This matter has taken an unusually long period of time to be concluded. It has been a long walk to justice on the part of the accused person and all those involved.

Having been convicted of having committed the crime of murder with actual intent by my brother Judge BLACKIE J on 16 July 2002, we were only able to reconvene on 16 November 2010 to deal with the existence or non-existence of extenuating circumstances before sentencing the accused person.

Dealing with the issue of extenuation, I feel more inclined to lean on the views of HOLMES J in SV Letsolo 1970 (3) SA 476…, when  the learned Judge stated:

“Extenuating circumstances have more than once been defined by this Court as any facts bearing on the commission of the crime, which reduce the moral blameworthiness of the accused, as distinct from his legal culpability. In this regard the trial Court has to consider;-

(a) Whether there are any facts which might be relevant to extenuation, such as immaturity, intoxication or provocation (the list is not exhaustive).

(b) Whether such facts, in their cumulative effect, probably had a bearing on the accused's state of mind in doing what he did.

(c) Whether such bearing was sufficiently appreciable to abate the moral blameworthness of the accused in doing what he did.

In deciding (c), the trial court exercises a moral judgment. If its answer is yes, it expresses its opinion that there are extenuating circumstances.”

It is important to emphasise that the enquiry to extenuation is critical in a murder conviction. It is upon the conclusion of this enquiry that the Court is then enjoined to exercise its discretion to either “take the drastic step of ordering” the accused to forfeit his life or to consider some other competent alternation sentence.

It will be noted that after the accused had led evidence in extenuation of sentence the State counsel conceded that indeed extenuating circumstances existed. The Court expressed the view that it was not bound by that concession and the defence appeared to have been raffled by the position taken by the court. The defence counsel's contrary view was that once the State had made this concession the Court was “humstrung” from making a finding to the contrary. Counsel could not provide authority to back up his argument.  The Court was certainly not impressed by the position blindly adopted by counsel….,.

Coming back to the issue at hand, the enquiry on the accused's mental and emotional state at the time of the offence largely zeroed on two fairly detailed psychiatric reports coupled with the viva voce evidence of Dr D. Chibanda and Dr Munyaradzi Madhombiro, two fairly experienced psychiarists.

The evidence presented by the two doctors was quite revealing in assisting the court in its quest to determine the existence or non-existence of extenuating circumstances in this case.

Both psychiastrists examined the accused person on different occasions. Both concluded the accused showed an abnormal E E G (electro encephalogram). Dr Chibanda indicated in his report that the abnormality on the E E G scan suggested Temporal Lobe Epilepsy on the part of the accused. He recorded that on interviewing the accused, the accused revealed to him that he was, on occasions, having visual and auditory hallucinations associated with a sensation of smelling things. The accused further revealed to the doctor that at one stage before this murder occurred, he was taking steroids to enhance his body building exercises. Dr Chibanda was unable to gather the accused's collateral history to support his psychiastric examination of the accused hence he recommended that a second opinion be obtained from another qualified psychiatrist - hence the coming into the picture of Dr Madhombiro.

Dr Madhombiro was able to gather the accused's collateral history from the accused's mother, father and the accused's former workmate. The information gathered from the mother was particularly revealing. The doctor recorded that the accused's mother revealed to him that the accused had what appeared like “fits“ medically referred to as 'febrile convulsion' which he reasoned are a precursor to complex partial seizures in adults. In addition, the accused also told the doctor of his use of anabolic steroids between 1999 and 2000. 

His examination concluded that the accused suffered from Temporal Lobe Epilepsy.

The court found the following extract from Dr Madhombiro's report to be particularly of assistance:

“INDICATIONS OF TEMPORAL LOBE EPILEPSY IN THE ACCUSED

16. Accused is an adult of 32 years of age. When the accused was young, he was reported to have had what appeared like “fits” medically known as febrile convulsions. These are a precursor to COMPLEX PARTIAL seizures in adults.

17. Accused admits using drugs, anabolic steroids, between 1999 and 2000. I reiterate that often patients with temporal lobe epilepsy often abuse drugs as an unconscious form of medication to fight sublime depression.

18. In this case, the condition could have been worsened by the stress that the accused was going through as he genuinely believed that he was being falsely implicated to be responsible for the pregnancy of the deceased and this could have definitely triggered the seizure.

19. I aver that it is my opinion that any one of these factors may have triggered temporal lobe epileptic seizures on the day the accused stabbed the deceased.”

There was no evidence led to try and controvert the medical evidence which tended to show some form of diminished responsibility on the part of the accused at the time he committed the offence. If anything, the reckless manner in which he used the knife would seem to suggest that something had gone terribly wrong with him….,.

At the time of this offence, the accused was aged 21 years and a youth leader in his church and his parents appear to have been active members of the church.

Youthfulness as a factor in extenuation has not escaped our minds.

The responsibility associated with the accused being a youth leader, and the usual high expectations from the church, must have weighed heavily against the accused person when he had to deal with the pregnancy of the deceased. The stress and anxiety which the accused person, as a 21 year old, must have gone through at the time cannot be over-emphasized. The immaturity and desperation on the part of the accused person manifested itself in the manner in which he sought to get himself out of this mess. He sought to take the pregnant deceased to her former boyfriend to try and resolve the pregnancy of the deceased. How that would work out remains anybody's guess but, in our view, it demonstrates irrational behaviour which cannot be separated from the accused's youthfulness at the time.

Cumulatively, we are  unanimously agreed that the accused's mental state (as explained by the two psychiatrists), and the youthfulness, and how he sought to extricate himself out of the mess he had himself created must amount to extenuating circumstances which tend to reduce the accused's moral blameworthiness as distinct from his legal culpability.

In the light of the misdirections perpetrated by the trial magistrate, I am at large on sentence.

I have the power, on review, to set aside the erroneous sentence and impose a new sentence that may result in the increase of the erroneous one that had been imposed by the trial magistrate.

In S v Sabawn 1999 (2) ZLR 314 at 318D-E CHATIKOBO J, with reference to S v Hove 1981 ZLR 610 (H), concluded that “the verdict was altered to the more serious offence and the mandatory sentence brought into effect.”

In S v Hove 1981 ZLR 610 (H)..., GUBBAY J..., stated..., that –

“But where a mandatory sentence or some other form of mandatory order is required, the position, in my opinion, is different. This is because the validity of any such sentence or order stems from, and is dependent upon, the nature of the conviction which precedes. Any consequent increase in the punishment takes place, therefore, by operation of law. See R v Froneman & Froneman 1941 TPD 74 at 79. Indeed, it is difficult to suppose that where the conviction has to be altered, an incompetent sentence must be allowed to stand on account of the original error. Support for this interpretation is to be found in proviso (i) to s29(2)(b)(ii), which allows for the substitution of a sentence of imprisonment in place of a fine, where the enactment under which the accused was convicted does not permit of the imposition of a fine. As this must apply equally where a minimum period of imprisonment is provided, the result would be extraordinary if the minimum period could be substituted where a fine, but not a lesser term of imprisonment, was wrongly imposed.

The same conclusion is reached by having recourse to s29(2)(b)(iii) of the Act, which empowers the High Court to –

'Generally give such judgment, or impose such sentence, or make such order, as the inferior court, or tribunal, ought, in terms of any law, to have given, imposed, or made...,.'

