The state v Blessing Mhalandla [2025] ZWBHC 28 (4 July 2025)

3 HB 101/25 HCBCR 2560/25 THE STATE Versus BLESSING MHLANDLA IN THE HIGH COURT OF ZIMBABWE NDUNA J with Assessors Mrs Mathe & Mr Sibanda BULAWAYO 4 JUNE 2025 Ruling for discharge Mr T Runganga for the Accused Mr K Jaravaza for the State NDUNA J: This is a criminal trial in which the state alleges that the accused committed murder in that he caused the death of the deceased. The accused had pleaded not guilty the charge of murder. After the state had led evidence and closed its case the defence moved the court for a verdict in favour of the accused. It is alleged that the evidence placed before the court does not establish a case upon which the accused should be put to defend himself. The provisions of section 198(3) enables a verdict to be passed by any court when the evidence placed before it does not establish a case. That application is opposed. The state is of the firm view that its case has met all the requirements for the trial to proceed to the defence case. It is therefore important that the court looks at the law in this regard. The defence and the state dwelt on the law and the defence went at length to draw the court’s attention to a number of cases which dealt with the law of discharge at the close of state case. Usually the law does not pose any difficulty and there will be generally no dispute over its interpretation. Questions invariably arise out of its application to the facts of the matter before the court. As such the court will not deal with the law at length save to only summarise what it says. A discharge at the close of prosecution case as afore stated is enabled by statute in terms of Section 198(3) of the Criminal Procedure & Evidence Act [Chapter 9:07] hereafter the Code. It 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 relief is enabled for a court to find a person not guilty and acquit him of the charge(s) he is facing after hearing only evidence from the state if certain conditions are not met by the evidence placed before the court. The court must only consider evidence at this stage which is in the record. A clear reading of the applicable provision quoted verbatim above shows that there are grounds upon which the relief must be grounded. A party must clearly show which grounds his prayer is based upon. However, the provision is peremptory and whether a party has done so or has just rambled along, still the court must assess the evidence and determine whether or not the standard set for a case to go to the defence has been met. Even where no application has been made to move a court for a discharge, the court is still expected only to order a case to go to the defence only when it is lawful to do so. Section 198(3) (supra) is one of the most important provisions in our criminal procedure and trials. Where an accused applies for discharge a court is enjoined to give the application its utmost consideration. The provision raises important issues which go to the constitutionality of a criminal trial. Section 198(3) is clearly an entrenchment of a number of fundamental rights of an accused in a criminal trial, a compendium of the so-called fair trial rights embodied in Sections 69 and 70 of the Constitution; that is the right to presumption of innocence, the right to be proven guilty by the prosecution, the right to a fair trial and the right against self-incrimination. The net effect of the fair trial rights was aptly stated in State v Noah Ndlovu & Ors HB 81/2006 where the High Court puts it as follows; It is trite that in criminal matters, the legal burden of proof remains fundamentally upon the state; it cannot shift to the defence. The accused bears no onus, in this sense of proving his innocence. ... Even where, [as is in the case here], he relies upon facts peculiarly within his knowledge or pleads a general denial, the onus remains on the state to negative his innocence. In order for this to be achieved, a court is obliged to discharge an accused at the end of the case for the prosecution if a prima facie case has not been established by that stage. An accused, whether or not he is represented by counsel at law, must be discharged if the threshold of a prima facie case has not been met; thereby protecting his right to the presumption of innocence, right against self-incrimination and retaining the burden of proof on the state. So important is the duty of proof to be reposed upon the state throughout that in Australia, this has been referred to as ‘a cardinal principle of [our] system of justice’ in Sorby v Commonwealth (1983) 152 CLR 281 at 294 and further the High Court of Australia observed in 2014 in Lee v The Queen [2014] HCA 20 (21 May 2014) [32] that; “Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person”. That observation is equally applicable here in Zimbabwe. It is therefore apparent that this court is being called to make a constitutional determination. The seriousness of the question therefore needs no emphasis. It is my understanding that the present legal position regarding applications in terms of Section 198(3), may be summarised as follows: • An accused person (whether or not he is represented) 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; • In deciding whether an accused person is entitled to be discharged at the close of the state’s case, the Court may properly take into account the credibility of the State witnesses but decide against the evidence if the credibility is so low; • Where the evidence of the State witnesses implicating the accused is of such poor quality that it cannot be safely relied upon and there is accordingly no credible evidence on record upon which a court, acting carefully, may convict, an application for discharge should be granted. The state as stated above, must have established a prima facie case in order for the case to go to the defence. “Prima facie” is that standard