Dumisani Sibanda v The State

### Preamble
1
HB 183.20
HC (CRB) 76/19
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DUMISANI SIBANDA

Versus

THE STATE

HIGH COURT OF ZIMBABWE

MABHIKWA J with Assessors Mr O Dewa and Mr J Sobantu

BULAWAYO 19, 20 SEPTEMBER 2019 AND 24 JULY 2020

Judgment on the application for discharge at the close of the State case

N Sithole, for the accused

B Maphosa and Ms S Ndlovu, for the state

MABHIKWA J:	The accused faces a murder charge in contravention of section 47 of the Criminal Law (Codification and Reform) Act (Chapter 9:23).  It is alleged by the state that the deceased who was 23 at the time of the fatal incident, had set up as temporary base for illegal gold miners at a bush at Lonely Star mine together with several other gold panners.  They were warming themselves around a fire.  The accused allegedly arrived in the company of his uncle and friends.  They were looking for one Prince Mwale, a step brother to the accused.  They accused him of having assaulted one of their friends, earlier in the day.  The accused confronted his step brother and briefly fought with him.  They quickly resolved the quarrel amicably.  The deceased was sleeping next to the fire.  One of the accused’s friends, Bhekinkosi Ndlela (alias Bhekimpilo) kicked the now deceased asking him why he was sleeping.  The deceased angrily woke up and asked why Bhekinkosi was kicking him.

The accused quickly joined the quarrel.  He picked up a pick lying next to the fire and struck the deceased on the chest with it using the digging tip.  He withdrew the pick and struck again on the waist line using the handle.  This happened in full view of other gold panners.

In his defence outline, the accused stated that it is the deceased and Bhekimpilo who were fighting.  He tried to calm them down but they continued fighting.  He then states that some trigger happy policemen got to him asking for Bhekimpilo.  When he and Prince Mwale failed to tell them the whereabouts of Bhekimpilo, the “trigger happy” police officers allegedly shot at them accusing them of concealing the whereabouts of Bhekimpilo.  He does not mention the murder at all in his defence outline and prays for his acquittal.

The accused pleaded not guilty to the charge.

The state produced as an exhibit a Post Mortem Report No. 476-475-2018 compiled by Doctor Sanganai Pesanai in terms of section 278 (3) of the Criminal Procedure and Evidence Act, Chapter 9:07.  The report revealed that the deceased died as a result of;

1.	Haemopericardium

2.	Penetrating and Perforating stab wound to the right ventricle and intraventricular septum

3.	Haemothorax

The state then called three (3) witnesses to testify, namely Israel Moyo, Norman Ncube and Assistant Inspector Lungisani Pius Tshuma.  The first two were eye witnesses whilst the 3rd is a Police Officer.  After their testimony and at the closure of the state case, the accused made the current application for his discharge in terms of section 198 (3) of the Criminal Procedure and Evidence Act.

THE LAW

While the former section 188 (3) of the Criminal Code used the term “may” the current section 198 (3) uses the term “shall” retain a verdict of not guilty.  This means that once a court is of the view that the state had not proved a prima facie case against the accused, it “shall” or “must” retain a not guilty verdict at the close of state case.

The following authorities are also pertinent

See S v S Mpofu 2012 (1) ZLR 384 HB 81-12, where it was held that the court has no discretion but to acquit at the end of the state case if there is no evidence upon which a reasonable court would convict the accused.   The state has a duty to place before the court, evidence of probative value to establish a prima facie case, the evidence adduced by the prosecution should be of such a degree that it calls for an answer from the accused.

The state need not prove the commission of the offence at this stage but must have adduced evidence which will justify the transfer of the onus to the accused.  See also S v Kachipare – 1998 (2) ZLR 271 as compared with A G v Bvuma and Another 1987 (2) ZLR 96 (S) and earlier case S v Hatlebury and another, 1985 (1) ZLR 1 (H).

In S v Noormohamed – 2012 (1) ZLR 367 (H) it was held that section 198 (3) of the Criminal Procedure and Evidence Act is clear that if at the close 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 of thereon, it has no discretion but it shall retain a verdict of not guilty.

There is no longer any controversy in our law as to whether in the exercise of its discretion, the court may not discharge the accused if it has reason to suppose that the inadequate evidence adduced by the state might be supplemented by the defence evidence.  That discretion was taken away.  Once the court considers that;

a)	There is no evidence to prove an essential element of the offence,

b)	There is no evidence upon which a reasonable court acting carefully and judiciously might properly convict, and

c)	The evidence adduced on behalf of the state is so manifestly unreliable that no reasonable court could safely act on it.

The court is obliged in terms of section 198 (3) to acquit.

See also Attorney General v Makamba 2005 (2) ZLR 54 (S).

Where it was held that in dealing with applications for discharge at the closure of the state case, there is a sound basis for granting such an application where the above 3 considerations are shown.

