CHEDA J: The matter at
hand was forwarded to me by the Attorney General's Office, Gweru for the review
of the Gweru Regional Magistrates' Court's decision.
The accused is a resident magistrate in Shurugwi. Complainant and accused know each other as
they are both residents of Shurugwi.
It is alleged that sometime in March 2009 complainant was being
investigated by the police, at Shurugwi for theft by finding of gold.
Accused heard about complainant's case and approached him. She then solicited for a bribe in the sum of
$2000-00 so that she could omit to act in relation to her principal's affairs
as she was the sole resident Magistrate for Shurugwi charged with presiding
over all cases that occur in that area.
Complainant made a report to the police, a trap was set up which led to
accused's arrest after she received $250-00 from him.
Complainant testified in court wherein he narrated in detail the events
surrounding this case. Accused's
explanation of the circumstances of the case was basically that she and
complainant were lovers, the allegation which complainant denied. He told the court that in
fact
accused was his friend's girlfriend he had nothing to do with her as he was
already married to nine wives.
Evidence was also led from the arresting details who stated that they observed
complainant handing money to accused. It
was further their evidence that on receipt of the money accused did not count
it, but only said “its bho ndichazokuona” meaning its ok, I will see you.
At the close of the state case, the defence applied for a discharge
which was granted. The basis of the
application was that the state witnesses were not truthful and unreliable.
Our law provides for a discharge of an accused at the close of the state
case, if the court considers that there is no evidence that accused committed
the offence. Section 198 of the Criminal
Procedure and Evidence Act [Chapter 9:07] reads:
“198 conduct of trial
(3) If at the close of the case for the
prosecution the court considers that there is no evidence that the accused
committed the offence charged in the indictment, summons or charge, or any
other offence of which he might be convicted thereon, it shall return a verdict
of not guilty.”
What emanates from the above section
is that a discharge at the close of the state will be justified where:-
(a)
there is no evidence to prove an essential element of the
offence, see S v Ruzani 1984 (1)ZLR
334,(4) and Attorney General v Bvuma and
Another 1987 (2) ZLR 96 (SC) at 102 F-G, or
(b)
there is no evidence on which a
reasonable court might convict, see R v
Herboldt (3)1956(2) SA 722 (W) and Attorney
General v Mzizi 1991 (2) ZLR 321 (S) at 323 B, or
(c)
the evidence adduced by the
prosecution is so manifestly unreliable that no reasonable court could safely
act on it, see S v Hurtlebury and Another
1985(1) ZLR 1(H) at 3, per McNally J (as he then was); S v Moringer and Others 1993(4) SA 479 and Attorney General v Tarwirei 1997(1) ZLR 575 (S) at 576 G.
The above principle was clearly laid down in S v Kachipare 1998 (2) ZLR 271 (S) and
followed in Attorney General v Makamba
2005(2) ZLR 54(S).
The trial court has a discretion to discharge or continue with the
trial. However, the most important
factor is that the discretion must be exercised judicially.
In the present case, the trial court decided after hearing evidence of
the State case that the said evidence was not truthful, particularly after it
concluded that there was a love affair between accused and complainant. What the court did not sufficiently address was
the meaning of remarks attributed to the accused and the circumstances
surrounding the alleged commission of the offence. In my view, the State had placed its evidence
before the court, which evidence, to a reasonable court, should have raised
questions about accused's conduct. In
view of this questionable conduct the court should have then placed the accused
on her own defence since what was before the court was no doubt a prima facie
case. In our law the court can not discharge the accused at the close of the
State case as long as the State has proved a prima facie
case. On perusal of the record there is
nothing which indicates that state witnesses
have been discredited as a result of
cross-examination or is manifestly unreliable.
In the case of Attorney General v
Tarwirei 1997(1) ZLR 575(S) a correct procedure in analyzing such cases was
laid down. In that case it was held that
it was a misdirection for the magistrate to treat the assertions made by the
accused during cross-examination as though they were evidence of the accused.
It seems this was the position taken by the magistrate in this case, which
position was erroneous, and, and it is this approach which led her to an
erroneous decision.
The discretion vested on the trial court must be judicially exercised,
see Attorney General v Bvuma and Another
1987 (2) ZLR 96 (S.C). In my mind, with
respect to the trial court this discretion was not judicially exercised.
It is for that reason that I find that the magistrate misdirected
herself in discharging the accused at the end of the state case where the state
had proved a prima facie case against accused.
In light of the above the following order is made:-
(1) The
discharge of the accused at the end of the state case be and is hereby set
aside.
(2) The
matter is referred back for the continuation of the trial.
Kamocha
J.......................................................I agree