which is difficult to define in precise terms. S vs Petronella Nyarugwe HH 42/2016 is an authority wherein the court stated that a prima facie case is just where a probable cause to put an accused to his defence has been established on a balance of probabilities covering all the essential elements of the offence or other elements of an offence. The Encyclopaedia Britannica defines prima facie case as ‘a case sufficient until controverted by evidence’. It’s a case which must call for an answer from the accused. For the purposes of this application, the old decision of Ex Parte The Minister of Justice: In Re Rex v Jacobson & Levy 1931 AD 466 gives a celebrated definition of prima facie proof. Stratford JA defined prima facie evidence as follows: “Prima facie” evidence in its usual sense, is used to mean prima facie proof of an issue the burden of proving which is upon the party giving that evidence. In the absence of further evidence from the other side, the prima facie proof becomes conclusive proof and the party giving it discharges his onus. And the Court continued; If the party on whom lies the burden of proof, goes as far as he reasonably can in producing evidence and that evidence “calls for an answer” then, in such case, he has produced prima facie proof, and, in the absence of an answer from the other side, it becomes conclusive proof and he completely discharges his onus of proof. If a doubtful or unsatisfactory answer is given it is equivalent to no answer and the prima facie proof, being undestroyed, again amounts to full proof. Having spoken about the threshold which must be met; that is a prima facie case; it as well equally important to expound on another aspect that demands utmost caution from the court as it determines the issue before hand. It is the role of credibility. In the matter of S v Mpeta and Others 1983(4) SA 262, at p. 265D the court held that relevant evidence can only be ignored if “it is of such poor quality that no reasonable person could possibly accept it”, and that credibility therefore plays a limited role at this stage of the proceedings. In S v Ndlangamandla and Another 1999(1) SACR 391 (WLD), the Court also held that credibility should be taken into account at this stage, only where the evidence is of such a poor quality that no reasonable person could possibly accept it. In Haw Tua Tua v Public Prosecutor [1982] 1 AC 136 at 151 it was said credibility won’t suffice unless the evidence is inherently incredible and unless the evidence is manifestly self-contradictory or as was held in R v Bilick (1984) 36 SASR 321 at 337, is the product of a disorderly mind. What I have stated above is in sum, the totality of the pronouncements in cases in this jurisdiction such as; 1. S vs Kachipare 1998 (2) ZLR 271 (S) 2. AG vs Bvuma & Another 1987 (2) ZLR 96 (S) 3. AG vs Mzizi 1991 (2) ZLR 321 (S) 4. AG vs Tarwirei 1997 (1) ZLR 575 (S) 5. S vs Nyarugwe HH 42/2016 6. R vs Shein 1925 AD 6 Innocence has three components; the accused must be proved guilty beyond reasonable doubt at the end of the trial, but at this stage, a prima facie case must be established, the state bears onus of proof and criminal prosecutions be carried out in accordance with lawful procedure. In S vs Legote 2001(2) SA 179 SCA, it was stated that the court has a duty to discharge the unrepresented accused where there is no prima facie case. The same applies where the accused is legally represented in court. It is therefore incumbent upon the trial Court to properly evaluate the evidence of the state in the lights of its deficiencies if there are any, and the criticisms voiced against it, in order to determine whether it measured up to the standard required for its acceptability. If it did not measure up to such standard, it would not avail the State in the discharge of the onus of proof upon it; whether his guilt has been proved, this is only so where the State has prima facie discharged the onus upon it. A failure to testify will NOT remedy a deficiency in the State case. Having said that, the court will now look at the case and the submissions by the parties. The evidence of the state emanates from three witnesses. The court notes that all the three witnesses were related to the deceased. The first state witness’s evidence does not help the state case at all. The first state witnesses invented his own story. He lied that he saw the manner in which the deceased was assaulted. He lied that he came out of the bar when the assault upon the deceased was going on. However, the case turns on the evidence of the second and third witnesses. These two witnesses gave very chilling evidence of the events of the day. It is noted that from their evidence, that the deceased had retrieved a snooker ball from the accused. It is also clear that the deceased had reverted back to fight the accused because the accused had bitten the deceased on the hand. He accordingly took a whip. It is therefore clear that the deceased went back to fight with the accused. There is no way the deceased could have been attacked and got killed by some other person who was not related to the accused. Further, the whip which the deceased had taken was then found at the residence of the accused. The whip had been taken by the deceased in his fight with the accused. It will be beyond human imagination that the accused would have taken the whip without hitting the deceased, or whoever took the whip to that residence must have assaulted the deceased. We are told that the accused had a friend. So it is either the accused or his friend who may have taken the whip. Despite the total rejection of the first witness’ evidence, the evidence placed on record meets what is required for the case to go to the defence. It is accordingly so ordered and the accused is put to his defence in the matter. National Prosecuting Authority, State’s legal practitioners Tanaka Law Chambers, accused’s