Section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides as follows:

“(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.”

The language used by the legislature obliges the court to discharge the accused person at the end of the prosecution's case if it considers that there is no evidence proving that the accused committed the offence charged or any other offence of which he might be convicted arising from that charge. The court has no discretion; it must discharge the accused person if there is no evidence. It must therefore be guided by the evidence led by the prosecution….,.

Section 198(3) of the Criminal Procedure and Evidence Act is intended for a case where the State failed to present a prima facie case against an accused person by the time it closes its case. It is a complete failure by the State to prove a case against the accused..,. It leads to a discharge, whose effect, is that the accused is found not guilty and is acquitted with no consideration by the court of any further consequences.

I now turn to consider the matter on the merits at the close of the State case following an application for discharge at the close of the State case in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The section provides as follows –

“(3) If, at the close, or 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.”

Conclusion

In summary, it is self-evident that the State, at the close of its case, has failed to link the accused to the commission of any of the offences charged or any competent verdict arising therefrom because -

1. (a) Its main witness, Michael Peter Hitschmann, turned hostile to the State case leading to his impeachment.

(b) His discredited evidence was, therefore, of no benefit to the State case as he did not implicate the accused at all but supported the defence case.

2. The supposed expert witness, Perekayi Denshard Mutsetse, turned out to be an unreliable witness whose evidence was proven to be dubious and erroneous. As a result, the accused could not, scientifically or otherwise, be linked to the commission of the offence through the recovered emails. There was, therefore, no nexus between..., and the commission of the offences

3. The accused could not be linked to the commission of any of the offences through the confessions of his alleged co-conspirator because –

(a) Of improper investigation tactics and procedures; and

(b) By operation of law which prohibits the confessions of one accused to be used against the other.

In conclusion, I must commend the State for having put up a brave fight, under very difficult circumstances, in defence and preservation of a constitutionally-elected Government. We, however, operate in an adversarial legal system where a criminal trial is akin to a contest where Judges and Assessors are mere referees or umpires. One cannot, therefore, take a dive at the centre circle and expect the referee to award a penalty. Like in most contests, a team cannot be allowed to advance to the next stage unless it performs well at the preliminary stage. That is the spirit in which section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] was crafted.

Having carefully considered the above findings of fact and law, we came to the unanimous conclusion that the State has failed to prove a prima facie case against the accused on a balance of probabilities thereby entitling him to his acquittal at the close of the State case.

At the close of the State case counsel for the second accused applied for his discharge and acquittal in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07]. Counsel for the State conceded that the evidence led by the State was insufficient to place the second accused on his defence.

At the close of the State case the application for the discharge of the second accused was granted after the State properly conceded that no evidence had been led to establish a prima facie case against him.

The accused is a Resident Magistrate in Shurugwi. The complainant and the accused know each other as they are both residents of Shurugwi.

It is alleged that sometime in March 2009 the complainant was being investigated by the police, at Shurugwi, for theft by finding of gold. The accused heard about the complainant's case and approached him. She then solicited for a bribe in the sum of $2,000= 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. The complainant made a report to the police, a trap was set up which led to the accused's arrest after she received $250= from him.

The complainant testified in court wherein he narrated in detail the events surrounding this case. The accused's explanation of the circumstances of the case was basically that she and the complainant were lovers, the allegation which the complainant denied. He told the court that, in fact, the 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 the complainant handing money to the accused. It was further their evidence that on receipt of the money, the 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 the 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)….,; 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)….,; 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)…, per McNALLY J….,; S v Moringer and Others 1993 (4) SA 479 and Attorney General v Tarwirei 1997 (1) ZLR 575 (S)…,.

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 the accused and the 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 the 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 cannot 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 (SC). 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 the 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.

The accused persons stand charged with murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In the alternative, or concurrently, they are charged with public violence as defined in section 36 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

This seemingly unending marathon trial has now entered the home stretch to the relief of everyone concerned following the closure of the State case. The defence has, however, now applied for the discharge of all the 29 accused persons at the closure of the State case in terms of section 198(3) of Criminal Procedure and Evidence Act [Chapter 9:07]. That section provides that if at the closure of the State case the court considers that there is no evidence that the accused committed the offence charged or any other offence of which he might be convicted thereon it shall return a verdict of not guilty.

The section is couched in peremptory terms.

In other words, once the Court has made a finding to the effect that there is no evidence that the accused committed the offence charged or any other offence arising from that charge it has no option but to find the accused not guilty and discharged.

For that application to succeed, the onus lies squarely on the defence to satisfy the Court, on a balance of probabilities, that there is no evidence that each accused committed any of the offences charged or any other offence arising from the offences charged….,.

Section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides:

“(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.”

In S v Kachipare 1998 (2) ZLR 271 (SC) it was held that the wording of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] made it clear that where, at the end of the State case, there is no evidence upon which a reasonable court might convict, the court has no discretion: it must discharge the accused. The court may not exercise its discretion against the accused if it has reason to suppose that the inadequate State evidence might be bolstered by defence evidence.

In the instant case, the evidence adduced by the State, thus far, is entirely circumstantial, concerned mainly with motive and opportunity. In R v Bloom 1939 AD 188…, the court referred to two cardinal rules of logic which govern the use of circumstantial evidence in a criminal trial, viz

“(1) The inference to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn.

(2) The proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.”

We may add here that this is a process of reasoning where the court is enjoined to look at the various strands of circumstantial evidence, not individually, but in their totality and determine whether the inference sought to be drawn is the only reasonable one consistent with the proven facts to the exclusion of other competing possible inferences.

