THE State V Wairo Wairo

### Preamble
1
HH 474-25
HCHCR 2054/25
---------


THE STATE

versus

WAIRO WAIRO

HIGH COURT OF ZIMBABWE

MANDAZA J

HARARE, 9 July 2025 and 12 August 2025

Assessors

Mr Barwa

Mr Gwatiringa

Application for a discharge at the close of the State case

T Mukuze and M Mugabe, for the State

S Katsuwa, for the Accused.

MANDAZA J: This is an application for a discharge at the close of the State’s case in terms of the provisions of section 198(3) of the Criminal Procedure and Evidence Act [Chapter  9:07]. The application is opposed. At the close of the evidence for the prosecution, the defence counsel applied for the discharge of the accused. The discharge was sought on the basis that, at the close of the State’s case, there was no evidence against the accused person that required a reply from him.

In terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07], the court shall return a verdict of not guilty if at the close of the State case:

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.

In other words, the 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 a plethora of cases in which our courts have interpreted the provisions of s 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07]. These cases include inter alia S v Tsvangirai and Others 2003 (2) ZLR 88 (H), S v Kachipare 1998 (2) ZLR 575 (S) and others.

The position in this jurisdiction is that a court shall discharge the accused at the close of the case for the prosecution where:-

There is no evidence to prove an essential element of the offence-Attorney-General v Bvuma and Another 1987 (2) ZLR 96 (S).

There is no evidence on which a reasonable court, acting carefully, might properly convict-Attorney-General v Mzizi 1991 (2) ZLR 321 (S).

The evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it-Attorney-General v Tarwirei 1997 (1) ZLR 575 (S).

See also S v Shrien Prakash Dewani CC 15/2014, a case by the Constitutional Court of South Africa.

It is trite that ‘no evidence’ does not mean that there is literally no evidence, but rather there is a lack of evidence on which a reasonable court, acting carefully, would convict the accused. See S v Lubaxa 2001 (2) SACR 703 (SCA). Whether or not a discharge should be granted at this stage is a decision that falls in the ambit of the trial court’s discretion. This discretionary power is one that must be, self-evidently, judicially exercised. In Lubaxa (supra), it was held that an accused person is entitled to be discharged at the close of the case for the prosecution if there is no possibility of a conviction other than if he enters the witness box and incriminates himself.

Whilst it is settled that a court shall discharge 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, it is clear that such cases will be rare. See Attorney-General v Bvuma and Another (supra). This would apply only in the most exceptional case where the credibility of a witness is so utterly destroyed that no part of his/her material evidence can possibly be believed.

In the case of S v Mpetwa and Others 1983 (4) SA 262, the court held that credibility would play only a very limited role and the evidence should be ignored only if it was of such poor quality that no reasonable person could possibly accept it. Thus, this view would prevent hopeless cases from continuing with the attendant expense, anxiety and frustration to an accused from continuing. The case of Mpetwa (supra) was cited with approval by Mcnally JA in Attorney-General v Tarwirei (supra) at 576,577.

The evaluation of the evidence at this stage is different than at the end of the trial. It is a sui generis interlocutory procedure. This process has been typified as a question of law and not fact. It is incumbent upon any court dealing with an application for discharge to bear this in mind.

Clearly therefore, a person ought not to be prosecuted in the absence of a minimum of evidence upon which he might be convicted, merely in the expectation that at some stage he might incriminate himself. That is recognised by the common law principle that there should be ‘reasonable and probable’ cause to believe that the accused is guilty of an offence before a prosecution is initiated. See Beckenstrater v Rottcher and Theuniseen 1955 (1) SA 129 (A) at 135C-E.

The interpretation of section 198 (3) is settled in this jurisdiction. It was held in the case of S v Kachipare 1998 (2) ZLR 271 (S) that:-

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…

What that statement simply means is that, where the court considers that there is no evidence that the accused committed the offence, it has no discretion but to acquit him.

In the case of S v Mathebula and Another 1997 (1) SACR 10 (W), the court held as follows:

The duty to prove an accused’s guilt rests fairly and squarely on the shoulders of the State. The accused need not assist the State in any way in discharging the onus. If the State cannot prove any evidence against the accused at the end of the State’s case, why should the accused be detained any longer and not be afforded his constitutional rights of being regarded as innocent and thus being acquitted and accorded his freedom? Can it be said that he was given a fair trial if, at the close of the State’s case wherein no evidence was tendered to implicate him in the alleged crimes, the trial is then continued owing to the exercise of a discretion in the hope that some evidence implicating him might be forthcoming from the accused himself or his co-accused?

The above words ring true in applications of this nature. The court must be alive to the accused’s right to freedom and the right to be presumed innocent among other constitutional rights.

In casu, the accused is charged with the crime of murder as defined in section 47(1) of the Criminal Law [Codification and Reform] Act. It is alleged that, on 23 December 2023, at around 2100 hours and at Damofalls Phase 4, he assaulted David Sengai, the deceased, several times all over his body with clenched fists and open hands thereby causing injuries from which the said David Sengai died.

