Pardon Mpofu v The State

### Preamble
Judgment No. SC 59 /20 1
Criminal Appeal No. SC 24/19
DISTRIBUTABLE (58)
1
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DISTRIBUTABLE	(58)

PARDON     MPOFU

v

THE     STATE

SUPREME COURT OF ZIMBABWE

GARWE JA, BHUNU JA & MAKONI JA

BULAWAYO:   MARCH, 23 & MARCH 27, 2020

T. Tavengwa, for the appellant

K. Ndhlovu, for the respondent

GARWE JA:

[1]	The appellant appeared before a High Court circuit at Hwange facing two counts of murder. After hearing evidence, the High Court found the appellant guilty of murder with actual intent. Both counsel involved in the trial then addressed the court on the question of extenuating circumstances. Having found that none existed, the court then imposed the ultimate sentence of death in respect of each count. The present appeal is against that determination.

FACTUAL BACKGROUND

[2]	The appellant was twenty one years and five months old at the time of the events leading to his prosecution on two counts of murder. The two deceased, Nhlanhla Dube and Pilate Moyo, were twenty one and twenty eight years old respectively at the time they met their deaths. All three were employed as herd boys at Paddock 14, Cold Storage Commission, Winter Block Ranch, Umguza.

[3]	On 5 October 2013 Nhlanhla Dube returned to the farm from Bulawayo where he had gone to collect his wages. On or about the same date, Pilate Moyo also proceeded to Bulawayo to collect his pay. He returned to the farm on 6 October 2013. It was common cause during the trial that on arrival at the farm he was in the company of the appellant.

[4]	On 14 October 2013 the farm manager of Paddock 14, Cold Storage Commission, Winter Block, one Ndabazeliwe Ncube came to the farm, acting on information received that there were no employees at the farm. It was during that visit that he discovered the decomposing bodies of the two deceased persons that had been dumped into a septic tank. He alerted the police who retrieved the bodies. The bodies were identified by one Anastacia Ndlovu, who had been Nhlanhla Dube`s girlfriend and Lawrain Tiyanani, wife to Pilate Moyo.

[5]	Following information received from Anastacia Ndlovu that the appellant had been seen wearing Nhlanhla Dube`s cap and holding his cellular phone, the police launched a manhunt for the appellant. They raided his neighbour`s homestead at Jumbika village, Lupane at about 3.00 am during which they apprehended the appellant. They also recovered property belonging to both deceased as well as property belonging to Anastacia Ndlovu and LawrainTiyanani. Following further investigations, a hoe handle and wooden knobkerrie were recovered through indications made by the appellant.

[6]	On examination of the remains of the two deceased during a post-mortem, the doctor found that Nhlanhla Dube had sustained a “fractured mandible with half of the right piece missing” as well as “a depressed skull fracture measuring 4 x 3 cm.” He concluded that death had resulted from head injury and blunt force trauma to the head. In the case of Pilate Moyo, the doctor found that he had sustained several injuries. These included a deformed left skull in the temporal region, a 2 x 1cm laceration on the left temporal region, multiple skull fractures and fractured temporal occipital, depressed skull fracture in the left parietal region measuring 6 x 4 cm and a fractured left maxilla bone. He concluded that Pilate Moyo had died of head injury as a result of blunt force trauma.

[7]	On his arrest, two warned and cautioned statements were recorded from the appellant. In respect of Nhlanhla Dube, the appellant stated that he had gone to the local business centre and had delayed coming back to work.  Nhlanhla Dube had then complained that he had had to do more work in the absence of the appellant. The two had then quarrelled and in the evening he (the appellant) had prepared dinner which Nhlanhla Dube had refused to eat alleging that the food had been laced with poison by the appellant. The following morning he had found Nhlanhla Dube sitting on the verandah holding an axe. He then went into the bedroom, took a cultivating hoe, removed the hoe and hit the deceased with the hoe handle on the neck “whilst he was unsuspecting”, killing him almost instantly. He had then proceeded to dump the body in the septic tank after which he closed the lid of the septic tank.

[8]	In respect of Pilate Moyo, the second deceased, he admitted returning to the farm in the company of the deceased. He later saw Pilate Moyo standing by the verandah wearing a pair of shorts. He (the appellant) had then picked up a knobkerrie and struck the deceased behind the ear. The deceased then fell down after which he had then dragged the body and thrown it into the septic tank. He admitted that Pilate Moyo had not wronged him in any way and that after killing him, he had proceeded to take the deceased`s belongings which included clothes, a blanket, three cellular phones, a satchel and $5.00 cash.

PROCEEDINGS BEFORE THE COURT A QUO

[9]	Before the court a quo, the appellant pleaded guilty to culpable homicide and not guilty to murder in respect of both counts. The plea to culpable homicide was not accepted by the State. In his defence outline, he told the court that Nhlanhla Dube had armed himself with an axe intending to strike him with it. He had then gone into his room, picked up a hoe handle and struck the deceased on the head in self defence. The deceased had then died a few minutes after the blow. In respect of Pilate Moyo, he told the court that after delivering the blow to Nhlanhla`s head, Pilate Moyo had then remonstrated with him asking him why he had done so. A fight had then ensued. In the process, Pilate Moyo armed himself with a log. The appellant picked up a knobkerrie and struck him once on the forehead and the latter died immediately. He had then proceeded to dump Pilate Moyo`s body into the same septic tank where he had earlier dumped the body of Nhlanhla Dube.

