Dignity Masvimbo v The State

### Preamble
Judgment No. SC 51/21
Crim 1
inal Appeal No. SCB 83/19
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REPORTABLE:	(48)

DIGNITY MASVIMBO

vs

THE STATE

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, MATHONSI JA & KUDYA AJA

BULAWAYO 23 & 25 MARCH 2021

T. Tavengwa, for the applicant

K. Ndlovu, for the respondent

MATHONSI JA:	This is an automatic appeal against the sentence of death imposed on the appellant by the High Court on 31 January 2018 following his conviction of the crime of murder with actual intent.

The facts

The facts of the matter are generally common cause.  The 26-year-old appellant met the deceased person when she was 17 years old and impregnated her.  At the time that she met her death she was 22 years old.  They commenced cohabiting but separated in 2016 following a domestic dispute.  The deceased moved back to her parents’ home in Mkoba 14, Gweru with their child.

Efforts by the appellant to win her back yielded nothing because the deceased’s mother demanded that the appellant should pay lobola for the deceased before she could return to him.

On the morning of 26 April 2017 the appellant armed himself with an Okapi knife, fully dressed up including putting on a pair of overalls and left his home at Winery Compound, Greenvale, Gweru at 03:00 hours.  He walked a distance of 20 km to the deceased’s home in Mkoba 14.  Arriving there at about 05:00 hours, the appellant spotted the deceased’s mother leaving home heading for the market.

Upon observing the deceased’s mother the appellant pretended to be tying his shoe laces while concealing his face to prevent identification as the older woman passed by.  Thereafter the appellant entered the deceased’s house gaining entry unnoticed through an unlocked door.  The appellant sat on a sofa in the living room and immediately observed a ZTE cellphone belonging to the deceased on a charger.  He took possession of it.

The appellant was observed by Hamundide Mashayamombe, the deceased’s 91-year-old partially blind grandmother, seated on the sofa. When asked to identify himself, the appellant instead called out for the deceased to come to him.  Upon the deceased’s arrival in the living room, the appellant got hold of her and dragged her outside.  When the 91 year old grandmother tried to intervene, the appellant violently pushed her away felling her to the floor in the process.

Once outside, the appellant attacked the deceased with clenched fists.  Her cries for help fell on deaf ears as the appellant attacked the deceased with a knife.  He directed most of the blows to the vulnerable upper part of the body and stabbed her 27 times inflicting fatal wounds.  The deceased died on the spot.  The appellant fled the scene and was only arrested 3 days later on 29 April 2017 following a tip off.

Upon his arrest the appellant was found in possession of the deceased’s ZTE cellphone.  In due course, he gave a warned and cautioned statement admitting having caused the deceased’s death.  The statement was later confirmed by a magistrate in accordance with the law.  In that statement he gave as his reason for deciding to attack the deceased that he had heard a story that she was engaging in extra marital affairs while staying at her parent’s home.

The appellant was arraigned before the court a quo on a charge of murder as defined in s 47 of the Criminal Law [Codification and Reform] Act [Chapter 9:23].  Notwithstanding his plea of not guilty, he was convicted and sentenced aforesaid.

The conviction

The court a quo found that the manner in which the appellant had attacked the deceased inflicting 27 stab wounds using severe force as shown by the post mortem report, meant that he did not want to give her any chance of survival.  He could have only desired to bring about death and was found guilty of murder with actual intent.

Mr Tavengwa who appeared for the appellant has conceded that the court a quo was correct in convicting the appellant as it did.  He submitted that no appeal lies against conviction.  We take the view that the concession was properly made.

The Sentence

Regarding sentence, the court a quo found that the appellant had killed the deceased “in a callous manner, in cold blood” by stabbing a defenseless woman 27 times.  It found that it was a gruesome pre-planned murder which was committed in aggravating circumstances.  The court a quo further found that the aggravating features of the case far outweighed the mitigation relied upon by counsel for the appellant.

