The Herald  Harare

Gokwe Man's Death Sentence Commuted to Life Imprisonment

January 13, 2003

Harare: The Supreme Court has commuted to life imprisonment, a death penalty imposed by the High Court on a Gokwe man who fatally stabbed another man with a knife after accusing him of stealing $50 from his two sons.

The court reversed an earlier finding by the lower court that the murder was actually intended and without extenuation.

Robert Mugwanda together with his two sons Gilbert and Casper were charged with the murder of Simba Muringanzara.

They had all pleaded not guilty but were convicted. Mugwanda and Gilbert were found guilty of murder with actual intent while Casper was convicted of murder with constructive intent.

Muringanzara was killed in December 1997 at Kahobo Business Centre in Gokwe, after Mugwanda's sons accused him and his friend Kuwirirana of stealing $50 from them.

The court, however, found extenuating circumstances in respect of Mugwanda's sons and imposed a 12-year jail term on each.

However, the Supreme Court judge Chief Justice Chidyausiku set aside the convictions and sentences imposed on the three.

Justice Chidyausiku altered Mugwanda's conviction of murder with actual intent to that of murder with constructive intent and substituted the death sentence with life imprisonment.

The conviction of Gilbert and Casper was altered from murder to culpable homicide and thus reduced the sentence of 12 years imposed on each to seven.

In setting aside both the conviction and sentences, Justice Chidyausiku ruled that the lower court had erroneously concluded that Mugwanda and Gilbert had actual intention to kill Maringanzara.

He said the reasoning of the learned judge to conclude that the duo had actual intention was not easy to follow.

"In this case there is no direct evidence on the mens rea (mental intention) of the appellant.

"It is not an easy task to determine an accused's mens rea in a case such as this one where a single stab wound inflicted to a vital part of the body results in death," said Justice Chidyausiku.

The judge also found that the death of Maringanzara was not the desired objective as it occurred while Mugwanda was in the process of assaulting him and his friends.

The fight, he said, was over a mere $50 and there was nothing to suggest that Mugwanda wanted to kill, contrary to fixing Maringanzara for the theft of the money.

While it was common cause that the stab wound inflicted on the vital part of the body resulted in the man's death, the court ruled that there was no conclusive evidence that it was deliberately aimed at that vulnerable part or fatuously landed there in the course of the assault.

Justice Chidyausiku found that in the case of Gilbert and Casper their role in the assault of Maringanzara did not sustain the inference that they foresaw the death of their victim.

Mrs Gurure from the Attorney-General's office appeared for the State while Mr Lewis Uriri of Honey and Blackenberg represented Mugwanda.