In the instant case, the inferior court ought to have convicted the accused of contravening s3(1) of the Precious Stones Trade Act instead of an attempt to do so, and ought to have imposed a sentence of not less than the minimum prescribed. By correcting the verdict to guilty of a more serious offence, and thereby averting an injustice to the State, I will merely be doing what the magistrate ought to have done in the first place. If he had done so, he would have imposed the compulsory sentence. I am fortified in this view by the decision in R v Matsebe 1949 (4) SA 55 (T), in which RAMSBOTTOM J (as he then was), on review, changed a conviction under section 1 of the Stock Theft Act 1923, to one of stock theft (a more serious crime). The sentence of six months imprisonment was ordered to stand, but a mandatory compensatory fine was added with an alternative of further imprisonment. See also R v Kandu 1949 (4) SA 329 (SWA) at 331.

For these reasons, the conviction is altered to guilty as charged and a sentence of three years imprisonment with labour substituted. The trial magistrate is directed to explain the effect of this judgment to the accused.”

In determining the existence, or otherwise, of extenuating circumstances, the following factors were considered -

(1) The accused was twenty-two years old at the time of the offence;

(2) She only went up to the lower level of primary education due to her mental inability to grasp basic learning concepts at that lower level;

(3) She was brought up by her step-mother, who did not look after her well, as a result of this, she went to work at an early age;

(4) She formed a sexual relationship with a roving truck driver of no fixed abode, which resulted in the birth of the deceased who was HIV positive, and she also tested HIV positive;

(5) The father of the child could not be located;

(6) Her father, and step-mother, expelled her from home on two occasions, which resulted in her being a destitute;

(7) She had been hospitalized for a total of five months in various hospitals;

(8) Medical personnel had told her that there was no help they could offer the child, and, as such, the child was facing imminent death.

The circumstances surrounding the commission of this offence, taken cumulatively, amount to extenuating circumstances.

The word special circumstances, or reasons, as they are at times referred to, are those that are out of the ordinary, either in their extent or in their nature.

Therefore, not all mitigatory features qualify for special circumstances.

In the present case, I find no special circumstances, and, therefore, the mandatory sentence should have been imposed.

Judicial officers are urged to fully apply their minds to what is before them, and, where necessary, consult their seniors where they have doubt as to what sentence they should impose.

The appellant urges this court to find that “special circumstances” exist in this case so as to enable this court to impose, in its discretion, a sentence other than the minimum mandatory sentence required to be imposed by law.

That submission is not supported by the evidence and does not find favour with this court. In particular, all factors presented by the appellant, whether considered individually or cumulatively, constitute factors of mitigation of general application and do not amount to “special circumstances” in this matter....,.

In determining an appropriate sentence in this matter the court takes cognisance that the offence committed is a very serious offence.

The offence, it is clear, was committed by an organised gang of cattle rustlers. They stole a large herd of beasts. They resorted to originating falsified documents to legitimise their possession of these beasts. The forty-four (44) head of cattle were sold for financial gain. They were motivated by greed and avarice in the commission of this offence. The appellant, it is clear from his own evidence, is possessed of assets of value. He owns a shopping complex at Dangamvura in Mutare. He also owns a motor vehicle and thirty-six (36) head of cattle. He is also a livestock farmer operating from March Farm in Marondera.

These factors aggravate the seriousness of this offence.

This court also takes into account the mitigatory factors present in this case. The appellant is a family man of thirty-four (34) years of age and is a first offender. He pleaded guilty and in so doing he exhibited a measure of contrition. He offered to restitute thirty-four (34) beasts; having said that, it is clear that the aggravating factors in this matter far outweigh the mitigatory factors.

In arriving at an appropriate sentence the court takes judicial notice of the fact that Zimbabwe has undertaken a process of Land Reform and empowerment in the agricultural sector. Cattle-rearing is an integral part of the agricultural wealth of Zimbabwe. Also, cattle rearing on a commercial scale, is an integral part of commercial agriculture in Zimbabwe. The conduct of the appellant in stealing from his neighbour in the context of land reform is clearly behaviour that undermines the thrust of land reform in our country. It is conduct that requires to be depreciated for it was motivated by greed and avarice.

This court, having found that no “special circumstances” exist in this matter, is obliged to impose a minimum mandatory sentence of not less than nine (9) years and not more than twenty-five (25) years imprisonment. This court hereby sets aside the sentence imposed by the trial court.

All counts will be treated as one for the purposes of sentence and a portion  thereof will be suspended for five (5) years on the usual conditions related to good behaviour, regard being had to the factors of mitigation, including restitution, in this matter. It is ordered as follows -

1. The sentence imposed by the trial court be and is hereby set aside.

2. All counts are treated as one for the purposes of sentence.

The learned trial magistrate ruled that there were special circumstances which caused his departure from imposing the mandatory sentence.

To him, the special circumstances are that the accused had compensated the complainant and that they were first offenders. With due respect to the learned trial magistrate, payment of compensation can never be treated as a special circumstance. Special circumstances relate to the commission of the crime and not the circumstances surrounding the accused himself without more.

That is mitigation.

The following are what the trial magistrate says persuaded him to find special circumstances:

(1) That they were members of the armed forces;

(2) They used their service firearms to kill the beast; and

(3) That they were employed at the time, therefore the offence was not committed out of need but greed.

Having found these factors as a fact, it is a contradiction for him to have departed from the mandatory sentence.

It is trite that where the legislature has decreed a mandatory prison sentence, a court will not lightly order the whole of that sentence to be suspended, and will do so only when the mitigating circumstances clearly make such a course desirable – S v Mtembu 1970 (1) SA 435 (N); S v Horowitz 1976 (1) RLR 238 (AD); S v Patel SC63-87 and S v Muzambe HH121-90.

In casu, bearing in mind the personal circumstances of the appellant and lack of actual prejudice to the State, and the fact that the appellant could be adequately punished by a fine coupled with an additional wholly suspended sentence, the sentence imposed was manifestly excessive and should be altered. In this case, the appellant is aged 32; she is a female offender who is married to a husband who is unemployed; she has three children; as is the norm these days, she is the bread-winner in her family who earns her income by selling vegetables (and of course activities for which she stands convicted); S v Gorogo SC192-88 and S v Ndlovu SC84-84. She pleaded guilty to the charge and was remorseful – S v Dhliwayo 1999 (1) ZLR 229. The offending amount of foreign currency is not that much i.e BP100. Certainly, she was not the major author of the scarcity of foreign currency. She played a trivial role in that regard.

Accordingly, the sentence imposed by the court a quo is set aside and substituted by the following:

6 months imprisonment of which -

(1) 3 months is suspended for five years on condition that the appellant is not convicted of any contravention of the Exchange Control Act or the Exchange Control Regulations committed during that period.

(2) The remaining 3 months imprisonment is suspended on condition the appellant completes 210 hours of community service at Plumtree Police Station on the following terms:

(i) The community starts within ten (10) days of the handing down of this judgment and must be completed within twelve (12) weeks of that date;

When the accused was invited to advance any special circumstances, if he had any, he told the court that his wife was in hospital and was going to undergo a surgical operation. He claimed that he committed the offence because he wanted to raise hospital fees and money for the surgical operation.

The court accepted the accused's story and considered it to amount to special circumstances. In its consideration, the court reasoned that the accused needed money urgently to save his wife's life. There was need to save life. The court went on to state that the circumstances that the accused found himself in were beyond his control as he needed to act fast to save life.

