The Prosecutor General v Simbarashe Kangara and Others

The three respondents were travelling together in a Toyota Harrier motor vehicle destined for South Africa on 23 August 2014. When they arrived at Beitbridge border post and cleared immigration and customs formalities, police who claimed to have prior knowledge that the vehicle was carrying gold stopped the vehicle at the exit gate. Upon searching the vehicle at the police station, police recovered eight smelted bars of gold weighing 7.269 kilograms valued at USD$268,953.00 hidden in the wiper motor compartment of the vehicle. Police also recovered three affidavits authorizing use of the motor vehicle with the names of the user/driver left blank. The respondents were charged with: (1) contravening s 3(1)(a) read with s 3(a) of the Gold Trade Act (unlawful possession of gold without a licence); (2) smuggling as defined in s 182 of the Customs & Excise Act; and (3) possession of articles for criminal use as defined in s 40 of the Criminal Law (Codification & Reform) Act. The Regional Magistrate J Mabeza at Gwanda Regional Court acquitted all three respondents on the first and second counts. The third respondent who was the driver pleaded guilty to the third count and was fined $300 in default 1 month imprisonment. The Prosecutor General then applied for leave to appeal the acquittals on 9 February 2016, but the record was misfiled and only later located.

• Whether the Prosecutor General established grounds for leave to appeal under s 61 of the Magistrates Court Act
• Whether the magistrate misdirected himself in law by calling a witness mero motu (on the court's own motion) who effectively gave evidence for the defence
• Whether the magistrate misdirected himself by acquitting the respondents despite their admitted confessions and the recovery of gold hidden in the vehicle under their control
• Whether the trial court's reliance on the court-called witness to acquit the respondents was legally proper
• Whether the grounds of appeal raised a point of law or demonstrated that the acquittal was based on facts which could not reasonably be entertained

Leave to appeal granted. The applicant was granted leave to appeal against the acquittal of the first, second and third respondents on the first and second counts. The applicant was ordered to file the proposed appeal within ten (10) days of the date of the order.

A trial court misdirects itself in law when it calls a witness mero motu (on its own motion) for the purpose of providing evidence that is crucial to the determination of the matter, where that witness is effectively a defence witness who should have been called by the accused to establish the veracity of their defence. When accused persons are found in possession of incriminating items and attribute ownership to a third party, it is their burden to call that third party as a witness, and the court should not intervene to close gaps in the defence case by calling such witness as a court witness. Leave to appeal under s 61 of the Magistrates Court Act should be granted where the Prosecutor General demonstrates that the intended appeal has reasonable prospects of success, is not hopeless or doomed to predictable dismissal, and raises either a point of law or shows that the acquittal was based on facts which could not reasonably be entertained.

Chitapi J made critical observations about the incomplete affidavits recovered in the case, noting that the Commissioner of Oaths who commissioned affidavits with blank spaces for later insertion of information engaged in serious misconduct. The court expressed the view that such a Commissioner of Oaths deserves to have his commission stripped and hoped that the alleged misconduct would be investigated and appropriate action taken. The court also emphasized the importance of clear and concise drafting of grounds of appeal, cautioning that poorly drafted grounds could result in the appeal court determining that the notice of appeal is invalid for want of form. The court noted that because of the limited nature of grounds upon which the Prosecutor General can appeal, each ground should relate specifically to one or both of the two statutory grounds set out in s 61(a) or (b) of the Magistrates Court Act.

This case is significant in Zimbabwean criminal procedure as it clarifies the limited grounds upon which the Prosecutor General may appeal against an acquittal under s 61 of the Magistrates Court Act. It establishes important principles regarding the propriety of a trial court calling witnesses mero motu and the distinction between court witnesses and defence witnesses. The case emphasizes that when an accused person attributes ownership of incriminating items to a third party, it is the defence's burden to call that witness, and the court should not intervene to close gaps in the defence case. The judgment also provides guidance on the threshold for granting leave to appeal in criminal matters, namely that the intended appeal must have reasonable prospects of success and not be hopeless or an abuse of process. Additionally, the case highlights the importance of clear and concise drafting of grounds of appeal that relate specifically to the statutory grounds provided in s 61.