The state v Melus Nkomo [2025] ZWBHC 36 (24 June 2025)

4 HB 91/25 HCBCR 6496/24 THE STATE Versus MELUSI NKOMO IN THE HIGH COURT OF ZIMBABWE NDUNA J with Assessors Mr R. Mabandla & Mrs N. Majenda BULAWAYO 24 MARCH 2025 Criminal Trial Mr K. M. Nyoni for the State Mr T. Runganga with Ms R. Chigerwe for the Accused NDUNA J: This is a murder trial before the court touching on the alleged murder of the deceased, Nkosilati Nkoma on the 12th day of February 2024 at Fools Mine, Hope Fountain Bulawayo. The state alleges that the accused caused the death of Nkosilati Ngoma by assaulting the deceased with several stones and fist all over his body. The accused tendered a plea of not guilty duly advised by counsel. The state led evidence from its three witnesses. The evidence of Norbert Nyamakupe, Givemore Gwarazimba and DR S Pesanai was admitted by consent in terms of section 314 of the Criminal Procedure & Evidence Act [Chapter 9:07]. The evidence of Makhosi Mthetwa and Ishmael Ngoma was expunged from the record as they could not be located. A look at the record, we could not see the summary of evidence of Nobert Nyamakupe and that of Givemore Gwarazimba. The persons who are listed as having their evidence summarised are the following: Makhosi MthetwaGideon NcubeShepherd NgomaTinashe NgomaIshmael NgomaAssistant Inspector NdlovuSgt RufumoyoDr Pesesanai The witnesses who testified are the following witnesses Gideon NcubeShepherd NgomaTinashe Ngoma The following witnesses’ evidence was sought to be admitted in terms of section 314 of the Code. Norbert Nyamakupe, Givemore Gwarazimba andDR S Pesanai As stated above, we do not see the summary that relates to the evidence of Norbert Nyamakupe and Givemore Gwarazimba. Therefore, there is clearly nothing to delete in respect of the said two witnesses. The following persons’ evidence was duly deleted from the record as the state seems to have failed to locate them: Makhosi Mthetwa and,Ishmael Ngoma The state case therefore went as follows: The first state witness was Gideon Ncube. He was by the mine entrance. He was hit with a stone on his waistline. He observed the persons who came to the mine as accused, Abisha Ncube and Nyembesi Mthetwa. Gideon Ncube was hiding by as they passed and they had torches on their heads. According to this witness, Ngosilati, Shepherd and Tinashe Ngoma had entered the mine. He had nothing more to say about the case. The second state witness was Shepherd Ngoma. His evidence was brief. He said that according to him the accused had killed the deceased. Together with accused was Abisha Ncube and Makhosi Mthetwa. However, the deceased was attacked, but he did not see how the deceased was attacked. According to this witness one Tinashe Ngoma witnessed the assault on the deceased. The third state witness was Tinashe Ngoma. His evidence was that he was with the deceased when they got to the mine. As they were about to enter down the mine, stones began to be thrown at them. The deceased was the first to enter the mine. He observed the now deceased being beaten by the accused. He told the court that he restrained the accused from further assaulting the deceased. The deceased ran towards the area where one Makosi was and the said Makosi was carrying an iron bar. According to this witness the accused had hit the now deceased with stones and clenched fists. It is after the evidence which gives us in its totality the above was led did the defence apply for discharge at the close of state case in terms of section 198(3) of Code. The application was opposed. The legal principles which underpin the consideration of an application for discharge in terms of s 198(3) of the Code are as follows. The starting point is the section itself, which reads 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 phrase ‘no evidence’ has been interpreted by our courts in a long line of cases as involving the test whether there is evidence upon which a reasonable court, acting carefully, may convict. Although credibility of witnesses may be considered, it plays a very limited role at this stage of the proceedings. It is only in exceptional cases where the credibility of a witness has been so ‘utterly destroyed’ that no part of his or her material evidence can possibly be believed. Before credibility can play a role at all a very high degree of untrustworthiness must therefore be shown. It is well established that “no evidence” does not mean no evidence at all, but rather no evidence on which a reasonable court, acting carefully, might convict. [ R v Shein 1925 AD 6;); S v Mpetha & Others 1983(4) SA 262] On the same subject the court in S v Lubaxa, 2001 (2) SACR 703 (SCA), held inter alia, as follows: “I have no doubt that 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. The failure to discharge an accused in those circumstances, if necessary mero motu, is in my view a breach of the rights that are guaranteed by the Constitution and will ordinarily vitiate a conviction based exclusively on his self-incriminatory evidence. The right to be discharged