SUPREME COURT OF ZIMBABWE
MALABA DCJ, GOWORA JA & HLATSHWAYO JA.
BULAWAYO, NOVEMBER 26 & 28, 2013
Mrs J Magosvongwe, for the appellant
Ms S Ndlovu, for the respondent
HLATSHWAYO JA: The appellant was convicted by the High Court sitting at Bulawayo on 21 July 2005 of murder with actual intent as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [Cap 9:23] and sentenced to death after the court found no extenuating circumstances.
No notice of appeal was filed in this matter on behalf of the appellant, only heads of argument. However, because there is an automatic right of appeal against the death sentence, it shall be assumed that the appellant herein is appealing against both conviction and sentence and that the ground of appeal are related to his defense outline and other submissions made in the course of the trial and sentence. In other words, his appeal is a challenge of the findings of the court a quo with respect to both conviction and sentence.
Mrs Magosvongwe in the heads of argument filed on behalf of the appellant, correctly conceded and as shall be shown below, that there were no meaningful submissions that could be made against either conviction or sentence and that both the conviction of murder with actual intent and the sentence of death were properly returned by the court a quo.
The facts which are common cause are that the appellant who was twenty-three (23) years old at the time of the commission of the offence was employed as a gardener by the deceased, Mr John Jenks, a male adult who was seventy (70) years old at the time of his death. They both stayed at House Number 3, 21 Avenue, Famona, Bulawayo, the appellant living at the worker’s quarters while the deceased stayed in the main house. On 9 November 2002 the appellant struck the deceased on the back of his head with an axe, killing him instantly. The appellant then dug a shallow grave at the back of the house in which he buried the deceased’s body. On 9 and 13 November 2002 the appellant sold the deceased’s household property, namely a 12 cubic feet Imperial refrigerator and a display cabinet, representing himself as the legal owner thereof. On 19 November 2002 the appellant was arrested in connection with the death of the deceased and he indicated to the police where he had buried the body of the deceased. The body of the deceased was exhumed and taken for a post mortem examination which showed that the cause of death was a compound comminuted skull fracture as a result of assault.
The appellant was charged with the offence of murder, convicted and sentenced to death as already pointed out.