In casu, the inference sought to be drawn is that it is the accused who murdered the deceased. On the evidence, is this the sole reasonable inference to be drawn? 

We think not for the following reasons:

Granted, the accused may have had the opportunity to do so since he was the only one residing with the deceased at the homestead at the relevant time but that, per se, does not support the inference sought to be drawn. The likely motives on the accused's part which were hazarded or ascribed to him by the witnesses, viz that he was pestering the deceased for lobola money or that he was issuing threats to her or that because he chased Hardlife Ndou for 500m over a memory card, are, on their own, so weak that one would need to move a mountain to elevate them to a motive for murder. Crucially, we note that despite the accused not being truthful regarding his going to Beitbridge, as contended by the State, it, if true, remains of no moment when standing alone for he could have just panicked in an endeavour to distance himself from the scene. In any event, whether he went there or returned at Lutumba is neither here nor there if account is had of the fact stated by Hardlife Ndou that one takes about four hours by car from Lutumba to Joko Village 3 and the accused left at 16:00 hours. This means that accused got home around 20:00 hours which corroborates the accused's version that he got home around that time. Also, crucially, is the issue of the post mortem result that the cause of death was unascertained due to the advanced state of decomposition of the corpse. As we speak, no one can put a finger on the exact cause of the deceased's death let alone the time of her death. The pathologist's remarks re: fractured left femur indicate that that could have been caused by old age with the possibility that she fell and sustained the fracture or was assaulted. This does not point solely at the accused. Another crucial piece of evidence which the State missed relates to the two letters recovered from underneath the deceased's body. Had their authorship and contents been ascertained, perhaps a clear motive, depending on the outcome, would have been easily established.

From the foregoing, it is clear that on the evidence led so far, no reasonable court acting carefully might properly convict: Attorney-General v Mzizi 1991 (2) ZLR 321 (S)…,.

In the result, the application for discharge of the accused at the close of the State case must succeed and the accused is accordingly found not guilty and acquitted.

The defence applied for a discharge at the close of the State case, a procedure provided for in Section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] which reads:

“Section 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.”

The question that falls for determination is whether or not the State has proved a prima facie case against the accused to justify the accused being placed on their defences.

An application of this nature begs the question; Is there any evidence of the commission of the offence upon which a reasonable man might convict the accused. See S v Hartlebury and Another 1985 (1) ZLR 1 (HC). In that case, McNALLY J…., clearly laid down three instances where an accused should be discharged at the close of the State case, where:

(a) There is no evidence to prove an essential element of the offence. See AG v Bvuma and Another 1987 (2) ZLR 96 (S);

(b) There is no evidence on which a reasonable court, acting carefully, might properly convict. See AG v Mzizi 1991 (2) ZLR 321 (S)…,.;

(c) The evidence adduced by the prosecution is so discredited or manifestly unreliable that no reasonable court could safely act upon it. See AG v Tarwirei 1997 (1) ZLR 575 (S)…,.

This approach has been adopted in various cases in our jurisdiction, and, in fact, is the current correct legal position. See S v Tsvangirai and Others HH119-03.

Now, turning to the facts in casu, the State concedes that on the charge of murder, there is no witness therefore it sought to rely on circumstantial evidence. It is in this context that Accused One is said to have been involved in the kidnapping of Forster Moyo. It is worthy of note that the State's star witness, Forster Moyo, completely absolved Accused Two as he stated that he was not one of the people who kidnapped him and was not at the identification parade. Forster Moyo's evidence was pregnant with inconsistencies and contradictions vis-a-vis other witnesses. It is his evidence that he was with his assailants in the afternoon and had a good look at them. However, when an opportunity to identify them, or at least one of them, on the 12^th March 2001 at Silverstream Farm, Nyamandlovu availed itself he could not do so despite the fact that the incident was still fresh in his mind.

It is submitted by the State that Accused One was identified through a properly conducted identification parade process. It is essential that I now examine the circumstances surrounding this process.

According to Forster Moyo, he was kept at George Levison Ngwenya's house for almost two weeks, at George Levison Ngwenya's expense prior to the identification parade. The inescapable question at this juncture is; why would a police officer go out of his way to host a witness under those circumstances? The most important factor, however, is the contradiction between Forster Moyo on one hand and two police officers, George Levison Ngwenya and Chief Inspector Stephen Mpofu on the other. Forster Moyo told the court that when he got to the office, George Levison Ngwenya told him that they had arrested the people who had kidnapped him and were in the parade …,. As a result of this information, he went straight to Accused One and touched him. George Levison Ngwenya denies having spoken to him about the suspects or about how he was expected to behave at the parade. Chief Inspector Stephen Mpofu, on the other hand, told the court that Forster Moyo approached the parade from left to right and he did not tell him that the suspects were definitely in the parade but that they maybe there…,. This is a clear contradiction which goes to the material and root of the matter. One wonders why three people, present at the same time and during the same incident, would come out with three different versions of what took place. It is strange that there can be three different truths on the same incident.  In fact, this is impossible. My conclusion is that falsus in uno, falsus omnibus (false in one thing, false in everything). 

The State is basing its case on circumstantial evidence. This is basically that:

(1) First accused was seen by Forster Moyo in the vicinity of the murder scene and that he is one of the two people who kidnapped him;

(2) Accused One was identified by Forster Moyo at the identification parade;

(3) Accused Two's motor vehicle tyre marks were seen sometime after the murder;

(4) The cartridges of the ammunition of the firearm that was picked up at the scene of the murder is similar to the cartridges of the ammunition that was picked up at the scene where a bull was killed; and

(5) That Accused One was found in possession of an army uniform.

