ZIYAMBI JA: The appellant was convicted by the High Court
sitting at Hwange of murder with actual intent and sentenced to death.
It was alleged that
on 14 April 2006 at about 7.30a.m. he struck Kwanele Ndlovu on the head with a
log and an axe resulting in her death. The deceased was aged 21 years and
the appellant 39 years at the time of the offence.
The facts, as found
by the court a quo, are that the appellant and the deceased had been
lovers and the relationship had either been terminated by the deceased or was
frosty. On the day in question, the appellant arrived at the deceased's
homestead intending to persuade her to revive the relationship but was
snubbed. The appellant did not take kindly to this. He went back to
the gate and picked up an axe which he had left there saying: “today you will
talk”. He then returned to the hut where the deceased was, forcibly
opened the hut and entered it.
Realising that a
dangerous situation had arisen, the deceased grabbed the axe and grappled with
the appellant for it assisted by her younger sister Senzeni.
In the course of the
struggle, the appellant pulled the deceased outside where he picked up a log
with which he struck the deceased on the head causing her to fall on the ground.
As she lay on the ground, the appellant picked up the axe and struck her once
with it at the base of her skull resulting in her death.
The Post mortem
examination revealed that the deceased sustained an occipital fracture with
brain tissue oozing and that the cervical cord had been severed. The
cause of death was found to be fractured base of skull.
The court a quo
rejected the defence of provocation raised by the appellant's claim that he had
been insulted by the deceased to the effect that he, the appellant wanted to
infect her with the AIDs virus and that she had referred to his mother's
private parts.
In his grounds of
appeal the appellant has submitted that the court erred in returning a verdict
of murder with actual intent. He submitted that the evidence showed it was the
first and not the subsequent blow which caused the deceased's death; that
the appellant's intention in striking the first blow was to disarm, not to kill
the deceased; and that the court ought to have returned a verdict of murder
with constructive intent.
We find no
misdirection by the court a quo in its finding that death was caused
by the second blow inflicted at the base of the skull with the axe and which
resulted in a fracture - a fact confirmed by the post-mortem report.
In the circumstances
we find no basis upon which the findings of the court a quo can be
impugned. The appeal against conviction for murder with actual intent
must fail.
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 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.
GARWE JA:
I agree
NDOU AJA:
I agree
Coghlan & Welsh, appellant's legal practitioners
The Attorney General's Office,
respondent's legal practitioners
