News / Local
Serial killer on death row loses appeal at Supreme Court
28 Mar 2023 at 06:46hrs | Views
THE Supreme Court has dismissed an appeal against the death sentence by a Bulawayo serial killer Birthwell Sibanda who killed three people and robbed them of their cellphones and money.
Dubbed the "Underwear Robber" for stealing his victims' clothes and forcing them to walk naked, Sibanda was in March 2019 handed a death sentence as well as a life sentence for killing Mfundisi Makhalima (23), Mthabisi Dube (20) and his girlfriend Lokukhanya Ncube (19) between April and May 2014, one count of attempted murder and another of robbery.
At the time of his conviction and death sentence by Bulawayo High Court judge Justice Martin Makonese, Birthwell Sibanda (29) of Pumula South suburb was already serving a 25-year jail term for 10 counts of armed robbery following his conviction by former Bulawayo regional magistrate, Mr Trynos Utahwashe, in February 2015.
Sibanda had also been charged with three counts of rape, but they were dropped after the magistrate ruled that the evidence against him was weak.
During his reign of terror around the city, Sibanda and his accomplices, who are still at large, robbed victims of their cellphones, and clothing, including underwear, and then made them walk away stark naked.
Sibanda was initially facing four counts of murder in connection with the deaths of Henry Moyo (21), Makhalima, Dube and Ncube.
However, the murder charge in connection with the death of Moyo was withdrawn before plea after the State failed to locate one of its key witnesses.
Justice Makonese then convicted Sibanda of three counts of murder with actual intent, attempted murder and robbery. The judge ruled that the murders were committed in aggravating circumstances.
He was sentenced to death for robbing and murdering Dube and Ncube and life imprisonment for killing Makhalima and attempting to kill Makhalima's friend Cephas Chirongoma during a scuffle.
Aggrieved by both conviction and sentence, Sibanda through his lawyers Sengweni Legal Practice lodged an appeal against both conviction and sentence at the Supreme Court citing the State as a respondent.
In his grounds of appeal, he argued that the High Court misdirected itself by relying on circumstantial evidence when it convicted him.
"The court a quo erred at law by concluding that I had been properly identified by witness Sympathy Siziba yet no proper identification parade was conducted. The identification parade was a shame and did not meet the requirements of the law," he argued.
Sibanda said the High Court erred in sentencing him to death for robbery despite that Section 126 of the Criminal Law (Codification and Reform) Act provides no such sentence.
"The court a quo erred in holding that the retributive sentence of death is the only most appropriate one without giving reasons why reformative and rehabilitative sentence of life imprisonment can be a better alternative," he said
"The court a quo erred in imposing a sentence of death without taking judicial notice of the challenges in carrying out such a sentence, which challenges, in turn, lead to violation of my rights to freedom from torture or cruel, inhuman and degrading treatment or punishment as enshrined in Section 53 of the Constitution of Zimbabwe."
Sibanda sought an order quashing his conviction in all five counts and for the judgment of the High Court to be set aside.
Alternatively, Sibanda sought an order commuting the death sentence to life imprisonment for each the three counts of murder.
Deputy Chief Justice Elizabeth Gwaunza sitting with Justices Samuel Kudya and Felistus Chatukuta during a Supreme Court circuit in Bulawayo last Thursday dismissed Sibanda's appeal and upheld the conviction.
She, however, ruled that High Court erred when it took the three counts of murder as one for the purposes of the sentence instead of imposing the death sentence separately for each count.
Deputy Chief Justice Gwaunza imposed another death sentence on Sibanda and another life imprisonment for second and third counts of murder in addition to his sentence.
Justice Makonese had sentenced Sibanda to a single death sentence for the three counts of murder and life imprisonment for attempted murder and robbery.
The State, which was represented by Mr Khumbulani Ndlovu opposed the appeal, arguing that the High Court properly exercised its sentencing discretion when it sentenced Sibanda to death as the murders were committed in aggravating circumstances as provided in the Criminal Law Code.
