SUPREME COURT OF ZIMBABWE
CHIDYAUSIKU CJ, GOWORA JA & MUTEMA AJA
BULAWAYO, JULY 28, 2014 & MARCH 30, 2015
S Chamunorwa, for the appellant
T Makoni, for the respondent
MUTEMA AJA: The appellant was arraigned before the High Court sitting at Gweru circuit on 3 November 2004 charged with murder. He was found guilty of murder with actual intent. No extenuating circumstances were found and consequently the court a quo sentenced the appellant to death. The appeal is against both conviction and sentence. After hearing argument by both parties we reserved judgment. Herewith is the judgment.
The appellant was 27 years old at the time of commission of the alleged offence, while the deceased was aged 44 years old at the time he met his demise. In the early morning of 2 January 2002 the deceased’s son, one Adam Gasura aged 10 years old, was herding cattle when a cow ran through the appellant’s crop field to go to a nearby pool to drink water. Adam said his cow did not graze the appellant’s crops but the appellant alleged that it did graze his cotton and groundnut crop. However, the evidence of the investigating officer, Victor Ngoni, who visited the appellant’s field with the appellant’s brother, Boyson Machena, Constable Kuzipha and the kraal head Mutemarungo, was that he observed cotton plants about 6-7cm in height and no crops were grazed at all. All that was seen was the spoor of one beast near a pool of water. His evidence on this issue was clearly credible. He had no motive to lie against the appellant whose injuries on the neck and finger, which he said were caused by the deceased, he did corroborate.
Following the straying of the cow the appellant approached Adam holding a catapult and Adam ran home leaving the herd. The appellant drove the herd of cattle to the deceased’s homestead where he told Adam’s elder brother Paul about the cattle incident and stated that he would come back later and discuss the matter with the deceased. Paul then followed the deceased to the field and appraised him about the matter.
At about 1830 hours on the same day the deceased returned home alone and shortly thereafter the appellant arrived at the homestead. The appellant said he met the deceased at the shops and they went to the deceased’s homestead together. It is not known why the appellant denied that the two of them arrived at the homestead separately. Whether they arrived together or not is of no moment but from the evidence of Lucia Gasura, Adam and Erica Bvutiwe, which we accept, coupled with the appellant’s earlier promise to return later to see the deceased in connection with the issue, it is not difficult to find that the deceased arrived alone first.
It is common cause that the appellant was offered something to sit on and greetings were exchanged between the two. It does not matter whether the appellant was offered a stool or wheelbarrow to sit on. What transpired during the discourse that ensued is hotly contested. Adam said the appellant stood up during the discourse, which he did not catch, and punched the deceased and the two grappled and both fell down, following which the deceased got up saying he had been stabbed. Lucia Gasura said the appellant accused the deceased of turning his fields into a grazing area which the deceased disputed, laying blame on the children. The appellant then said something to this effect: “What I want to tell you is that either you move from this area or I will have to move away because of your cattle”. Whereupon the deceased said: “Uncle, are you here to discuss the issue of cattle having destroyed your crops or you are here for a fight?” The appellant then said: “I can do whatever I want to do to you” and he stood up and the deceased followed suit and exchanged some words. Then the appellant said: “I will kill you” and he punched the deceased. The two then grappled and fell down with the deceased on top. The deceased’s wife went to the two, telling them to stop fighting. The deceased got up and the appellant got up also and ran away. The deceased moved towards the fowl run saying he had been stabbed. She held the deceased asking him where he had been stabbed and the two of them fell down and the deceased died on the spot.