SC 37-14 - MUTAWO v THE STATE

CLOUDIUS     MUTAWO

v

THE     STATE

 

 

SUPREME COURT OF ZIMBABWE

MALABA DCJ, GOWORA JA & GUVAVA JA

BULAWAYO, MAY 5 & 8, 2014

S Mguni, for the appellant

S Ndlovu, for the respondent

 

MALABA DCJ: On 29 September 2004, the High Court found the appellant guilty of murder with actual intent to kill.  The court a quo did not find extenuating circumstances and sentenced the appellant to death.  The appeal against conviction and sentence is by operation of law automatic.

The legal practitioner who represented the appellant at the trial submitted that he could not advance any facts as extenuating the appellant’s moral blameworthiness.  Mr Mguni who represented the appellant on appeal also indicated that he could not advance argument on facts which could be said to have extenuated the appellant’s moral blameworthiness.

The facts on which the High Court found the appellant guilty of murder with actual intent to kill and sentenced him to death are common cause.

The appellant was aged 19 years at the time of the commission of the offence.   The deceased was his father.  He was aged 71 years.  They lived together at Maushe village under Chief Njelele in Gokwe.

The appellant knew that his father had sold a beast belonging to his aunt for Z$14 000.  He knew that on 3 November 2001 the deceased would leave home at 0100 hours to catch a bus to Bulawayo to deliver the money to the owner of the beast.

The deceased left his homestead at 0100 hours to walk 15km to the bus stop.  Little did the deceased know that the appellant was following him as he walked along the footpath that night.

The appellant had decided to attack the deceased and rob him of the money he had on him.  He armed himself with an axe and stalked his father for three kilometers before he pounced on him and struck a severe blow with the axe on the centre (parietal region) of the head.  The deceased fell to the ground and the appellant delivered further blows on the deceased’s head.

When the deceased was rendered unconscious, the appellant searched his pocket and took Z$5 400 before disappearing into the bush.  The appellant hid the axe in the bush.  The axe weighed 1.350kg.  Its blade was 12.5cm long and 8cm wide.  When he got home he hid the money in the grass thatch in his bedroom.

The deceased did not die on the spot where the appellant attacked him.  He remained there spot until 11a.m. when he was found by two young girls who were on their way to the bus stop.  The deceased died at his home that afternoon.  He had been taken there in a scotch cart by his brother.

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