Appeal No. 252/01
NYATHI v THE STATE
COURT OF ZIMBABWE
CJ, CHEDA JA & GWAUNZA AJA
JULY 25 & SEPTEMBER 9, 2002
for the appellant
for the respondent
When the appellant was charged with murder in the High Court, his
response was: I do not deny the charge. I am
charge. As is the practice in a murder trial, a plea of Not
Guilty was entered.
led showed that the appellant had been told by the deceased, who was
his former girlfriend, that she was no longer
interested in him and
that she had a new boyfriend.
On the day
in question, the appellant had packed his personal property and was
also seen sharpening an axe nearby. He later approached
deceased and started touching her and playing with her. The
deceased showed no interest in this and was shouting at him to
doing that. The appellant was heard to say: Oh! You say I
have got Aids. The appellant then left her and went to
had left the axe on the ground. He picked up the axe and, according
to the witness, without any further talk, struck the
deceased on the
head. The blow knocked the deceased to the ground. The appellant
struck a second blow with the axe. While she
was still on the
ground the appellant picked up a metal pipe and hit her on the head.
At that stage the witness left to go and
make a report. She said
the appellant and the deceased had been fighting for a week over the
Most of this
evidence is not disputed by the appellant. He confirms it in his
confirmed statement, but says his reason for the
attack on the
deceased was because he asked her to restore his virility as they had
separated, and her response was: That is
your problem, you will
have to deal with it yourself. He said this made him very angry
and he ended up taking an axe and striking
her on the head.
He was asked
to explain his allegation that when he met other women he had no
erection. It turned out that he had never tried to
intercourse with any other woman and this was therefore a false
allegation. Further to that, the witness, Sinini Moyo
(Sinini), did not hear the appellant saying the above to the
deceased. In his own evidence the appellant says Sinini was
on a stool by their side.
had angered him the appellant said it was because she had caused him
to be incapable of penal erection. Asked: Is
that all?, he
answered: Yes, that is all.
further under cross-examination, he said:
happens is that I do have an erection, but if I sleep with
other women I do have an erection but it is short-lived so that means
my erection will persist as long as I am having sexual intercourse
with the deceased, only with the deceased.
Later on he
said he did not try to have sexual intercourse with other women.
the end of the trial the court found him guilty of murder with actual
intent and sentenced him to death.
argued that there were extenuating circumstances and cited the case
S-139-87, wherein McNALLY JA said:
murder, more than any other crime, involves human passions whose
operation may give rise to circumstances of extenuation,
vitally important before a decision on extenuation is made that the
court has some impression of the motives and relationships
to the killing.
case no oral evidence had been led, only documentary evidence.
this case, evidence was led from the appellant himself and he was
given an opportunity to explain his reasons for the killing.
gave a reason which was false, as he later admitted that he had never
really tried to have sexual intercourse with another woman.
such, the suggestion that the murder had its origins in witchcraft or
use of supernatural powers, and that he believed that
was a witch who had by supernatural powers caused his lack of
penetration, is not true.
fact that she did not make a clear denial does not mean she was
admitting either, if this was ever said. However, the evidence
Sinini is that this was never said to the deceased.
fact that the appellant went to touch and play with the unwilling
deceased clearly shows that the appellant was bent on provoking
form of reaction from the deceased before he could attack her. Once
he got the opportunity, he took the axe and attacked her.
circumstances, the trial court was correct in finding that there were
no extenuating circumstances.
has no merit and it is therefore dismissed.
CJ: I agree.
AJA: I agree.