THE Supreme Court has acquitted an ex-top police detective
who was serving life imprisonment for fatally shooting a mine worker in a fight
over the ownership of a gold mine in Fort Rixon in Matabeleland South province.
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 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 was 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. Chronicle
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