Brent Johan Lunt v Barbara Mateko N.O. and The State and Nyasha Matendawafa

On 2 July 2019, the applicant and the third respondent were arrested after detectives from the CID Minerals, Flora and Fauna Unit received information that they were in possession of rhinoceros horns they intended to sell in Masasa area, Harare. The applicant was a passenger in a Toyota Mark X driven by the third respondent. Upon searching, detectives found four rhinoceros horns in a blue bag held by the applicant. The horns weighed 5.993 kilograms and were valued at US$240,000. The applicant and third respondent could not produce documents authorizing possession of the horns. They were jointly charged with unlawful possession of a trophy of a specially protected animal in terms of s 45(1)(b) read with s 128(1)(b) of the Parks and Wildlife Act [Chapter 20:14]. At the close of the State case, the applicant applied for discharge. The magistrate (first respondent) dismissed the application and put the applicant on his defense, despite finding that the State's expert witness (a veterinary doctor) failed to prove the horns were from a specially protected species of rhinoceros (black or square-lipped rhinoceros). The magistrate invoked the reverse onus provisions in s 97(1) and (8) of the Act without hearing submissions from the parties on this point.

• Whether the State established a prima facie case against the applicant at the close of its case sufficient to put him on his defense
• Whether the magistrate erred in dismissing the application for discharge when she found the State failed to prove the horns were from a specially protected species of rhinoceros
• Whether the magistrate erred in invoking the reverse onus provisions in s 97(1) and (8) of the Parks and Wildlife Act without hearing submissions from the parties
• What are the proper requirements for discharge at the close of the State case under s 198(3) of the Criminal Procedure and Evidence Act
• Whether there was evidence upon which a reasonable court acting carefully might convict
• Whether the State's evidence was so manifestly unreliable that no reasonable court could safely act on it
• The distinction between discharge and acquittal

1. The decision of the first respondent dismissing the applicant's application for discharge at the close of the State case under case number HREP 9372/19 be and is hereby set aside. 2. Applicant be and is hereby discharged at the close of the State case under case number CRB HRE P 9372/19. 3. Each party to bear its own costs.

Where a magistrate or lower court finds that the State has failed to prove essential elements of an offence at the close of the prosecution case, the accused must be discharged under s 198(3) of the Criminal Procedure and Evidence Act. The test for discharge is whether there is evidence upon which a reasonable court acting carefully might convict, and whether the State's evidence is so manifestly unreliable that no reasonable court could safely act on it. When a court finds the State's evidence manifestly unreliable and insufficient to establish essential elements of an offence, it is an error of law to nevertheless put the accused on his defense. In offences under the Parks and Wildlife Act requiring proof that a trophy is from a specially protected animal species, the State must adduce proper expert evidence to establish the species; failure to do so means an essential element is not proven. A court should not invoke reverse onus provisions or other legal principles on its own initiative (mero motu) without hearing submissions from the parties, as this may prejudice the accused. Discharge at the close of the State case results in a verdict of not guilty but does not constitute an acquittal; it reflects that insufficient evidence exists to warrant a full trial at that stage.

The court made several obiter observations: (1) The court expressed general reluctance to interfere with unterminated proceedings in lower courts, but noted that certain exceptions warrant intervention in the interests of justice. (2) The court explained in detail the distinction between discharge and acquittal: discharge is an interlocutory ruling that does not bar re-arrest and fresh proceedings if new or better evidence becomes available, whereas acquittal follows a full trial and establishes res judicata preventing a second trial on the same facts. (3) The court emphasized that discharge upholds the accused's constitutional right to a fair trial and the presumption of innocence under s 70(1)(a) of the Constitution of Zimbabwe. (4) The court noted that the application for discharge at the close of the State case is a sui generis interlocutory application that typically raises a question of law rather than fact. (5) The court commented on the principle of stare decisis, citing Denhere v Denhere & Anor, explaining that lower courts are bound to follow decisions of higher courts on particular points of law until they are overruled. (6) The court noted that in determining whether to grant discharge, a careful exercise of judicial discretion is required to balance the interests of the accused with those of the due administration of justice.

This case is significant in Zimbabwean criminal procedure as it clarifies and reinforces the proper test for discharge at the close of the State case under s 198(3) of the Criminal Procedure and Evidence Act. It emphasizes that when a magistrate finds the State has failed to prove essential elements of an offence, the accused must be discharged regardless of any reverse onus provisions. The case also highlights important principles: (1) courts should not invoke legal provisions mero motu (of their own motion) without hearing submissions from the parties; (2) the distinction between discharge and acquittal; (3) the importance of expert evidence in wildlife cases requiring proof of species identification; (4) the application of the stare decisis doctrine; and (5) the interests of justice principle that permits High Court intervention in unterminated proceedings where fundamental irregularities occur. The case reinforces constitutional protections including the presumption of innocence under s 70(1)(a) of the Constitution of Zimbabwe and the right to a fair trial.