Vusumuzi Moyo and Khulekani Nkomo v The State

On 24 June 2009 at approximately 7pm, the deceased (aged 38) gave a lift to the two appellants and an accomplice at the corner of Herbert Chitepo and 12th Avenue in Bulawayo. While driving along Hyde Park Road near Pelandaba Cemetery, the second appellant strangled the deceased from behind using a nylon cord. After confirming death, they pushed the body to the passenger seat. The first appellant drove the vehicle to Luveve cemetery where they dumped the body and stole the deceased's Nokia 3310 cellphone and money. The appellants then picked up two passengers at West End garage, including Nkosilathi Sibanda, a newspaper reporter. They refused to let Nkosilathi disembark, activated central locking, drove to Ngozi Mine turn off, assaulted him, stripped him of his clothes and cellphone, and abandoned him. They left the stolen car at an overnight car park in Luveve where it was recovered three weeks later. The first appellant used the deceased's cellphone to call prophet Sibanda at midnight seeking spiritual assistance. This call was traced leading to his arrest. He admitted involvement and implicated the second appellant who was already detained at Bulawayo Prison on other charges. Both made warned and cautioned statements admitting their involvement. Nkosilathi identified both appellants at an identification parade on 14 September 2009. Post-mortem report confirmed death by asphyxia by ligature.

• Whether the conviction for murder with actual intent to kill was proper based on circumstantial evidence
• Whether the identification parade was properly conducted
• Whether the identification evidence was reliable given the prevailing conditions
• Whether there were extenuating circumstances justifying a sentence other than death for murder committed during a robbery

The appeal against both conviction and sentence is dismissed. The death sentence imposed by the court a quo is confirmed.

A murder committed in the course of a robbery attracts the death penalty unless there are weighty extenuating circumstances. When accused persons make warned and cautioned statements confessing to the offence (confirmed by a Magistrate) that corroborate witness testimony, the case is removed from the realm of circumstantial evidence and mistaken identity. Persons acting in common purpose are equally liable for murder with actual intent to kill even if only one physically committed the act of killing.

The Court noted that the trial court's judgment was "well reasoned" in reaching its conclusion on guilt. The Court also observed that the appellant's legal practitioner's concession regarding the absence of meaningful submissions on extenuating circumstances was "properly made", suggesting that defense counsel have a professional duty not to advance unmeritorious arguments on appeal, particularly in capital cases.

This case is significant in Zimbabwean criminal law jurisprudence as it reinforces the principle that murder committed in the course of robbery attracts the death penalty in the absence of weighty extenuating circumstances. It demonstrates the application of the common purpose doctrine in criminal liability and confirms that confessional evidence, when properly obtained and confirmed, can remove a case from the realm of circumstantial evidence. The case also illustrates the court's approach to evaluating challenges to identification evidence and identification parades where confession evidence corroborates witness testimony.