CHEDA J:
The
accused has been found guilty of murder with actual intent.
In her submissions with regards to the
existence or otherwise of extenuating circumstances, Mrs Magosvongwe
for the accused submitted that the court should take into account that accused
spent 1 year in prison awaiting the finalisation of this case and a further 6
months in remand prison after indictment. In addition that she was a
youthful offender. She referred the court to the case of Chininga
v S SC 79/02.
On the other hand Mr Mabhaudi has
submitted that the fact that she was young at the time of the offence and that
she was a single mother who was herself being looked after by her maternal
grandmother, taken together should be held as extenuating, see Chininga v S
(supra).
Accused had just passed 18 years at the
time of the offence. She was indeed fairly young. Youthfulness on
its own without more depending on the circumstances qualify as extenuating.
In casu the fact that she was
hardly 18 years and that she was an orphan is a point which surely should be
taken into account in determining the existence or otherwise of extenuating circumstances.
She fell in love with a man at 16 years of
age while in Form 3, this indeed was a premature entry into adult life with
disastrous consequences.
In assessing the existence of extenuating
circumstances these courts have adopted a two-pronged approach. The first
approach involves the finding that the extenuating circumstances exist, but,
despite their existence aggravating features far much outweigh them thereby
necessitating the imposition of a death sentence.
The second approach involves the balancing
at the outset of the mitigating against the extenuating features and depending
on the finding a death sentence becomes unavoidable, see S v Jacob 1981
ZLR 1 and S v Phineas 1973 (1) ZLR 260 (AD) at 263..
In this instance the court has adopted the
second approach wherein it weighed the mitigating against the aggravating
features.
It is common cause that accused has no
natural parents. She fell in love with an unnamed man when she was about
15 years of age and was in Form 3. The relationship resulted in the
birth of an illegitimate child who is the subject of this case. This was
an immature age for womanhood. Her reason for this adventure was to
secure a marriage and according to her she thought that it was an assurance of
a better life. Her reason unreasonable as it may be, in my view mitigates
the gravity of this offence. These mitigation features combined with her
youthfulness and her single motherhood amounts to extenuating circumstances.
I accordingly find that the accused should
benefit by the finding of the existence of extenuating circumstances in this
matter.
Criminal Division, Attorney General's
Office, state's legal practitioners
Marondedze,
Mukuku, Ndove and partners, accused's legal
practitioners