[10]	Three witnesses gave evidence for the prosecution whilst the evidence of the remaining State witnesses was admitted by consent. The appellant also gave evidence but did not call any witnesses. In his defence, the appellant told the court a quo that he struck Nhlanhla Dube because he had laced his food with poison. He had not actually seen the deceased do so but the deceased had always threatened that he was going to do so. In the case of Pilate Moyo he told the court that Pilate had neither uttered any words nor done anything to provoke him. He told the court that he had no reason to assault Pilate Moyo and that when he did so he “was now mad.” He admitted taking the two deceased`s property and being found in possession of that property. He denied, however, that he had killed the two deceased so that he could have access to their property. He admitted that he was aware that both deceased had returned from Bulawayo where they had gone to collect their wages. He also admitted taking a $5 note from Pilate Moyo`s trouser pocket after killing him. He also claimed, for the first time, that he had observed Nhlanhla Dube put poison into his food during the afternoon of the day he killed him.

[11]	The court a quo, in its judgment, concluded that the appellant had fared “dismally as a witness” and that he had been “economic with the truth.” The court found that the appellant was not under attack when he struck Nhlanhla Dube with a hoe handle. The court also found that the claim made in the defence outline that the two had fought resulting in the appellant taking a hoe handle and striking the deceased was untrue. The court also found that the appellant was not acting in self defence when he struck Pilate Moyo. The court noted that the money that had been paid as salaries to the two deceased was not recovered. It further found that the appellant had taken the deceased`s property after dumping their bodies into the septic tank and that the murders had been perpetrated so that the appellant could have access to the property of the deceased. The court concluded that the murders were premeditated and calculated. It therefore dismissed the claim by the appellant that he did not know what he was doing at the time. Consequently the court found the appellant guilty of murder with actual intent in respect of both counts.

[12]	The court a quo then asked both counsel to address it on the question of extenuating circumstances. Having considered those submissions, the court concluded that there were no such circumstances. Consequent to that finding, the court a quo then imposed the ultimate sentence of the death penalty in respect of each of the two counts of murder.

PROCEEDINGS BEFORE THIS COURT

[13]	In his notice of appeal the appellant does not impugn his conviction for murder with actual intent on both counts. Counsel for the appellant conceded that the conviction was proper and that there was no basis for impugning that determination by the court a quo. He further conceded that the attack upon the deceased was unprovoked, senseless and sudden. There was therefore no other reasonable conclusion that could have been arrived at other than that the appellant was guilty of murder with actual intent on both counts.

[14]	In respect of sentence however, the appellant submitted that he was twenty one years and five months old at the time of the murders. He was immature and such immaturity should have been taken into account. He urged the court to set aside the sentence of death and, in its place, impose a sentence of imprisonment. He suggested thirty five (35) years imprisonment on both counts.

[15]	The State, whilst accepting the concession by the appellant that his conviction on two counts of murder with actual intent had been properly made, submitted that the sentence imposed was irregular for the reason that it was based on a law that had become invalid following the coming into force of the 2013 Constitution and in particular, s 48(2) thereof. Counsel for the State submitted that the sentence should be quashed and the matter remitted to the trial court for the sentence to be considered afresh.

[16]	Counsel for the appellant conceded that the sentence imposed by the court a quo was indeed irregular and that it must be set aside. He further accepted the submission that the matter should be remitted to the court a quo for sentencing afresh.

WHETHER THE CONVICTION IS PROPER

[17]	Notwithstanding the concession by counsel for the appellant that the conviction was proper, it is necessary, in a case such as the present, for the court to be satisfied that indeed the conviction was proper. This is because a conviction for murder with actual intent may warrant capital punishment. For that reason, it is essential that the court be satisfied that indeed the appellant was correctly found guilty of murder with actual intent.

[18]	Having considered all the facts of the matter, I am satisfied that the appellant was properly convicted of murder with actual intent. It is common cause that he used a hoe handle and a knobkerrie to assault both deceased. In both cases the blows were aimed to the head, which is obviously a very sensitive and dangerous part of the body. Death in both cases must have occurred instantaneously. The appellant, in the court a quo, gave inconsistent versions on why he struck the deceased. In his warned and cautioned statement he stated that after he and Nhlanhla Dube had quarrelled over his delayed return to the farm, he had found Nhlanhla Dube sitting on the verandah holding an axe. The appellant had then quietly gone into the bedroom and taken a hoe handle with which he fatally struck Nhlanhla Dube on the head. He accepted that Nhlanhla Dube had not attacked him. In the case of Pilate Moyo he stated that the former was just standing near the verandah, unarmed, when he struck him. In his defence outline, he pleaded self defence, suggesting that the two deceased had armed themselves with an axe and a log respectively. Under cross examination, he almost completely disowned this version and stated that he struck Nhlanhla Dube because he had laced his food with poison.  In respect of Pilate Moyo he accepted that he had no reason to attack him. He then stated that he was unstable, or “mad” as he put it, at the time.

