ZACHARIA AMOS SIMANGO
THE SUPREME COURT OF ZIMBABWE
MALABA DCJ, GOWORA JA & GUVAVA JA
BULAWAYO, MAY 5 & 8, 2014
L Ncube, for the appellant
W Mabhaudh, for the respondent
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.