Nicholas Damota v The State

### Preamble
Judgment No. SC 50/25
Civil Appeal No. SC 347/24
1
SC 732/24
---------


REPORTABLE   (50)

NICHOLAS     DAMOTA

v

THE     STATE

SUPREME COURT OF ZIMBABWE

MAVANGIRA JA, MATHONSI JA & KUDYA JA

HARARE: 2 JUNE 2025

The appellant in person

F. I. Nyahunzvi, for the respondent

MATHONSI JA:	After hearing submissions in this appeal, which commenced as an appeal against both conviction and sentence by the High Court (the court a quo) and later coalesced into an appeal against sentence only, this Court issued the following order:

“1. The appeal be and is hereby dismissed in its entirety.

2. The reasons for the judgment will follow in due course.”

These are the reasons.

THE FACTS

The three-year old Modester Damota died in an inferno ignited by her own father, the appellant herein, after the father decided to torch a bedroom hut where the infant, her mother, Evernice Kasiyabvumba, and her aunt, Evermary Kasiyabvumba, were sleeping on the night of 10 September 2013.  This happened at the homestead of Ringson Piano in Chawarura Village under Chief Chiweshe in Centenary.

The circumstances leading to the death of the toddler are that her parents, Evernice Kasiyabvumba and the appellant, who were married to each other and residing at their own homestead about 2 to 3 km away from the scene of the crime, had a matrimonial dispute.  Fearing harm, Evernice left their home and returned to her parents’ home taking the deceased with her.  On 9 September 2013, the appellant followed them and tried unsuccessfully to persuade his wife to return to their homestead with him.

As the appellant engaged his wife and her parents about the possibility of the wife going back with him, he made threats ranging from either committing suicide or killing someone before absconding to neighbouring Mozambique, if he did not have his way.  The appellant left the homestead empty-handed presumably returning to his own homestead.  He later returned to his in-laws’ home about or after midnight and set the bedroom hut in which his wife and child together with Evermary were sleeping. The parents were sleeping in a separate bedroom hut.

As the fire raged on, the appellant armed himself with what was described as either an axe-handle or log and mounted an ambush outside the door of the burning grass hut.  The victims were awakened by the inferno and tried to dash out to safety with Evernice carrying the deceased.  First to emerge was Evermary and the moment she did so, the appellant attacked.  He struck her once on the head with the axe-handle or log forcing her to take to her heels heading in the direction of a neighbouring homestead with the appellant in hot pursuit.

Catching up with Evermary, the appellant struck her twice on her back felling her to the ground as she cried out for help. He inflicted serious injuries in the process from which she bled profusely.  The appellant immediately ran back to the burning hut in time to find his wife, who was carrying the deceased, about to exit the hut.  Before she could exit the hut, the appellant struck her so heavily once on the right shoulder and once on the right side of the head that the blows forced her to lose grip of the child which fell down inside the hut near the door.  The wife lost consciousness which she only regained at about 0500 hours.

Meanwhile, the father, Ringson Piano, was awakened by the bright fire and the commotion. He tried to come out of his bedroom hut to investigate but found that the appellant was standing sentinel outside his door armed as aforesaid.  As he opened the door, the appellant took aim intending to strike him.  Three times Ringson was forced to close the door before the appellant could strike him.

The appellant later absconded and made good his escape as neighbours rushed in to assist the family under siege.  The deceased’s remains, burnt beyond recognition, were later recovered by the police in the wreckage of the destroyed hut.  The appellant was only arrested on 12 September 2013 at some community gardens where he was sheltering.  Following investigations, he was eventually arraigned before the court a quo on a charge of murder.

THE TRIAL

Following a fully contested trial in which the appellant pleaded not guilty and even suggested in one of his statements that it was his father-in-law who had thrown the deceased into the fire, the appellant was convicted and sentenced to 20 years imprisonment on 28 October 2020.

When analysing the evidence led from the state witnesses and the appellant, the court a quo found that the issues were narrowed by the appellant’s admission that he had set the hut on fire and his consent to the production of his warned and cautioned statement.  It found that the appellant went to his “in-laws’ home in the dead of the night” with the intention to set fire to the hut in which his wife, child and sister-in-law were sleeping.

In the court a quo’s view, the fact that the appellant tried to prevent his victims from escaping the fire and even tried to prevent his father-in-law from coming to their rescue was indicative of his intention to kill.

Regarding sentence, the court a quo cited s 47(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] on what should be regarded as aggravating circumstances in the commission of the murder.  It found that the murder was committed in the aggravating circumstances of premeditation and that the victim was a minor child.  In arriving at the sentence of 20 years imprisonment, the court a quo navigated the following path:

“In the present case, the two aggravating factors are that the offence was premeditated and that the victim was a minor.  The court has discretion regarding the imposition of the death penalty.  It is apparent that the accused had problems with his wife. He had previously assaulted her after she attended a traditional dance without informing him and returned home late. The wife went to her parents’ home and the accused followed up after he had been fined by the village chairman----.

Nonetheless the accused’s conduct is reprehensible.  He chose the wrong way to settle scores with his wife.  The accused finished serving a ten year sentence for attempted murder in July 2020.  The attempted murder related to his wife.  The accused person was taking care of his nephews and nieces.  There was nothing to show that he is an inherently wicked person.  He should be given an opportunity to pick up the pieces if he is given a definite term of imprisonment ---.

Where a court decides not to impose the death penalty, it may opt for life imprisonment or a definite term of imprisonment. In the event of a court opting for a definite term of imprisonment and there are aggravating circumstances as provided in s 47 (3) of the Code, the sentence shall not be less than twenty years.  This is in terms of s 47 (4) of the Code.”

THE APPEAL

The appellant was aggrieved.  As I have said, he initially appealed against both conviction and sentence.  However at the hearing of the appeal, the appellant abandoned his appeal against conviction and motivated only the appeal against sentence.  The appellant’s latest approach is informed by what is contained at paras 1 and 2 of his heads of argument, to wit:

“1. The appellant was convicted of murder as defined in s47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and was sentenced to 20 years imprisonment. Irked by the conviction and sentence, the appellant appealed to this Honourable Court, only using the High Court judgment HH709/20 without the record of proceedings.  The applicant (sic) then foresaw that his grounds of appeal against conviction and sentence were patently defective and can be susceptible to striking off, and has placed a notice of amendment of only to be (sic) one ground of appeal against the sentence.

The ground of appeal against sentence will satisfy this Honourable Court and enjoys the prospects of success.”

The essence of the appellant’s challenge to the sentence, although it could have been drafted more elegantly, is that he committed the crime of murder on 10 September 2013 before the amendment to the sentencing provision, namely s 47 of the Criminal Law Code.  Subsequent to the commission of the offence, and before conviction and sentence, the sentencing regime changed.  The new sentencing regime was introduced in June 2016.  It brought a harsher sentence for murder committed in aggravating circumstances which did not obtain at the time the offence was committed.

The appellant incorrectly submitted that, whereas in 2013, where the sentencing court elected not to impose the death penalty, the convicted person could be sentenced to any definite term of imprisonment not less than 15 years, the new sentencing regime introduced a harsher penalty of any definite period of imprisonment of not less than 20 years imprisonment. As shall become apparent later upon reference to the exact wording of s 47 after the 2016 amendment, the appellant’s submissions were factually incorrect.

The appellant then prayed for the success of the appeal and that the sentence be altered to 15 years imprisonment.  The issue which arises for determination therefore is whether the court a quo erred in imposing the sentence of 20 years imprisonment. Making reference to s 70 (1) (n) of the Constitution of Zimbabwe and citing an impressive array of case authorities, the appellant forcefully submitted that the court a quo erred by using sentencing guidelines applicable at the time of sentencing which were not used at the time when the offence was committed.  In his view, any change in the law that increases the prescribed penalty cannot be applied retrospectively as that would violate the right to a fair trial.  In advancing that argument, the appellant heavily relied, inter alia, on the case of Chikiwa v The State CCZ 5/25.

In opposing the appeal, Mr Nyahunzvi for the respondent, acknowledged the change in the sentencing regime between the time the offence was committed and the time the appellant was sentenced.  He however submitted that, having regard to the circumstances of the offence, the sentence imposed was neither excessive nor harsh.  In his view, the appeal is without merit and ought to fail.

THE LAW

Section 70 of the Constitution is located in Chapter 4 dealing with Declaration of Rights, whose s 44 imposes a duty on the State and every person to respect, promote, protect and fulfil the rights and freedoms set out in the Chapter.  Section 70(1) (n) provides:

“Any person accused of an offence has the following rights: ---

(n) to be sentenced to the lessor of the prescribed punishments if the prescribed punishment for the offence has been changed between the time the offence was committed and the time of sentencing,”

In Chikiwa v The State CCZ 05/25, the applicant had been convicted and sentenced by the High Court on 17 August 2022 for a murder committed in the course of a robbery on 21 September 2013.  On appeal, this Court confirmed the conviction and sentence of 30 years imprisonment.  He took the case to the Constitutional Court alleging an infringement of his constitutional right on facts which are on all fours with the present case.

