Sikhangezile Dube and Others v The State

The four accused persons were charged with one count of murder which occurred in 2020 in the Plumtree area. The deceased had left his home in Inyathi in early December 2020 heading to Botswana, wearing a red T-shirt, blue trousers and red tuckies. A person arrived at accused 1's homestead and was suspected of being a thief. Accused 1 enquired from the person and determined he was not the thief, and tried to stop the assault. However, accused 2, 3 and 4 severely assaulted the person indiscriminately, tearing his clothes. Initially they were going to leave the person lying on the ground, but after witnesses remonstrated, they threw the victim into a vehicle boot and drove away. The accused persons claimed they assaulted a Tswana (Botswana national) whom they took to the border and who went home, not a Zimbabwean who died. During investigations, accused 4 led police to the assault location where they recovered torn inner garments. The deceased was found wearing the same clothes witnesses described during the assault. All four accused pleaded not guilty and at the close of the state case, they applied for discharge under section 198(3) of the Criminal Procedure & Evidence Act.

• Whether there was sufficient evidence at the close of the state case to put the accused persons on their defence
• Whether the state had rebutted the presumption of innocence by proving a prima facie case
• Whether the identity of the victim had been sufficiently established as the deceased rather than a Tswana national
• Whether accused 1 should be discharged where evidence showed she did not participate in the assault and tried to stop it

1. Accused 1 (Sikhangezile Dube) is discharged at the close of the state case, found not guilty and acquitted of the charge. 2. Accused 2 (Tamuka Mangono), Accused 3 (Justice Makoni) and Accused 4 (Liberty Jeranyama) are put to their defence.

At the close of the state case, an accused person is entitled to be discharged under section 198(3) of the Criminal Procedure & Evidence Act if there is no evidence upon which a reasonable court acting carefully could convict. The test applied is whether a prima facie case has been established on a balance of probabilities (not beyond reasonable doubt). Prima facie evidence is evidence which, if left uncontroverted, might be found to be sufficient proof of guilt. The presumption of innocence requires the state to rebut that presumption by leading sufficient evidence upon which a reasonable person could convict before an accused can lawfully be put to their defence. Where an accused did not participate in the alleged criminal conduct and the evidence shows they actively tried to prevent it, they cannot be convicted alongside co-accused and must be discharged and acquitted.

The court made important observations about constitutional fair trial rights, noting that the Constitutional dispensation reinforces the common law criminal procedure. The court emphasized that where an accused is unrepresented and the state does not withdraw a hopeless case, the court must on its own motion (mero motu) consider whether to discharge the accused. The court cited S v Luxaba stating that failure to discharge an accused in circumstances where there is no possibility of conviction except through self-incrimination is a breach of constitutional rights and will vitiate any conviction. The court noted that credibility of witnesses plays only a limited role at this stage, and evidence should only be ignored if it is of such poor quality that no reasonable person could accept it. The court also observed that an accused can be discharged if, upon application of a recognized legal principle, it would be unsafe to accept the state's evidence.

This case illustrates the application of the discharge procedure at the close of the state case under section 198(3) of the Criminal Procedure & Evidence Act in Zimbabwean criminal law. It reinforces the fundamental principle of presumption of innocence and the constitutional fair trial rights enshrined in sections 50, 69 and 70 of the Constitution of Zimbabwe. The case demonstrates how courts must assess whether sufficient evidence exists to establish a prima facie case requiring an accused to answer, and emphasizes that the court has a duty to discharge an accused mero motu (on its own motion) where no case has been made out, even if not formally applied for. It also shows how individual culpability must be assessed separately even where multiple accused are charged together, and that an accused who did not participate in the criminal conduct and actively opposed it should be acquitted.