In fact counsel had relied, as mitigation, on the fact that at 26 years the appellant was a youthful first offender who had suffered pre-trial incarceration of 9 months.  He was emotionally stressed by the domestic dispute he had with his wife.

On appeal, counsel for the appellant repeated the same mitigating factors and urged the court to find that they outweighed the aggravating circumstances.  He submitted that the court a quo did not exercise its sentencing discretion properly.  He however did not demonstrate how that was so.

On the other hand, Mr Ndlovu who appeared for the state, submitted that the court a quo properly exercised its sentencing discretion because the murder was committed in aggravating circumstances as found by the court below.  In the absence of weighty mitigating factors, the court a quo was correct in imposing capital punishment.

Section 47(2) of the Criminal Law Code lists the factors the court should regard as aggravating circumstances.  It also makes it clear that the list is not exhaustive and is without limitation on any other factors or circumstances.  In terms of s47(3) (a), a court may also in the absence of other factors of a mitigating nature, regard as an aggravation the fact that the murder was pre-meditated.

It is trite that sentencing is pre-eminently within the discretion of the trial court and that an appeal court will only interfere on very limited grounds.  The discretion of the sentencing court must, of course, be exercised judiciously having regard to both the factors in mitigation and in aggravation.  For the appellate court to interfere with the sentencing discretion of the trial court, it must be shown that there was a misdirection.

As stated in S v Nhumwa SC-40-88 at p5 of the cyclostyled judgment.

“It is not for the court of appeal to interfere with the discretion of the sentencing court merely on the ground that it might have passed a sentence somewhat different from that imposed.  If the sentence complies with the relevant principles, even if it is severe than that the court would have imposed sitting as a court of first instance, this court will not interfere with the discretion of the sentencing court.”

See also S v Sidat 1997 (1) ZLR 487 (S) at 491B-D; Muhomba v The State SC-57-13.

The applicable principles where the trial court has convicted a person of murder with actual intent are that s 47(2) and (3) relating to consideration of the existence or otherwise of aggravating circumstances kicks in.  Where such circumstances exist the court may, in its discretion, impose the penalty of death.

In the present case the trial court correctly found that the murder was committed in aggravating circumstances.  There was meticulous pre-planning which plan was executed with chilling accuracy.  Indeed when it became clear that the deceased’s parents would not allow him to co-habit with the deceased without paying lobola, he armed himself with an Okapi knife and dressed in overalls probably anticipating being blood stained during the course of attacking the deceased with a knife.

The appellant planned his time perfectly to allow him to walk the 20km distance to the deceased’s home to arrive in time for the deceased’s mother to have left for the market.  He dodged his mother-in-law just outside the house and stole surreptitiously into the living room well knowing that the only other adult in the house would be a dim-sighted and frail 91-year-old woman.

Presumably in preparation for the lame defence of being provoked by a telephone call on the deceased’s cellphone, he got hold of the deceased’s cellphone. He then ruthlessly attacked the deceased 27 times with an Okapi knife inflicting mortal wounds.  In fact the post mortem report listing and describing each of the wounds makes chilling reading.

Indeed, the court a quo cannot be faulted for finding that the murder was callous and in cold blood.  We tend to agree with Mr Ndlovu for the State that the evidence pointed to the fact that the appellant resolved to end his victim’s life and that the manner in which he did it speaks to his mean streak and inherent wickedness.

All in all the court a quo was correct in settling for the sentence that it imposed as it properly weighed mitigation against aggravation.  The mitigation was that the appellant was a youthful first offender capable of rehabilitation.  He has a five-year-old child in the custody of its grandparents.  These are not weighty mitigating factors and certainly they do not outweigh the aggravating circumstances set out above.

In particular this is an acute case of gender-based violence.  The appeal is devoid of merit.

In the result it be and is hereby ordered that the appeal is dismissed.

GWAUNZA DCJ: 				I agree

KUDYA AJA:				I agree

Mutuso, Taruvinga & Mhiribidi, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners