The State v Albert Ncube and Robert Nyathi

On 3 March 2001 at Silverstream Farm, Nyamandlovu, two men allegedly kidnapped Forster Moyo (a farm employee), tied him to a tree for approximately an hour, and questioned him about the farm's layout, number of white residents, guns, and money. The following day, 4 March 2001, the farm owner Elizabeth Gloria Olds was shot and killed at the same farm. No witness saw who killed Olds. Moyo heard gunshots in the early morning hours and concluded his captors from the previous day were responsible. Both accused were arrested during a stock theft investigation when accused two was found with a camouflage uniform and his vehicle tire marks were allegedly found near a stolen bull scene. An identification parade was conducted on 29 March 2001 where Moyo identified accused one. Prior to the identification parade, Investigating Officer Ngwenya kept Moyo at his house for nearly two weeks. Both accused were charged with kidnapping (Count 1) and murder (Count 2), pleading not guilty to both counts.

• Whether the State proved a prima facie case sufficient to put the accused on their defence at the close of the State's case
• Whether the identification evidence was reliable and properly conducted
• Whether circumstantial evidence was sufficient to link the accused to the murder
• Whether material contradictions in State witness testimony rendered the evidence unreliable
• Whether an accused should be discharged under Section 198(3) of the Criminal Procedure and Evidence Act when there is insufficient evidence

Both accused were acquitted on both counts (kidnapping and murder). The application for discharge at the close of the State case was granted.

Where material contradictions exist between State witnesses on fundamental aspects of identification evidence, and where the identification procedure itself is fundamentally flawed (including pre-parade witness contact with investigating officers, suggestions as to the presence of suspects, and differential treatment of the accused in the parade), the evidence is so discredited and unreliable that no reasonable court could safely convict. At the close of the State case, if there is no evidence upon which a reasonable court might convict, the court has no discretion and must discharge the accused under Section 198(3) of the Criminal Procedure and Evidence Act. The State cannot be permitted to proceed to a defence case with the hope that inadequate prosecution evidence might be supplemented by defence testimony. Circumstantial evidence must satisfy the R v Blom test: the inference must be consistent with all proved facts and must exclude every other reasonable inference.

The court observed that it is "strange that there can be three different truths on the same incident. In fact this is impossible." This reinforces the principle falsus in uno, falsus in omnibus. The court also questioned why an investigating officer would host a witness at his own expense for two weeks prior to an identification parade, suggesting this raised serious concerns about witness contamination and the integrity of the investigative process. The court noted that identification evidence must be approached with caution due to the fallibility of human observation, citing with approval the factors enumerated in S v Mthetwa regarding reliability of identification (lighting, visibility, proximity, opportunity for observation, prior knowledge, corroboration, etc.). The court emphasized that the onus of proof always remains with the prosecution and "will always be within the state's enclosure."

This judgment reinforces critical principles in Zimbabwean criminal procedure regarding: (1) the high evidentiary threshold required before an accused can be put on their defence; (2) the strict scrutiny applied to identification evidence and identification parade procedures; (3) the requirement that circumstantial evidence must exclude all other reasonable inferences per R v Blom; (4) the principle that material contradictions between State witnesses can render evidence so unreliable that no reasonable court could act upon it (applying falsus in uno, falsus in omnibus); (5) the prohibition against allowing weak State cases to proceed in hope that defence evidence might bolster the prosecution case; and (6) confirmation that courts have no discretion under Section 198(3) - they must discharge an accused when there is insufficient evidence. The case provides important guidance on identifying flawed identification procedures, including witness contamination through improper pre-parade contact with investigating officers.