Judgment No. SC. 95/05
Appeal No. 228/05
MPOFU v THE STATE
COURT OF ZIMBABWE
JA, CHEDA AJA & BERE AJA
NOVEMBER 28, 2005 & MARCH 30, 2006
Nzarayapenga, for the appellant
Amon, for the respondent
MALABA JA: On 29 January
1996 the appellant was convicted by the High Court sitting in Gweru
of murder with actual intent
to kill and sentenced to death, no
extenuating circumstances having been found. He now appeals against
both conviction and sentence.
The legal practitioner representing
the appellant, however, indicated that he had no meaningful
submissions to make against the
judgment of the court a quo
on both conviction and sentence.
attitude of the appellants legal representative was, in my view,
proper, as the facts, which were common cause, lead to no
conclusion other than that reached by the court a quo.
appellant was married to the deceaseds mother, with whom he had
one child aged below one year at the time the deceased met
The deceased, who was aged three years, was the appellants
stepson. He had lived with the appellant for one week,
brought to them by his maternal grandmother. The appellant did not
want to live with the deceased at his home.
25 January 1992 the appellant told the deceaseds mother that
he wanted to take the deceased back to his grandmother.
that the deceased be taken back to her mother. She indicated that
she wanted to accompany the appellant the following
day after she had
washed and ironed the childs clothes. The appellant did not want
the deceaseds mother to accompany him
and the deceased. He told
her to remain behind.
following morning the deceaseds mother left the appellant with the
deceased and the other child whilst she went to the borehole
water. In her absence, the appellant took the deceased and walked
away with him, leaving the other child on its own.
the way the appellant took a stick and severely assaulted the
deceased with it on the head and other parts of the body. As
result of the severe assault the deceaseds forearms were
fractured. His head became swollen and he bled from the nose.
the deceased had died from the assault, the appellant took his
body to his sister-in-laws homestead. There was no-one at the
homestead. The appellant placed the deceaseds body in a kitchen
hut and covered it with a rug. The deceaseds body was found
one Betty Moyo the following day.
addition to the swollen head, bleeding from the nose and mouth and
fractured forearms, the deceased had incisions on the stomach
had been smeared with a black substance.
case was reported to the police on the third day of the deceaseds
death. By the time the police arrived the body had started
decompose. The post-mortem nonetheless confirmed that the right and
left humerus had been fractured and that the body showed
having been subjected to a severe assault.
trial of the appellant on a charge of murder commenced on 7 October
1992. After all the evidence had been led, defence
for an order that the appellant be examined by a psychiatrist for any
mental disorder in terms of s 27 of the
Mental Health Act,
No. 23 of 1992. The reason given for the application was that
the violent act perpetrated on the deceased
by the appellant appeared
the order by the court a quo,
the appellant was examined on two different occasions a year in 1993
and 1994 by a consultant psychiatrist at Mlondolozi Special
Institution. The psychiatric examination did not reveal any mental
disorder in the appellant. He had no history of mental illness.
The doctor concluded that the appellant was not mentally disordered
at the time he killed the deceased.
trial resumed on 29 January 1996. The learned Judge found that
the evidence adduced had established beyond reasonable
doubt that the
appellant had actual intent to kill the deceased. The facts taken
into account were the determination on the part
of the appellant to
remove the deceased from his mothers custody, ensuring that she
was not with him when he took the child away,
and the severity of the
assault perpetrated on the deceased. The learned Judge said:
There is no dispute that the
deceased was assaulted severely by the accused. There is no dispute
that he caused all these serious
injuries that were viewed on the
deceased. From his own admissions, he did not want this child there
anymore, despite the evidence
that the child had not been there for a
accused set off with the child simply to fulfil his plan, despite the
fact that the deceaseds mother had elected to go with
and the deceased the following day.
is, therefore, clear that the accused had a plan already, which he
wanted to carry out and that is why he decided to set off without
this evidence, we are satisfied that the accused had a clear
intention to kill the deceased, and he set off and carried out the
was no misdirection on the part of the learned Judge in arriving at
the finding of the fact of the appellants state of
mind at the
time he killed the deceased.
The appeal against conviction
sentence, the learned Judge held that there were no extenuating
circumstances for not imposing the mandatory sentence of death.
agree with the learned Judges finding that the aggravating
circumstances far outweighed the factors of mitigation, such that
there was nothing that reduced the appellants moral
blameworthiness. The deceased was an innocent child, whose sin was
that the appellants wife bore him. The deceaseds
death was premeditated and deliberately brought about by means of a
and brutal assault.
appeal against sentence must also fail.
the appeal is dismissed.
AJA: I agree.
AJA: I agree.