Writing for the Apex Court, PATEL JCC made the following remarks:

“I should add that a detailed examination of s 70(1) (n) is not entirely academic or constitutionally irrelevant in the context of the present matter. This is so for the following reasons.  Firstly, there was undoubtedly a change in the sentence for murder between the time when the offence was committed and the time when the applicant was sentenced.  Secondly, in order to uphold the applicant’s rights as an accused person in terms of the Constitution, the Supreme Court was duty bound to ensure that the applicant was correctly sentenced to the lesser of the two sentences in question.  Accordingly, the court a quo was obligated to conduct an inquiry into the applicable sentencing framework.  Fortuitously, as is elaborated later in this judgement, its failure to conduct this inquiry did not entail any prejudice to the applicant or any infringement of his rights under s 70(1) (n) of the Constitution.  Be that as it may, the point remains for the purposes of future practice that, where the sentencing regime changes between the commission of the offence and the date of sentencing, the requisite inquiry must ensue and the accused must always benefit where appropriate.”  (My emphasis)

Elaborating on the principles to be applied where there has been a change in the law from the time of the commission of the offence and the time the offender is sentenced, the Court stated at p 20 of the judgment:

“The principle that the applicable punishment is determined by the law in force at the time of the offence is lucidly and crisply embodied in the maxim nulla poena sine lege, viz, no punishment without a law authorizing it.  This principle is also elaborated from a different perspective in s 70 (1) (n) of the Constitution which guarantees the collateral right to be sentenced to a lessor of the punishments that may be prescribed from time to time.  As explained in the South African case of Senwedi v S (CCT 225/20) [2021] ZACC 12; 2022 (1) SACR 229 (CC); 2023 (4) BCLR 449 (CC) at para 19:

‘It is well established in our criminal law that criminal liability arises on the date when the particular crime is committed, and not when a person is either convicted or sentenced.  Similarly, the concomitant penalty for that crime is to be determined in relation to that date, subject to the benefit conferred by s 35 (3) (n) of the Constitution which guarantees the least severe sentence if punishment was changed between the time of the commission of the offence and the date of sentence…

An increase in penalty will ordinarily not operate with retrospective effect in circumstances where that added sanction did not apply at the time when the offence was committed.

This is a necessary corollary of the principle of legality that no court may impose a sentence more severe than the sentence legally permitted at the time of the commission of the relevant crime (nulla poena sine lege)…’”

Citing, with approval, the case of Chologi v Chairperson Correctional Supervision and Parole Board & Anor 2022 ZAGPJHC 1200, at p 18, the Court underscored, not only the concept that the right to a fair trial includes the right to the benefit of the least severe of the prescribed punishments, but also the common law rule that there can be no retrospectivity in respect of penal provisions.  The court made it clear that in circumstances as obtaining in this case, a comparison between the applicable law when the offence was committed and the law applicable at the time of sentencing ought to be made.  After making the comparison, the sentencer ought to pass the lesser of the sentences.  This is done to protect the offender’s right to a fair trial.

In Chikiwa, supra, the Constitutional Court undertook a comparison of the two different sentencing laws and observed that one of the major differences between the two provisions related to the circumstances in which the crime of murder was committed namely, in “extenuating circumstances” under the old sentencing regime and in “aggravating circumstances” under the current sentencing regime.

After thoroughly analyzing the meaning of the two phrases at pp 18-20, the court concluded that there was no meaningful difference in meaning.  It eminently remarked:

“In my considered opinion, the two terms are the correlative opposites of one another, revolving around the degree of culpability of the accused or criminal conduct in question.  In effect, they constitute two sides of the same coin and, as applied in sentencing practice, they would in most instances entail the same result.