I now move on to examine the above points as raised by the defence counsel.

1. Accused one at the scene of the murder

Forster Moyo's evidence is that he saw Accused One in the company of another man when they kidnapped him. He later identified Accused One at the identification parade, but, emphatically said that Accused Two was not the man he had seen with Accused One. He admitted that during the kidnapping he was terrified and confused.

2. Identification Parade

At the identification parade, George Levison Ngwenya told him what to do after hosting him in his house for nearly two weeks. He identified Accused One by his complexion.

In my view, this type of identification is faulty in that Forster Moyo did not have time to observe his assailants due to his mental state; that he was told that the suspects were present in the parade; and that Accused One was not dressed in similar clothes with others. These courts have a defined guideline with regards to identification of suspects. Due to the possibility of mistakes I find the principles laid down in the case of Mutters & Anor v S SC66-89 and Makoni & Ors v S SC67-89 binding. I also find the remarks by HOLMES JA in S v Mthetwa 1972 (3) SA 766…, persuasive where the learned Judge sated:

“Because of the fallibility of human observation, evidence of identification is approached by the courts with some caution. It is not enough for the identifying witness to be honest; the reliability of his observation must also be tested. This depends on various factors such as lighting, visibility and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused's face, voice, build, gait and dress; the result of identification parades, if any; and of course the evidence by or on behalf of the accused. The list is not exhaustive. These factors, or such of them as are applicable in a particular case, are not individually decisive, but must be weighed against the other, in the light of the totality of the evidence and the probabilities.”

In fact, this is the approach adopted in Mutters & Anor v S SC66-89 and Makoni & Ors v S SC67-89. The relevant questions that the court should ask itself include the following -

a) For what amount of time did the witness have the accused under observation?

b) What was the distance between the witness and the accused at the time of observation?

c) What were the lighting conditions at the time?

d) Were there any objects in the way which would have prevented or obscured observation?

e) Does the witness have good or poor eyesight? Does he wear glasses and did he have them on at the time?

f) Did the witness see clearly the accused's face or only the rest of his body?

g) Had the witness known the accused previously and if he had, how well had he known him?

h) If the accused has no distinctive facial or other features, how can the witness be certain of the identification?

3. Accused Two's motor vehicle tyre marks

Accused Two was implicated in this matter on the basis that his motor vehicle tyre marks had been seen where a bull had been killed. Both accused were arraigned before the courts but were acquitted. No other evidence with regards to the tyre marks was produced. In my view, identification of an accused on the basis of footprints or even tyre marks should specify the features of those marks or prints and the strength of the inference to be drawn should depend on the degree of accurate detail to be ascribed of the total combination. See R v Madesane 1932 TPD 165…,. It is for that reason that the State failed to secure a conviction for the charge of stock theft. That evidence was not found to be acceptable then and it is indeed not acceptable now as it falls far short of the principles in R v Madesane 1932 TPD 165.

4. Cartridges found at the scene

Forster Moyo's evidence is that Accused One was armed with an AK assault rifle. The cartridges picked up at the murder scene and at the stock theft scene are similar. However, the evidence led in court by George Levison Ngwenya is that the type of ammunition they recovered from both scenes were similar. Under cross-examination, he conceded that the said ammunition could have been fired from any of the following rifles, AKM, SKS, and AK Yugoslavia. In view of this, it is clear that there is no safety in concluding that the cartridges found at the murder scene were from Accused One's AK rifle which Forster Moyo says Accused One was armed with.

5. Possession of an army uniform

Accused One admitted that upon his retirement from the army he was allowed to take his army uniform. The army uniform was not produced in court and it was also uncontroverted that many people, including serving army officers, are using their uniforms. There is therefore no legal basis to find that it is the same uniform one of the perpetrators was putting on.

Chief Inspector Stephen Mpofu conceded the following facts during cross-examination:

(1) That there were nine (9) people who participated in the parade and accused one was the sixth in that line;

(2) That Accused One was the only one from the cells (he was obviously not well turned out);

(3) That he told Forster Moyo that one of the suspects may be in the parade; and

(4) That it was possible for someone to see what was going on at the parade ground from the office where Forster Moyo and George Levison Ngwenya were.

His evidence is a serious, major and material contradiction to that of George Levison Ngwenya

and Forster Moyo. As already pointed out…, one or all of them are not being truthful or are genuinely mistaken about what actually transpired as stated before. It is impossible to have three different truths about one incident.

The State case hinges its case on circumstantial evidence.

Our law with regards to circumstantial evidence was ably laid down in the celebrated case of R v Blom 1939 AD 188…,. The learned Judge, WATERMEYER JA stated:

“In reasoning by inference there are two cardinal rules of logic which cannot be ignored.

(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.

(2) The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn.

If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.”

The cogency of circumstantial evidence usually arises from the number of independent circumstantial evidence which all point to the same conclusion. See HOFFMAN - South African Law of Evidence 2^nd Ed…,. The inference drawn from those circumstances must exclude all other reasonable inferences and a distinction should be made between inference and conjecture or speculation.

It is now settled law in our jurisdiction that where, at the end of the State case, there is no evidence upon which a reasonable court might convict, the court has no discretion, it must discharge the accused. See S v Kachipere 1998 (2) ZLR 271 (S)…., where GUBBAY CJ remarked:-

“Hence, so far as the law in Zimbabwe is concerned, there is no longer any controversy as to whether a court may properly refrain from exercising its discretion in favour of the accused, if, at the close of the case for the prosecution, it has reason to suppose that the inadequate evidence adduced by the State might be supplemented by defence evidence.” See also S v Tsvangirai and Others HH119-03.

