Aspher Madziyire v Mr Shortgame N.O. and National Prosecuting Authority

The applicant appeared at Gweru Magistrates' Court charged with contravening section 49 of the Criminal Law (Codification and Reform) Act (culpable homicide). On 1 April 2014, the applicant was driving his motor vehicle along the Harare-Bulawayo road heading towards Bulawayo when, at or near the 284 km peg opposite Dabuka Rail Station, he hit a cyclist who was cycling in the same direction. The cyclist died on the spot due to multiple fractures and head injury. The State alleged the applicant was negligent by travelling at excessive speed, failing to keep a proper lookout, and failing to act reasonably when a collision seemed imminent. The applicant denied the allegations and stated that the deceased, whose homestead was nearby, suddenly changed course without signalling to turn right across the road without checking for traffic. At the close of the State case, the applicant applied for discharge in terms of section 198(3) of the Criminal Procedure and Evidence Act. The learned magistrate dismissed the application. The State's evidence consisted of two police officers and a vehicle inspector. Both police officers confirmed the applicant was not travelling at excessive speed and concluded that the deceased was negligent in failing to check for traffic before turning right. There were no other eyewitnesses to the accident.

• Whether the magistrate erred in refusing to discharge the applicant at the close of the State case in terms of section 198(3) of the Criminal Procedure and Evidence Act
• Whether there was evidence upon which a reasonable court, acting carefully, might convict
• Whether the High Court should intervene in unterminated proceedings in the lower court
• Whether pedestrians and cyclists owe a reciprocal duty of care to motorists

1. The decision of the 1st respondent (magistrate) in the matter CRB GWP 256/17 was set aside. 2. The application was granted and the accused person was found not guilty and acquitted. No order as to costs was made against the respondents who did not oppose the application.

Where at the close of the State case there is no evidence upon which a reasonable court, acting carefully, might convict, the court has no discretion under section 198(3) of the Criminal Procedure and Evidence Act - it must discharge the accused. The court may not exercise its discretion against the accused if it has reason to suppose that inadequate State evidence might be bolstered by defence evidence. A finding of guilt based on circumstantial evidence must be anchored on specific proven facts supported by evidence led in court, not speculation or conjecture. Pedestrians and cyclists owe a reciprocal duty of care, rational and reasonable conduct to motorists. An accused person has no onus to prove his innocence.

The court noted that it is generally undesirable for a superior court to intervene in unterminated proceedings in the lower court except in cases where grave injustice might occur. However, this was identified as one of those rare cases screaming for intervention mid-stream to prevent unnecessary harassment and miscarriage of justice. The court observed that the respondents' decision not to oppose the review application was probably a well-informed realization that it would have been futile to try to defend the indefensible. The court chose not to impose costs against the respondents due to their inaction.

This case reinforces important principles in Zimbabwean criminal procedure regarding discharge at the close of the State case. It emphasizes that where section 198(3) applies, a court has no discretion and must discharge the accused - it cannot speculate that inadequate State evidence might be bolstered by defence evidence. The case also affirms the reciprocal duty of care owed by pedestrians and cyclists to motorists, not just vice versa. It demonstrates the exceptional circumstances in which a superior court will intervene in unterminated proceedings to prevent grave injustice. The judgment serves as a warning against magistrates placing an improper onus on accused persons or resorting to speculation and conjecture unsupported by evidence.