There is evidence before the court that is: the post mortem report, which shows that the deceased’s death was due to universal subarachnoid haemorrhage, skull and vault fracture and severe czanioeriefaliac in unspecified condition. To prove its case, the State called three (3) witness namely: Noleen Goro, Richard Majome and Tafadzwa Paundi. The evidence of the other witnesses including the pathologist was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The evidence of Noleen Goro was to the effect that on 23 December 2023 she saw the now deceased being assaulted by four (4) individuals who included the accused person. She could not identify the other three (3) assailants. She identified the accused person because she was once in a relationship with him. She initially observed the altercation when the deceased was being dragged across the road. She stopped to take a closer look and observed the accused slapping the deceased, who then fell to the ground. Even though she saw the slap, she opined that the deceased could have been assaulted earlier. The slap was quite strong as the deceased fell to the ground. The other assailants were holding the deceased by his shirt whilst pulling and dragging him.

Richard Majome, the Investigating Officer also testified. He stated that Noreen Goro had told him that the accused and three other assailants had assaulted the deceased. His evidence by and large tallied with what Noleen Goro had told the court.

Tafadzwa Pound also testified. He was called by Noleen Goro to assist the deceased as he was coming from work. She told him that the deceased had been assaulted by four (4) assailants who had ran away. When they got to the spot, they found the deceased lying on the ground. The deceased tried to sit up but failed. They assisted him to sit on a chair. He noticed that there was blood at the place they had found him which is suggestive that he had bled. He reiterated that Noleen Gora had told him that she had noticed the deceased being slapped with open hands. She did not divulge the names of the assailants even though she knew them. He also testified that on the day in question, Noleen Gora was not drunk.

The defence sought to discredit the evidence of Noleen Gora by calling her a prostitute, chronic drinker or an alcoholic. She was attacked for failing to identify the other three (3) assailants and for failing to divulge the identity of the assailants to anyone. She was also accused of exaggerating events of the day especially when she testified that she had observed the deceased ‘flying’ after being slapped. The Investigating Officer was accused of conducting shoddy investigations. The defence accepted the evidence of Tafadzwa Paundi as credible out of all the three witnesses.

It is not in doubt that Noleen Gora is a self-confessed alcoholic, and the court had to adjourn at least three times during proceedings to allow her to stabilise as she was shaking. She told the court that she needed to take alcohol to stabilise her shaking. She was very honest with the court in that regard. The court noticed however that she gave similar testimonies to that of the Investigating Officer and Tafadzwa Paundi. Her reluctance to disclose the identity of the assailants was reasonable in the circumstances since she was once assaulted by the accused. She could not have failed to identify the accused as she was once in a relationship with him. She was indeed consistent. Calling her names does not detract from her testimony, which is consistent. In any case, the evaluation of evidence at this stage is different from that involved at the end of the trial.

At this stage of the proceedings, the simple question is: on the record, is there evidence against the accused person which requires a reply from him? I take the view that indeed there is evidence before the court. There is the post-mortem report which shows that the deceased died as a result of the injuries he suffered on the date of the assault. There is evidence that places the accused at the scene of the crime. There is evidence that implicates the accused in the commission of the offence of murder. He was seen by Noleen Goro slapping the deceased and dragging him across the road in the company of three (3) assailants who are at large. Noleen Goro requested Tafadzwa Paundi to assist the deceased. She also narrated the same information in court and to the Investigating Officer. It cannot be said that her evidence is of such poor quality or manifestly reliable as required by case law for it to be rejected outright. Granted she is a self-confessed alcoholic but on the day in question she was not drunk. That aspect was testified to by Tafadzwa Paundi. Due to the relationship she had earlier with the accused she could not have mistaken him for anybody.

This court cannot ignore that evidence at this stage of the proceedings. It is on record. It is the view of this court that there is a prima facie case against the accused person which requires him to answer.

I agree with the State that its burden at this stage of the proceedings is to prove a prima facie case for the matter to proceed to the defence case. At this stage the State does not have to prove its case beyond reasonable doubt. See R v Difford 1937 AD 370. The establishment of a prima facie case is a condition precedent to placement of an accused to his defence. In the case of S v Petronella Nyarugwe HH42/16 the position was succinctly put as follows:-

A prima facie case is a case where one can say there has been shown, on the evidence led, a probable cause to put the accused on his defence. Generally, probable cause or a prima facie case is made where all the essential elements of the offence charged or any other offence on which the accused may be convicted have been proved on a balance of probability. At this stage, the test is not whether there is proof beyond reasonable doubt but whether on a balance of probabilities it can be argued that the essential elements constituting the offence charged or any other offence have been proved.

Thus, once a prima facie case has been established, the evidential burden will shift to the accused to adduce evidence in order to escape conviction. However, the burden of proof will remain with the prosecution.

In casu, the prosecution has made out a prima facie case against the accused person.

In the result; the application for discharge at the close of the State’s case is accordingly refused.

Mandaza J………………………………

National Prosecuting Authority, State’s legal practitioners.

Masasire Law Chambers, Accused’s legal practitioners.