I must now consider the evidence presented by the State in this matter.

There is no evidence proven beyond reasonable doubt that, firstly, Accused Two was involved in either count. Accused One was poorly identified due to the flawed identification process as there are glaring material contradictions by the State witnesses. This has led to the witnesses being discredited to an extent that they cannot be relied upon. The State has, therefore, failed to lay sufficient ground for the justification of putting the accused on their defences. As the State has, in my view failed to make a prima facie case against the accused, it cannot be allowed to proceed to a defence case in the vain hope that its otherwise weak case may be supplemented by the defence. The accused cannot be put on their defence with a calculated view of bolstering the State case. The onus of proof on the prosecution remains very high and will always be within the State's enclosure. The State cannot hope to secure a conviction on the basis of hoping that the accused may implicate each other under cross-examination. In conclusion, I am overly persuaded by the defence's argument that there is no evidence which a reasonable court, acting carefully, might properly convict the accused.

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 applicant had a charge of criminal abuse of duty as a Public Officer as defined in section 174(1)(9) of the Criminal Law Codification and Reform Act [Chapter 9:23] 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 Hlomani's further evidence that the accused person shouted “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 the 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)…,.

(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…, per McNALLY…,.; 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. See S v Ruzani 1984 ZLR 334 (4) and Attorney General v Bvuma & Anor 1987 (2) ZLR 96 (SC)…,.

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.

Where the prosecutor withdraws the charge the court is bound to discharge the accused….,.

It is trite that where the court considers that there is no evidence that the accused committed the offence, it has no discretion but to acquit him – S v Kachipare 1998 (2) ZLR 271 (S)…, and S v Tsvangirai & Ors 2003 (2) ZLR 88 (H). In particular, the court shall discharge the accused at the close of the State case for the prosecution where:

(a) There is no evidence to prove an essential element of the offence: AG v Bvuma & Anor 1987 (2) ZLR 96 (S)…,.;

(b) There is no evidence on which a reasonable court, acting carefully, might properly convict: AG v Mzizi 1991 (2) ZLR 321 (S)…,; and

(c) The evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it: AG v Tarwirei 1997 (1) ZLR 575 (S)…,.

In casu, the trial magistrate states that he delivered an ex tempore ruling at the close of the State case and indicated that the written full reasons will follow. These reasons are part of the judgment on the outstanding counts delivered at the close of the defendant's case. In my view, the full reasons should ideally have been given before the court considered the evidence of the accused on the outstanding charges. Be that as it may, a reading of the magistrate's judgment gives the impression that he relied on the rule in paragraph (c) supra, i.e. evidence of the State's star witness, Randall Harold Francis, is so manifestly unreliable that no reasonable court could safely act on it. This principle must be followed cautiously and in exceptional cases. In S v Tsvangirai & Ors 2003 (2) ZLR 88 (H)…, GARWE JP…, rightly observed –

“Whilst it is settled that a court shall acquit at the end of the State case where the evidence of the prosecution witness:

“has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it (Practice Note by Lord Parker cited with approval in AG v Bvuma & Anor supra, at 102-103.

It is clear that such cases will be rare.

This would apply:

”only in the most exceptional case where the credibility of a witness is so utterly destroyed that no part of his material evidence can possibly be believed. (per WILLIAMSON J in S v Mpetwa & Ors 1983 (4) SA 262 at 265, cited with approval by McNALLY JA in AG v Tarwirei (supra) at 576-577.”…,.

Applying this test, the trial court should not have acquitted the accused at the close of the prosecution case on the 34 charges based on the unreliability of witness Randall Harold Francis whilst at the same time placing the accused on his defence in respect of other charges on the basis of the same testimony.

This latter stance evinces that the trial court believed part of his material evidence. The court should not have dealt with the evidence of this witness in such a piecemeal fashion.

Natally Natasha Sibanda

This witness, who turned out to be the key witness, was treated as an accomplice and was given the customary warning in terms of section 267 of the Code, gave her evidence clearly and frankly to the satisfaction of the court. She has been in custody since October 2009. She has been unnecessarily prejudiced for such a long time.

The two accused persons are charged with murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They are alleged to have assaulted the now deceased, Henry Kativhu, on 24 August 2008, with fists, open hands and booted feet at Johane Temba's homestead. The deceased managed to escape, but the accused pursued and caught up with him and started to assault him, again, with sticks thereby inflicting fatal injuries on the deceased.

The post-mortem report compiled by Doctor Mujuru states that death was due to haemorrhage secondary to multiple lacerations caused by a sharp object.

Both accused pleaded not guilty to the charge. They, however, admitted fighting the deceased in a drunken brawl sparked by a long standing grudge. The State alleges that the accused persons started the fight as a carryover of a previous fight in 2007. Both accused admitted the existence of the grudge but denied having started the fight on the day in question. They countered that the deceased was a village bully who was in the habit of abusing his position as a neighbourhood watch policeman to assault them. On the day in question, he started the fight without any provocation, prompting them to fight back. They both admit having overpowered the deceased who fled. They, however, deny chasing after him in hot pursuit. Their defence is that upon running away, the deceased, who was a known bully, engaged in another fight with some unknown villagers during which he may have fallen and hit his head against a sharp object, possibly a stone.

The difficulty with that defence is that Doctor Mujuru, who compiled the post mortem report, was of the opinion that death was due to haemorrhage secondary to multiple lacerations caused by a sharp object. If death was due to multiple lacerations, then the accused have a case to answer as to the effect of the initial fight which they admit….,. The mere fact that both accused admitted that they engaged in a fight with the deceased and the evidence point to him sustaining serious injuries in that fight, as observed by the doctor, renders the accused liable to any of the competent verdicts of murder, if not murder, at the end of the day….,.

It would…, be incompetent and wholly inappropriate to discharge the accused at the close of the State case in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] in circumstances where the State has established a prima facie case against both accused pointing to the existence of a competent verdict. The court finds that the State has established a prima facie case against both accused persons at the closure of its case. The accused have a case to answer, they must therefore be put on their defence.

…,. The procedure to be followed when an application for discharge at the close of the State case is dismissed was set out by the Supreme Court in the case of S v Hunzvi 2000 (1) ZLR 540 (S), in which the Court held:

“…, that the accused has no right of appeal against the refusal of a trial judge to discharge at the end of the prosecution case because at that stage the final determination of the trial has not been reached and the proceedings are still on-going. After conviction, however, the accused has the absolute right, under s 44(2)(a) of the High Court Act [Chapter 7:06], to appeal to the Supreme Court on any ground involving a question of law. A refusal to discharge is a question of law and so may be relied upon as a ground of appeal. The ground of refusal to discharge would only succeed if, on appeal, it were found that at the close of the prosecution case there was no evidence justifying a conviction and that the defence case furnished no proof of guilt.”

This is an application for the discharge of the accused at the close of the State case in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].

This court is enjoined to return a verdict of not guilty, if, at the close of the State case, there is no evidence to show that the accused committed the offence charged.

There are now a plethora of cases in which our courts have interpreted the provisions of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07]. These include, inter alia;

(a) Where there is no evidence to prove an essential element of the offence. See Attorney General v Bvuma 1987 (2) ZLR 96 (S); or

(b) Where there is no evidence upon which a reasonable court acting carefully might properly convict. See Attorney General v Mzizi 1991 (2) ZLR 32 (S); or

(c) Where the evidence adduced by the State is so manifestly unreliable or has been discredited in cross examination that no reasonable court could safely act on or rely upon it. See Attorney General v Tarwirei 1997 (1) ZLR 575 (S).

See also S v Kachipore 1998 (2) ZLR 271 (S).

The accused is facing a charge of murder as defined in section 47(1) of the Criminal Code [Chapter 9:23]. The charge is that on 7 December 2013, at Gapare Village, Chief Serima in Chatsworth, the accused unlawfully caused the death of a baby belonging to Sheila Tavarwisa by strangling the baby intending to kill the baby or realising that there was a real risk or possibility that her conduct may cause death and continued to engage in that conduct despite the risk or possibility.

The accused, then aged 53 years old, is the biological mother of Sheila Tavarwisa. Sheila Tavarwisa is the mother of the now deceased who was a newly born child without having an independent circulation at the time of death. On 7 December 2013, Sheila Tavarwisa, the deceased's mother, experienced labour pains. It is alleged she suggested to the accused that they go to Matizha Clinic but the accused opted to take her to their aunt Loice Makore's homestead. Sheila Tavarwisa gave birth, on the way to Loice Makore's homestead, to a healthy baby who made the first cry. The accused is alleged to have purported to wrap the newly born baby but in the process intentionally strangled the baby to death and buried the baby in a hole which she covered with a stone and soil. A report was made to police and the accused was subsequently arrested.

In her Defence Outline, the accused said she does not know what caused the death of the baby but believes the newly born baby may not have survived in view of the circumstances of its birth; that is being born in the forest, on dry ground, and in bad weather. Further, its umbilical cord remained attached to its mother for a prolonged time. The accused said Sheila Tavarwisa, after giving birth, fled to Harare where she was arrested and may as well be falsely incriminating the accused in order to save her skin.

According to Dr Zimbwa, who examined the newly born baby's body and compiled the post mortem report, Exhibit 1, he made the following findings;

1. The neck of the newly born child was loose and hypermobile.

2. The umbilical cord was not tied and substantial blood was noted on the placenta.

3. The doctor concluded that the cause of death of the newly born baby was haemorrhage shock arising from the bleeding from the placenta.

The accused, in Exhibit 2, her confirmed warned and cautioned statement, denied strangling the newly born baby but admitted to have buried the baby in the bush after the baby died.

The State led evidence from the mother of the newly born baby, Sheila Tavarwisa, now aged 30 years, and Dr. Zimbwa, who compiled the post mortem report. The other evidence of other State witness was admitted in terms section 314 of Criminal Procedure & Evidence Act [Chapter 9:07].

The defence proceeded to apply for discharge of the accused at the close of the prosecution case.

In our view, it is not necessary to analyse the evidence placed before us as the State, in its response, conceded to the application. In our view, that concession is professional, well-informed, and properly made. We commend counsel for the State for such professionalism.

No useful purposes would be served by flogging a dead horse as it were.

The doctor's evidence is clear and unambiguous as regards the cause of the death of the newly born baby. The doctor pointed out that the loose or hypermobile neck cannot possibly be the cause of death of the child as the neck of a newly born child can always be flexible as the neck muscle would not be strong.  Thus, according to the doctor, this was normal. What is critical is the finding by the doctor that the cause of death was certainly haemorrhagic shock and placenta bleeding. The failure to cut the umbilical cord immediately after birth resulted in the baby bleeding into the placenta. No criminal liability therefore can be attached to the accused for that. Further, there is no other evidence supporting the conviction of the accused on any other permissible verdict.