[19]	The court a quo found the appellant to be an untruthful witness. The court further found that the inconsistencies in his version of the events suggested that he was lying and that the real reason he attacked the deceased was because he knew that they had just received their wages and he had then killed them in order to take their property. The money that both had been paid in Bulawayo was never recovered.

[20]	The conclusion reached by the court a quo was, in my considered opinion, justified taking into account the entirety of the circumstances of the case. Having killed the deceased and after dumping the bodies in a septic tank, the appellant had then proceeded to take all their belongings, including cell phones, clothes and other items. He had then immediately absconded to his rural home with the items. Realising that he had killed the deceased and taken their property, he had then sought accommodation at a neighbour`s homestead. He was arrested there in the dead of the night and the stolen items were recovered.

[21]	I am satisfied that the court a quo was correct in finding that the appellant did not act in self defence and that, to the contrary, he had killed the two deceased in order to take over their property. The court a quo was also correct in rejecting the appellant`s claim that he was not compos mentis at the time. In the circumstances, the verdict of guilty of murder with actual intent is confirmed on both counts.

THE SENTENCE OF DEATH IMPOSED-WHETHER PROPER

[22]	The Constitution of Zimbabwe Amendment (No. 20) Act No. 1/ 2013 came into force on 22 May 2013. It provided in s 2 that any law inconsistent with it would be invalid to the extent of the inconsistency. In s 48, it further provided, inter alia, that a law may permit the death penalty to be imposed only on a person convicted of murder in circumstances of aggravation and that the law must permit the court a discretion whether or not to impose the penalty.

[23]	At the time that the appellant was sentenced on 9 July 2014, the new Constitution had come into force. However the law envisaged in terms of s 48 had not yet been enacted. The court a quo considered the question of extenuating circumstances pursuant to s 337 of the Criminal Procedure and Evidence Act [Chapter 9:07] which provided that if the court was of the opinion that there were extenuating circumstances  in the case the court could impose any other sentence other than the death penalty.

[24]	Quite clearly the provisions of s 337 of the Criminal Procedure and Evidence Act were in conflict with s 48(2) of the Constitution. Section 48(2) of the Constitution envisaged a law that would permit the death penalty to be imposed only in cases of murder committed in aggravating circumstances. The provisions of s 337 of the Criminal Procedure and Evidence Act were therefore invalid.

[25]	Sections 337 and 338 of the Criminal Procedure and Evidence Act were repealed and substituted by new sections which provided firstly, for the imposition of the death penalty in cases of murder committed in aggravating circumstances and secondly, a list of persons on whom the death penalty shall not be passed - see s 43 of the Criminal Procedure and Evidence Amendment Act No. 2/2016 which came into operation on 10 June 2016. The General Laws Amendment Act No. 3/2016 also repealed subs (2) and (3) of s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and substituted those subsections with new subsections that defined what constitutes aggravating circumstances.

[26]	In State v Samson Mutero SC 28/17, this Court was called upon to determine the propriety of the sentence of death imposed in circumstances similar to those of the present case. The appellant in that case had been sentenced on 30 January 2015 before the Criminal Procedure and Evidence Amendment Act had been promulgated. The Court found that:

“In the absence of the contemplated law therefore the trial court could not pass a sentence of death. To do so would be a violation of s 48(2).”

This Court further found that the sentence imposed before the promulgation of the contemplated law was invalid since it was passed outside the law.

[27]	The sentiments expressed in the Samson Mutero case, supra, apply to the circumstances of this case. When the court a quo considered the question of extenuating circumstances and, finding none, proceeded to impose the death sentence, the old s 337 of the Criminal Procedure and Evidence Act was now inconsistent with s 48(2) of the current Constitution. The sentence of death imposed was consequently passed outside the provisions of the Constitution and therefore invalid.

QUESTION OF SENTENCE TO BE REMITTED

[28]	In the circumstances, and, as accepted by both parties, the best course of action would be for the sentence of death imposed on 9 July 2014 to be set aside and an order made remitting the issue of sentence for consideration afresh before the court a quo.

DISPOSITION

[29]	The automatic right of appeal against conviction must fail for the reason that the findings by the court a quo were properly made, a position accepted by the appellant. However the sentence that was imposed pursuant to the conviction was invalid and must be set aside. The question of sentence must consequently be remitted to the court a quo for consideration afresh.

[30]	In the result, it is ordered as follows:

The appeal against conviction is dismissed.

The appeal against sentence is upheld and the sentence of death imposed by the court a quo on 9 July 2014 is set aside.

The matter is remitted to the court a quo for sentence to be determined de novo.

BHUNU JA		I agree

MAKONI JA		I agree

Mutuso, Taruvinga & Mhiribidi, appellant`s legal practitioners

National Prosecuting Authority, respondent`s legal practitioners