The State v Melusi Ndlovu alias James Jabulani Phakathi

The accused faced a charge of murder, alleged to have been committed with a co-accused (still at large) on the night of 24 to 25 March 2001, killing the deceased Dumisani Andrew Mbatha. The accused, his brother, and the deceased had travelled together from South Africa and visited Monday Sibanda in Pangani Filabusi. The trio then went to Bulawayo to accompany the deceased who was proceeding to Plumtree. The accused and his brother returned to Filabusi around 5pm and then proceeded to South Africa the following day. Witness Sikhumbuzo Moyo testified that the four of them (including him and the deceased) had committed an armed robbery in South Africa, and he had remained with the money. When the accused, his brother, and the deceased came to his place in Nketa in 2001, Moyo told them he had been apprehended by police who took the money. The accused allegedly said the deceased should have told them about this fact before they left South Africa. The deceased was later found dead. The state's case relied on circumstantial evidence, but the viva voce evidence of key witnesses materially differed from the state summary, with witnesses omitting pertinent facts attributed to them in the state outline.

• Whether the state had adduced sufficient evidence to establish a prima facie case of murder against the accused at the close of the state case
• Whether circumstantial evidence was sufficient to support an inference of guilt beyond reasonable doubt
• Whether an accused should be put on his defence when the state has not established the essential elements of the offence
• The proper approach when state witnesses depart from their witness statements in material respects
• The application of section 198(3) of the Criminal Procedure and Evidence Act for discharge at close of state case

The accused was found not guilty of murder at the close of the state case and was acquitted in terms of section 198(3) of the Criminal Procedure and Evidence Act.

Where the state has not established a prima facie case at the close of its case by proving facts upon which reasonable inferences of guilt can be drawn, the accused is entitled to discharge and acquittal under section 198(3) of the Criminal Procedure and Evidence Act. In cases based on circumstantial evidence: (1) The inference sought to be drawn must be consistent with all proved facts; (2) The proved facts must exclude every other reasonable inference save the one sought to be drawn; (3) Inferences cannot be drawn from conjecture, speculation, or unproven facts; (4) Facts forming the basis of inferences must themselves be proved beyond reasonable doubt; (5) The court cannot speculate on facts or fill information gaps to construct theories of guilt. The state bears the duty to prove facts from which inferences are to be drawn and cannot require the court to speculate. An accused cannot be put on his defence merely to bolster a deficient state case.

The court expressed that while a nagging suspicion remained that the accused and his brother should know something about the deceased's demise, the court works on proved facts, not suspicion. The court noted it remained a mystery what happened to the deceased and raised unanswered questions about whether there was an altercation after leaving the witness's place, whether the deceased was attacked by others, where the attack occurred, and whether the accused had a weapon. The court commented on the proper prosecutorial approach when witnesses depart from their statements, noting that the state counsel should have sought to impeach the witnesses or declared them hostile to enable cross-examination, or made an application to expunge evidence. The court observed that Zimbabwe's criminal justice system is adversarial in nature, requiring the state to be diligent in establishing guilt, while the court plays a neutral role and cannot assist the prosecution as that would render the trial unfair and biased.

This case reinforces important principles in Zimbabwean criminal procedure regarding: (1) The state's burden to establish a prima facie case before an accused can be put on his defence; (2) The proper approach to circumstantial evidence in criminal trials, requiring proven facts rather than speculation; (3) The duty of prosecutors to address material discrepancies between witness statements and viva voce evidence; (4) The adversarial nature of Zimbabwe's criminal justice system and the court's neutral role; (5) The application of South African jurisprudence on circumstantial evidence (R v Blom) in Zimbabwean courts. The case demonstrates that even where suspicion exists, an accused is entitled to acquittal where the state fails to adduce sufficient evidence to establish the essential elements of the offence charged.