MICHAEL GOODLUCK NLEYA
SUPREME COURT OF ZIMBABWE
MALABA DCJ, GOWORA JA & GUVAVA JA
BULAWAYO, MAY 5, 2014
C. Mudenda, for the appellant
A. Munyeriwa, for the respondent
GOWORA JA: The appellant was charged with murder, the allegation being that on 8 October 2010, he unlawfully and intentionally killed Blessed Msebele a 9 year old boy in a bushy area in the Mnyamana area in Plumtree. He pleaded not guilty to the charge.
At the end of the trial he was found guilty of murder with actual intent. No extenuating circumstances were found and accordingly the trial court sentenced him to death. He has appealed against both conviction and sentence.
The essential facts in the case are these. In 2004 Sarah Msebele (Sarah), the mother of the deceased met the appellant in Ndolwane area in Bulilima. She was then employed as a temporary teacher. They fell in love and commenced a relationship. In 2006 the appellant persuaded her to leave employment and join him in South Africa. She agreed and left her employment and started living with him.
In October 2006, on their way to South Africa, the appellant was arrested by the South African authorities at the Beitbridge Border Post on allegations of armed robbery committed in South Africa. He was tried and sentenced to a lengthy term of imprisonment. At the time Sarah was pregnant with appellant’s child. She subsequently gave birth to a son in 2007 but the child died two months after birth.
After the death of the child Sarah moved out of the house that she shared with the appellant and got married to another man. The appellant was incensed by what he considered to be her betrayal. He started writing letters to Sarah, full of vitriolic language from Leeuwkop Prison. During the murder trial, Sarah produced a total of nine letters which the appellant wrote to her vowing to punish her for her perceived betrayal. The appellant also accused her of having killed his child in order to enter into the new relationship. In one of the letters he threatened to harm her new husband. He also threatened to harm Sarah’s mother whom he accused of using his money and influencing Sarah.
On 1 September 2010, the appellant was released from prison. On 8 October 2010, the appellant went to Butshe Business Centre in the Bulilima District where Phephelani Dube, Sarah’s mother has a shop. He was wearing a face mask. The appellant proceeded to the home of Phephelani Dube. He smashed the windows of the bedroom where Phephelani Dube was sleeping with three of her grandchildren one of whom was the deceased. He used a metal rod to strike her on the head demanding money. She gave him ZAR 600 and BWP 300. She was holding on to the door in an effort to prevent him from entering the room. He continued to strike her demanding a cell phone. She gave him the cell phone. He forced his way into the bedroom and called Loveness who is Sarah’s younger sister to come out of the room with him. Loveness complied and followed him outside. He told her to give him a cell phone if she wanted to save her life. She gave him two cell phones one of which he took and smashed on the ground. Shortly thereafter they both returned to the bedroom. The appellant struck Phephelani on her legs causing her to fall. She lost consciousness and sustained a broken leg as a result of the assault.