legal practitioners 3 HB 101/25 HCBCR 2560/25 3 HB 101/25 HCBCR 2560/25 THE STATE Versus BLESSING MHLANDLA IN THE HIGH COURT OF ZIMBABWE NDUNA J with Assessors Mrs Mathe & Mr Sibanda BULAWAYO 4 JUNE 2025 Ruling for discharge Mr T Runganga for the Accused Mr K Jaravaza for the State NDUNA J: This is a criminal trial in which the state alleges that the accused committed murder in that he caused the death of the deceased. The accused had pleaded not guilty the charge of murder. After the state had led evidence and closed its case the defence moved the court for a verdict in favour of the accused. It is alleged that the evidence placed before the court does not establish a case upon which the accused should be put to defend himself. The provisions of section 198(3) enables a verdict to be passed by any court when the evidence placed before it does not establish a case. That application is opposed. The state is of the firm view that its case has met all the requirements for the trial to proceed to the defence case. It is therefore important that the court looks at the law in this regard. The defence and the state dwelt on the law and the defence went at length to draw the court’s attention to a number of cases which dealt with the law of discharge at the close of state case. Usually the law does not pose any difficulty and there will be generally no dispute over its interpretation. Questions invariably arise out of its application to the facts of the matter before the court. As such the court will not deal with the law at length save to only summarise what it says. A discharge at the close of prosecution case as afore stated is enabled by statute in terms of Section 198(3) of the Criminal Procedure & Evidence Act [Chapter 9:07] hereafter the Code. It 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 relief is enabled for a court to find a person not guilty and acquit him of the charge(s) he is facing after hearing only evidence from the state if certain conditions are not met by the evidence placed before the court. The court must only consider evidence at this stage which is in the record. A clear reading of the applicable provision quoted verbatim above shows that there are grounds upon which the relief must be grounded. A party must clearly show which grounds his prayer is based upon. However, the provision is peremptory and whether a party has done so or has just rambled along, still the court must assess the evidence and determine whether or not the standard set for a case to go to the defence has been met. Even where no application has been made to move a court for a discharge, the court is still expected only to order a case to go to the defence only when it is lawful to do so. Section 198(3) (supra) is one of the most important provisions in our criminal procedure and trials. Where an accused applies for discharge a court is enjoined to give the application its utmost consideration. The provision raises important issues which go to the constitutionality of a criminal trial. Section 198(3) is clearly an entrenchment of a number of fundamental rights of an accused in a criminal trial, a compendium of the so-called fair trial rights embodied in Sections 69 and 70 of the Constitution; that is the right to presumption of innocence, the right to be proven guilty by the prosecution, the right to a fair trial and the right against self-incrimination. The net effect of the fair trial rights was aptly stated in State v Noah Ndlovu & Ors HB 81/2006 where the High Court puts it as follows; It is trite that in criminal matters, the legal burden of proof remains fundamentally upon the state; it cannot shift to the defence. The accused bears no onus, in this sense of proving his innocence. ... Even where, [as is in the case here], he relies upon facts peculiarly within his knowledge or pleads a general denial, the onus remains on the state to negative his innocence. In order for this to be achieved, a court is obliged to discharge an accused at the end of the case for the prosecution if a prima facie case has not been established by that stage. An accused, whether or not he is represented by counsel at law, must be discharged if the threshold of a prima facie case has not been met; thereby protecting his right to the presumption of innocence, right against self-incrimination and retaining the burden of proof on the state. So important is the duty of proof to be reposed upon the state throughout that in Australia, this has been referred to as ‘a cardinal principle of [our] system of justice’ in Sorby v Commonwealth (1983) 152 CLR 281 at 294 and further the High Court of Australia observed in 2014 in Lee v The Queen [2014] HCA 20 (21 May 2014) [32] that; “Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person”. That observation is equally applicable here in Zimbabwe. It is therefore apparent that this court is being called to make a constitutional determination. The seriousness of the question therefore needs no emphasis. It is my understanding that the present legal position regarding applications in terms of Section 198(3), may be summarised as follows: • An accused person (whether or not he is represented) 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; • In deciding whether an accused person is entitled to be discharged at the close of the state’s case, the Court may properly take into account the credibility of the State witnesses but decide against the evidence if the credibility is so low; • Where the evidence of the State witnesses implicating the accused is of such poor quality that it cannot be safely relied upon and there is accordingly no credible evidence on record upon which a court, acting carefully, may convict, an application for discharge should be granted. The state as stated above, must have established a prima facie case in order for the case to go to the defence. “Prima facie” is that standard which is difficult