MALABA DCJ: On 7
July 2011 the High Court found the appellant guilty of the murder of Zenzo
Maphosa with actual intent to kill him. It sentenced him to death after
finding no extenuating circumstances. The appeal against conviction and
sentence is by operation of the law automatic. Mr Donga for the
appellant indicated that he had no meaningful submissions to make on both
conviction and sentence. The decision by Mr Donga that the court
a quo did not misdirect itself in returning the verdict of guilty of
murder with actual intent to kill and imposing the death sentence on the
appellant is supported by the facts.
It was common cause before the court a quo that on 7 June 2003 at 1830
hours the appellant struck the deceased with a log on the part of the head
between the right occipital and temporal regions. The blow felled the
deceased but the appellant went on to deliver two more blows on the head and a
further two on the body with the log. The deceased lay motionless as the
appellant assaulted him. The appellant stopped beating the deceased when
he saw Ephraim Khabo approaching him. He fled from the scene leaving the
deceased lying on the ground bleeding from the injuries on the head.
The deceased was later that evening admitted to the intensive care unit at
Mpilo Hospital in Bulawayo. He died in the intensive care unit on 7 July
2003. The post mortem examination revealed that the blows the appellant
delivered on the deceased's head with the log caused fractures of the skull in
the frontal, right occipital and temporal regions of the head. The
longest fracture was 5 cm. The fractures caused depression of the
brain. There was subdural haematoma of the parietal, frontal and temporal
brain. The cause of death was the subdural haematoma from the skull
fractures.
The appellant said he assaulted the deceased in self-defence. The issue
before the court a quo was whether the deceased was the
aggressor. The evidence on which the court a quo found the facts
on which it rejected the appellant's defence was to the effect that the
deceased was struck by the appellant from behind whilst running away.
The evidence was to the effect that at about 6pm on 7 June the deceased left a
local bottle store and joined his cousin Never Khabo going home. The two
met Langton Mpofu and Mloyiswa Sweswe who were going in the opposite
direction. They all resided in Kennilworth Village 5 in Inyathi and are
related. When the four stopped to greet each other, Mloyiswa who is a
son-in-law to Never, stood aside and held a conversation with the
deceased. Langton and Never stood a few metres away talking to each
other.
It so happened that the appellant had been walking about 20 metres in front of
Langton and Mloyiswa before they met Never and the deceased. The
appellant was a stranger in the village visiting Violet Tshuma. Never,
Langton, Mloyiswa and deceased met on the road near Violet Tshuma's
homestead.
The appellant went into Violet Tshuma's homestead. A few minutes later he
approached the deceased and asked for a cigarette. The deceased told the
appellant that he had no cigarette. The appellant said to the deceased:
“You Santana MDC member, I am a ZANU(PF) member – I will kill you today.”
“Santana” was the deceased's nickname. MDC and ZANU(PF) are different
political parties.
Soon after uttering the words the appellant picked bricks intending to throw
them at the deceased. Mloyiswa remonstrated with the appellant telling
him to be ashamed of threatening to assault an old man. The deceased was
aged 44 years. The appellant was aged 20 years. He took heed of
what Mloyiswa said and dropped the bricks. The appellant went to the
deceased and snatched his hat. He struck the deceased on the face with
the hat once before leaving the scene. He returned to Violet Tshuma's
homestead. The deceased did not react to the abuse he received from the
appellant. He was drunk.
After the appellant left the scene, Langton and Mloyiswa bade Never and the
deceased farewell and went their way. Never and the deceased walked
towards Never's homestead. Little did they know that the appellant was
watching their separation from Langton and Mloyiswa. When Never and the
deceased had walked about 50 metres the appellant pulled a log from a plate
rake at Violet Tshuma's homestead. He ran after the two armed with the
log.
Rebecca Mkandla was at her homestead next to that of Violet Tshuma. She
saw the appellant running towards Never and the deceased armed with the
log. Rebecca called out to the two warning them of the impending danger.
Never ran to her maternal uncle's homestead. The deceased ran towards
Rebecca's homestead with the appellant in hot pursuit. When the deceased
got to the homestead, the appellant struck him with the log on the right
occipital region of the head. He fell down. The appellant delivered
two more blows on the head rendering the deceased motionless.
As the appellant assaulted the deceased with the log, Rebecca was
screaming. Her screams attracted the attention of Ephraim who was in a
homestead nearby. He ran to the scene of the crime and found the
appellant striking the deceased on the head with the log. Ephraim is a
member of the special constabulary based at Kennilworth Police Base.
Upon seeing Ephraim approach, the appellant stopped the assault on the deceased
and ran away. He went through a space between strands of barbed wire
fence separating Rebecca and Violet's homesteads. Ephraim gave chase
until he caught hold of the appellant. A struggle ensued until Ephraim
dispossessed the appellant of the log. The appellant managed to make good
his escape. The log was 113cm long, 16.5cm thick and weighed 985grams.