These are not the special circumstances envisaged by the Gold Trade Act [Chapter 21:03].

What the accused told the court happens quite often. It does not mean that when one is in such a situation he has to resort to crime. The accused sought a wrong and illegal solution to his problem which turned out to be no remedy at all as his gold was valued at only $20=. That could not pay hospital fees and a surgeon's fees. He, therefore, put his wife into more pain and danger. He was irresponsible by resorting to crime. His behavior does not amount to special circumstances.

When the magistrate sought to establish whether or not there were special circumstances in this particular case he invited each accused to address him on that.

The first accused stated that he had committed the offence because of poverty. He had no other means of survival. He was HIV positive and was the bread winner for the family. The second accused told the court that he had committed the offence as a means of survival and to sustain his family. The third accused, similarly, said that he committed the offence as a means of survival for his family and siblings since he was an orphan.

The learned trial magistrate concluded that the above amounted to special circumstances.

He either did not apply his mind to the case before him or did not know what is meant by special circumstances. What all the accused told the court were ordinary mitigating features. The majority of people in this country are very poor and find it very difficult to maintain their families but do not resort to crime. A family man who resorts to crime is irresponsible because if arrested he runs the risk of being sent to prison leaving his family without anyone to fend for it. Similarly, there are so many people who are HIV positive in this country but they do not resort to crime.

Special circumstances envisaged by the law are circumstances that are out of the ordinary. There is nothing extraordinary about being a poor family man. If all poverty stricken family people were to resort to crime there would be anarchy in the country.

There was no reason in this case why all the accused did not serve the minimum mandatory sentence as required by law.

Section 6 of the Road Traffic Act [Chapter 13:11] prohibits driving a motor vehicle without a licence. Section 6(5) of the Road Traffic Act [Chapter 13:11] provides -

“A person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment;

Provided that, if the motor vehicle he was driving in contravention of that subsection was a commuter omnibus or a heavy vehicle, he shall be liable to imprisonment for a period not exceeding five years and not less than six months unless he satisfies the court that -

(a) ….,.

(b) ….,.

(c) ….,.

or unless he satisfies the court, in terms of section 88A; that there are special reasons in the case why that penalty should not be imposed on him.”

Clearly, therefore, the court will inquire into the existence of special reasons if it is required to impose the mandatory sentence - and that arises if the accused drives either a commuter omnibus or a heavy vehicle without a licence.

In this case, the allegations against the accused are that on 9 August 2010, on an unnamed road in Nkulumane Suburb Bulawayo, he drove a Toyota Hiace motor vehicle registration number 747-410B which vehicle he rammed against a security fence at a car park. It was not alleged on behalf of the State that the said vehicle was a commuter omnibus or was a heavy vehicle as defined in section 2 of the Road Traffic Act [Chapter 13:11].

That notwithstanding the trial magistrate, having convicted the accused of both counts, proceeded to inquire into the existence of special circumstances.

She may have assumed that because the vehicle was a Toyota Hiace it must have been a commuter omnibus when no such allegation was made. The accused responded that he wanted to learn how to drive and had earlier told the court that he had asked someone to teach him how to drive. Finding no special circumstances, the court sentenced the accused the way it did.

In my view, the magistrate fell in error in that regard.

Considering that the magistrate did not give reasons for rejecting the sentence of a fine, it can safely be said that she may have had her view clouded by the wrong assumption that the vehicle driven by the accused was a commuter omnibus.

Before imposing that sentence the trial magistrate, acting in terms of section 85(2)(a) of the Road Traffic Act [Chapter 13:11] as read with section 88A of the Road Traffic Act [Chapter 13:11], inquired into the existence of special reasons as would entitle the applicant to a sentence other than the mandatory one prescribed in the Road Traffic Act [Chapter 13:11].

After failing to find special reasons, the trial magistrate sentenced the applicant to the mandatory minimum sentence of two (2) years. In doing so, she pointed out that she had taken into account the compelling mitigatory factors of the applicant but finding her hands tied, she preferred to restrict the sentence to the bearest minimum.

Aggrieved by the sentence, the applicant noted an appeal to this court against sentence only on essentially two grounds, namely, that the sentence imposed is so manifestly excessive as to induce a sense of shock and that the court a quo erred in not finding special reasons in order not to impose the mandatory sentence.

It was argued, on behalf of the applicant, that the appeal has high prospects of success firstly because the magistrate did not make a proper inquiry into the existence of special reasons thereby ending up with a wrong conclusion, and, secondly, that having decided on an effective imprisonment term of 24 months, the trial magistrate should have considered sentencing the applicant to community service.

In response to the inquiry into the existence of special reasons why the mandatory sentence could not be imposed, the applicant submitted that he had been stressed after his wife had taken their child to hospital after the child had eaten a flower. He went on to say that he was trying to go to his employer to ask for time off in order to attend to the sick child.

I am not persuaded that the applicant has an arguable case in respect of the existence or otherwise of special reasons. In terms of section 55(1) of the Road Traffic Act [Chapter 13:11] special reasons are:

“Special circumstances surrounding the commission of the offence concerned but does not include special circumstances peculiar to the offender.”

The applicant will have serious difficulties in convincing the appeal court that his voluntary decision to drink alcohol, drive a commuter omnibus and then call for passengers in the middle of the road had anything to do with his child having swallowed a flower.

The accused has been found guilty of murder with actual intent.

In her submissions with regards to the existence or otherwise of extenuating circumstances, counsel for the accused submitted that the court should take into account that the accused spent one (1) year in prison awaiting the finalisation of this case and a further six (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 SC79-02.

On the other hand, counsel for the State 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 SC79-02.

The accused had just passed eighteen (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 eighteen (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 sixteen (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)..,.

In this instance, the court has adopted the second approach wherein it weighed the mitigating against the aggravating features.

It is common cause that the accused has no natural parents. She fell in love with an unnamed man when she was about fifteen (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.

Extenuation

We found that there existed extenuating circumstances.

The accused was charged with contravening section 114 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], [stock theft].

The accused pleaded not guilty but was however convicted of the said offence and sentenced as follows:

“9 years imprisonment. In addition, the accused is sentenced to a further 4 years imprisonment. 13 years effective.”

There is no State outline contained in the record and the trial magistrate has now left service after my query of the 28^th November 2012 regarding the propriety of the sentence. I queried the propriety of a further imposition of a sentence of 4 years. There is no explanation to this query as the magistrate has left service.

In as much as the sentence of 9 years imprisonment is mandatory, I have a problem with an additional sentence of 4 years in prison imposed without any explanation. To me, it appears to have been erroneously passed on the accused.

The courts should always work within the four corners of the statute, as they themselves are a creature of such. The empowerment and jurisdiction accorded the courts by the Legislature should be judicially exercised. The exercise should not result in the passing of sentences which may lead a reasonable man of the judicial officer's status into concluding that the sentence was passed without proper and deligent application. In the absence of an explanation by the learned trial magistrate; this apparent misdirection cannot be allowed to stand.

Accordingly, the following order is made:

Order

(1) The conviction is confirmed.

(2) The sentence is set aside and substituted by the sentence of 9 years imprisonment.

The appellant now appeals against the said sentence on the basis that:

1) The special circumstances in relation to the mandatory penalty were not explained to him; and

2) That he ought not to have been prohibited from driving heavy vehicles for life.