"It is further submitted that the appellant (Sibanda) should have been sentenced to death in count one, two and three separately. The trial court found and held the murders in counts one and two were committed in the course of a robbery" he said.
Mr Ndlovu said the photographic evidence suggests that the victims were subjected to physical torture before they were murdered.
"The sentence of death imposed neither an irregularity nor misdirection and the respondent prays that the appeal against conviction and sentence be dismissed," he said.
According to court papers, it was stated that on April 20, 2014, Dube visited his girlfriend, Ncube at her place of residence in Nkulumane 12 suburb.
On the same day at around 8PM, Dube decided to leave and Ncube walked him out of the house. She accompanied her boyfriend to the bus stop where he intended to board a lift to his home in Rangemore.
When the two lovers approached an intersection between Rangemore and Intemba roads, Sibanda, who was in the company of his accomplices, Thabani Lunga and Webster Ndlovu, confronted the pair.
Sibanda and his accomplices accosted the two deceased persons. They removed Dube's shoe laces and tied his hands and legs. They ordered Ncube to remove her clothes and used them to tie her.
Sibanda and his accomplices stabbed the two lovers several times all over their bodies before robbing them of Nokia cellphones. They dumped the two bodies in a drainage trench and fled.
The couple's bodies were found in an advanced state of decomposition in a grass-filled trench at the corner of Intemba and Rangemore roads in Nkulumane 12.
Three weeks later, Sibanda and accomplices spotted Makhalima and his friends Sympathy Siziba and Chirongoma waiting for a lift along Hyde Park Road at around midnight. The gang, which was travelling in a Honda Ballade, offered their Makhalima, Chirongoma and Siziba a lift.
When Siziba got into the car and sat in the back seat, Makhalima tried to pull her out during which he was indiscriminately stabbed by Sibanda.
Chirongoma tried to intervene and he was also stabbed in the shoulders before he managed to escape leaving Makhalima at the mercy of his assailants.
Chirongoma suffered life-threatening injuries and had to be hospitalised at Mpilo Central Hospital for two weeks.
After committing the offence, Sibanda and his accomplices drove off leaving Makhalima lying in a pool of blood. Makhalima's body was discovered on the following morning.
A report was made to the police leading to Sibanda's arrest.
Dubbed the "Underwear Robber" for stealing his victims' clothes and forcing them to walk naked, Sibanda was in March 2019 handed a death sentence as well as a life sentence for killing Mfundisi Makhalima (23), Mthabisi Dube (20) and his girlfriend Lokukhanya Ncube (19) between April and May 2014, one count of attempted murder and another of robbery.
At the time of his conviction and death sentence by Bulawayo High Court judge Justice Martin Makonese, Birthwell Sibanda (29) of Pumula South suburb was already serving a 25-year jail term for 10 counts of armed robbery following his conviction by former Bulawayo regional magistrate, Mr Trynos Utahwashe, in February 2015.
Sibanda had also been charged with three counts of rape, but they were dropped after the magistrate ruled that the evidence against him was weak.
During his reign of terror around the city, Sibanda and his accomplices, who are still at large, robbed victims of their cellphones, and clothing, including underwear, and then made them walk away stark naked.
Sibanda was initially facing four counts of murder in connection with the deaths of Henry Moyo (21), Makhalima, Dube and Ncube.
However, the murder charge in connection with the death of Moyo was withdrawn before plea after the State failed to locate one of its key witnesses.
Justice Makonese then convicted Sibanda of three counts of murder with actual intent, attempted murder and robbery. The judge ruled that the murders were committed in aggravating circumstances.
He was sentenced to death for robbing and murdering Dube and Ncube and life imprisonment for killing Makhalima and attempting to kill Makhalima's friend Cephas Chirongoma during a scuffle.
Aggrieved by both conviction and sentence, Sibanda through his lawyers Sengweni Legal Practice lodged an appeal against both conviction and sentence at the Supreme Court citing the State as a respondent.
In his grounds of appeal, he argued that the High Court misdirected itself by relying on circumstantial evidence when it convicted him.
