S & Anor v Tivenge (HC 9825 of 2013) [2014] ZWHHC 1 (7 January 2014)

1 HH 01-14 HC 9825/2013 NDOMUPEI TIVENGE versus THE STATE and MRS MUGWAGWA ESQUIRE HIGH COURT OF ZIMBABWE MATANDA-MOYO J HARARE, 24 December and 8 January 2014 Unopposed Matter Mrs NP. Munangati, for the applicant MATANDA-MOYO J: This is a matter which came as an unopposed matter in which the applicant sought to set aside the second respondent’s decision that the trial of the applicant continue to the defence case in a criminal trial. Further that the applicant be discharged at the close of the state’s case. The brief background of the matter is this. On 11 September 2013 at around 16:30 hours the applicant was in charge at a roadblock along Kirkman Road, Mabelreign, Harare. The applicant was observed by the informant one, Fiona Hlomani a senior police officer who was checking roadblocks along Kirkman Road. The informant observed the accused person receiving something from an unidentified motorist. The informant then stopped and interrogated the accused person as to what was happening. The accused is alleged to have thrown down seven dollars she had received from the motorist. It is alleged that the accused picked up the money and handed it over to Motion Manekera, a commuter omnibus driver. The accused was searched by the informant and was found with a road service permit belonging to Freerain Enterprises of Number 7 Seville Close Glen Lorne. It is from the above set of facts that the application had a charge of criminal abuse of duty as a Public Officer as defined in s 174 (1) (9) of the Criminal Law Codification and Reform Act [Cap9:23] laid against her. Evidence was led from the arresting detail who HH 01-14 HC 9825/2013 stated she observed the accused person being handed money by a motorist who sped off. It was Fiona’s further evidence that the accused person shanted “mandibata” ( meaning you caught me) when the second witness got to her. This was not disputed. The first witness refuted the applicant’s defence that the $7 was his. Further the applicant was found with excess money which she did not account for. At the close of the state case the defence applied for discharge. The basis for the application was that the state witnesses were not reliable as they had proffered contradictory evidence. Our law provides for a discharge at the close of the state case if the court considers that there is no evidence that accused committed the offence. Section 198 of the Criminal Procedure and Evidence Act [Cap 9:07] reads: “198 Conduct of Trial (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. It is trite from the above that discharge is justified; (i) Where there is no evidence on which a reasonable court might convict. See Rutterboldt 1956 SA 722 & Attorney General v Mzizi 1991 ZLR 321 (S) at 323 B. (ii) The evidence adduced by the prosecution, is so manifesty unreliable that no reasonable court could safely act on it see S v Hurtlebury & Anor 1985 1 ZLR 1 @ 3 per McNally as he then was; S v Malinger & Ors 1993 4 SA 479; S v Kachipone 1998 2 ZLR 271(S) (iii) There is no evidence to prove an essential element of the offence. See S v Ruzani 1984 ZLR 334 (4) and Attorney General v Bvuma & Anor 1987 (2) ZLR 96 (SC) @ 102 FG. The trial court has a discretion to discharge or continue with the trial. However, the most important factor is that the discretion must be exercised judiciously. It seems to me that the magistrate judiciously exercised her discretion and this court will not interfere with that discretion as a prima facie case was made against the applicant. In light of the above, the following decision is made. Application is dismissed. Munangati & Associates, applicant’s legal practitioners HH 01-14 HC 9825/2013