It is these factors which correctly informed the State's concession.

Consequently, the accused is discharged at the close of the case for the prosecution and is therefore entitled to a verdict of not guilty in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].

This application is made at the instance of the accused in terms of section 198(3) of the Criminal Procedure & Evidence Act [Chapter 9:07]. That section provides;

“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.”

This is an application for review in terms of section 26 of the High Court Act [Chapter 7:06] which confers general powers, jurisdiction and authority on the High Court to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities in Zimbabwe.

The application stems from the trial magistrate herein cited as the first respondent's refusal to discharge and acquit the applicant at the closure of the State case in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The section provides that:

“(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.”

The background to the application is that the applicant was jointly charged of fraud, as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] together with his erstwhile legal practitioner Norman Bvekwa. The first respondent presided over the trial in his capacity as the trial magistrate sitting at Harare.

The factual basis upon which the application is founded is to a large extent not in dispute. The undisputed facts are that the State alleged that both accused persons fraudulently wrote a letter containing falsehoods calculated to scuttle the intended sale of a certain piece of land between the complainant company, Christmas Gift (Pvt) Ltd, and the National Social Security Authority (NSSA). Both accused admitted writing the letter as alleged by the State. The letter, dated 16 October 2012, Annexure G…, reads:

“Dear Sirs,

RE: OUR CLIENT – W. E . NYAMBO. SHARES IN DMC HOLDINGS (PRIVATE) LIMITED – NEW CHRISTMAS GIFT (PRIVATE) LIMITED

We refer to the above matter and address you at the instance of our client W.E. Nyambo.

We understand that you want to purchase the above described property from one Mr. De Sa, who claims to be the owner of the property.

This property does not belong to him as our client is the 100% shareholder in New Christmas Gift Investments (Private) Limited.

Attempts to reach compromises between Mr. De sa and our client have yielded nothing.

We demand that you stop immediately any attempts to buy this property through the said Mr. De sa.

Please communicate this position to us.”

At the close of the State case, Mr. Bvekwa, the applicant's lawyer, was properly found not guilty and discharged on the basis that he lacked the requisite mens rea to commit the offence in that he merely acted in his professional capacity as the applicant's legal practitioner. In that capacity he only acted as the applicant's mouth-piece without attracting any civil or criminal liability to himself. That kind of reasoning is unassailable and cannot be faulted at all.

The trial magistrate, in a concise but well-reasoned and convincing interim judgment, proceeded to determine that the applicant had a case to answer because he was the principal and prime mover for the writing of the offending letter. Evidence was led from various State witnesses tending to establish that the letter written at the applicant's instance and promptitude contained falsehoods and deliberate misrepresentations calculated to prejudice the complainant in its bid to sell its property to the National Social Security Authority.

It was Mr. Rogerio De Sa's testimony that he holds 99% shares in Christmas Gift (Private) Limited and the remaining 1% share is held by his wife. He authenticated his evidence by producing the relevant documentation in the form of the company's CR14 showing the company's directorship and title deeds of the disputed land as proof of ownership. His evidence in this respect found ample corroboration in the evidence of one of the company's directors, Mr. Kizito Gweshe, in every material respect.

They both disputed that the applicant was the owner of 100% shares in the company in dispute. It is clear as daylight that the evidence of all the State witnesses, if left un-rebutted, can only lead to one inexorable conclusion; that the applicant's letter to the National Social Security Authority (NSSA) was written and communicated with fraudulent intent.

It is an established rule of procedure in a criminal trial, consistent with the audi alteram partem rule, that once the State has established a prima facie case pointing to the likelihood of the accused being guilty of the offence charged, the onus shifts to the accused to rebut the operation of the evidence led against him. When placed on his defence, the accused is not being called upon to prove his innocence but to rebut the operation of State evidence suggesting that he is guilty of the offence charged.

The trial magistrate was therefore correct in determining that the applicant has a case to answer. His determination in this respect was amply backed up by the available evidence at his disposal.

That being the case, the applicant cannot seek refuge in the Constitution or the High Court by way of a frivolous and vexatious application for review. It is accordingly ordered:

1. That the application be and is hereby dismissed.

2. That the trial magistrate's ruling be and is hereby sustained.

In terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07]:

“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 a provision which has been relied upon by legal practitioners repeatedly over the years even those that have nothing else to do but would want to appear to have done it. In that regard, the courts have pronounced themselves over and over again on an application for a discharge at the close of the State case in formulating the test to be applied in relating to such an application. See S v Hartlebury and Another 1985 (1) ZLR…,.; Attorney General v Bvuma and Another 1987 (2) ZLR 96 (S)…,.; Attorney General v Mzizi 1991 (2) ZLR 321 (S)…,.; Attorney General v Tarwirei 1997 (1) ZLR 575 (S)….,.; S v Kachipare 1998 (2) ZLR 273 (S)…,.

The essence of those judgments is that the court will acquit an accused person at the close of the State case where:

(i) There is no evidence to prove an essential element of the offence;

(ii) There is no evidence on which a reasonable court, acting carefully, might properly convict; or

(iii) The evidence of the State is so manifestly unreliable that no reasonable court could safely act on it.

At the close of the case for the State we dismissed the accused's application for discharge made in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07]. We gave our reasons ex tempore.

The accused had raised the defence of self-defence and our view was that the accused's version of events should be properly ventilated during his defence case to properly ascertain if indeed he could not be convicted of the charge of murder or any other permissible verdict. 

In short, it was necessary for the accused to lay, in his evidence, the factual basis of the defence of self defence.

