National Foods Ltd and Dube and Task Contractors and Cliton Ncube v Ms Gladmore Mushore and The Prosecutor General

On 17 March 2014 at National Foods, Bulawayo, Domingo Ndlovu, aged 26, an off-loader employee, died while offloading maize from wagons. He had climbed on top of a wagon when Cliton Ndlovu (3rd applicant) opened the outlet valve without checking, causing the deceased to be trapped in the maize and die. The 1st and 2nd applicants (National Foods and Dube Task Contractors) faced two counts of contravening the Factories and Works Act for failing to ensure safety standards and protective clothing. The 3rd applicant faced one count of culpable homicide. At the close of the state case, the defence applied for discharge under section 198(3) of the Criminal Procedure and Evidence Act. The state called nine witnesses, including six employees who gave exculpatory evidence, a NSSA Inspector who could not impute criminal liability, a police officer, and the deceased's cousin. The trial magistrate dismissed the application for discharge, and the applicants sought review of this decision.

• Whether a single judge of the High Court can set aside an order of a trial magistrate on review
• Whether the High Court sitting as a review court can intervene in uncompleted criminal proceedings
• Whether the trial magistrate erred in refusing discharge at the close of the state case when there was insufficient evidence to establish a prima facie case
• The correct application of section 29(5)(b) of the High Court Act and its proviso
• The application of the doctrine of stare decisis in light of AG v Makamba

The decision of the trial magistrate dismissing the application for discharge at the close of the state case was set aside and substituted with an order granting discharge. The accused persons were found not guilty and acquitted. There was no order as to costs. Takuva J agreed with the judgment.

The binding legal principles established are: (1) The proviso to section 29(5)(b) of the High Court Act, requiring agreement of another judge for review, applies only to cases laid before the High Court under sections 55, 57 or 58 of the Magistrates' Court Act, not to all criminal review applications; (2) A single High Court judge may review criminal proceedings from the Magistrates' Court where the application does not fall under those specific statutory provisions; (3) The High Court will intervene on review where a magistrate's decision is so outrageous in its defiance of logic as to seriously prejudice the rights of accused persons; (4) An accused person may not be placed on their defence at the close of the state case solely to strengthen or buttress a weak state case; (5) Discharge should be granted where there is no evidence on which a reasonable court, acting carefully, could properly convict.

The court made significant obiter observations regarding AG v Makamba 2004 (2) ZLR 63 (S), stating with respect that the Supreme Court's finding that a single judge cannot review criminal proceedings was erroneous because it misapplied section 29(5)(b) of the High Court Act. The court noted that the Supreme Court missed an opportunity to correct this error in AG v Makamba 2005 (2) ZLR 54 (S). Makonese J expressed the view that this aspect of the AG v Makamba decision "ought to be revisited" by the Supreme Court. The court also observed that the trial magistrate's reasoning was fundamentally flawed in disregarding the evidence of six employee witnesses on the basis they might be biased while placing sole reliance on the NSSA Inspector's evidence, which itself was exculpatory. The judgment noted that deceased's act of entering the wagon was "unprocedural" and "unforeseen," suggesting issues with causation and foreseeability in the culpable homicide charge.

This case clarifies the scope of a single High Court judge's power to review criminal proceedings from the Magistrates' Court. It demonstrates that the proviso to section 29(5)(b) of the High Court Act requiring two judges only applies to specific categories of cases (those under sections 55, 57 and 58 of the Magistrates' Court Act), not to all review applications. The judgment reinforces the principles for discharge at the close of the state case and emphasizes that accused persons may not be placed on their defence merely to buttress a weak state case. It also illustrates the High Court's willingness to intervene on review where a magistrate's decision is so outrageous as to defy logic, even in uncompleted proceedings. The case respectfully critiques the Supreme Court's interpretation in AG v Makamba while acknowledging the binding force of stare decisis.