NKOSIYABO     NDZOMBANE

v

THE     STATE

SUPREME COURT OF ZIMBABWE

ZIYAMBI JA, HLATSHWAYO JA & MAVANGIRA AJA.

BULAWAYO, JULY 28 & 30, 2014

P Mvundla, for the appellant

W Mabaudhi, for the respondent

HLATSHWAYO JA:           The appellant was convicted of murder with actual intent by the High Court sitting at Hwange on 5 July 2013.

It was not in dispute that on 26 April 2011 the appellant killed the deceased, his own brother, by decapitation with a sharpened axe.  What, however, remained unclear at the close of the defence case was what had motivated the appellant to commit such a gruesome murder.  Unconvinced by the appellant’s explanation for his conduct, the court ordered an examination of the appellant by two doctors in terms of the Mental Health Act [Cap 15:12].  The two doctors on 22 July 2011, three months after the commission of the offence, found some evidence of mental defect and recommended that the appellant be referred to a psychiatrist.  Some seven months later on 17 February 2012, the psychiatrist carried out her first of several assessments from which she concluded that the appellant was not labouring under any mental illness at the time of the commission of the offence.

Placing reliance on the findings of the psychiatrist, the trial court convicted the appellant of murder with actual intent and sentenced him to death after finding that there were no extenuating circumstances.  The appellant has now approached this Court on automatic appeal against both conviction and sentence.

The facts of this case are bizarre.  The two brothers – the deceased and the appellant – aged 31 and 27 years respectively at the time of the commission of the offence had a disagreement over the sharing of groundnuts with the deceased claiming that the appellant had taken a greater portion of the nuts.  The deceased then proceeded to chastise the appellant with a switch as if he was a child.  The appellant says that this humiliating treatment infuriated him.  Nonetheless, he carried on with the day’s task of herding cattle with the events of the morning apparently forgotten.  However, upon seeing his brother in the evening, the appellant claims that his anger was reignited.  After they had retired for the night, the appellant woke up, sharpened an axe and decapitated the deceased in his sleep.

The only witness who was called by the State, Nobantu Mabhena, aunt to both deceased and appellant, maintained that the brothers had never fought, not even on the fateful day, and generally lived peacefully together.  She could not say that the appellant was a violent person although she speculated that he could have acquired some violent streak from his stay in South Africa.

This apparently motiveless, odd and bizarre murder should have alerted the defence counsel, prosecution  and the court – but more so the defence counsel – to the possibilities of “mental or emotional fragility” on the part of the appellant as was observed in S v Mukombe 1991 (1) ZLR 138 (SC) p. 139.  Commendably, the court a quo did institute the procedures for the mental examination of the appellant, but the final consideration of the psychiatric report still left a lot to be desired as will be shown below.  However, the defence counsel woefully failed to heed the clanging alarm bells.  The defence counsel should have interviewed “the appellant’s family, friends, co-workers and former employers, in an attempt to discover whether [the appellant] had any history of strange behaviour,” as was said in Mukombe (supra).