By Tendai Kamhungira
Two men who are on a death row will have to endure more anxiety after the Constitutional Court (Con-Court) yesterday postponed indefinitely a case in which they are challenging their sentence.
Njabulo Ndlovu of Cowdray Park and Shadreck Noel Sibanda of Nguboyenja were convicted of murder and sentenced to death in 2013 by former Bulawayo High Court judge Nicholas Ndou who found them guilty of murder with actual intent.
The duo was found guilty of assaulting and raping a United College of Education female student until she lost consciousness before murdering her male friend, Themba Mafunga.
Ndou found no extenuating circumstances when he gave his murder verdict —prompting the pair’s lawyer — Vezokuhle Eric Ndlovu to approach the superior courts to have the judgment reviewed.
However, the Con-Court bench yesterday postponed the matter indefinitely, after ruling that the respondent, the Justice, Legal and Parliamentary Affairs ministry, had not been properly served with the court papers.
“There appears to be improper service,” deputy chief justice Elizabeth Gwaunza, who was leading the Constitutional Court bench said.
In his judgment, Ndou said the murder was pre-planned, adding that it was trite in law that where a robbery results in death, the inference was that the act would have been pre-meditated.
According to court papers, the murder took place on March 9, 2011, at a bush behind the UCE campus, as the student and Mafunga were walking along a gravel road behind the college campus to Highmount.
The pair emerged from the bush and drew knives which they used to threaten the two before assaulting and force-marching them into the bush, where they murdered Mafunga and raped the woman.
After raping the woman, the court heard, Sibanda and Ndlovu fled from the scene leaving her unconscious.
When she regained consciousness, she sought help from a passer-by who assisted her to make a report to the police, leading to the pair’s arrest.
Zimbabwe’s Constitution prohibits the death penalty for all women, as well as men who were under 21 at the time of the crime and those over 70.
It also bans using the death penalty as a mandatory punishment.
The charter, overwhelmingly approved by Zimbabweans during a national referendum on March 16, 2013, puts greater limits on the use of capital punishment. – DailyNews