In my view, the concept of a prima facie case is one of those legal concepts that are easier to recognize than to define.

The concept eludes definition not only due to the fact that it deals with subjective measures of the cogency of evidence presented before a trier of fact, but also because the term is used loosely in both civil and criminal proceedings without a distinction having been attempted.

It appears to me that in civil cases, our courts have adopted the attitude that for interim protection by the court in the form of an interdict pending the determination of some other suit between the parties, a prima facie case is established once a cause of action is established even where the chances of the applicant to succeed in sustaining the cause of action are open to doubt. See Bozimo Trade and Development Co (Pvt) Ltd v First Merchant Bank of Zimbabwe Ltd & Ors 2000 (1) ZLR 1 (HC); Cooper v Leslie & Ors 2000 (1) ZLR 14 (HC); Charuma Blasting & Earthmoving Services (Pvt) Ltd v Njainjai & Ors 2000 (1) ZLR 85 (SC).

That a prima facie case in civil suits, for the obtaining of interim protection, is simply the setting out of facts establishing a possible and plausible claim against the respondent without the evidence necessary to prove such a claim appears to me clearly from the following remarks by CHATIKOBO J…, in Sultan v Fryfern Enterprises (Pvt) Ltd & Anor 2000 (1) ZLR 188 (HC):

“I have deliberately refrained from making definitive findings of fact because it may well be that further affidavits (if any are filed for the return date) or oral evidence may justify a different conclusion. At this stage I am concerned only with the question whether a prima facie case has been shown. I am satisfied it has.”

It then appears to me that a different test is used when a prima facie case has been established by a plaintiff in a civil trial to avoid absolution from the instance being granted at the close of his or her case. The test requires the establishment of more than a cause of action. Evidence must be adduced to prove the cause of action and must be so cogent as to enable a court to give judgment on it in favour of the plaintiff unless it is successfully rebutted.

It is my view that the test used to establish a cause of action at the end of the plaintiff's case is the same used to establish a case at the end of the prosecution case to avoid a discharge of the accused person. It is the adducing of evidence upon which a court may convict unless such evidence is rebutted. See Kachipare v S 1998 (2) ZLR 271 (S). Obviously, the different burdens of proof applicable in civil and in criminal proceedings apply in establishing prima facie cases in both proceedings. The test however appears the same to me.

Section 198[3] of the Criminal Procedure and Evidence Act [Chapter 9:07] reads:

“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 that where the court considers that there is no evidence that the accused committed the offence, it has no discretion but to acquit: see Attorney-General v Bvuma & Anor 1987 [2] ZLR 96 [S] and S v Tsvangirai & Ors 2003 [2] ZLR 88 [H]. There are three basic considerations. The court shall discharge at the close of the State case:

(a) Where there is no evidence to prove an essential element of the offence [Attorney-General v Bvuma & Anor 1987 [2] ZLR 96 [S]…,.];

(b) Where there is no evidence on which a reasonable court, acting carefully, might properly convict [Attorney-General v Mzizi 1991 [2] ZLR 321 [S]…,.]; and

(c) Where the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely convict on it [S v Tarwirei 1997 [1] ZLR 575 [S]…,.].

The second respondent's appreciation of the law in relation to an application for discharge at the close of the State case is beyond reproach. Such an application is in terms of section 198(3) of the Criminal Procedure and Evidence Act which provides as follows;

“98(1)…, not relevant.

(2)…, not relevant.

(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.”

The general principles enunciated in a number of decided cases, in interpreting the provisions of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07], is that the trial court is enjoined to discharge an accused person at the close of the prosecution case;

(a) Where there is no evidence to prove the essential elements of the offence. See Attorney General v Bvuma & Anor 1998 (2) ZLR 96 (S).

(b) Where there is no evidence on which a reasonable court acting carefully might properly convict. See Attorney General v Mzizi 1991 (2) ZLR 321.

(c) Where the evidence led by the State is manifestly unreliable that no reasonable court could safely act on it. See Attorney General v Tarwirei 1997 (1) ZLR 575 (S).

The second respondent properly applied these principles in discharging the first respondent at the close of the State case.

The accused was charged with murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is alleged, by the State, that on 10 January 2017, and at Tsungwesi Business Centre, Odzi, the accused unlawfully and with intent to kill or realising the real risk or possibility that his conduct may cause death and continuing to engage in that conduct despite the risk or possibility stabbed Trymore Chivandire with a knife thereby inflicting injuries from which the said Trymore Chivandire died.

The accused pleaded not guilty to the charge and proffered a defence of self-defence.

The accused's Defence Outline, which was later adopted as evidence in chief, was basically to the effect that the deceased assaulted the accused using bare hands and fists. Later, the deceased took out a knife which the accused wrestled to get and stabbed the deceased in self defence.

The summary of the State case was that on the day in question, the accused, who passed by Tsungwesi Business Centre to collect his phone, which he had earlier left for charging, had an altercation with the deceased. The two had a tumultuous history which came about over the headmanship of their village. The deceased's father, as village head, had been dislodged by the accused who was the chairman of the village following resettlement. The deceased and his family were aggrieved by the dislodgment of the deceased's father, one Isaac Chivandire, from the position hence the friction between the parties. This culminated in the parties obtaining a peace order from the Magistrates Court. On the fateful day, the deceased, who could not stand the sight of the accused, ordered the latter out of the shop and while outside the two had a misunderstanding which culminated in the accused stabbing and ripping open the deceased's stomach exposing the intestines. Following the stab wound, the deceased later died and the cause of death was established as hypovolemic shock secondary to bleeding bowel; postmortem report by Dr Forgiveness Chitungo, exhibit 3, refers.