The respondent agrees with the appellant on the basis that the issue of special circumstances were not properly canvassed. The respondent referred us to the following exchanges between the appellant and the trial magistrate:

''Q. Are there any special reasons as to why you should not be prohibited from driving heavy vehicles for life?

A. I am asking for forgiveness.''

In her response, the respondent referred us to the case of State v Dube and Another 1988 (2) ZLR 385 (SC). In that case, the court laid down the procedure to be followed where an offence involving a minimum sentence is before the court. It was stated in that case that the issue of special circumstances should be raised at an early stage of the proceedings and the judicial officer should clearly explain to the accused, especially the unrepresented one, that the special circumstances may be peculiar to him or to the commission of the offence.

In casu, the learned trial magistrate merely asked whether the appellant had ''special reasons.'' The court a quo misdirected itself by referring to ''special reasons'' instead of special circumstances. By failing to ask an appropriate question, he was then given a wrong answer, i.e ''I am asking for forgiveness.''

I agree with the respondent that the question of special circumstances was given a cursory attention. The appellant should have been appraised of the looming mandatory sentence in the absence of special circumstances. It should have been further explained to him that the mandatory sentence can be avoided if he can proffer any special circumstances peculiar to him or the commission of the offence which can excuse him from being sentenced to a mandatory sentence. In S v Chaerera 1988 (2) ZLR 226 (SC)…, McNALLY JA ably stated:

''…., the Magistrate should have gone much further than he did in advising the appellant the case, what the minimum penalty was, and how that penalty could only be avoided by proof of special circumstances. He should have gone to explain what special circumstances were.”…,.

In my considered opinion, due process was not adhered to in this matter. The appeal succeeds to the following extent:

Order

1) The conviction is confirmed.

The sentences imposed are, however, a cause for concern and were correctly queried by the learned scrutinizing Regional Magistrate who wrote to the trial magistrate in the following terms:

“The two accused were convicted on their pleas of guilty to contravening section 368(2) as read with 368(4) of the Mines and Minerals Act [Chapter 21:05] (Prospect for Minerals Without a Licence).

The two were sentenced to 12 months imprisonment of which 8 months imprisonment were suspended for 5 years on condition each accused does not within that period prospect for minerals in contravention of section 368(2) as read with section 368(4) of the Mines and Minerals Act without a licence. The remaining 4 months were suspended on condition each accused performs 140 hours of community service at given institutions.”

However, section 368(4) says:-

“Any person who contravenes subsection 1, 2 or 3 shall be guilty of an offence and liable -

(a) If there are no special circumstances in the particular case, to imprisonment for a period of not less than two years; or

(b) If the person convicted of the offence satisfies the court that there are special circumstances in the particular case why the penalty provided under paragraph (a) should not be imposed, which circumstances shall be recorded by the court, to imprisonment for a period not exceeding two years or a fine not exceeding level ten.”

In this case, the learned trial magistrate found the fact that the persons were widows to constitute special circumstances (sic). He said;

'A widow, in my view, qualifies to be considered as a special reason for not imposing the mandatory sentence of 2 years.'

I beg to differ.

In my view, being a widow is just a mitigatory factor. I do not think the legislature, in its wisdom, envisages a situation where widows are allowed to prospect for minerals without permits and get away with the lesser sentence. To me, this is not a special circumstance….,.”

The learned Regional Magistrate held the view that the sentence passed fell foul of the above provisions of the Mines and Minerals Act [Chapter 21:05] and concluded that the accused should have been visited with the minimum mandatory sentence of 2 years imprisonment. 

He was entirely correct.

The learned trial magistrate completely misdirected himself in holding that because the accused persons were widows with minor children their status amounted to special circumstances. There is nothing out of the ordinary about being a widow with minor children to look after. The learned trial magistrate found that they committed the crimes in order to fend for their children. What the learned magistrate is calling for is that widows and widowers with minor children should be excused when they break the law so as to fend for the minor children. This line of reasoning is faulty. It is a recipe for anarchy as there are so many widows and widowers in the country. The correct approach is that a widow or widower who resorts to criminal activities when she or he knows that she/he has minor children to fend for is irresponsible because she/he knows that if caught the law will take its course.  The children will have no one to fend for them when she/he is sent to prison.

The law mandates that a term of 2 years imprisonment should be imposed where there are no special circumstances. There are no special circumstances in casu. The minimum mandatory sentence should be imposed in terms of the law. In the result, the sentence imposed by the trial magistrate cannot be allowed to stand and is hereby set aside. The matter is hereby remitted to the trial court to recall the two accused persons and impose the sentence of 2 years imprisonment as mandated by law.

Extenuation

Defence Counsel

Accused only went as far as Grade 6. He has a rural background. His level of sophistication is low.

Coupled with his political belief – accused was 20 years old at the time he committed the offence.  Youthfulness played its part. He acted immaturely due to youthfulness.

These factors amount to extenuation. That is all.

State Counsel

It is very difficult to find extenuation in this matter. Youthfulness may have been extenuating but it is not always. S v Ndlovu SC122-94. It was held that unless it shows some form of immaturity youthfulness will not always be extenuation. Political beliefs cannot be extenuation taking into account that people are free to hold different political beliefs.

There are no special circumstances in this case. That is all.

By Court

The accused killed the deceased because he believed he belonged to a different political party from his. In a democracy people are free to belong to political parties of their choice. It would be wrong to punish them for that. That type of behavior should not be tolerated in a democratic society. Killing someone because they hold different political beliefs cannot be an extenuating circumstance. Instead, it would suffocate democracy if it were to be allowed.

Youthfulness can only work where a person does something that clearly exhibits immaturity. There was nothing immature about what the accused did in this case. The accused just wanted to eliminate his political opponent.

Special reasons or circumstances are factors arising either out of the commission of the offence or peculiar to the offender which are out of the ordinary either in their degree or their nature.S v Moyo 1988 (2) ZLR 79 (H). Indeed, special circumstances certainly mean more than the general consequences flowing from the imposition of the prescribed punishment. S v Siziba 1990 (2) ZLR 87 (H).

I am in total agreement with the pronouncement made by EBRAHIM J…, in S v Mbewe and Others 1988 (1) ZLR 7 (H)…, where he said:

“I conclude, therefore, that where the legislature has not placed a restrictive application on the meaning of special reasons or circumstances any extraordinary factor arising out of the commission of the offence or which is peculiar to the offender may constitute special reasons or circumstances. It ought however to be borne in mind that a distinction must be drawn between mitigating factors of a general nature and 'special reasons.' DUMBUTSHENA J (as he then was) in S v Rawstron 1982 (2) ZLR 221 pointed out at 234 that:

'A clear distinction must be drawn between special reasons or special circumstances and mitigating features which go to the determination of the quantum of sentence.'

It is apparent that mitigating factors such as 'good character' or 'particular hardship', which are of general application, cannot be taken as 'special circumstances'. Neither, it would seem, would contrition as evidenced by a plea of guilty to the offence or co-operation on the part of the accused constitute special reasons. However, where, for example, the accused was out of necessity compelled by circumstances to commit an offence, e.g. forced to drive whilst drunk because of urgent medical necessity, or was bona fide ignorant of some statutory provision of the law, such factors could constitute not only mitigating factors but 'special circumstances' in the case.”

