SIKHANGEZILE DUBE And 3 OTHERS Versus THE STATE (HB 12 of 26) [2026] ZWBHC 6 (2 February 2026)

3 HB 12/26 HCBCR 4869/24 **SIKHANGEZILE DUBE** **And** **TAMUKA MANGONO** **And** **JUSTICE MAKONI** **And** **LIBERTY JERANYAMA** **Versus** **THE STATE** **IN THE HIGH COURT OF ZIMBABWE** **NDUNA J** **BULAWAYO 14 JANUARY AND 2 FEBRUARY 2026** Assessor: Mr M Ndlovu _**Ruling for application for discharge at the close of state case**_ _N. Mugiya,_ for the applicants _K. M Guveya,_ for the state **NDUNA J** : Amongst the litany of fair trial rights that exist in our criminal and procedural law is the presumption of innocence. This right provides that an accused person is presumed to be innocent until proven guilty. The presumption of innocence obliges the state to show guilt beyond a reasonable doubt in order for an accused to be convicted. Therefore, for a conviction to ensue, the state is required, at the close of state case, to have rebutted the presumption of innocence by leading sufficient evidence against the accused, upon which a reasonable person could convict. A failure by the state to mount sufficient evidence for a conviction at the close of its case, gifts the accused the opportunity to escape having to be put on their defence. This gift takes the form of a procedural device in the _Criminal Procedure & Evidence Act, [Chapter 9:07] namely section 198(3)_, which provides; _**198 Conduct of trial**_ (1) ….. (2) ….. (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 Clearly, the new Constitutional dispensation would reinforce the Zimbabwean criminal law and procedure, and it did so in respect of _section 198(3),_ supra. applications. In _Sections 50, 69 and 70_ , of the _Constitution_ , the rights in issue here are captured. The accused persons are facing one count murder which occurred in 2020 at Plumtree area. The four accused entered pleas of not guilty to the charge upon advice from their Counsel and the state led evidence and closed its case. They then instructed counsel to apply for discharge as they allege that not enough evidence has been placed before the court calling for their defence to the charges. They seek to rely on provisions _of section 198(3) (supra)._ The state insists that they have led sufficient evidence for the placement of all the accused persons to their defence. In _S v Luxaba 2000 (2) SACR 703 at 707D_ the South African court, emphasising the acquittal of an accused at this stage expressed itself 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 upon his self-incriminatory evidence. ... .” It is a realisation of the requirements of presumption of innocence and fair trial rights that a court, where an accused is not represented by Counsel at law, and where the state does not back out of a case seemingly hopeless, the court must on its own motion move to consider whether the evidence placed before it legally establishes the basis for the accused to be put to his defence. A case that demands an answer from accused should have been established by the closure of state case in order for accused to be lawfully put to his defence. It is commonly referred to as prima facie case; and defined thus; “ _one of which was that prima facie evidence left uncontroverted might be found to be sufficient proof of guilt.”_ (as per _S v Mukungatu 1998 (2) ZLR 244 (SC)_) The law regarding the operation of the provision in question is very simple to all legal minds. In its simple terms, it dates back to beyond 1935 when it was first defined by the _House of Lords_ in _Woolmington v DPP (1936) 25 Cr App R 72_. The House of Lords described it as the burden and standard of proof in criminal cases in the following terms: “ _Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt ... If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the [defendant had committed the offence with which he was charged], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. (per Viscount Sankey L.C. p.481) 3”._ The words “no evidence” in Section 198(3) has been interpreted to mean no evidence upon which reasonable court acting carefully may convict. Cases of _S v Mpetha 1983 (4) SA 262 (C); S v Swartz and Another 2001 (1) SACR 334(W), and, A-G v Mzizi 1991 (2) ZLR 321 at 323_ adopt this definition. It must be emphasised that in Zimbabwe the test is __not may a reasonable man convict__ but __should convict__ In arriving at that decision, it must be noted that credibility of witnesses is a factor to take into account but to limited extent as per _S v Mpetha at 265E-G_ (supra) where the court held that credibility would only play a very limited role and the evidence only ignored if it is of such a poor quality that no reasonable man could possibly accept it. Accused can also be discharged if upon the application of a recognised legal principle, it would be unsafe to accept the evidence led by the state. Now, coming to this case, the participants in the matter it is beyond doubt at the accused persons. They are not in any way denying that they participated in the events which led to their arrest. What they are disputing is the subject of their assault. They claim they assaulted a foreigner whom they then took the border and he went to his home. In this case the deceased was from Inyathi. He used to go to Botswana. On the material time he left home on or about the early days of December 2020 going to Botswana. When he left home he wore a red T-Shirt, blue trousers and red tuckies. A person arrived at the homestead of accused 1. Of course, a person arrived at the home since it is one of the very disputes in this trial that the accused have taken it that the person for which we are concerned with is the one they interfered with. They are of the view that the person who concerned their attention was Tswana. The accused are not concerned with the manner in which they dealt with that person; they have stated their position. It is that their victim did not pass on and is not a Zimbabwean but a Tswana whom they took to the border. They are of the view that the said Tswana went away to his home. Therefore, in order for the accused to be put to their defence in this matter it must have proved that they interfered with the deceased. It is therefore most necessary to trace the evidence brought in this matter by the state. The court must bear in mind that the level or degree of proof required at this stage is not the ultimate degree required at the end of the defence case, but the degree of proof required is the lower one; balance of probability. The evidence led by the state in this case to me is very clear; it is that accused 1, 2, 3 and 4 came to accused 1’s home and they learnt that the person thereat was a thief. The accuseds sought to confront the person. Accused 1 enquired from the person and gathered that he was not the thief. She moved the male accused to let the person go. That could not be achieved as they took to assault the person severely. They assaulted him indiscriminately tearing his clothes. All the process of the assault is not being disputed. What the accuseds dispute is the identity of the person; to them he was a Tswana and to all others a Zimbabwean. When they were about to go leaving the person lying on the ground, one witnesses led others to remonstrate with that. They were ordered to take their victim with them. Attempts were made to tie him by the hand and drag him along. That was then stopped. The person was then thrown into the vehicle boot and the vehicle was driven away. The accused persons now would want the court to accept that the person they assaulted and took away was a Tswana whom they took to the border and he went across the border to his home. The witnesses were adamant that the person found to have died was the very person who had been assaulted. During investigations accused 4 is said to have brought the police to the spot where the assault took place and they recovered in inner garment which was torn away from the person assaulted on the day. The witnesses go on to describe the clothes which were worn by the person as they appeared during the assault. These are the very clothes which the deceased was found wearing. Clearly this is a case which cannot be given the verdict of an acquittal at this stage for the most of the accused. The first accused appeared and spoke to the deceased. She then took stop the assaults which were perpetrated against the person. She cannot be prosecuted together with the other three. The witnesses were all speaking for her that she did not assault the victim. She was actually against the assault upon the said person. It is accordingly found as follows: 1. Accused 1 is accordingly discharged at the close of state case. She accordingly found not guilty and acquitted of the charge 2. Accused 2, 3 and 4 are put to their defence. _Mugiya Law Chambers,_ applicants’ legal practitioners _National Prosecuting Authority,_ respondent’s legal practitioners