The State v Douglas Chinyani and Chirembwe Chirembwe

On 24 September 2011, the deceased James Tsotsonga left a bar with Maxima Katembo, a sex worker who he had paid US$5 for sexual favours. As they walked along a footpath behind Chipadze Primary School, they encountered the two accused persons and another individual. The first accused confronted the deceased, claiming Maxima Katembo was his wife (she had previously cohabited with the first accused on and off). A fight ensued in which the deceased was initially assaulted with bare hands. The first accused then produced a small knife and stabbed the deceased on the right shoulder. According to the state witness Maxima Katembo, the second accused held the deceased during the assault. After the deceased fell, the first accused forced Maxima to accompany him and the second accused, first to Mupandenyama in Chiwaridzo Township, then to the first accused's residence where she stayed for five days out of fear. The deceased later died from his injuries. Maxima eventually absconded and went to stay with a friend. She was later located by police in January 2012 and identified both accused persons. The second accused claimed he was at work in Mvurwi at the time and only learned of the incident later.

• Whether there was sufficient evidence at the close of the state's case to warrant putting the accused persons on their defence for murder
• Whether the evidence of the sole eyewitness Maxima Katembo was so discredited or manifestly unreliable that no reasonable tribunal could convict on it
• Whether the identification of the accused persons by Maxima Katembo was reliable
• Whether the second accused's alibi defense was sufficient to warrant discharge
• The proper application of section 198(3) of the Criminal Procedure and Evidence Act regarding discharge at the close of the state's case

Both applications for discharge at the close of the state's case were dismissed. The accused persons were required to enter their defense.

At the close of the state's case, discharge under section 198(3) of the Criminal Procedure and Evidence Act should only be granted where there is no evidence that the accused committed the offense, or where the prosecution evidence has been so discredited through cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. Such cases will be rare and only occur in the most exceptional circumstances where the credibility of a witness is so utterly destroyed that no part of their material evidence can possibly be believed. The test is whether there is any evidence upon which a reasonable court might convict, not whether conviction is likely or the evidence is strong. Minor flaws in how evidence is led or in identification procedures do not automatically render evidence unreliable if the core testimony remains credible. An alibi that merely accounts for part of the relevant time period without explaining the accused's full movements does not necessarily warrant discharge where other evidence places the accused at the scene.

The court made several non-binding observations: (1) The murder charge could have been drafted with more precision. (2) Prosecutors should adapt their questioning techniques to different types of witnesses - garrulous witnesses need specific questions to avoid irrelevant detail, while reticent or docile witnesses require a different approach to elicit their full testimony. (3) The informal identification procedure used by police (showing only the suspect to the witness) could have been improved by including volunteers alongside the accused. (4) Police investigators could have done better by specifically questioning the second accused about his movements after work, as this was information within his peculiar knowledge. (5) The court noted Maxima Katembo's naivety in casually referring to both the deceased (whom she met for the first time that day) and the first accused as her "husbands," and described her as "a simple young woman of limited literacy and intelligence" who "peddled sexual favours." (6) The court noted that the witness claimed to have been ill-treated by police officers during investigations, including being beaten on the soles and burnt with heated iron.

This case illustrates the application of section 198(3) of the Criminal Procedure and Evidence Act in Zimbabwean criminal procedure, establishing that discharge at the close of the state's case should be rare and only granted in exceptional circumstances. It reinforces the principle that minor discrepancies or imperfections in witness testimony do not automatically warrant discharge if the core evidence remains credible. The judgment also addresses issues of witness credibility assessment, identification evidence, and the treatment of alibi defenses at the close of the prosecution's case. It demonstrates the court's approach to evaluating evidence from witnesses with limited education and speech impediments, emphasizing that prosecutors must adapt their questioning techniques to different types of witnesses.