The evidence of the appellant was to the effect that when he found Never,
Langton, Mloyiswa and the deceased standing on the road near Violet Tshuma's
homestead, one of the young men invited him to a traditional beer drink.
He said he told the young man he did not drink traditional beer. This
angered the deceased who asked who he thought he was to say he did not drink
traditional beer. The deceased pursued him as he moved away and hit him
on the back with a stone. He said he took a log and struck the deceased
five times on the head as he tried to pick more stones.
The appellant's defence outline contained allegations he made in the confirmed
warned and cautioned statement. When he gave evidence-in-chief the
appellant said that the deceased clapped him twice on the ear. He fell
down before getting up and running towards Rebecca's homestead. The
deceased chased after him until they got into the homestead. He took a log and
struck the deceased on the head felling him. The appellant said out of
anger he delivered two more blows on the deceased's head and another two on the
body whilst the deceased was on the ground.
There were good reasons why the court a quo accepted the version of
the events as narrated by the State witnesses. The appellant told the
court a quo that he was a staunch supporter of ZANU(PF) and could not
give up his membership of the political party for anything. The State
witnesses would not have known that he was a member of ZANU(PF) if he had not
uttered the words attributed to him. The appellant was a stranger in
Village 5. He had only been there for a week.
The young men who were in the company of the deceased at the time were Langton
and Mloyiswa. Whilst the appellant alleged that one of them invited him
to a traditional beer drink, they denied doing so. Mloyiswa remonstrated
with the appellant when he threatened to strike the deceased with bricks.
On the appellant's version of events there was no time when Never separated
from Langton and Mloyiswa. According to him, the events leading to the
fatal blow on the occipital region of the deceased's head, started with the
deceased asking him who he was to say he did not drink traditional beer.
The facts show, however, that at the time the appellant and the deceased ran to
Rebecca's homestead Langton and Mloyiswa had long left the scene.
The appellant did not mention in the warned and cautioned statement that the
deceased clapped him twice on the ear felling him. Rebecca was clear in
her evidence that it was the appellant who took the log from a plate rake at
Violet Tshuma's homestead and ran after Never and the deceased. She was
not involved in the conversation that took place between the appellant and the
deceased. Her attention was first drawn to the appellant and the deceased
running towards the homestead.
The evidence that the appellant was already armed with the log and was in hot
pursuit of the deceased was corroborated by the appellant's admission that he
struck the deceased with the log on the occipital regional of the head.
He could only be in a position to do so from behind the deceased.
The court a quo appreciated the law on murder with actual intent to
kill and correctly applied it to the facts it found proved by the evidence
presented by the State. S v Mugwanda 2002(1) ZLR 574(S).
On the question of sentence it had been suggested that the court should find
the age of the appellant to be an extenuating circumstance. The court a
quo was alive to the principle that youthfulness would ordinarily
constitute an extenuating circumstance provided the actions of the offender are
consistent with immaturity.
Miss Munyeriwa
argued that the appellant's conduct cannot be imputed to
youthfulness. She contended that the appellant's conduct could not be
excused on grounds of immaturity. Mr Donga agreed that
youthfulness could not save the appellant. He conceded that the appellant
intended to kill a political opponent and went on to accomplish his purpose.
The appellant armed himself with a dangerous weapon and relentlessly pursued
his victim until he struck him three times on the head with it. The
assault was brutal.
The moral blameworthiness of the appellant was aggravated by the fact that he
threatened to kill the deceased because he thought he belonged to another
political party.
In S v Muyambo 1980 ZLR 411 it was held that cases that involve
politically motivated violence must be dealt with severely. FIELSEND CJ
said:
“Firstly the public must be protected from unlawful violence and they must
feel that they are being given such protection.
Secondly the police who have a very difficult task must be shown that they
have the support of the courts. … for all these reasons sentences that will be
effectively deterrent must be imposed.”
In S v Ndlovu S-122-94 it was held that political beliefs cannot be
taken to be extenuation considering that people are free to hold different
views.
The learned Judge was alive to these principles. In passing sentence
he said:
“In a democracy people are free to belong to political parties of their
choices. It would be wrong to punish them for choosing to go to parties
of their choices. This type of behavior should not be tolerated in a
democratic society. Killing someone because he or she holds different
political beliefs cannot be an extenuating circumstance. Instead it would
suffocate democracy if it were to be allowed.”
Violent offences committed against other citizens simply because they belong to
a different political party should be viewed seriously by the courts. It
follows that where a person is killed for his or her political affiliation the
sentence imposed should reflect the inherent wickedness of the crime. The
sentence should not be viewed by right thinking members of society as a licence
for the infringement of the constitutionally guaranteed right of every citizen
to belong to a political party of his or her own choice.
Accordingly, the appeal against conviction and sentence is dismissed.
GOWORA JA: I
agree
GUVAVA JA:
I agree
Messrs Lazarus & Sarif, appellant's legal practitioners
The National Prosecuting Authority,
respondent's legal practitioners
