The State v Loveness Matione

The accused, Loveness Matione, was a resident magistrate in Shurugwi. In March 2009, the complainant was being investigated by police for theft by finding of gold. The accused, upon hearing about the complainant's case, allegedly approached him and solicited a bribe of $2000.00 so that she would omit to act in relation to her principal's affairs, as she was the sole resident magistrate for Shurugwi who would preside over cases in that area. The complainant reported the matter to police, and a trap was set up which led to the accused's arrest after she received $250.00 from the complainant. The accused's defence was that she and the complainant were lovers, which the complainant denied, stating he was already married to nine wives and the accused was his friend's girlfriend. Police witnesses testified that they observed the complainant handing money to the accused, and upon receiving it, the accused did not count it but said "its bho ndichazokuona" (it's ok, I will see you). At the close of the state case, the defence applied for discharge which the magistrate granted on the basis that state witnesses were not truthful and unreliable.

• Whether the trial magistrate properly exercised her discretion in discharging the accused at the close of the state case under section 198(3) of the Criminal Procedure and Evidence Act
• Whether the state evidence was so manifestly unreliable that no reasonable court could safely act on it
• Whether a prima facie case had been established against the accused
• Whether the magistrate misdirected herself in treating assertions made by the accused during cross-examination as evidence

The discharge of the accused at the end of the state case was set aside. The matter was referred back to the trial court for continuation of the trial.

A trial court cannot discharge an accused at the close of the state case where the state has proved a prima facie case. The discretion vested in a trial court under section 198(3) of the Criminal Procedure and Evidence Act to discharge an accused at the close of the state case must be exercised judicially. It is a misdirection for a magistrate to treat assertions made by an accused during cross-examination as though they were evidence of the accused when determining whether to grant a discharge. A discharge at the close of the state case is only justified where: (a) there is no evidence to prove an essential element of the offence; (b) there is no evidence on which a reasonable court might convict; or (c) the evidence adduced by the prosecution is so manifestly unreliable that no reasonable court could safely act on it.

The court noted that the trial magistrate had concluded there was a love affair between the accused and complainant, but did not sufficiently address the meaning of the accused's remarks ("its bho ndichazokuona") and the circumstances surrounding the alleged commission of the offence. The court observed that the questionable conduct of the accused should have raised sufficient questions to warrant placing the accused on her defence. The court expressed the view that there was nothing on the record indicating that state witnesses had been discredited as a result of cross-examination or were manifestly unreliable.

This case is significant in Zimbabwean criminal procedure law as it clarifies the proper application of section 198(3) of the Criminal Procedure and Evidence Act regarding discharge at the close of the state case. It emphasizes that: (1) the discretion to discharge must be exercised judicially; (2) a discharge is only justified where there is no evidence of an essential element, no evidence on which a reasonable court might convict, or the evidence is manifestly unreliable; (3) a court cannot discharge an accused where the state has proved a prima facie case; and (4) assertions made by an accused during cross-examination should not be treated as evidence when considering discharge. The case reinforces the importance of proper judicial reasoning and the correct application of procedural safeguards in criminal trials, particularly in cases involving allegations of corruption against judicial officers.