In the present case, after the court explained special circumstances to the two accused persons this is how the first accused responded;

“I am the sole breadwinner, my husband is terminally ill. I have to send the children to school and pay the rentals.”

The second accused stated:

“I do not have parents. I am looking after my siblings and my own children…,. I am the only one looking after that family.”

After that, the court concluded that these factors amounted to special circumstances.

In my view, the court fell into error because these are mitigating factors of general application which clearly do not amount to special circumstances at all. I agree with what KAMOCHA J said in S v Moyo HB98-11…, that:

“I reiterate that resorting to criminal activities because someone believes he has problems or challenges in life does not amount to special circumstances as envisaged by the legislature.”

There are no special circumstances in this matter and as such the sentence cannot stand.

In the result, it is ordered that:

(1) The conviction of the two accused persons stands.

(2) The finding of the trial magistrate that there are special circumstances is set aside.

(3) The sentence is set aside.

The cases of S v Nyandoro 1987 (2) ZLR 66 SC…, and S v Machokoto 1996 (2) ZLR 190 (H), that I cited above, are distinguishable from the present case.

Be that as it may, on the issue of special circumstances, this normally involves a value judgment by the court seized with the matter. A different court may come out with a different view. The applicant, therefore, may have some prospects of success against sentence only. On that basis, the application for bail pending appeal will be allowed.

Ruling on extenuation

The accused person had been deserted by his young wife, in fact, she was 41 years younger than him. He was smitten by uncontrollable jealousy which made him suspect that the comparably younger and affluent Mr Phiri of Mimosa was behind his misfortunes. He lost his head as a result. For someone who lacked sophistication, was already very old and was sickly in love with a young woman who was unwilling to return to him, his human frailties are understandable.

This was a crime of passion.

Extenuation:

Count 2:

Mitigation by Defence Counsel

(i) Accused was aged 29 years.

(ii) He is married with two minor children.

(iii) He is the sole bread winner for his family.

(iv) His actions show that he is an uneducated and unsophisticated person.

(v) The majority of property stolen from the complainants' house is of very little value.

(vi) The accused, by virtue of his age, he was 29 at the time, his actions show immaturity.

Extenuation:

Defence Counsel

In respect of his age, the accused acted immaturely. I reiterate that the property that was stolen is of limited material value. Accused did not benefit from the offence, the majority of the stolen property was recovered.

There are no reasonable prospects of extenuation in Count 1.

Count 3

As has already been indicated, I will not burden the court by repeating his age, immaturity, lack of sophistication and the fact that property stolen was recovered.

State Counsel

I submit that there are no extenuating circumstances in this case - those facts which reduce the moral blameworthiness of the accused.

He pre-planned his mission very well, picked his victims very well, focusing on old people, and he knew very well that there would be no meaningful resistance. Considering his stature and condition of his victims he could have stolen from them without killing them. He still went ahead and attacked them viciously. In Count 3, the victim was elderly (67). He attacked the deceased while he was lying in bed.  He could have stolen from him without having to kill him. At 29, he cannot be described as an immature person.

I urge the court to find that there are no extenuating circumstances….,.

This was a murder in the course of a robbery where what was driving the accused was only greed and inherent evil and nothing else. There can be no justification whatsoever for such conduct.

Accordingly, we are unable to find extenuating circumstances in Count One…..,.

No distinction exists between the murder in Count 1 and the one in Count 3. This was also a murder in the course of a robbery where the accused was driven by greed and outright brutality and nothing else.

First and foremost we need to rule on extenuation considering that you have been found guilty of murder with actual intent.

It is accepted in our law that intoxication is a factor in extenuation which tends to reduce an accused person's moral blameworthiness. Part of the evidence this court has accepted is contained in your warned and cautioned statement where you allude to the fact that you were intoxicated on the day in question.

The State has conceded that fact, and, in our view, the concession is proper.

We also consider the fact that you were provoked by the response given by the deceased to the questions you were putting to her that evening, resulting in a fight in which you also sustained injuries.

Extenuation

This was a murder committed in the course of a robbery. The accused persons planned and prepared well for the robbery of the deceased. They set about isolating their victim by luring him to a place far away from the hustle and tumble of the city centre in Magwegwe. They clearly intended to rob him of his vehicle. Given that they were a gang of three they could have easily overpowered the deceased and divested him of his vehicle without resorting to killing him.

They elected to kill him and their conduct is unforgivable whichever way one looks at the matter.

Extenuating circumstances are those facts associated with the crime which serve in the minds of reasonable men to diminish, morally, the degree of the accused person's guilt. They are facts which have a bearing on the commission of the crime which reduce the moral blameworthiness of the accused.

In the present case, the only thing which propelled the two accused persons was greed and sheer evilness and nothing else.

Extenuating circumstances

Defence Counsel

Those are circumstances which reduce the accused's moral blameworthiness.

In S v Chaluwa 1985 (2) ZLR 121:

“The seriousness or gruesomeness of an offence can never exclude the possibility of extenuation. The facts of the case must be considered with possible mitigating circumstances in order to arrive at a proper finding as to the weight to be given to each. Where the conviction is based on the findings of accused's version, these findings, even if unlikely, cannot be excluded from a consideration of extenuating circumstances.”

In casu, it is clear that the accused had psychological pressure from close family members, especially the mother, who despised his wife. She even did not see her grandson. That could have disturbed and confused the accused. The accused's doubt of paternity which is indicative of him deserting the mother of the deceased. Such conduct is indicative of immaturity and lack of experience of life thoughtlessness.

S v Chinhinga SC79-02, the accused had taken alcohol had taken five (5) beers which could have had a serious impact with the accused's mental balance. 

That is all.

State Counsel

The decision whether there are special circumstances lies with the Judge and Assessors; S v Jaure 2001 (2) ZLR 393.

Going by the definition, it is so broad as to encompass any factor that may reduce the accused's moral blameworthiness. The psychological pressure seemed to be one of those factors which serves to reduce the accused's moral blameworthiness. The State concedes that that factor constitutes extenuating circumstances.

The accused was not immature at the time he committed the offence. The doubt of paternity cannot be considered as extenuating. Even if he doubted that the child was not his every human being has got a right to life.

There is only one factor….,.

That is all.

Reply

The accused would even visit his mother alone. That, on its own, counts as an extenuating circumstance.

By court

Although the accused himself did not want to open up about the psychological pressure from the relatives, especially his mother, evidence shows that there was pressure. The accused's mother never even saw the deceased until he died. The concession by the State is proper in my view. Psychological pressure from relatives caused the accused to do what he did. 

In respect of the sentence, counsel for the applicant submitted that the court a quo fell into grave error in sentencing the appellant to a term in excess of the mandatory minimum sentence. He relied, inter alia, on an order that I granted by consent, with CHEDA J concurring, in S v Goredema HCA 198/10. In that case, the trial court had convicted the appellant of stock theft and sentenced him to 13 years after failing to find special circumstances. 1 year was suspended on condition of good behaviour while 3 years was suspended on condition of restitution. As in casu, neither the complainant nor the prosecution had applied for an order for restitution in terms of section 368(1) of the Criminal Procedure and Evidence Act [Chapter 9:07]….,.

