THE Supreme Court has nullified the death sentence imposed
on a Lupane man who killed two workmates at the late Vice-President John
Nkomo’s Winterblock Farm in Insuza and ordered the High Court to resentence
him.
The ruling by Supreme Court judge Justice Paddington Garwe,
who was sitting with Justices Lavender Makoni and Muchineripi Bhunu on circuit
in Bulawayo recently follows an appeal by Pardon Mpofu (28) challenging his
sentence.
Mpofu of Jumbika Village in Lupane, had been on death row
for the past six years after he was convicted of murder with actual intent in
2014 by the late Bulawayo High Court judge Justice Andrew Mutema.
Mpofu killed Nhlanhla Dube (then 21) and Pilate Moyo (then
28) in October 2013 and dumped their bodies in a disused septic tank at
Winterblock Farm before looting their property.
According to postmortem findings, Dube suffered a depressed
skull fracture while Moyo suffered head injuries, a deformed left skull,
multiple skull fractures and lacerations from several blows to the head.
Justice Garwe ruled that Mpofu was improperly sentenced
when the lower court used an old constitution and relied on section of 337 of
the Criminal Procedure and Evidence Act, which stipulated a death penalty in
the absence of extenuating circumstances to impose the death penalty.
He said at the time of sentencing, the legislature had not
promulgated a law contemplated in section 48 (2) of the new constitution
permitting the imposition of a death penalty whenever there are aggravating
features.
The new constitution challenges the State to prove its onus
on aggravating features to warrant the death penalty.
“It is hereby ordered that the sentence of the court a quo
is set aside and the matter be remitted back to the High Court for
resentencing,” ruled Justice Garwe.
Mpofu, through his lawyer Mr Tawanda Tavengwa of Mutuso,
Taruvinga and Mhiribidi Legal Practitioners, filed an appeal against sentence
at the Supreme Court citing the State as the respondent.
In his grounds of appeal, Mpofu said the lower court
misdirected itself when it failed to consider his youthfulness and lack of
maturity as a mitigatory factor in passing the sentence.
Mpofu was 21 years and five months old at the time he
committed the crime.
“It is respectfully submitted that the appellant was 21
years, five months old at the time of the commission of the offence. He was
therefore not rescued by the provisions of the constitution, which state that
young males below 21 years at the commission of the murder cannot be sentenced
to death,” said Mr Tavengwa.
“It is submitted that these five months past 21 years did
not make appellant more mature than the prescribed 21 years. He was still a
youthful offender and that should have been taken into account in deciding the
suitability of a death penalty.”
Mpofu, however, did not challenge his conviction. He wanted
an order setting aside sentence with the matter being remitted to the High
Court for resentencing.
For the State, Mr Khumbulani Ndlovu did not oppose the
application. He said at the time of sentence, the legislature had not
promulgated a law contemplated in section 48 (2) of the constitution permitting
the imposition of a death penalty.
“Ultimately, it is respectfully submitted that the conviction
of the appellant on charges of murder with actual intent be upheld as nothing
turns on these convictions, and that the appeal against sentence be allowed.
The sentence of death imposed on the appellant on the two counts of murder be
set aside and the matter be remitted back to the court a quo for an appropriate
sentence in terms of the law,” said Mr Ndlovu.
According to court papers, the deceased’s half naked bodies
were found on October 14 in 2013 at around 3PM in a septic tank at Winterblock
Farm by the late Vice President John Nkomo’s son Kembo (49) who was in the
company of one Ndabazelizwe Ncube (47). The two had visited Paddock CSC
Winterblock, Insuza which was being leased to the late Vice President.
On arrival they discovered that the farm workers, Mpofu,
Trymore Sibanda (23) of Insuza and the two deceased persons were absent.
They sensed a bad smell coming from the septic tank which
was about two metres away from the farm house and about two-and-a-half metres
deep.
The pair opened the septic tank and discovered two human
bodies in an advanced state of decomposition partially submerged in the tank.
They reported the matter to Insuza Police Station on the
same day and the two bodies were retrieved from the septic tank.
Acting on a tip off, police arrested Mpofu following a raid
on a neighbour’s home at his rural Jumbika Village on October 16.
Police also recovered property belonging to the two
deceased persons including a hoe handle and a wooden knobkerrie through Mpofu’s
indications. Chronicle
0 comments:
Post a Comment