"The court a quo erred at law by concluding that I had been properly identified by witness Sympathy Siziba yet no proper identification parade was conducted. The identification parade was a shame and did not meet the requirements of the law," he argued.
Sibanda said the High Court erred in sentencing him to death for robbery despite that Section 126 of the Criminal Law (Codification and Reform) Act provides no such sentence.
"The court a quo erred in holding that the retributive sentence of death is the only most appropriate one without giving reasons why reformative and rehabilitative sentence of life imprisonment can be a better alternative," he said
"The court a quo erred in imposing a sentence of death without taking judicial notice of the challenges in carrying out such a sentence, which challenges, in turn, lead to violation of my rights to freedom from torture or cruel, inhuman and degrading treatment or punishment as enshrined in Section 53 of the Constitution of Zimbabwe."
Sibanda sought an order quashing his conviction in all five counts and for the judgment of the High Court to be set aside.
Alternatively, Sibanda sought an order commuting the death sentence to life imprisonment for each the three counts of murder.
Deputy Chief Justice Elizabeth Gwaunza sitting with Justices Samuel Kudya and Felistus Chatukuta during a Supreme Court circuit in Bulawayo last Thursday dismissed Sibanda's appeal and upheld the conviction.
She, however, ruled that High Court erred when it took the three counts of murder as one for the purposes of the sentence instead of imposing the death sentence separately for each count.
Deputy Chief Justice Gwaunza imposed another death sentence on Sibanda and another life imprisonment for second and third counts of murder in addition to his sentence.
Justice Makonese had sentenced Sibanda to a single death sentence for the three counts of murder and life imprisonment for attempted murder and robbery.
The State, which was represented by Mr Khumbulani Ndlovu opposed the appeal, arguing that the High Court properly exercised its sentencing discretion when it sentenced Sibanda to death as the murders were committed in aggravating circumstances as provided in the Criminal Law Code.
"It is further submitted that the appellant (Sibanda) should have been sentenced to death in count one, two and three separately. The trial court found and held the murders in counts one and two were committed in the course of a robbery" he said.
Mr Ndlovu said the photographic evidence suggests that the victims were subjected to physical torture before they were murdered.
"The sentence of death imposed neither an irregularity nor misdirection and the respondent prays that the appeal against conviction and sentence be dismissed," he said.
According to court papers, it was stated that on April 20, 2014, Dube visited his girlfriend, Ncube at her place of residence in Nkulumane 12 suburb.
On the same day at around 8PM, Dube decided to leave and Ncube walked him out of the house. She accompanied her boyfriend to the bus stop where he intended to board a lift to his home in Rangemore.
When the two lovers approached an intersection between Rangemore and Intemba roads, Sibanda, who was in the company of his accomplices, Thabani Lunga and Webster Ndlovu, confronted the pair.
Sibanda and his accomplices accosted the two deceased persons. They removed Dube's shoe laces and tied his hands and legs. They ordered Ncube to remove her clothes and used them to tie her.
Sibanda and his accomplices stabbed the two lovers several times all over their bodies before robbing them of Nokia cellphones. They dumped the two bodies in a drainage trench and fled.
The couple's bodies were found in an advanced state of decomposition in a grass-filled trench at the corner of Intemba and Rangemore roads in Nkulumane 12.
Three weeks later, Sibanda and accomplices spotted Makhalima and his friends Sympathy Siziba and Chirongoma waiting for a lift along Hyde Park Road at around midnight. The gang, which was travelling in a Honda Ballade, offered their Makhalima, Chirongoma and Siziba a lift.
When Siziba got into the car and sat in the back seat, Makhalima tried to pull her out during which he was indiscriminately stabbed by Sibanda.
Chirongoma tried to intervene and he was also stabbed in the shoulders before he managed to escape leaving Makhalima at the mercy of his assailants.
Chirongoma suffered life-threatening injuries and had to be hospitalised at Mpilo Central Hospital for two weeks.
After committing the offence, Sibanda and his accomplices drove off leaving Makhalima lying in a pool of blood. Makhalima's body was discovered on the following morning.
A report was made to the police leading to Sibanda's arrest.
Source - The Chronicle
