The State v Gift Mahaso

The accused and deceased were both sugar cane cutters aged 37 and 38 years respectively, camped at Kyle Primary School in Hippo Valley. On 3 January 2020, they went to bath at the nearby Mtilikwi canal, which was 5 metres wide, 3 metres deep, full to capacity with a strong current. Workers were instructed not to bath or swim in the canal but to use buckets. The State alleged that the accused approached the deceased from behind while he was bathing, grabbed his arms/shoulders, and pushed him into the canal, causing him to drown. The accused also fell into the canal but was rescued by Tryson Chauke and Israel Mushati. The deceased's body was found 1.2 km downstream. The key State witness was Samuel Zimhunga, the deceased's friend, who claimed to have witnessed the incident from 16 metres away after returning from relieving himself. The accused denied pushing the deceased, claiming instead that the deceased suggested they swim together, dove in first, failed to hold onto a shrub, and was swept away.

• Whether the State had established a prima facie case of murder at the close of the prosecution case to warrant the accused being put to his defence
• Whether the evidence of the sole eyewitness Samuel Zimhunga was so manifestly unreliable that no reasonable court could safely act on it
• Whether there was sufficient evidence on which a reasonable court acting carefully might properly convict the accused
• The standard for discharge at the close of the State's case under s 198(3) of the Criminal Procedure and Evidence Act

The application for discharge at the close of the prosecution case was dismissed. The accused was required to present his defence.

At the close of the State's case, an accused should be discharged only if there is no evidence on which a reasonable court acting carefully might properly convict, or if the evidence is so manifestly unreliable that no reasonable court could safely act on it. A court can find a prima facie case established on the basis of a single credible witness, even in a murder case. Minor imperfections or inconsistencies in evidence (such as omissions in written statements or differences in how events were reported immediately after) do not automatically render evidence manifestly unreliable at the discharge application stage. Where the accused was present at the scene of a death and there is eyewitness testimony implicating him, the accused must be put to his defence to explain the events.

The court observed that requiring the accused to give his version of events would not amount to improperly boosting the State's case, but was necessary for justice to be done. The court noted various questions the accused would need to address: whether he disputed Samuel's presence, whether Samuel called for help, whether the accused was aware of the canal's dangers, how the accused himself ended up in the canal, whether workers were allowed to swim, and ultimately whether the death resulted from the accused's unlawful and intentional conduct, negligence, or no foul play at all. The court also noted that Samuel's explanation for why the accused also fell into the canal (loss of balance due to force used) could not be said to be inherently improbable or manifestly impossible.

This case illustrates the application of the threshold test for discharge at the close of the State's case in Zimbabwean criminal proceedings, particularly in murder cases relying on single eyewitness testimony. It demonstrates that minor imperfections in evidence do not necessarily render it manifestly unreliable, and that a single credible witness can establish a prima facie case requiring the accused to present a defence. The judgment emphasizes that the discharge application stage is not for determining guilt but for assessing whether there is sufficient evidence to put the accused to his defence.