In any event, what is more important in the present context is the range of the sentencing discretion bestowed upon the trial court in determining the leniency or severity of the sentence to be imposed upon the convicted offender. Depending upon the circumstances in which the murder was committed, the sentence that could be imposed under the old provision was ‘death [or] … imprisonment for life or any shorter period’  Under the current provision, again depending upon the circumstances in which the murder is committed, the sentence imposable is ‘death, imprisonment for life or imprisonment for any definite period of not less than twenty years [or] … imprisonment for any definite period.’  In either case, the sentences that may be imposed range from death at the one extreme, moving through life imprisonment, to imprisonment for any shorter or definite period at the other extreme.  It is evident that there is no meaningful difference in the broad range of sentences imposable under either provision.” (My emphasis)

The take home from the foregoing treatise is that when confronted with a case where the sentencing law was changed between the time of the commission of the offence and the time of sentencing, the court is enjoined to undertake an inquiry aimed at establishing the lesser of the two sentences.  In that event, the court should impose the lesser sentence.  Where the sentencing discretion reposed upon the court ranges from one extreme to the lesser sentence and the sentence imposed falls squarely within the allowed range but the sentencing court fails to undertake the inquiry, no prejudice is suffered by the convicted person.  For that reason, the appeal court will not interfere with the exercise of the sentencing discretion. See S v Munakamure SC 121/23 at pp7-8.

SYNTHESIS

At the hearing of the appeal this Court patiently went through the two sentencing laws with the appellant to ensure that he appreciated the difference.  The court then desired to know from the appellant, bearing in mind the range of discretion applicable under the two, what prejudice he suffered as result of the trial court settling for a definite period of 20 years imprisonment.  After the lengthy exchange, the appellant conceded that he was not relying on the old sentencing law but merely that he regarded the sentence imposed as harsh.

For clarity, it is necessary to set out the sentencing regime that prevailed in September 2013 and juxtapose it against that obtaining at the time the appellant was sentenced to see if he should have benefited.  This is so because there is no doubt that, without conducting any inquiry as to the applicable sentencing law at the time of offending in 2013, the court a quo sentenced the appellant in terms of the current sentencing law.  In that regard, the court a quo erred.  However, the inquiry does not end there in view of the authority of Chikiwa, supra, where the court refused to entertain the convicted offender`s complaint because, either way, the sentencing court was entitled to sentence him as it did.

Section 47 of the Criminal Law Code was amended in June 2016.  Prior to the amendment, it was worded thus:

“(1) Any person who causes the death of another person-

intending to kill the other person; or

realising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility; shall be guilty of murder.

(2)  Subject to s 337 of the Criminal Procedure and Evidence Act [Chapter 9:07], a person convicted of murder shall be sentenced to death unless-

(a) the convicted person is under the age of eighteen years at the time of the commission of the crime; or

(b) the court is of the opinion that there are extenuating circumstances; in which event the convicted person shall be liable to imprisonment for life or any shorter period.”

At the time the appellant was sentenced on 28 October 2020, by the Criminal Laws Amendment Act, No. 3 of 2016, s 47 was amended and the relevant provision then read:

“(4) A person convicted of murder shall be liable-

subject to sections 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9:07], to death, imprisonment for life or imprisonment for any definite period of not less than twenty years, if the crime was committed in aggravating circumstances as provided in subs (2) or (3);

in any case to imprisonment for life or imprisonment for any definite period.”

[Subsection inserted by Part XX of Act 3 of 2016].

I mention for completeness that the above provision was subsequently further amended in para (b) by Act 4 of 2024 to provide for any definite period of not less than fifteen years imprisonment referred to by the appellant or, if there are special circumstances, imprisonment of not less than five years.

Having applied the then current sentencing regime, erroneously in view of the law discussed above, the court a quo found that the murder was committed in aggravating circumstances of premeditation and that a minor was the victim.  It also found that this was a case in which, in its discretion, a sentence other than the death penalty or life imprisonment was called for.  It then imposed a sentence of not less than twenty years imprisonment.

By the authority of Chikiwa, supra, which is extensively related to above, considering that the same result would have been achieved had the court been inquiring into the existence or otherwise of extenuating circumstances, it was still within the sentencing discretion of the court a quo to impose the sentence of twenty years imprisonment.  This is so because its sentencing range was, from “imprisonment for life or any shorter period.”  There is no big change in the sentences imposable under to the two regimes.

DISPOSITION

Although the court a quo ought to have inquired into the law applicable and used the provision that offered the convicted offender a lesser sentence, the appellant was not prejudiced because the same sentence would still have been achieved.  As stated in Mathe v The State SC 66/24, an appellate court is loath to interfere with the sentencing discretion of the trial court unless it is shown that the discretion was not properly exercised.  In the present case, the court cannot interfere more particularly because no prejudice was suffered by the appellant as a result of the deployment of the current sentencing law instead of the old.  The same sentence would have been achieved using either of the sentencing regimes.

The appeal has no merit, it ought to fail.  It is for these reasons that the court issued the order quoted above.

MAVANGIRA JA	:	I agree

KUDYA JA 		:	I agree

National Prosecuting Authority, respondent`s legal practitioners.