Where in his application, the accused has managed to show the above requirements, he shall be entitled to his discharge.   However, where it is reasonably argued for the state that the evidence so far adduced was sufficiently probative of the essential elements of the offence charged, for a reasonable court acting carefully to convict, the accused would not be entitled to such discharge.  The position at the close of the state case should be one where there is evidence of essential elements of the commission of the offence having been established.

In Attorney General v Tarwirei -1997 (1) ZLR 575 (S), it was held

NB:	That it is a fundamental mistake to treat assertions made by the accused during their cross-examination a fortiori by their counsel in cross-examination as if they were evidence by the accused persons.

The magistrate or judge is not in a position to decide on the veracity of either of the two versions until he has had both versions.  One therefore cannot pass final judgment on their relative credibility before hearing the accused’s versions.

While it is true therefore that a court may acquit at the close of the state case where the evidence of the prosecution witnesses has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable could safely convict upon it, such cases will be rare- it would be quite exceptional for the credibility of a witness to be so utterly destroyed that no part of his material evidence could possibly be believed.

McNALLY JA in Attorney General v Tarwireyi (supra) cited with approval WILLIAMS J in S v Mpetwa and Others 1983 (4) SA 262 that a discharge at the close of the state case should be the exception rather than the norm.

“Only in the most exceptional case where the credibility of a witness is so utterly destroyed that no part of his material evidence cannot possibly be believed.”

It follows from the above finding that the more the number of state witnesses, the more it would be unlikely that all their evidence is utterly destroyed with no part of it worthy of belief.

It would be wrong to make a final decision at the close of the state’s case simply on the basis of preference of the state or the accuseds’ version.

The state at this stage is not being called upon to prove its case against the accused persons beyond reasonable doubt but simply a prima facie case.  For the accused to succeed, the State witnesses’ evidence should be devoid of any probative value.

Put differently, has the state led evidence of probative value and of such degree as to require an answer from the accused?  If so, the state would have proved a prima facie case.  From the evidence of the three (3) state witnesses, it is not in dispute that the accused was, on the fateful night, at the scene of crime together with other illegal gold panners.  He too does not deny that fact.

It is also not in dispute that these illegal gold miners were well known to each other.  They were not too many as to be a crowd.  They were just around a fire being between 5 and 7 in number.  They also had torches which they normally use in the bush.

The two eye witnesses state that the deceased had been asleep next to the fire when the accused picked up a pick and gored him in the chest with it.  Although the murder weapon was not recovered, the two eye witnesses were emphatic that it was a pick that was used by the accused on the deceased.  The pick had just been lying near the fire.  The two witnesses also testified that after striking the deceased with a pick, the accused remarked that the deceased was an unlucky boy as he had killed him for something that he did not know, or words to that effect.

The 3rd witness also testified on what transpired in his presence after being called to the scene to arrest the accused.  He denied that he and his colleagues got to the scene looking for Bhekimpilo.  In any case, it has not been alleged that the police had been told that it was Bhekimpilo who had committed the murder.  After all, such allegation would remain hearsay or simply an allegation until the person who claimed that Bhekimpilo was the killer testified in court.  The state has not made that allegation and therefore cannot be the party expected to produce that evidence.

The two eye witnesses, and eventually to a certain extent, the police officer, knew the accused, Prince Mwale and Bhekimpilo well.  Israel Moyo and Norman Ncube were present at the murder scene from the time the accused and his friends arrived up to the time the deceased was struck with a pick and lay motionless.

The accused has applied for his acquittal at this stage mainly for the reasons of what he believes are discrepancies in the state case.  He refered to discrepancies like whether or not after being kicked whilst asleep, the deceased “angrily woke up” or simply “tried to wake up.”  He also made reference to the issue of whether or not the attack was provoked, as well as whether the deceased was struck whilst lying down asleep or that he attempted to stand up.  He also made reference to the police shooting incident a day or so after the murder.

As already shown above, an accused can only be discharged at the close of the state case, if the court is of the opinion that, or the accused has shown that the state case is devoid of any probative value to the extent that it does not beg for any answers from the accused.

Further, it is trite that even at the end of a trial, for an accused to be acquitted on the basis of discrepancies in the state case, such discrepancies or contradictions must go to the root of the state case.  It follows a fortiori, that for an acquittal at the close of the state case on account of contradictions in the state case, such discrepancies must go to the root of the state case as to leave it with no probative value at all.

Put differently, can it be said that this is a case where the accused, even if placed on his defence, can safely close his case without him or his witnesses testifying and still be acquitted?   Can it safely be said that the state case in casu is devoid of any probative value that the accused does not need to answer to it?  It is this court’s finding that the accused has to answer to the state case. The State proved a prima facie case.

Accordingly, the application for the accused’s discharge at the close of the state case is dismissed and he is put on his defence.

Ncube Attorneys, accused’s legal practitioners

National Prosecuting Authority, state’s legal practitioners