The State v Tauraidonhai Murambatsvina and Joseph Murambatsvina

The two accused persons, who were brothers, were charged with one count each of kidnapping and murder. The state alleged that on 11 January 2004 at Donhai village, Gumunyu, Chief Chireya, Gokwe, the accused persons unlawfully and intentionally deprived Getrude Zarima (a 34-year-old female) of her freedom of bodily movement and subsequently unlawfully and with intent to kill assaulted her all over the body with unknown objects, causing injuries that resulted in her death. The deceased was last seen alive on 11 January 2004 at Edna Dzingira's residence. A witness claimed to have recognized accused 1's voice calling the deceased outside that night. The deceased subsequently disappeared. In 2012, a red pleated skirt was allegedly recovered from Mbumbusi river by the deceased's sister under suspicious and questionable circumstances. The body of the deceased was never recovered, and no post-mortem report was available. The accused persons had been previously arrested in 2007 and released.

• Whether at the close of the state case there was sufficient evidence that the accused committed the offences charged to place them on their defence in terms of section 198(3) of the Criminal Procedure and Evidence Act
• Whether the circumstantial evidence met the standard required under R v Blom to support a conviction
• Whether the state witnesses' evidence was sufficiently reliable and credible to establish a prima facie case
• Whether alleged confessions could be relied upon in the absence of competent evidence aliunde proving that the offences were actually committed (section 273 of the Criminal Procedure and Evidence Act)

Both accused persons were found not guilty in respect of both counts (kidnapping and murder) and were acquitted at the close of the state case in terms of section 198(3) of the Criminal Procedure and Evidence Act.

At the close of the state case, an accused person must be discharged in terms of section 198(3) of the Criminal Procedure and Evidence Act where the evidence adduced is manifestly unreliable and so discredited under cross-examination that no reasonable court exercising its mind properly could convict. For circumstantial evidence to support a conviction, it must satisfy the two cardinal rules in R v Blom: (1) the inference sought must be consistent with all proved facts, and (2) the proved facts must exclude every other reasonable inference save the one to be drawn. In the absence of competent evidence aliunde proving that an offence was actually committed, alleged confessions cannot be relied upon to establish guilt (section 273 of the Criminal Procedure and Evidence Act). The state must establish a prima facie case before an accused can be placed on their defence.

The court made several observations about the conduct of the investigation and the handling of evidence by the deceased's relatives. The court noted that if Edna Dzingira had disclosed earlier that accused 1 had come to collect the deceased, the search would have commenced sooner. The court questioned why the deceased's relatives handed back a pair of homemade sandals allegedly belonging to accused 2 found in the deceased's bedroom without raising the alarm or reporting to authorities. The court expressed concern about the manner in which the red skirt was recovered in 2012 and the delay in reporting it to police. The court observed that the investigations into the murder were not conducted properly. The court also noted that even relatives doubted Ruvarashe Zarima's claims about the skirt, questioning whether they were unsatisfied with her story after inspecting the scene. Regarding Shepherd's claim that accused 2 mentioned compensation in 2011, the court found the explanation for not reporting it unconvincing.

This case demonstrates the application of section 198(3) of the Criminal Procedure and Evidence Act in Zimbabwe, which allows for discharge at the close of the state case where there is insufficient evidence. It reaffirms the cardinal rules regarding circumstantial evidence as established in R v Blom 1939 AD 288, requiring that inferences drawn must be consistent with all proved facts and must exclude every other reasonable inference. The case illustrates the high evidentiary threshold required in criminal cases and the importance of credible, reliable evidence. It also emphasizes that suspected confessions cannot substitute for competent evidence proving that an offence was actually committed (section 273). The judgment underscores the court's duty to apply the law strictly and not to rely on speculation or rumor, even in serious criminal cases involving murder.