Looking at the penal provision in section 114 of the Criminal Law Code [Chapter 9:23], it is clear that the legislature wanted to impose a deterrant penalty for what it regarded as a prevalent crime. The penalty provided for is severe enough without the court having to add on to it. Granted, the sentencing court has a discretion to impose a sentence of up to 25 years but there is nothing to suggest that the legislature intended to accord the court the power to suspend part of that sentence where no special circumstances exist….,.

The appellant stole a single beast and not a herd.

He was treated as a first offender. In my view, the mandatory sentence of 9 years met the justice of the case. I would therefore dismiss the appeal against conviction but partially uphold the appeal against sentence…..,.

(1) …,.

The main thrust of the appellant's complaint was that the trial court had erred in restricting the inquiry on special circumstances to those peculiar to the commission of the offence, hence the inquiry was incomplete as there was no justification for limiting the special reasons to those peculiar to the commission of the offence only. The special reasons should have also related to the offender as was held in the case of R v Da Costa Silva 1956 (2) SA 173 (SR). 

The respondent's counsel conceded that point and the concession was proper, in my view.

The appellant also complained that the trial court should have fully explained the question of special reasons at an earlier stage before the sentencing stage as it was very inadequate to do so at the sentencing stage as stated in S v Dube and Another 1988 (2) ZLR 385 (SC).

The appropriate stage to canvass special circumstances/special reasons is immediately after the court has pronounced the verdict of guilty; before hearing the accused in mitigation. In casu, the trial court canvassed the special reasons with the appellant after hearing him in mitigation. 

That was undesirable.

Having said that, I would not go so far as to hold that the explanation given by the trial court was inadequate. The trial court recorded the summary explanation which the appellant appeared to understand and he told the court what he believed amounted to special reasons - albeit he was restricted to those relating to the commission of the offence only. Having held that the trial court had misdirected itself in restricting the special circumstances only to those peculiar to the commission of the offence, this court is at liberty to examine whether or not there are any special reasons peculiar to both the commission of the offence and the appellant himself. As stated in S v Chisiwa 1981 ZLR 666…, “special” connotes that reasons have to be out of the ordinary, either in their extent or their nature. A clear distinction must be drawn between special reasons and mitigatory features like good character or a particular hardship, which factors do not amount to special circumstances. The appellant, in this case, submitted that the trial court would have found the following factors to amount to special circumstances had it not restricted the horizon of special circumstances:-

(a) That he was driving the heavy vehicle as part of test driving it after he had repaired it;

(b) That he was on his way to mend the wheel of a tractor which had had a breakdown in the mine;

(c) That he was not involved in an accident;

(d) That he was not in the business of ferrying passengers;

(e) That he was driving the vehicle under instructions from his employer; and

(f) That there was no other driver at the said time.

I now turn to deal with the above factors seriatim.

A person test-drives a vehicle in order to ascertain whether the defect that was being corrected has been rectified. The test-driving is not prolonged and should not be combined with the execution of one's normal duties. In casu, the test-driving was combined with going to mend a wheel of the tractor which had a puncture. The appellant was also carrying mining machinery and three (3) passengers according to the facts that he admitted. So his suggestion that he was test driving the vehicle is misleading and false. The correct position is as he stated when addressing the court in mitigation that he was driving the vehicle as he went about the performance of his business. He drove the vehicle to go and mend the punctured wheel of a tractor at the mine. There is nothing out of the ordinary about that. Similarly, there is nothing out of the ordinary about the fact that he was not involved in an accident and was not in the business of carrying passengers.

The appellant's submission that he was driving the vehicle under instructions from his employer is also untenable as that seems to suggest that the employer employed a class four driver to drive class two vehicles. He agreed to do so well knowing that he was only a holder of a class four licence. That cannot be regarded as a special reason. It is, in fact, a factor in aggravation instead.

The appellant finally submitted that he had to drive the vehicle as there was no other driver at that particular time. The appellant has given conflicting reasons for driving the vehicle. He was obviously trying to pull wool over the court's eyes.

He further alleged that he had made a mistake of law in that he was not sure that as a holder of a class four driver's licence he was not sure that the vehicle he was driving was a heavy vehicle. The appellant was employed as a driver who ought to have known that a T35000 was a heavy vehicle.  One needed a class two licence to drive such vehicle. His belief was clearly unreasonable and so was his mistake of law that a holder of a class four licence is permitted, in law, to drive a class two motor vehicle. It is simply not true that he was not sure that he was committing an offence.

It was also submitted on behalf of the appellant that one of the three passengers he was carrying in the vehicle was going to end up at the hospital. The appellant was being dishonest about why he was driving the vehicle. The fact that the vehicle was going to end up at the hospital does not make it an emergency because he was firstly going to mend a puncture of a tractor. It is difficult to understand the relevance of the submission that the appellant was the only driver at that particular time when there was no emergency. The appellant was desperately clutching at straws.

Quite clearly, special reasons are non-existent in this matter.

EXTENUATION:

A finding on extenuation softens the rigidity of the imposition of capital punishment.

In this case, we accept this was a crime of passion. The deceased confided in Ruramisai Muzenda that the accused strongly believed that the pregnancy she was carrying did not belong to him and that this had created a serious matrimonial discord between the two. 

EXTENUATION

Extenuating circumstances, in the context of murder, are regarded as facts surrounding the commission of the crime of murder that work to mitigate or lessen it and assists the court in considering the non-imposition of the death penalty.

Both the accused's counsel and the State counsel concurred that the triangle love relationship involving the deceased, Jacob Rutanha and the accused qualified this case to be regarded as a crime of passion.

The accused was clearly obsessed by the deceased to the extent that he found it extremely difficult to imagine that the deceased was now in a new love relationship with Jacob Rutanha at a time the accused strongly believed there was still room for reconciliation with her as evidenced by his indication to the deceased's mother that he intended to bring his uncles to try and reconcile the two. That the accused desperately loved the deceased was demonstrated by his request to rope in a potential suitor, Jacob Rutanha, to assist in the desired reconciliation between the deceased and the accused. The prosecution was unable to refute the accused's allegation that he had been drinking before he committed this heinous murder.

It is trite that constructive intent on its own, or taken together with other factors, can constitute extenuating. 

There is evidence from Sidhube Muchochomi that the accused was drunk – his violent reaction to the deceased's utterance that the accused should leave the premises can only be explained by reference to the influence of the alcohol he had consumed. 

…, Comment is called for on one further aspect of this case. 

Even on the basis of the facts it found proved, the court a quo was clearly in error in finding that no extenuating circumstances existed.

On the question of extenuation, the court a quo found that the appellant, having been spurned by Lydia Mangenga, had decided to set on fire the hut in which the children were left sleeping. He was aware that Lydia Mangenga was staying with the two children and, when Lydia Mangenga escaped, he would have known that the two young children were inside the hut. 

It was the finding of the court a quo that the appellant set the hut on fire because his advances had been rejected and he decided to get even with Lydia Mangenga by burning the hut in which her two young children were sleeping.

The court a quo found nothing extenuating in the circumstances surrounding the commission of the offence. 

I agree with the court a quo.

This was a sadistic act, perpetrated on two innocent children by the appellant following the realisation that nothing, not even threats, were going to make Lydia Mangenga change her mind and have an affair with him. The two young children sustained severe burns as a result of which they died. Nigel, the younger of the two, was burnt beyond recognition.

Counsel for the appellant also conceded that this was a callous and gruesome murder and that he was unable to point to any circumstances of extenuation.

