GOWORA
JA: The
appellant, his mother-in-law and his wife were charged with murder,
it being alleged that on 7 February 2003 they unlawfully and
intentionally killed Ndakaziva Mapako at Arda Ingwizi Estate,
Plumtree.
They
pleaded not guilty but after a lengthy trial the appellant was
convicted of murder with actual intent to kill.
The
other two were found not guilty and acquitted.
The
trial court was unable to find extenuating circumstances. The
appellant was sentenced to death.
This
is an automatic appeal against both conviction and sentence.
The
salient facts of the matter are the following:
The
appellant's in-laws reside in Chiredzi. Shortly before the
occurrence of the events surrounding the murder of the deceased, the
appellant went to visit his in-laws. He told them that he could find
employment for his father-in-law and requested the latter to
accompany him to Arda Ingwizi Estates. The father-in-law declined the
offer. The appellant was however able to persuade his mother-in-law
to go to Ingwizi with him on the pretext that he was in a position to
provide them with maize.
On
6 February 2003, the appellant and his mother-in-law, Mhlaba Hurudza
were at Plumtree bus terminus intending to board transport to Arda
Ingwizi Estates where the appellant was employed and resided. The
deceased, who was in the vicinity, was heard enquiring about green
mealies for purchase and resale. The appellant indicated that he
could provide a source for the mealies and suggested that she come
with them to his homestead. The deceased who had a baby strapped on
her back accepted the appellant's offer. She boarded the same bus
as the appellant and his mother-in-law.
When
they alighted at Bhulu bus stop, the appellant indicated that he
wished to remain behind and gave them directions to his homestead.
This was despite the fact that neither the deceased nor the
mother-in-law knew the way to the compound.
They
got lost and were assisted by a man who advised them that the
appellant had fled the compound after being accused of theft. He took
them to the appellant's homestead where they found his wife. The
appellant did not make an appearance. They retired to bed in the same
room.
Around
midnight, the appellant came and knocked at the door to the hut in
which they were sleeping. He indicated that the deceased should
accompany him to the fields so that he could give her the mealies.
She got up and left with the appellant. She took her baby with her.
She
did not return to the compound.
At
4am the appellant returned to his homestead. He told his family that
he had to flee the area as he was wanted for theft. He gave his wife
Z$500 and fled leaving his wife and her mother at the homestead.
Later
that same morning the appellant's wife and the mother-in-law learnt
that the deceased had been found dead in the fields. Her child was
found crying near the body of the deceased. The child was holding a
piece of bread in one hand.
The
pathologist who examined the body of the deceased compiled a report.
The body was in early stages of decomposition. An external
examination revealed a stab wound on the left ear. The internal
examination revealed fractures to the skull in the left occipital
region and also the temporal region. There was massive subarachnoid
haemorrhage of the brain. The cause of death was recorded as
subarachnoid haemorrhage, multiple skull fractures; and assault.
The
post mortem examination results revealed wounds consistent with
having been caused by a heavy sharp object.
On
these facts the trail court found the appellant guilty of murder with
actual intent to kill.
In
well written heads of argument, Mr Ncube,
counsel for the appellant conceded that the conviction was properly
arrived at.
In
our view the concession is proper.
The
evidence against the appellant was overwhelming.
The
evidence of the appellant's wife and mother-in-law provided a link
to the appellant as the perpetrator of the heinous crime.
The
appellant lured the deceased to his homestead on the pretext that he
was able to find her a source for green mealies. In the early hours
of the morning he lured her to the field and she was subsequently
found dead.
He
was the last person to be in her company.
Shortly
after luring her to the fields he fled from the area after an attempt
to remove his family from the same area. In the morning that he left
he gave his wife Z$500. This was despite the fact that he was not
employed and had no visible means of raising funds.
The
deceased had come with funds to buy mealies.
After
his arrest the appellant made indications to the police leading to
the recovery of a pair of blood stained trousers. The blood on the
trousers was tested and found to belong to group type B which was
consistent with the blood group of the deceased.
