SUPREME COURT OF ZIMBABWE
ZIYAMBI JA, GARWE JA & HLATSHWAYO JA
BULAWAYO, MAY 5, 2014 AND HARARE, JUNE 27, 2014
M. Majuru, for the appellant
T. Makoni, for the respondent
GARWE JA: This is an appeal against conviction on a charge of murder and the sentence of death imposed by the High Court at Gweru on 17 September 2013.
The facts of this case which are either common or were not seriously in dispute during the trial proceedings are as follows. The appellant was employed as a senior game ranger by the Department of National Parks and Wildlife. Sometime in February 2012 an Assistant Commissioner with the Zimbabwe Prison Services was arrested at a road block whilst carrying ivory. On his arrest he implicated one Tanaka Nyoni and Moses Makwavarara as the source of the ivory. Thereafter further information was received by the Department to the effect that one Makwavarara operated as the gunner, Lennon Nkosana as the carrier and Tanaka Nyoni as the sponsor of the illegal hunting syndicate. Lennon Nkosana is the deceased.
On the day in question, that is, 12 June 2012, a group of ten parks rangers accompanied by two police officers proceeded to Simuchembo area of Gokwe North in an operation to arrest the suspected poachers. Nine of the game rangers were armed with rifles. Simuchembo area is within walking distance of a number of national parks areas. It is common cause that on arrival at Tanaka Nyoni’s homestead at about 1.00am, the rangers discovered that Tanaka Nyoni was not present. On further questioning the employees present, namely, Africa Dakura, Tichaona Makoni and Tichaona Ndlovu, the game rangers formed the impression that Tanaka Nyoni was putting up at his father’s place of residence. With the employees, the rangers proceeded to Tanaka Nyoni’s father’s homestead. On arrival they split into two groups in order to secure two paths that exited from the homestead. It is common cause the appellant was in the group that first approached the homestead. It was at that stage that Dakura’s wife indicated a house in which Tanaka Nyoni was believed to have been sleeping. Tanaka Nyoni’s vehicle was also parked at the homestead. What happened immediately outside the house was in dispute but it is clear that two persons ran out of the hut – one after the other - and disappeared into the darkness. It is also common cause that the deceased, Lennon Nkosana, also came out of the same hut after which the appellant then fired his firearm hitting him in the chest and killing him instantly. The gunfire awakened other occupants of the homestead including the mother of the deceased who, on discovering that the deceased had died, challenged the rangers not to go away and grappled for possession of the firearm with the appellant. The rangers together with the two police officers and Tanaka’s employees managed to flee from the homestead. They eventually proceeded to Chitekete Police Base where the appellant was arrested the following morning and his weapon confiscated.
As indicated earlier the above facts were largely common cause or at least not seriously in dispute during the trial. However the circumstances surrounding the actual shooting of the deceased were the subject of much controversy. The appellant claimed that he believed he was under attack but such claim was rejected in its entirety by the trial court. In order to determine whether the court a quo correctly assessed the evidence before it, it become necessary for this court to analyse relevant portions of the evidence led before the court.