The State adduced evidence from nine (9) witnesses as follows:

Evidence of all the other witnesses except the first, Ngwarai Satuku, and Doctor Chitungo, was formally admitted as it appears on the summary of the State Case in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The evidence of Israel Muguti was expunched from the record as the witness could not be located.

Ngwarai Satuku gave viva voce evidence.

It was clear from the witness that there was bad blood between the deceased and the accused as they struggled over leadership of the village. The witness recounted how the deceased was in the habit of harassing the accused every time they met and how he would seek to violently drive the accused off. On the fateful day, the witness restrained the deceased twice when the latter ordered the accused to leave the beer outlet. According to the witness, he and the deceased and colleagues were drinking opaque beer commonly known as “supa” and that the accused was also drinking the same beer seated at the other side of the beer outlet. The witness told the court that when the accused left the deceased also left. He observed the deceased try to kick and punch the accused but missed as the accused evaded the attack, and, shortly thereafter, he heard the deceased call out to the accused that he had been injured by the accused. He further heard the accused retort that the deceased had pursued him for too long. The witness observed the deceased's intestines were out and he was taken aback.

The witness' evidence was straight forward, as he spoke of the common cause aspect of acrimonious relationship that existed between the accused and the Chivandire's, and, in particular, the deceased.

Dr Chitungo also testified orally.

He basically narrated how he observed the body of the deceased and compiled the post mortem report. The doctor's evidence was clear evidence to follow as he explained his observation. He was highly professional in the manner he testified. Even though he was unnecessarily subjected to lengthy cross examination by the legal counsel, he did not lose his head. He did not attend to the deceased as a patient but carried out a postmortem examination. He observed injuries consistent with assault by a sharp object. His conclusion was well anchored on his observations. The doctor was candid with the court when he pointed out that the injuries could be described as moderate to severe.

We must point out that we wondered where defence counsel got the impression that the doctor said the injuries were neither moderate nor severe. The doctor's evidence could have easily been formally admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] as it was clearly not controversial. We hasten to say the doctor, who was highly professional, assisted the court on medical science.

The State also tendered in evidence the sketch plan, exhibit 2, depicting the scene of crime as indicated by the witnesses and the accused. The sketch plan, just as pointed out by the accused, shows that the accused was way ahead of the deceased such that one wonders how the two ended up together at the point when the deceased was stabbed. The State further produced exhibit I, a confirmed warned and cautioned statement by the accused which, in principle, was to the effect that the death occurred when the accused was defending himself.

The accused was the only witness in his case.

He told the Court that he was acting in self-defence and that when he cut the deceased, the deceased was actually on top assaulting him with clenched fists. The accused gave an incredible story of how he reached out for a knife on the ground using his leg while the deceased was mounting and pinning him down.

A lot of questions come out from the accused's version given he told the court he used the knife and that the knife was not his. If the knife fell from the deceased's grip given the lying down position of the deceased, pinned down and facing upwards, one wonders how he could see the knife for him to pull it with his leg and then stab the deceased's buttock and “cut” (the accused's words) the stomach to the extent of having the intestines out. The account of what transpired between the accused and the deceased left the Court with questions as to how the man described by the accused as very drunk would have over powered the accused who was sober and had taken a 20 or 40 metre headstart.

The accused, when probed on events of the day in question, buckled on recounting the sequence of events outside. He waited ready for confrontation as he felt justified since the deceased had for too long pestered, harassed, and belittled him. This was clearly read from his remarks when the deceased cried out over injuries; “you have got what you deserved for you have pestered me for far too long.”

Upon considering the totality of the evidence adduced before the court, the following factors are common cause;

(1) That the deceased and the accused were sworn enemies over leadership wrangles.

(2) That on the fateful day the accused was aggressive toward the deceased and had to be restrained, twice, when he was ordering the deceased out of the beer outlet.

(3) That the deceased stabbed the accused with a knife per his say so even though the knife was not recovered.

(4) That the deceased sustained injuries from which he bled leading to his death due to hypovelcamic shock secondary to bleeding.

(5) That the deceased was drunk and using open hands and booted feet.

We must point out that at the close of the State case the defence applied for the discharge of the accused on the basis that there was no prima facie case upon which a reasonable court acting carefully would convict the accused.

We dismissed the application and pointed out that our reasons would be clear in the main judgment.

It was apparent, at the close of the State case, that the deceased and the accused, on the day in question, had an altercation. Further, that during the physical encounter, the deceased sustained injuries which occasioned his death. The accused was within the vicinity as could be discerned from the State witnesses. The deceased was pierced by a sharp object and the accused's Defence Outline points to the accused's use of a knife.

At the close of the State case, the court is not looking at proof beyond reasonable doubt as it would do at the close of all the evidence but is rather looking at whether nor not, from the evidence adduced, the State has proved or shown a prima facie case. Put in other words, whether or not, at the close of the State case, there is evidence linking the accused with the commission of the offence.

Clearly, from the State case, there is evidence linking the accused with the offence.

Phrased differently, if the accused were to choose to remain silent in the defence case, is there evidence upon which the court can convict? If the answer is in the affirmative then the accused ought to be placed to his defence, and vice versa....,.

Given the evidence that the deceased was unarmed and that he was stabbed when he came into contact with the accused it would be an improper exercise of assessment of evidence to frown at evidence linking the accused to the commission of the offence at the close of the State case. In the face of the prima facie case established by the State at the close of the State case we dismissed the application for discharge of the accused.