Further, on the facts found proved, it cannot be seriously contended that the appellant should have been found guilty of any other offence other than murder with actual intent or that circumstances of extenuation should have been found.

This was a vicious attack on a defenceless woman who was at a bus stop waiting for lifts to take milk to Bulawayo for sale. As the doctor points out in the post-mortem report, the deceased died a most painful death. The murder was committed to facilitate a robbery and consequent to a rape.

I am satisfied that there is no merit to this appeal.

Regarding the question of extenuation, the appellant submitted that the court a quo should have taken into account that this was a murder committed as a result of a quarrel between two persons who were involved in a love relationship. Further, that the court a quo had ignored evidence by the appellant suggesting severe mental and emotional stress caused by the death of his wife and child within 1 year preceding the offence as well as the fact that his hut had been burnt down prior to the death of his wife. The appellant, so it was alleged, also had the stress of responsibility of raising seven children.

It is trite that the onus is on the appellant to prove extenuating circumstances. 

None of these submissions that were raised by the appellant in the enquiry as to the existence of extenuating circumstances.

The finding of the court a quo, that there were no extenuating circumstances cannot therefore be faulted. Indeed, the appellant's legal practitioner, in the High Court, conceded that once the defence of provocation was rejected there were no other circumstances justifying a finding of extenuating circumstances.

The evidence of the appellant relating to the death of his wife and child, and his responsibility for care and upkeep of the seven surviving children, was repeated during the allocutus as mitigation.

Counsel for the appellant submitted that the court should, mero motu, have reopened the enquiry into extenuating circumstances.

These were clearly factors urged in mitigation. 

The appellant had been given the opportunity to establish extenuating circumstances and had not mentioned these facts. The court a quo cannot be faulted for not considering what was not placed before it.

In any event, we do not consider that the totality of mitigatory factors alleged, including the alleged emotional stress, would warrant a finding of extenuating circumstances.

Accordingly, the appeal lacks merit and is dismissed.

There are consequences for the court below's failure to have the psychiatrist and other witnesses called as well as the unquestioning manner in which it adopted the expert report…,. The consequences are that the possibility remains open of the appellant having been labouring under some form of diminished responsibility or “partial mental disorder or defect” as it is termed in the Criminal Law (Codification and Reform) Act [Cap 9:23].

“Partial mental disorder or defect” is defined in section 217 of the Criminal Law (Codification and Reform) Act [Cap 9:23] as “mental disorder or defect…, the effect of which is not such as to entirely deprive the person suffering from it of the capacity to appreciate the nature or lawfulness of his or her conduct or to act in accordance with such an appreciation.”

In terms of section 218 of the Criminal Law (Codification and Reform) Act [Cap 9:23] if, at the time a crime is committed, the capacity of the person committing it “is diminished on account of acute mental or emotional stress, or partial mental disorder or defect, such diminished responsibility shall not be a defence to the crime, but a court convicting such person shall take it into account when imposing sentence upon him or her for the crime.”

MCNALLY JA, in S v Taanorwa 1987 (1) ZLR 62 (SC), quoted BEADLE CJ, in S v Sulpisio A – 104 – 71…, thus:

“A man may not be certifiable under the Mental Disorder Act [now the Mental Health Act] and he may not be mentally disordered within the meaning of the criminal law, but nevertheless his mentality may be that of a man who suffers from a diminished sense of responsibility and such a condition, while it may not be relevant in considering verdict, may be very relevant indeed in determining whether or not, in a case such as this, a proper sentence should be the death sentence. If the court was satisfied that the appellant suffered from some unusual state of mind such as having a genuine persecution mania or that he was suffering from diminished sense of responsibility at the time when he committed the offence, this would be a most important factor to be taken into consideration in deciding what the appropriate sentence should be.”

In S v Mukombe 1991 (1) ZLR 138 (SC), where a psychiatric examination had not been carried out it was held as follows:

“Finally, it is pointed out that even if it is not possible to obtain meaningful background information on the appellant, and psychiatric evidence is inconclusive, the trial court may, nevertheless, come to the conclusion, on the stark facts as they presently exist, that the appellant's mental condition warrants a finding of diminished responsibility.”…,.

In my respectful view, the court in S v Mukombe 1991 (1) ZLR 138 (SC) may have gone too far in suggesting, as it did above, that where no meaningful background information on the appellant's mental health can be obtained, and, consequently, the psychiatric evidence is inconclusive, a finding of diminished responsibility may still be made on the mere “stark”, bizarre or inexplicable nature or execution of the offence.

In the present case, however, the difficulty perceived in S v Mukombe 1991 (1) ZLR 138 (SC) scenario does not arise. The bizarre facts in the present case led to the production of a psychiatric report which contained useful background information on the appellant's health. We have already noted that while the psychiatric report concluded that the appellant was legally responsible for his actions, the uncritical manner in which the report was adopted left the possibility open that the appellant might have been suffering from some form of diminished responsibility which affected his moral blameworthiness.

The applicant's complaint about the explanation given to the accused by the trial court in respect of special reasons is without any basis. 

One has to look and compare what the accused said in mitigation and what he put forward as special circumstances.

In mitigation, he said he was 24 years, married with one child, and was not employed. He was in the business of thatching people's huts in the rural areas and charges $30= per job. He had no savings and assets.

When addressing the court on special circumstances; after being told that those are circumstances out of the ordinary and were beyond mitigation, he had this to say;

He said although he was married he had not yet paid lobola for his wife. This is a serious matter when regard is had to the fact that he has a child with the wife. The baby is a premature. Because he has not paid any lobola, the wife's parents have threatened to take him to court to get their money for lobola. Another serious matter he raised was that his own parents are now on separation. As if that was not enough, his mother is of ill-health and depends on medication. His family is poor and has no livestock of any description. There is serious starvation at his home. He does piece jobs to support his family and siblings.

Unfortunately, what he gave to the court does not amount to special circumstances. These points only amount to mitigation factors. It is, however, not correct to suggest that the explanation was inadequate when the accused appears to have understood the explanation and attempted to differentiate between mitigation and special circumstances.

It is difficult to understand what the legal practitioner meant by “the necessary circumstances.” 

No conceivable special circumstance could have been found to exist in this matter. The accused and a colleague of his put cynide in water at points where elephants and other game used to drink. That was a very serious matter which was aggravated by the death of eight elephants which drank water from these points. The accused removed eight tusks from some of those elephants. This is one of the bad cases of this nature. 

On the question of extenuation, the court a quo came to the conclusion that as it was a murder committed in the course of a robbery there were no extenuating circumstances.

On appeal, the appellant's legal practitioner indicated that she had no meaningful submissions to make in respect of the finding by the court a quo. The unanimous view of the court is that the concession was properly made. In S v Matongo & Ors SC61-05 it is stated that:

“The law in this regard is clear. A murder committed in the course of a robbery attracts the death penalty unless there are weighty extenuating circumstances.”

There are no weighty extenuating circumstances in this case.

Turning to the question of extenuation in respect of the offence of murder with actual intent, the learned judge a quo should have expressly addressed this aspect during the course of the proceedings before him and in his judgment.

The record is absolutely silent in this regard.

Be that as it may, as was correctly submitted by both counsel on appeal, there are no discernible extenuating circumstances in this case and the court a quo cannot be faulted for imposing the death sentence on the evidence before it. There is nothing in the record to show any facts which might be relevant to extenuation, for example, immaturity, intoxication or provocation, which could have had a bearing on the appellant's state of mind in doing what he did and which were sufficiently appreciable to abate his moral blameworthiness. See in this regard the test applied in Chingaona v The State SC 105/2002. 

