Mashudu Netsianda, Senior Court Reporter
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 [email protected]