Isaura Masinga v MS Sande N.O. and The Acting Prosecutor General

The applicant, a South African national, arrived at Harare International Airport from Brazil on 5 May 2017 and was suspected of possessing cocaine. When a search yielded nothing, she was arrested and taken for an ultrasound scan on 6 May 2017. The scan revealed possible "body packs" in her abdomen and a possible pregnancy. A CT scan was recommended but not performed because the applicant said she was pregnant. A second scan on 10 May 2017 showed no body packs and no pregnancy, which was confirmed by a pregnancy test the next day. The applicant was charged with defeating or obstructing the course of justice under s 184(1)(a) and (e) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The charge alleged she spent three days without eating solid food to conceal excretion of body packs and secretly excreted cocaine with help from unknown state officials. At trial, the prosecution instead focused on proving that she lied about being pregnant to prevent a CT scan. The applicant applied for discharge at the close of the state case, which the magistrate dismissed, placing her on her defence.

• Whether the magistrate erred in dismissing the application for discharge at the close of the state case
• Whether the prosecution proved the essential elements of the charge
• Whether a superior court should intervene in unterminated proceedings of a lower court
• Whether it is permissible for the prosecution to charge one offence but prove a different offence at trial
• The proper application of s 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] regarding discharge at close of state case

1. The ruling of the 1st respondent (magistrate) dismissing the application for discharge at the close of the state case was set aside. 2. The applicant was found not guilty and acquitted. 3. Each party to bear their own costs.

Where at the close of the prosecution case there is no evidence proving essential elements of the charged offence, the court has no discretion under s 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] but must discharge the accused. A court cannot place an accused on their defence in the hope of self-incrimination where the state has failed to establish a prima facie case. The prosecution cannot charge one offence and then prove a completely different offence at trial, as this amounts to an unfair ambush and means essential elements of the pleaded charge remain unproven. A superior court will intervene in unterminated proceedings of a lower court in exceptional circumstances of gross irregularity, grave injustice, or where the decision is so irrational as to defy logic and common sense.

The court made observations about the quality of the evidence presented by the prosecution, noting that the ultrasound technician was "impressionable" and "easily saw that which he was told existed" - when police told him to look for body packs he saw them, when the accused mentioned pregnancy he saw signs of it, yet neither turned out to exist. The court questioned whether the magistrate was "even thinking at all" given the lack of analysis in the ruling. The court also noted policy considerations for the general rule against intervening in unterminated proceedings: magistrates have jurisdiction to try offenders and pronounce judgments; intervention upsets good order and smooth operations of courts; and accused persons have recourse through appeals after proceedings conclude. The court distinguished between appeals (challenging wrong conclusions on facts or law after trial) and reviews (challenging the method of trial).

This case is significant in Zimbabwean criminal procedure for: (1) clarifying the mandatory nature of s 198(3) of the Criminal Procedure and Evidence Act - a court has no discretion but must discharge an accused where there is no evidence upon which a reasonable court could convict; (2) confirming that an accused cannot be placed on their defence in hope of self-incrimination when the state has failed to prove essential elements of the charge; (3) establishing that it is improper for the prosecution to charge one offence but attempt to prove a completely different offence at trial, as this amounts to an unfair ambush; (4) reaffirming the exceptional circumstances justifying High Court intervention in unterminated magistrate proceedings - gross irregularity, grave injustice, or where justice cannot be attained by other means; and (5) emphasizing judicial officer's duty to apply their mind properly to evidence when ruling on discharge applications.