at that stage of trial does not necessarily arise, in my view, from considerations relating to the burden of proof (or its concomitant, the presumption of innocence) or the right of silence or the right not to testify, but arguably from a consideration that is of more general application. Clearly 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 (Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A) at 135C-E), and the constitutional protection afforded to dignity and personal freedom (s 10 and s 12) seems to reinforce it. It ought to follow that if a prosecution is not to be commenced without that minimum of evidence, so too should it cease when the evidence finally falls below that threshold. That will pre-eminently be so where the prosecution has exhausted the evidence and a conviction is no longer possible except by self-incrimination. A fair trial, in my view, would at that stage be stopped, for it threatens thereafter to infringe other constitutional rights protected by s 10 and s 12.” It is proper to add that the credibility of state witnesses at this state is not to be awarded with a prominent view. It has been held that the credibility of State witnesses at this stage of the proceedings only play a very limited role. In S v Mpetha & Others 1983(4) SA 262, Williamson, J held that relevant evidence can only be ignored if “it is of such poor quality that no reasonable person could possibly accept it. Whilst the court has enumerated the legal basis in the South African courts, these are identical to the requirement as established by our own cases. In Attorney General vs Mzizi 1991 (2) ZLR 321 (SC) it was held that there was no reason for departing from the previous decision. The court continued and stated that; It has stood unchallenged in our law reports for 26 years. Moreover, it gives a meaning to the clear words of the section "or any other offence of which he might be convicted thereon". The section therefore permits a discharge at the end of the State case when, and only when, there is no evidence on which a reasonable man, acting carefully, might properly convict either on the main charge or on any alternative or competent charge. It so clear that where there is evidence that an accused may have committed any offence for which he can be convicted, it would be improper for a court to accede to an application for a discharge. The court in Attorney General vs Mzizi (supra) goes on to declare that; In this case the conditions for a discharge were not fulfilled. There was evidence upon which a court might have convicted the accused of a lesser offence and such conviction would have been a competent verdict. The decision to acquit at that stage was therefore as a matter of law incompetent. To therefore summarise the legal position regarding applications in terms of section 198(3) the following is apparently its implications: (a) 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; (b) In deciding whether an accused person is entitled to be discharged at the close of the State’s case, the court may take into account the credibility of the State witnesses, even if only to a limited extent; (c) Where the evidence of the State witnesses implicating the accused is of such poor quality that it cannot 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 In the case before us, the evidence placed before us is to the effect that the accused was observed assaulting the deceased whereupon the witness reprimanded the accused. It is also common cause that that accused was not alone at the scene. He had his colleagues. It is this person who was being assaulted who later died through assaults. Therefore in order for the court to acquit the accused, there must no evidence of a form of violence perpetrated upon the complainant by himself. Now in this case a witness observed the accused assaulting the deceased and he stopped him from continuing with the assault before the deceased went into the mine. So far it is not being disputed that the accused was observed by a witness assaulting the deceased. Clearly this is not a case for a discharge at the close state case. The accused is needed to give evidence in his defence either to the mere assault or to the eventual murder which occurred upon the deceased person. The witness has told the court that he had to dissuade the accused from further assaulting the deceased who was then later found dead. The accused is required to give evidence of his involvement in the case. Therefore, clearly this is not a case where it can be said a verdict can be entered by the court at this stage. The third state witness told the court that he observed the accused assaulting the deceased and he stopped him. That piece of evidence has not been challenged. The person who was then assaulted was found dead. Clearly this is a bad case to apply for discharge. The application must therefore be dismissed. And accordingly, the accused is put to his defence. The National Prosecuting Authority, State’s legal practitioners Tanaka Law Chambers, accused’s legal