statement. The magistrate confirmed the statement as this time, the appellant did not raise a complaint against the police.

At the trial, the appellant pleaded not guilty to the charge. The State produced the appellant’s second warned and cautioned statement in terms of s 256 (1) of the Criminal Procedure and Evidence Act [ Chapter 9:07 ], among other evidence. It also relied on the evidence of one Evia Matura, the Provincial Magistrate who conducted the confirmation proceedings and Detective Vumindab a Mpofu, the investigating officer, among other witnesses.

The appellant’s defence, although he had submitted two diametrically different defence outlines, was that he had been assaulted by the police forcing him to confess having killed the deceased and robbing him of his property. He had also been assaulted to force him to make indications which led to the recovery of property, some of whic h belonged to the deceased. He was not involved in the murder of the deceased. He had only been given a bag with clothes by Tulani Rukwe who had proceeded to the deceased’s homestead on the fateful 6 Judgment No. SC 36/20 Criminal Appeal No. SC 573/16 night with Victor Nzombe. The two had b een panning for gold with the appellant at Dopota gold mining area. He later sold some of the clothes given to him in his village.

THE COURT A QUO’S FINDINGS The court a quo found the State witnesses, particularly the investigating officer, credible. It accepted the evidence of Vumindaba Mpofu in its totality especially when relating to the recording of the confession made by the appellant and the statement of indications, as “the demeanour of (the) witness and the narration that he gave as well as the manner in which he answered the questions” suggested truthfulness.

On the admissibility of the warned and cautioned statement, the court a quo embraced the evidence of the Provincial Magistrate who confirmed it as truthful without questioning how, the same court which had refused to confirm an earlier confession , found nothing wrong with the appellant being brought back to confirm a confession in respect of the same matter. The remarks of the trial court in that regard are pertinent: “Nothing much turns on her (Evia M atura) testimony and she appeared to the court to be telling the truth. More so she is a judicial officer who was not shown to have an interest in the matter. In fact she had refused earlier on to confirm a statement that the accused person had said he h ad given under duress. So the court believes that indeed even when she did the confirmation for the second time she adhered to the proper procedure.”

The court a quo concluded that the appellant had failed to discharge the onus placed on him by s 256(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] to show, on a balance of probabilities, that the confirmed warned and cautioned statement was not made freely and voluntarily. In the court a quo’s view the statement was properly confirmed.

7 Judgment No. SC 36/20 Criminal Appeal No. SC 573/16 Significantly, the court a quo found that even were the confession and the statement of indications found to be inadmissible, the appellant would not escape conviction by reason of the deceased’s property found in his possession. In doing so, the court a quo found ample evidence that the appellant committed the offence of murder in the course of a robbery. It returned a verdict of guilty of murder with actual intent.

After the verdict, the court a quo went on to enquire into the existence of extenuating circumstances as would preclude the imposition of the death penalty. After finding none the court a quo sentenced the appellant to death. The appellant enjoyed an automatic right of appeal owing to the penalty imposed.

Grounds of Appeal

The appellant raised three grounds of appeal in his appeal against both conviction and sentence. They are: “1. The court a quo grossly misdirected itself in finding the appellant guilty of murder based on a warned and cautioned statement which was obtained through duress by the investigating officers. The court failed to consider that a warned and cautioned statement obtained through duress is inadmissible and cannot form the basis of a conviction.

2. The court a quo grossly misdirected itself in finding the appellant guilty on the basis of circumstantial evidence which did not lead to the inescapable conclusion that the appellant had committed the crime. There was evidence from the appellant of where he got the deceased person’s items but the court a quo erroneously disregarded such evidence.

3. The court a quo grossly erred in considering the absence of extenuating circumstances in passing the death penalty. The constitution stipulates the sentence of death should be passed only if the existence of aggravating circumstances is established and the court failed to consider these circumstances.”