to define in precise terms. S vs Petronella Nyarugwe HH 42/2016 is an authority wherein the court stated that a prima facie case is just where a probable cause to put an accused to his defence has been established on a balance of probabilities covering all the essential elements of the offence or other elements of an offence. The Encyclopaedia Britannica defines prima facie case as ‘a case sufficient until controverted by evidence’. It’s a case which must call for an answer from the accused. For the purposes of this application, the old decision of Ex Parte The Minister of Justice: In Re Rex v Jacobson & Levy 1931 AD 466 gives a celebrated definition of prima facie proof. Stratford JA defined prima facie evidence as follows: “Prima facie” evidence in its usual sense, is used to mean prima facie proof of an issue the burden of proving which is upon the party giving that evidence. In the absence of further evidence from the other side, the prima facie proof becomes conclusive proof and the party giving it discharges his onus. And the Court continued; If the party on whom lies the burden of proof, goes as far as he reasonably can in producing evidence and that evidence “calls for an answer” then, in such case, he has produced prima facie proof, and, in the absence of an answer from the other side, it becomes conclusive proof and he completely discharges his onus of proof. If a doubtful or unsatisfactory answer is given it is equivalent to no answer and the prima facie proof, being undestroyed, again amounts to full proof. Having spoken about the threshold which must be met; that is a prima facie case; it as well equally important to expound on another aspect that demands utmost caution from the court as it determines the issue before hand. It is the role of credibility. In the matter of S v Mpeta and Others 1983(4) SA 262, at p. 265D the court held that relevant evidence can only be ignored if “it is of such poor quality that no reasonable person could possibly accept it”, and that credibility therefore plays a limited role at this stage of the proceedings. In S v Ndlangamandla and Another 1999(1) SACR 391 (WLD), the Court also held that credibility should be taken into account at this stage, only where the evidence is of such a poor quality that no reasonable person could possibly accept it. In Haw Tua Tua v Public Prosecutor [1982] 1 AC 136 at 151 it was said credibility won’t suffice unless the evidence is inherently incredible and unless the evidence is manifestly self-contradictory or as was held in R v Bilick (1984) 36 SASR 321 at 337, is the product of a disorderly mind. What I have stated above is in sum, the totality of the pronouncements in cases in this jurisdiction such as; 1. S vs Kachipare 1998 (2) ZLR 271 (S) 2. AG vs Bvuma & Another 1987 (2) ZLR 96 (S) 3. AG vs Mzizi 1991 (2) ZLR 321 (S) 4. AG vs Tarwirei 1997 (1) ZLR 575 (S) 5. S vs Nyarugwe HH 42/2016 6. R vs Shein 1925 AD 6 Innocence has three components; the accused must be proved guilty beyond reasonable doubt at the end of the trial, but at this stage, a prima facie case must be established, the state bears onus of proof and criminal prosecutions be carried out in accordance with lawful procedure. In S vs Legote 2001(2) SA 179 SCA, it was stated that the court has a duty to discharge the unrepresented accused where there is no prima facie case. The same applies where the accused is legally represented in court. It is therefore incumbent upon the trial Court to properly evaluate the evidence of the state in the lights of its deficiencies if there are any, and the criticisms voiced against it, in order to determine whether it measured up to the standard required for its acceptability. If it did not measure up to such standard, it would not avail the State in the discharge of the onus of proof upon it; whether his guilt has been proved, this is only so where the State has prima facie discharged the onus upon it. A failure to testify will NOT remedy a deficiency in the State case. Having said that, the court will now look at the case and the submissions by the parties. The evidence of the state emanates from three witnesses. The court notes that all the three witnesses were related to the deceased. The first state witness’s evidence does not help the state case at all. The first state witnesses invented his own story. He lied that he saw the manner in which the deceased was assaulted. He lied that he came out of the bar when the assault upon the deceased was going on. However, the case turns on the evidence of the second and third witnesses. These two witnesses gave very chilling evidence of the events of the day. It is noted that from their evidence, that the deceased had retrieved a snooker ball from the accused. It is also clear that the deceased had reverted back to fight the accused because the accused had bitten the deceased on the hand. He accordingly took a whip. It is therefore clear that the deceased went back to fight with the accused. There is no way the deceased could have been attacked and got killed by some other person who was not related to the accused. Further, the whip which the deceased had taken was then found at the residence of the accused. The whip had been taken by the deceased in his fight with the accused. It will be beyond human imagination that the accused would have taken the whip without hitting the deceased, or whoever took the whip to that residence must have assaulted the deceased. We are told that the accused had a friend. So it is either the accused or his friend who may have taken the whip. Despite the total rejection of the first witness’ evidence, the evidence placed on record meets what is required for the case to go to the defence. It is accordingly so ordered and the accused is put to his defence in the matter. National Prosecuting Authority, State’s legal practitioners Tanaka Law Chambers, accused’s legal practitioners