The sentence of death imposed with respect to the second Count of murder with actual intent must accordingly be upheld…,.

On extenuation, it was suggested before the court a quo, that the appellant felt that there was a long drawn dispute between himself and Tendai Machokoto.

It was submitted that he considered the piece of land as wealth and he felt that Tendai Machokoto was grabbing the piece of land from him. It was also argued that he did not have a dispute with the deceased but he blamed the whole group, and his moral blameworthiness in that respect could not be considered as being high.

The court a quo correctly dismissed the argument that the attitude of the adopted in the dispute with Tendai Machokoto was a factor that could be considered as reducing his moral blameworthiness in the commission of the offence. The court a quo found that there was no evidence that the appellant was under any psychological or moral stress that could be considered as extenuating circumstances. The court found that the appellant had no remorse and that even though he had no issue with the deceased, he attacked her brutally with a weapon whose only purpose is to kill whatever its wielder aims at.

This Court is of the unanimous view that that there was no misdirection on the part of the court a quo. It is clear from the facts that the appellant is a person who could not brook any challenge to his authority. The dispute which he created through the abuse of his mandate as a Headman had been settled by the Chief who is the higher authority to him but the evidence shows that he was not prepared to accept the intervention by the Chief. He chose to resolve the dispute in his own way which shows for the law and life.

This court is of the view that his position as Headman is a factor in aggravation as opposed to extenuation.

It had been suggested in the court a quo, which argument was not pursued by counsel for the appellant, on appeal, that the youthfulness of the appellant at the age of eighteen (18) years was an extenuating circumstance.

In dismissing the argument, the court a quo correctly observed that the facts surrounding the commission of the offence show an element of courage and wickedness on the part of the appellant wholly inconsistent with youthful behaviour. 

The court shares the same view.

There is no basis for interfering with the finding of the court a quo on the absence of extenuating circumstances.

No extenuating circumstances were found because the court a quo held that the appellant had not taken any alcohol on the day in question as he had suggested.

The evidence which was accepted by the court a quo was that the allegation by the appellant that he had been drinking marula wine with Farai Chemai at Chemai's home and with his father and stepmother at their own home was false. Farai Chemai gave evidence and denied that there was any wine-drinking at his home on the day in question. He said the appellant, the brother, and their father had not come to his home that day. He even went on to say that he does not drink alcohol. The evidence by the appellant's stepmother was also to the effect that there was no drinking of alcohol at their home that evening. She went on to say she does not drink alcohol.

It became clear from the evidence that the violent actions of the appellant were motivated by a desire to assert authority over his father and his siblings when he considered it to be challenged.

On appeal, counsel for the appellant was constrained to indicate that he was unable to advance any submissions in respect of extenuation. His concession cannot be faulted.

The court holds that there was no misdirection on the part of the court a quo in its ruling on extenuating circumstances.

The appellant was clearly intent on imposing his authority on his father and his siblings. He provoked an incident with his young sister and stabbed her with a knife. He thereafter proceeded to assault her with a sjambok in the presence of his father and stepmother and when his father remonstrated with him, he stabbed him several times with a lethal weapon. When his half brother attempted to stop the assault on their father, the appellant cut his stomach open with the same knife.

The knife, which was admitted into evidence, was a lethal weapon. Its blade was 14cm long and the cutting side was described by the learned judge in the court a quo as being very sharp. So was its tip.

Both deceased died soon after being stabbed.

This Court is of the unanimous view that the appeal is devoid of merit. 

It is dismissed.

The main ground of appeal advanced in the notice of appeal was that the Court ought to have found extenuating circumstances. 

This ground of appeal was not pursued at the hearing before us.

Counsel for the appellant advised the court that he was unable to fault the finding of the trial court that there are no extenuating circumstances in this matter. 

That, in our view, is a concession that was properly made.

Extenuating circumstances are any circumstances which reduce the moral blameworthiness of an accused person. The question as to the existence or otherwise of extenuating circumstances is essentially one for decision by the trial court and in the absence of a misdirection or irregularity this court will not interfere with a finding that no extenuating circumstances were present. 

In the instant case, the appellant could point us to no misdirection by the Court a quo which would justify our interference with the finding by the court a quo that no extenuating circumstances exist and indeed we find none. This was a brutal killing of an innocent man in the course of, or with intent to commit, a robbery.

It has been reiterated in this court that murder committed in the course of robbery will attract the death sentence.

Regarding the question of extenuating circumstances, counsel for the appellant was unable to make any meaningful submissions.

Indeed, he was constrained to concede there were no extenuating circumstances. 

It is now trite that a finding by the trial court that no extenuating circumstances exist will not be upset by this Court in the absence of a misdirection or irregularity. This was a murder of an innocent child for purposes which the appellant has chosen not to reveal. It seems to me that the court a quo took into account all the relevant factors in arriving at its conclusion.

On the question of sentence, counsel for the appellant sought to argue that the appellant was a youthful offender who had been misled by his accomplice.

Counsel for the appellant pursued this argument on the misapprehension that the appellant was younger than his accomplice. However, when it was pointed out to him by the court that the appellant was in fact older than his accomplice he abandoned his submission and conceded that the court a quo had correctly found that there were no extenuating circumstances.

The trial court was aware of the principle that youthfulness is an extenuating factor provided that the actions of the offender are consistent with immaturity.

In respect of the appellant, the court a quo stated the following:

“In this case, we have considered all the factors which may be regarded as extenuating and weighed them against the aggravating factors. Youthfulness, as already indicated, is the main extenuating issue. However, as against this factor, the assault was gruesome. It was an attack by two people on an old man aged 71 years, using metal rods that have been produced as exhibit 8 and as we have found there was no need to be so vicious in order to steal from this old man.

After killing the deceased, the accused buried him in a shallow grave and stole his property and loaded it into his vehicle and drove off. They covered the shallow grave with asbestos sheet in order to conceal their offence. We consider that the aggravating features in this case outweigh those that tend to reduce the accused's moral blameworthiness, and, in the circumstances, we find that extenuating circumstances do not exist.”

It is the view of the court that the learned judges' reasoning cannot be faulted.

It has been stated on numerous occasions that murder committed in the course of a robbery is likely to disentitle an offender of a finding of extenuating circumstances and attract the death penalty unless there are weighty extenuating circumstances.

In S v Sibanda 1992 (2) ZLR 438 (S)…, GUBBAY CJ said:

“Warnings have frequently been given that in the absence of weighty extenuating circumstances, a murder committed in the course of a robbery will attract the death penalty. This is because, as observed in S v Ndlovu SC34-85 (unreported):

'…, it is the duty of the courts to protect members of the public against this type of offence which has become disturbingly prevalent. People must feel that it is possible for them to enjoy the sanctity of their homes, to attend at their business premises, or to go abroad, without being subjected to unlawful interference and attack.'”

In this case, the deceased, who lived alone, was a harmless old man, aged seventy-one (71) years, who could have been subdued by the appellant and his accomplice without killing him. The assault on the deceased was vicious and totally unnecessary.

The court is satisfied that the trial court did not misdirect itself in finding that no extenuating circumstances existed in respect of the appellant