SC 35-14 - NCUBE v THE STATE

NICHOLAS     NCUBE

v

THE     STATE

 

THE SUPREME COURT OF ZIMBABWE

MALABA DCJ, GOWORA JA & GUVAVA JA

BULAWAYO, MAY 5 & 8 2014

M Petkar, for the appellant

W Mabhaudhi, for the respondent

          

GUVAVA JA: This is an automatic appeal against the conviction of murder with actual intent to kill and the sentence of death imposed upon the appellant.  The appellant was charged with the murder of Kelens Mudimba on 28 December 2012 along a footpath leading from DRC Empumalanga, Hwange to Chibondo Village, Hwange.  The appellant was convicted by the High Court of murder with actual intent to kill and sentenced to death.

Mr Petkar for the appellant indicated that he had no meaningful submissions to make in respect of the conviction. The concession was properly made. The facts of the case are these.  The appellant was twenty-five years at the time of the commission of the offence.  He resided at number 1459 DRC Hwange.  The deceased was his common law wife and was aged twenty-two years at the time she met her death.  On the day in question, at about 12.00 mid-day the appellant and the deceased had a misunderstanding as they were walking along a footpath from Chibondo Village to DRC Empumalanga, Hwange.  The deceased wanted to terminate their union.  An argument ensued and the appellant struck the deceased several times with stones on the side of her head.  He also stabbed her with a knife once on the left side of the chest.  The deceased died on the spot as a result of the assault.  The appellant phoned one Blessing Matshayani, who is married to the deceased’s sister.  He told Matshayani that he killed the deceased and indicated the place where the body could be found.  Mr Matshayani then telephoned the deceased’s aunt who in turn advised the deceased’s father.

The deceased’s father went to the scene and found the deceased lying in a pool of blood.  He made a report to the police who attended the scene.  John Mutyavaviri, a member of the Zimbabwe Republic Police observed that the deceased’s clothes were soaked with blood.  Her head was lying in a pool of blood.  She had a deep cut on the back of the head.  There were other deep cuts behind the right ear, a deep cut between the right ear and the right eye, and a deep cut on the forehead.  There was a stab wound on the left side of the chest.  The deceased’s head had been crushed and depressed inwards.  There were numerous blood stained stones near the deceased’s head.  He recovered a blood stained kitchen knife near the deceased’s body.  He conveyed the deceased’s body to Hwange Colliery Hospital mortuary.  On 31 December the deceased was taken to United Bulawayo Hospital for a post mortem examination.

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