SUPREME COURT OF ZIMBABWE
MALABA DCJ, GOWORA JA & GUVAVA JA
BULAWAYO, MAY 5 & 8, 2014
M Donga, for the appellant
A Munyeriwa, for the respondent
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.