practitioners 4 HB 91/25 HCBCR 6496/24 4 HB 91/25 HCBCR 6496/24 THE STATE Versus MELUSI NKOMO IN THE HIGH COURT OF ZIMBABWE NDUNA J with Assessors Mr R. Mabandla & Mrs N. Majenda BULAWAYO 24 MARCH 2025 Criminal Trial Mr K. M. Nyoni for the State Mr T. Runganga with Ms R. Chigerwe for the Accused NDUNA J: This is a murder trial before the court touching on the alleged murder of the deceased, Nkosilati Nkoma on the 12th day of February 2024 at Fools Mine, Hope Fountain Bulawayo. The state alleges that the accused caused the death of Nkosilati Ngoma by assaulting the deceased with several stones and fist all over his body. The accused tendered a plea of not guilty duly advised by counsel. The state led evidence from its three witnesses. The evidence of Norbert Nyamakupe, Givemore Gwarazimba and DR S Pesanai was admitted by consent in terms of section 314 of the Criminal Procedure & Evidence Act [Chapter 9:07]. The evidence of Makhosi Mthetwa and Ishmael Ngoma was expunged from the record as they could not be located. A look at the record, we could not see the summary of evidence of Nobert Nyamakupe and that of Givemore Gwarazimba. The persons who are listed as having their evidence summarised are the following: Makhosi Mthetwa Gideon Ncube Shepherd Ngoma Tinashe Ngoma Ishmael Ngoma Assistant Inspector Ndlovu Sgt Rufumoyo Dr Pesesanai The witnesses who testified are the following witnesses Gideon Ncube Shepherd Ngoma Tinashe Ngoma The following witnesses’ evidence was sought to be admitted in terms of section 314 of the Code. Norbert Nyamakupe, Givemore Gwarazimba and DR S Pesanai As stated above, we do not see the summary that relates to the evidence of Norbert Nyamakupe and Givemore Gwarazimba. Therefore, there is clearly nothing to delete in respect of the said two witnesses. The following persons’ evidence was duly deleted from the record as the state seems to have failed to locate them: Makhosi Mthetwa and, Ishmael Ngoma The state case therefore went as follows: The first state witness was Gideon Ncube. He was by the mine entrance. He was hit with a stone on his waistline. He observed the persons who came to the mine as accused, Abisha Ncube and Nyembesi Mthetwa. Gideon Ncube was hiding by as they passed and they had torches on their heads. According to this witness, Ngosilati, Shepherd and Tinashe Ngoma had entered the mine. He had nothing more to say about the case. The second state witness was Shepherd Ngoma. His evidence was brief. He said that according to him the accused had killed the deceased. Together with accused was Abisha Ncube and Makhosi Mthetwa. However, the deceased was attacked, but he did not see how the deceased was attacked. According to this witness one Tinashe Ngoma witnessed the assault on the deceased. The third state witness was Tinashe Ngoma. His evidence was that he was with the deceased when they got to the mine. As they were about to enter down the mine, stones began to be thrown at them. The deceased was the first to enter the mine. He observed the now deceased being beaten by the accused. He told the court that he restrained the accused from further assaulting the deceased. The deceased ran towards the area where one Makosi was and the said Makosi was carrying an iron bar. According to this witness the accused had hit the now deceased with stones and clenched fists. It is after the evidence which gives us in its totality the above was led did the defence apply for discharge at the close of state case in terms of section 198(3) of Code. The application was opposed. The legal principles which underpin the consideration of an application for discharge in terms of s 198(3) of the Code are as follows. The starting point is the section itself, which reads 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 phrase ‘no evidence’ has been interpreted by our courts in a long line of cases as involving the test whether there is evidence upon which a reasonable court, acting carefully, may convict. Although credibility of witnesses may be considered, it plays a very limited role at this stage of the proceedings. It is only in exceptional cases where the credibility of a witness has been so ‘utterly destroyed’ that no part of his or her material evidence can possibly be believed. Before credibility can play a role at all a very high degree of untrustworthiness must therefore be shown. It is well established that “no evidence” does not mean no evidence at all, but rather no evidence on which a reasonable court, acting carefully, might convict. [ R v Shein 1925 AD 6;); S v Mpetha & Others 1983(4) SA 262] On the same subject the court in S v Lubaxa, 2001 (2) SACR 703 (SCA), held inter alia, as follows: “I have no doubt that 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. The failure to discharge an accused in those circumstances, if necessary mero motu, is in my view a breach of the rights that are guaranteed by the Constitution and will ordinarily vitiate a conviction based exclusively on his self-incriminatory evidence. The right to be discharged at that