- NJABULO TSHUMA (2) VUSA MUGOBO NDLOVU
v
THE STATE
SUPREME COURT OF ZIMBABWE
MALABA DCJ, GOWORA JA & GUVAVA JA
BULAWAYO, MAY 5 & 8, 2014
N Siphuma, for the first appellant
S Shenje, for the second appellant
T Hove, for the respondent
MALABA DCJ: On 19 March 2013 the appellants were found guilty of the murder of Timothy Mugobo with actual intent to kill him. The High Court found no extenuating circumstances that reduced the appellant’s degree of moral blameworthiness and sentenced them to death. The appeal to this court against both conviction and sentence of death is by operation of the law automatic.
Mr Siphuma for the first appellant indicated that he had no meaningful submissions to make against conviction and sentence. He indicated that the facts surrounding the commission of the offence were largely common cause. They supported the decision of the court a quo on conviction and sentence. Mr Shenje for the second appellant had suggested in the heads of argument that the appellants acted out of provocation because the deceased had set their properties on fire. During the hearing he abandoned the submission and conceded that the facts found by the High Court supported the decision that the appellants committed murder with actual intent to kill.
The facts are common cause. The deceased was the elder brother to the second appellant. The first appellant is the second appellant’s nephew. He has his own homestead near that of the second appellant’s parents. Sometime in 2008 the deceased set on fire the first appellant’s hut. He also burnt a hut at his grand parents’ homestead which had the second appellant’s movable property. The deceased was convicted of arson and sentenced to four years imprisonment. He came out of prison on 16 July 2012.
On 17 July 2012 people gathered at the second appellant’s father’s homestead for a traditional ceremony. The deceased arrived at the homestead. A few minutes later the first appellant also arrived at the homestead. The actual ritual took place at about 8.30a.m. After the ritual, the deceased left the homestead. As the deceased was a distance from the homestead, the appellants started running after him. They were armed with axes.
The first appellant was armed with an axe, the blade of which was 20cm long and 10cm wide. The length of the handle was 66cm whilst the whole axe weighed 1.3kg. The second appellant was armed with an axe, the blade of which was 13.5cm long and 5cm wide. The length of the handle was 40cm. The whole axe weighed 360 grams.
The appellants were seen by the first appellant’s mother running after the deceased. She alerted Siambule Ndebele who followed them. Siambule met the appellants on the way. The first appellant threw his axe away. Siambule did not talk to the appellants. He proceeded in the direction they had come from and found the deceased lying dead in a pool of blood.
