Prince Chokuwa and Charles Chokuwa v The State

On 23 August 2018, the deceased Simbarashe Mutasa, a 32-year-old member of the Zimbabwe National Army, visited his alleged lover at No. 6466 Muredzi Crescent, Mucheke 'D', Masvingo. The woman was the wife of Neville Mudimu and sister to the two accused persons (Prince Chokuwa aged 20 and Charles Chokuwa aged 19). The deceased entered the bedroom late at night, prompting Neville Mudimu to raise alarm believing him to be a thief. A fight ensued and the deceased was apprehended. According to the State, both accused assisted Neville Mudimu in pinning down the deceased, tied his hands and legs with a USB cable, and assaulted him with switches for a prolonged period, pouring water on him intermittently. The deceased was later taken to Chesvingo Police post where he died before an ambulance arrived. Post-mortem revealed the cause of death as respiratory failure and multiple rib fractures. Neville Mudimu allegedly paid police officers and fled to South Africa. The accused persons denied assaulting the deceased and claimed other persons including State witnesses were responsible for the assault.

• Whether there was sufficient evidence to support the charge of murder or any permissible verdict against the accused persons at the close of the prosecution case
• What is the proper legal test for discharge of an accused at the close of the prosecution case under s 198(3) of the Criminal Procedure and Evidence Act
• Whether the evidence led by the State was manifestly unreliable such that no reasonable court could safely act on it

The application for discharge of both accused persons at the close of the prosecution case was dismissed. Both accused were put to their respective defences.

At the close of the prosecution case, an accused may only be discharged under s 198(3) of the Criminal Procedure and Evidence Act where: (i) there is no evidence to prove essential elements of the offence charged; (ii) there is no evidence on which a reasonable court acting carefully might properly convict; or (iii) the evidence is manifestly unreliable that no reasonable court could safely act on it. Where eyewitness testimony places the accused at the scene and implicates them in the commission of the offence, a prima facie case is established and the accused must be put to their defence. At the discharge application stage, the court only considers the prosecution case and does not evaluate the accused's defence or defence outline, as such evidence has not yet been formally placed before the court.

The court made critical observations about the poor quality of the police investigation, including the admission by the investigating officer that Neville Mudimu paid police officers to secure his release and that of the accused, allowing Mudimu to flee to South Africa. The court noted that South African authorities refused to extradite Mudimu because the offence carried a possible death penalty which is abolished in South Africa. The court also commented on the procedural impropriety of defence counsel attempting to submit the accused's warned and cautioned statements as annexures to written submissions at the discharge application stage, stating these documents do not form part of the record at that stage and cannot be considered. The court expressed concern that simple and well-established legal principles regarding discharge applications are sometimes misinterpreted, misunderstood or ignored, and emphasized that proper understanding and application of these principles could save valuable time and energy in criminal trials.

This judgment reinforces the well-established principles governing discharge applications at the close of the prosecution case in Zimbabwean criminal procedure. It emphasizes that the court at this stage only scrutinizes the prosecution case and does not consider the accused's defence or defence outline. The judgment serves as a reminder to legal practitioners of the high threshold required for discharge applications and the impropriety of attempting to introduce defence evidence (such as warned and cautioned statements) at the discharge application stage. It also highlights that where credible eyewitness testimony places accused persons at the scene and implicates them in criminal conduct, a prima facie case is established requiring the accused to enter their defence.