Talent Ndlovu v The Presiding Magistrate G.R. Sithole N.O and The State

The applicant was convicted by the first respondent (a magistrate) on two counts of stock theft in breach of Section 114 of the Criminal Law (Codification & Reform) Act. During the trial, the applicant was unrepresented. Two defence witnesses' testimony was affected: the first witness, Admire Gumbo, gave testimony but appeared not to understand questions and was not audible; the second witness, Peter Ndlovu, was sworn in but the court refused to hear his evidence after the prosecutor objected that he had been present in court throughout the proceedings. The court informed the accused that the witness could not be credible and excused him without hearing his testimony. The applicant brought a review application on four grounds, but later abandoned the first three grounds, proceeding only on grounds relating to the competency and treatment of the two defence witnesses.

• Whether the trial magistrate acted irregularly in excluding the second defence witness (Admire Gumbo) from continuing to testify without properly determining his competency to testify
• Whether the trial magistrate acted irregularly and violated the accused's right to be heard by barring the third defence witness (Peter Ndlovu) from testifying solely on the basis that he had been present in court during proceedings
• Whether the presence of a witness in court during proceedings constitutes a valid legal basis for refusing to hear that witness's evidence

1. The application for review succeeded. 2. The criminal proceedings under case number CRB TSHO 270/25 were declared not to be in accordance with real and substantial justice. 3. The conviction and sentence under case number CRB TSHO 270/25 were quashed. 4. The criminal proceedings under case number CRB TSHO 270/25 were remitted to the court a quo for a trial de novo before a different magistrate. 5. No order as to costs.

1. Under Section 244 of the Criminal Procedure and Evidence Act [Chapter 9:07], every person is competent to give evidence unless expressly excluded by the Act - specifically unless by reason of youth, old age, mental illness, or similar cause, the person lacks capacity to understand questions or give rational answers. 2. The fact that a witness has been present in court during proceedings does not constitute a valid legal basis for refusing to hear that witness's evidence - it only affects the weight to be attached to their testimony, not their competency to testify. 3. A trial court has a duty to hear a witness's evidence and thereafter make relevant conclusions about accepting or rejecting it, rather than denying the witness an opportunity to testify at all based on their presence in court. 4. Where a witness appears not to understand questions or is inaudible, the court should take steps to assist the witness (such as asking them to speak up or speak clearly) rather than simply abandoning or excluding their testimony.

The court observed that the trial magistrate should have ensured at the commencement of the defence case that defence witnesses wait outside during the accused's testimony, which would have avoided the situation where the witness was present in court during proceedings. The court also made a general observation that "there are too many loose ends in this case" (quoting from the Masimba Garande precedent), suggesting broader concerns about the conduct of the trial beyond the specific grounds of review that were determined.

This case reinforces important procedural safeguards in Zimbabwean criminal proceedings regarding the competency and treatment of witnesses. It affirms that the presence of a witness in court during proceedings is not a legal basis for refusing to hear their evidence - it only affects the weight of their testimony. The case emphasizes the duty of trial courts to ensure proper procedural fairness, particularly when dealing with unrepresented accused persons, and highlights that witnesses who appear to have difficulty understanding questions or being audible should be properly assisted rather than simply excluded. The judgment strengthens the right of accused persons to present their defence fully and to be heard, which is fundamental to the administration of justice.