MATANDA-MOYO J: This is
a matter which came as an unopposed matter in which the applicant sought to set
aside the second respondent's decision that the trial of the applicant continue
to the defence case in a criminal trial. Further that the applicant be
discharged at the close of the state's case.
The brief background of the matter
is this. On 11 September 2013 at around 16:30 hours the applicant was in
charge at a roadblock along Kirkman Road, Mabelreign, Harare. The
applicant was observed by the informant one, Fiona Hlomani a senior police
officer who was checking roadblocks along Kirkman Road.
The informant observed the accused
person receiving something from an unidentified motorist. The informant
then stopped and interrogated the accused person as to what was
happening. The accused is alleged to have thrown down seven dollars she
had received from the motorist. It is alleged that the accused picked up
the money and handed it over to Motion Manekera, a commuter omnibus
driver. The accused was searched by the informant and was found with a
road service permit belonging to Freerain Enterprises of Number 7 Seville Close
Glen Lorne.
It is from the above set of facts
that the application had a charge of criminal abuse of duty as a Public Officer
as defined in s 174 (1) (9) of the Criminal Law Codification and Reform Act [Cap9:23]
laid against her. Evidence was led from the arresting detail who stated
she observed the accused person being handed money by a motorist who sped
off. It was Fiona's further evidence that the accused person shanted
“mandibata” ( meaning you caught me) when the second witness got to her.
This was not disputed.
The first witness refuted the
applicant's defence that the $7 was his.
Further the applicant was found with
excess money which she did not account for.
At the close of the state case the
defence applied for discharge. The basis for the application was that the
state witnesses were not reliable as they had proffered contradictory
evidence. Our law provides for a discharge 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 [Cap
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.
It is trite from the above that
discharge is justified;
(i)
Where there is no evidence on which a reasonable court might convict. See
Rutterboldt 1956 SA 722 & Attorney General v Mzizi 1991 ZLR
321 (S) at 323 B.
(ii)
The evidence adduced by the prosecution, is so manifesty unreliable that no
reasonable court could safely act on it see S v Hurtlebury & Anor
1985 1 ZLR 1 @ 3 per McNally as he then was; S v Malinger & Ors
1993 4 SA 479; S v Kachipone 1998 2 ZLR 271(S)
(iii)
There is no evidence to prove an essential element of the offence. SeeS
v Ruzani 1984 ZLR 334 (4) and Attorney General v Bvuma &
Anor 1987 (2) ZLR 96 (SC) @ 102 FG.
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 judiciously. It seems to me that
the magistrate judiciously exercised her discretion and this court will not
interfere with that discretion as a prima facie case was made against the
applicant.
In light of the above, the following
decision is made.
Application is dismissed.
Munangati & Associates, applicant's legal practitioners
