Durban — Nkinsela Maphumulo, sentenced to life in 2004 for murder and robbery, has appealed against his sentence in the Durban High Court on Monday on the basis that he did not pull the trigger.
Maphumulo, 38, who has served 14 years of his sentence was convicted with his two co-accused after a tuckshop was robbed in Eshowe, KwaZulu-Natal.
The trio were charged with the assault of tuckshop owners, Ntombiyenkosi and Mphathesitha Msomi; stealing from their property and the murder of their son, Zamokuhle Mduduzi Msomi.
The State’s evidence was that the convicted trio were aware of a tuckshop being operated by the Msomis. It was also revealed that some time prior to the incident Maphumulo, Nkosinathi “Shoes” Magubane and Mabutho Sibiya, as well as one other person, planned to rob the tuck shop.
The State’s case was that the trio realised they might have to use force in the planned robbery and armed themselves with guns. The other assailants were known to the Msomi family so it was decided that Maphumulo and Sibiya would execute the robbery.
On that fateful day, Zamokuhle, who was 27 at the time, was sitting under a tree outside his home and his mother Ntombiyenkosi was in the kitchen.
While the other two assailants kept watch from outside the yard, Maphumulo and Sibiya approached the tuckshop under the pretence of being customers. Ntombiyenkosi left the kitchen to attend to them.
Sibiya kept watch at the door, while Maphumulo went inside with Ntombiyenkosi and pointed a gun at her, demanding money.
At this point Mphathesitha entered the tuckshop. Ntombiyenkosi handed over R300 in cash to the men and began screaming to alert Zamokuhle.
When the men saw Zamokuhle approaching it was alleged that Maphumulo pointed a firearm at him ordering him to lie on the ground but when he failed to do so, Maphumulo is alleged to have shot him.
Zamokuhle died two days later at King Edward III Hospital from a gunshot wound to the abdomen. The court had dealt with Sibiya and Magubane’s case without Maphumulo who had allegedly absconded following the incident and was arrested in 2006.
In court on Monday, Maphumulo’s Legal Aid representative, R Marimuthu, said that after having gone through the court’s records, he was not able to find anything on the sentence imposed on the other accused.
Maphumulo’s intent and motive was not to commit murder but to rob and hey had armed themselves in anticipation of resistance, he said, adding that Maphumulo did not fire the shot.
“The State should have charged him for absconding. It should not have been part of the sentence. The sentence is harsh,” Marimuthu said.
Senior State advocate Khatija Essack was not against the appeal and said the fact that Maphumulo pleaded guilty showed remorse. A ruling on the appeal is being awaited.
Daily News