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Mashudu Netsianda Senior Court Reporter
THE Constitutional Court has ordered the retrial of a Bulawayo businessman, Danis David Konson, who was last year sentenced to death for fatally shooting his ex-lover.
Chief Justice Godfrey Chidyausiku and seven others sitting as the Constitutional Court’s full bench, on Tuesday ruled that the trial judge, Justice Lawrence Kamocha of the Bulawayo High Court, was biased in his judgment.
Konson, 63, of Parklands suburb was in February last year sentenced to death.
He then through his lawyer, Advocate Lucas Nkomo, subsequently launched an appeal at the Supreme Court against the capital punishment, arguing that it was in contravention of section 48 (2) of the constitution.
“The constitution says you can only be sentenced to death if you were convicted of murder committed in aggravating circumstances and it was not the case with my client. In addition to that my client did not receive a fair and impartial trial,” argued Adv Nkomo.
The Supreme Court subsequently referred the matter to the ConCourt for determination in terms of section 175 (4) of the constitution.
Section 175 (4) reads: “If a constitutional matter arises in any proceedings before a court, the person presiding over that court may and, if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request is merely frivolous or vexatious.’
Konson’s lawyer successfully made an application for an order for retrial before a different judge, accusing Justice Kamocha of bias and acting in a hostile manner towards his client.
“The contention is that the trial judge questioned the appellant during trial in such a manner and for so long that he ceased to discharge impartiality,” argued Adv Nkomo.
He said his client’s right to a fair trial in terms of Section 69 (1) of the constitution was violated by the presiding judge who descended into the arena of conflict between himself and the State.
Angeline Munyeriwa, who prosecuted in the matter, had argued that there were no extenuating factors in terms of section 335 of the Criminal Evidence and Procedure Act.
The ConCourt ruled that Justice Kamocha descended onto the arena, to an extent of posing more questions than those of the prosecutor.
“The object of a criminal trial is for the truth surrounding the commission of the offence to be established. The role of the judge is therefore an onerous one as his task is to see that justice isn’t only done, but that it’s seen to be done. In this exercise he should conduct himself in such a manner that he isn’t viewed or perceived to have aligned himself with either prosecution or the defence,” said the Con-Court.
In its ruling, the ConCourt concluded that Konson’s right to fair trial was violated.
“In view of the stance assumed by the learned trial judge, the defence proffered on behalf of the appellant was not properly evaluated thus further undermining the trial. Accordingly, it is declared that the appellant’s right to a fair hearing in accordance with section 69 (1) of the constitution has been violated by the proceedings in Case Number HCB 158/13. It is ordered that those proceedings be and are hereby set aside and that matter is remitted to the High Court in Bulawayo for trial de novo before a different judicial officer,” the ConCourt ruled.
Konson shot his ex-girlfriend, Siphathisiwe Ncube, 28, three times on September 10, 2013, after she dumped him. He was convicted and sentenced to death by Justice Kamocha on February 3.
Konson had plied Ncube with gifts and opened a grocery store for her in Lupane. He also bombarded her with letters promising her a good life, but she still walked out of their relationship after three years.
Konson admitted the shooting but had pleaded not guilty, claiming that the killing had been accidental.
He claimed that he was “confused and in a blackout” after walking in on Ncube and finding her with her new lover.
But Justice Kamocha said Konson had planned to kill by taking a gun for the visit to Ncube, who had told him in a letter that she had found a new man and was now married.
Konson and Ncube began their relationship in 2008. In January 2012, the enamoured lover established a shop for her, which he also helped her run.
In July 2012, Ncube told Konson that she wanted to end the relationship. He tried to persuade her to change her mind without success.
On September 10 last year, Konson went to Jotsholo Police Station and asked for help in solving the dispute between him and Ncube, telling police officers that they were fighting over a business deal.
Constable Wisdom Matupire accompanied him to Tshongogwe Business Centre where the meeting was to take place. But the mood quickly changed when Konson saw a half-naked man coming out of Ncube’s room at the grocery store he had opened for her. She was wrapped in just a towel.
Konson told the court he suffered a “blackout” and pulled the trigger of his CZ 6.35mm pistol, shooting both Ncube and the police officer several times. Ncube was shot twice in the face and once in the thigh and died instantly.
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