By Own Correspondent- Refias Masuna (53) of Mahatshula North, Bulawayo, who was employed as an operations manager by Manifest Security Company, was convicted of murder with actual intent by then Bulawayo High Court judge, Justice Francis Bere, in August 2016.
Masuna was accused of killing Mr Ernest Mudenda (31) at Zulu 8 Mine in Fort Rixon on December 12, 2014.
In passing the sentence, Justice Bere, who described the murder as brutal, said Masuna was a former high ranking police officer who had handled firearms for 18 years and his conduct was uncalled for.
Aggrieved by both conviction and sentence, Masuna through his lawyer, Advocate Thembinkosi Magwaliba, who was instructed by Thondhlanga and Associates, approached the Supreme Court challenging Justice Bere’s decision, citing the State as a respondent.
Justice Paddington Garwe, who was sitting with Justices Ben Hlatshwayo and Lavender Makoni during a Supreme Court circuit in Bulawayo, has set aside Masuna’s conviction and sentence and ordered his immediate release from Khami Maximum Prison.
“It is ordered that the appeal against conviction and sentence is allowed. The conviction and sentence are both set aside and the appellant (Masuna) is to be released from prison with immediate effect,” ruled Justice Garwe.
He, however, said the National Prosecuting Authority (NPA) has the discretion to institute fresh prosecution.
“For the avoidance of doubt, the decision whether or not to prosecute the appellant afresh is left to the discretion of the NPA,” said Justice Garwe.
He said the reasons for Masuna’s acquittal would follow in due course.
In his heads of argument, Masuna argued that his conviction was based on shoddy police investigations and unreliable key State witnesses.
“The court a quo grossly erred in convicting the appellant basing on circumstantial evidence. The essence of such evidence was essentially that only one gunshot was fired by the accused, which was misdirection by the court a quo to have inferred that it is the appellant who intentionally killed the deceased,” argued Adv Magwaliba.
He disputed the testimony of the ballistic expert, saying he failed to confirm with certainty that the bullet which killed Mr Mudenda was fired from the gun which was discharged by Masuna.
Adv Magwaliba further argued that there was no evidence on record to support the court’s finding that Masuna had hatched a plan with one Mr Blessing Ndiweni to kill the deceased.
The State, which was represented by Mrs Tariro Rosa Takuva and Mrs Sifiso Ndlovu-Sibanda, did not oppose the appeal against conviction.
They conceded that there could have been a possibility of the deceased having succumbed to a stray bullet discharged as a result of a warning shot by Masuna and opted for a lesser charge of culpable homicide.
“It is submitted that the court a quo misdirected itself in holding that it was murder with actual intent, and sentencing the accused person to life imprisonment.
It is humbly submitted that conviction be set aside and replaced with a verdict of guilty of culpable homicide, and wherefore the respondent prays that the appeal against conviction be granted,” said the prosecutors.
Masuna’s security company was hired by Mr Ndiweni who had just received an eviction order to vacate the mine. Mr Ndiweni was locked in a wrangle with Mr Wilson Nyamhiwa over the ownership of the mine.
According to court papers, on December 9, 2014, the High Court granted an order in favour of Mr Nyamhiwa and two days later the Deputy Sheriff moved to the mine to evict Mr Ndiweni’s workers and remove his mining equipment.
When Mr Ndiweni learned about the eviction order, he rushed to Manifest Security Company and requested five security guards to be deployed to Zulu Mine. Masuna joined his subordinates and they went to Zulu 8 Mine in Fort Rixon where his guards were deployed.
On arrival at around midnight, Masuna discovered that there was a dispute over the ownership of the mine and his client’s workers had been evicted from the mine and the new miner’s employees had taken over the premises.
However, Mr Ndiweni’s property and equipment were still being guarded by Masuna’s men. When the new tenants inquired on who was approaching on hearing footsteps, Masuna identified himself as Mr Ndiweni and indicated that he would shoot one of them.
The new occupants fled in different directions, but Masuna fired a shot that hit Mr Mudenda in the upper part of his chest and the bullet exited through the upper left-hand arm. Mudenda’s body was discovered on the following morning at around 6AM.