The
blood did not belong to the appellant.
It
was submitted on behalf of the State that the court a
quo
did not err in its assessment of the circumstantial evidence adduced
against the appellant. The requirements for placing reliance on
circumstantial evidence were met. In assessing the evidence the court
a
quo
made the following remarks:
“We
accept that there was no direct evidence adduced in this Court
concerning the death of the deceased. The court had to rely on
circumstantial evidence. The law on circumstantial evidence was
correctly summed up by WATERMEYER JA in the much celebrated case of R
v Blom
1939 AD 188 at 202 and 203 when the learned judge referred to 'two
cardinal rules of logic' which govern the use of circumstantial
evidence in a criminal trial:
(1)
the inference sought to be drawn must be consistent with all the
proven facts….
(2)
the proved facts should be such that they exclude every possible
inference from them save the one to be drawn….
The
proved facts in this case are that contrary to his denials, the
accused 2 (appellant herein) in the company of accused 1 met the
deceased at Plumtree Bus Terminus on 6 February 2003. Accused 2 was a
total stranger to the deceased and offered to show the deceased where
green mealies were being sold.
Accused
2 and accused 1 together with the deceased boarded transport to
Ingwizi Estate and disembarked at Bhulu bus stop where the deceased
and accused 1 were subsequently escorted home by accused 2's
homeboy one Obvious Mutale.
During
the middle of the same night or in the early hours of the 7th
February 2003, the accused 2 knocked at the door to his home and told
accused 3 to awake the deceased so that he would go and sell her
green mealies.
The
following morning the deceased was found dead and her child was seen
wandering about close to the deceased's body.
The
accused 2 on gathering that the police were making enquiries about
the demise of the deceased gave accused 3 Z$500 (Zim dollars) and
tried to induce her and accused 1 to immediately depart for their
home area, despite him not having secured dry maize for the accused
1, the sole reason why he had travelled with her from Chiredzi.
The
only reasonable conclusion we have unanimously arrived at given this
scenario is the accused 2 murdered the deceased to obtain money from
her which he knew she had, and which he desperately required and that
given the cause of death as captured in exhibit one, the accused 2
must have intended the death of the deceased.”
It
is our view that the court a
quo
correctly applied the principles of law enunciated in R
v Blom (supra)
on circumstantial evidence and that the inferences that the court
came to were consistent with the proven facts. The reasoning of the
court cannot be faulted in any manner.
The
conviction is unassailable.
As
regards sentence, the court found that there were no extenuating
circumstances in the commission of the murder. Mr Ncube
was unable to advance any meaningful submissions with regard to
extenuation.
He
was correct.
Before
the trial court counsel for the appellant was unable to advance any
argument on extenuation.
The
appellant who was unemployed and was a fugitive from justice after
being accused of theft hatched a scheme to obtain money from the
deceased. He then lured her to Ingwizi. He had no means of providing
her with mealies because he did not have any. He then lured her to
the bush at night and killed her in a most brutal manner. The post
mortem report talks of the injuries sustained by the deceased as
being consistent with a heavy sharp object. The deceased's baby was
abandoned in the bush at night and was found crying near the dead
body of its mother.
Apart
from the viciousness of the murder itself there is the fact that the
motive was to rob the victim.
It
is trite that in the absence of weighty mitigating circumstances,
murder committed in the course of robbery will attract the death
sentence. In S
v Sibanda
1992 (2) ZLR 438 (S) GUBBAY CJ stated:
“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.”
The
learned trial judge found no extenuating circumstances and
accordingly imposed the ultimate penalty. That decision cannot be
faulted.
Accordingly,
the appeal is dismissed.
MALABA
DCJ:
I agree
GUVAVA
JA:
I agree
James,
Moyo-Majwabu and Nyoni,
appellant's legal practitioners
The
National Prosecuting Authority,
respondent's legal practitioners
1. At p443F-H
