Harare — The Supreme Court on Tuesday quashed the administrative decision by the High Court ordering a fresh trial of former Seventh Day Adventist youth leader Nqobile Sibanda who was convicted of murdering his pregnant girlfriend and has ordered that another judge can now hear evidence in extenuation and pronounce sentence.

Justice Fergus Blackie, who retired from the bench in July 2002, convicted Sibanda of murder with actual intent but he and his assessors had yet to determine whether there were extenuating circumstances, which would have allowed a lesser penalty than the death sentence.

The then Judge President Justice Paddington Garwe declared the proceedings before Justice Blackie a nullity and ordered a fresh trial before another judge. The prosecution disagreed with that decision and appealed to the Supreme Court. This week, Chief Justice Godfrey Chidyausiku allowed the appeal by the prosecution after a careful analysis of the submissions made in court by counsel for the State and defence.

The issue for determination in the upper court was on when does it become permissible at law for a judge to take over a trial started by another judge.

In his ruling, Justice Chidyausiku accepted the prosecution's submission on when another judge could deal with a case left uncompleted by another judge.

Prosecutor Mr Chris Mutangadura had said once a verdict of murder had been announced, the second inquiry as to whether or not extenuating circumstance existed was a sentencing issue, which another judge could deal with in terms of the Section 337 of the Criminal Procedure and Evidence Act. Justice Chidyausiku said the cited law was sufficiently clear that another judge could deal with the sentencing process. "It authorises another judge to participate in the sentencing process after a verdict of guilty has been returned by the trial court. I accordingly will allow the appeal," he said.

The Chief Justice, in his ruling, also dealt with the preliminary points raised by the defence that the State had not complied with rules of the upper court, as it noted the appeal out of time. He ruled that the Attorney-General had broken every requirement of the rules of the Supreme Court in bringing the case before it. However, Justice Chidyausiku said in his view there was a very important legal point involved in the case whose determination was equally important.

He said, in his view, this was a proper case for the court to depart from the rules in the interest of justice. The Chief Justice heard the case with Justices Wilson Sandura and Elizabeth Gwaunza who both concurred with his ruling. Prior to his departure from the bench, Justice Blackie halted the proceedings in the case after the defence sought an order to have Sibanda undergo mental examination, before the aspect of extenuation was considered.

Although efforts were made to have the judge return and complete his partly heard matters, nothing materialised. Sibanda is still in custody after he was convicted of the murder of his pregnant girlfriend Jean Murawu in 2001. Murawu's body, which had stab wounds, was found dumped along the Rusape-Nyanga Road. Advocate Linos Mazonde instructed by Mr Kay Ncube represented Sibanda.