6-man gang jailed for 72 years, seek Supreme Court appeal

A GANG of six men who were sentenced to a combined 72 years in jail for fiercely attacking workers at a gold mine in Shurugwi before robbing them of three tonnes of gold ore, have approached the High Court seeking leave to appeal at the Supreme Court.

Cephas Mahara, Russell Mpandla, Funny Mpandla, Obert Maponda, John Musariri and Watson Gombe were in March 2012 convicted of attempted murder and robbery by a Gweru regional magistrate. They were each sentenced to 12 years in jail of which two years were suspended on condition that each one of them restituted the complainant $1 568.

Aggrieved by the sentence, the six last year appealed against both conviction and sentence at the Bulawayo High Court. Justice Maxwell Takuva who was sitting with Justice Nicholas Mathonsi dismissed the application.

The six men, through their lawyers Mashayamombe and Company, have filed an application for leave to appeal at the Supreme Court in terms of Order 43 Rule 262 of the High Court Rules. In dismissing the appeal, Justice Takuva said the men were convicted on the strength of the evidence given in court.

They are seeking an order allowing them to challenge their conviction and sentence at the Supreme Court.

In papers before the court, the six men are the appellants while the State was cited as the respondent.

In their grounds of appeal, the appellants said the judge erred in confirming the trial court's conviction on the basis that their lawyer had conceded that the appeal lacked merit. "In actual fact, there was no such concession and by so doing the court a quo failed to properly and adequately address the grounds of appeal addressed to it in the heads of argument," said the appellant's lawyers.

"Pertaining to the common purpose, there was no evidence led by the State pertaining to the planning of the robbery and attempted murder and the conclusion by the court a quo that there was common purpose was from an ex post facto analysis (retroactive or affecting something that's already happened)."

The lawyers argued that the evidence led by the trial court showed that there could never have been an intention to steal as the appellants genuinely believed that the gold ore belonged to them. The appellants said the sentence was too harsh and induced shock.

"There was no consideration that the complainant, who was injured, was not a passive bystander, and that he and his colleagues were equally armed and aggressive towards the appellants," they argued.

The court heard that on December 28 in 2009, the six men ganged up and went to an unnamed mine in Shurugwi. On arrival they found one Mr Cosmas Hove and his workmates and started attacking them with stones, machetes, axe and a firearm. The victims fled in different directions and some sought refuge in the hills.

The gang caught up with Mr Hove and viciously assaulted him and he sustained life-threatening injuries on the head. When the other mine employees returned to retrieve their belongings, the gang ambushed them and attacked them.

The court heard that the six men took three tonnes of gold ore, which was in the custody of the mine workers and loaded it onto the mine truck.

They then commandeered one of the workers to drive them to the milling plant where they ordered employees to mill the gold ore without producing proper documents. A report was made to the police leading to the arrest of the six men.