stage of trial does not necessarily arise, in my view, from considerations relating to the burden of proof (or its concomitant, the presumption of innocence) or the right of silence or the right not to testify, but arguably from a consideration that is of more general application. Clearly 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 (Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A) at 135C-E), and the constitutional protection afforded to dignity and personal freedom (s 10 and s 12) seems to reinforce it. It ought to follow that if a prosecution is not to be commenced without that minimum of evidence, so too should it cease when the evidence finally falls below that threshold. That will pre-eminently be so where the prosecution has exhausted the evidence and a conviction is no longer possible except by self-incrimination. A fair trial, in my view, would at that stage be stopped, for it threatens thereafter to infringe other constitutional rights protected by s 10 and s 12.” It is proper to add that the credibility of state witnesses at this state is not to be awarded with a prominent view. It has been held that the credibility of State witnesses at this stage of the proceedings only play a very limited role. In S v Mpetha & Others 1983(4) SA 262, Williamson, J held that relevant evidence can only be ignored if “it is of such poor quality that no reasonable person could possibly accept it. Whilst the court has enumerated the legal basis in the South African courts, these are identical to the requirement as established by our own cases. In Attorney General vs Mzizi 1991 (2) ZLR 321 (SC) it was held that there was no reason for departing from the previous decision. The court continued and stated that; It has stood unchallenged in our law reports for 26 years. Moreover, it gives a meaning to the clear words of the section "or any other offence of which he might be convicted thereon". The section therefore permits a discharge at the end of the State case when, and only when, there is no evidence on which a reasonable man, acting carefully, might properly convict either on the main charge or on any alternative or competent charge. It so clear that where there is evidence that an accused may have committed any offence for which he can be convicted, it would be improper for a court to accede to an application for a discharge. The court in Attorney General vs Mzizi (supra) goes on to declare that; In this case the conditions for a discharge were not fulfilled. There was evidence upon which a court might have convicted the accused of a lesser offence and such conviction would have been a competent verdict. The decision to acquit at that stage was therefore as a matter of law incompetent. To therefore summarise the legal position regarding applications in terms of section 198(3) the following is apparently its implications: (a) 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; (b) In deciding whether an accused person is entitled to be discharged at the close of the State’s case, the court may take into account the credibility of the State witnesses, even if only to a limited extent; (c) Where the evidence of the State witnesses implicating the accused is of such poor quality that it cannot 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 In the case before us, the evidence placed before us is to the effect that the accused was observed assaulting the deceased whereupon the witness reprimanded the accused. It is also common cause that that accused was not alone at the scene. He had his colleagues. It is this person who was being assaulted who later died through assaults. Therefore in order for the court to acquit the accused, there must no evidence of a form of violence perpetrated upon the complainant by himself. Now in this case a witness observed the accused assaulting the deceased and he stopped him from continuing with the assault before the deceased went into the mine. So far it is not being disputed that the accused was observed by a witness assaulting the deceased. Clearly this is not a case for a discharge at the close state case. The accused is needed to give evidence in his defence either to the mere assault or to the eventual murder which occurred upon the deceased person. The witness has told the court that he had to dissuade the accused from further assaulting the deceased who was then later found dead. The accused is required to give evidence of his involvement in the case. Therefore, clearly this is not a case where it can be said a verdict can be entered by the court at this stage. The third state witness told the court that he observed the accused assaulting the deceased and he stopped him. That piece of evidence has not been challenged. The person who was then assaulted was found dead. Clearly this is a bad case to apply for discharge. The application must therefore be dismissed. And accordingly, the accused is put to his defence. The National Prosecuting Authority, State’s legal practitioners Tanaka Law Chambers, accused’s legal practitioners