The State versus Zadzisai Kuodza

A 50-year-old female accused was charged with murder under section 47(i) of the Criminal Law (Codification and Reform) Act. The case involved a love triangle where the accused from Mamvura village, Chief Munyikwa, Gutu was in a relationship with two men: Simbarashe Matombo (deceased, aged 46) and Ephias Chiwara (aged 49). On 1 April 2019, the accused left for the local market with the deceased in the morning. Later that day around 1700 hrs, she was at her homestead drinking beer with Ephias Chiwara. The deceased arrived later that evening requesting to spend the night. An altercation ensued while Ephias Chiwara was hiding in one of the accused's houses. The deceased's body was discovered the next day, 2 April 2019, in a rapoko field some 40 meters from the accused's homestead. The post mortem revealed the deceased died from head injury and cervical spine fracture, with visible signs of violence including facial and neck bruising, bilateral peri orbital haematoma, and bruising on both upper limbs. The deceased's shoes and cap were found at the verandah of the accused's house. Witnesses heard the accused shouting "ndokutema" (I will strike at you) on the night in question. The accused denied any wrongdoing and claimed she did not know how the deceased died.

• Whether the accused should be discharged at the close of the prosecution case in terms of section 198(3) of the Criminal Procedure and Evidence Act
• Whether the state had established a prima facie case of murder against the accused
• Whether there was sufficient nexus, link or causation between the accused and the deceased's death
• Whether the evidence adduced by the state was manifestly unreliable or had been discredited in cross-examination

The application for discharge of the accused at the close of the prosecution case was dismissed. The matter was to proceed to the defense case with the accused required to testify.

An accused will not be discharged at the close of the prosecution case where: (1) the state has proven all essential elements of the offense; (2) the evidence adduced, though containing gaps or inconsistencies, is not manifestly unreliable or discredited in cross-examination; (3) the court could properly convict on the evidence presented; and (4) the circumstances cry out for an explanation from the accused. The test is not whether the prosecution's case is perfect, but whether there is a prima facie case that would support a conviction in the absence of contradictory evidence from the accused.

The court made strong observations about counsel's professional conduct, noting it was "disappointing" that the defense counsel failed to meet their self-imposed deadline of 28 January 2022, only filing the application on 16 February 2022. MAWADZE J emphasized that "counsel are officers of this court and that they should take their self-imposed time lines seriously" and that "the proper and efficient administration of justice demands that we all act with due diligence." The court also noted it was "not the duty of the court, where time lines had been self-imposed, to chase after counsel to ensure adherence to such time lines." The judge described the application as "both ill-informed and improperly made" and "not one of the more carefully considered applications." The court also questioned the investigating officer's decision to release Ephias Chiwara and make him a state witness when his exoneration came from the accused herself who was denying the charge, stating "there was no capital at all in making Ephias a state witness."

This judgment reinforces the test for discharge at the close of the prosecution case in Zimbabwean criminal law. It demonstrates that where the state has proven all essential elements of an offense and adduced evidence that could support a conviction, the accused will not be discharged even if there are gaps or inconsistencies in the prosecution's case. The judgment emphasizes that an application for discharge will fail where the accused's own evidence is necessary to explain incriminating circumstances. The case also serves as a reminder to legal practitioners about professional diligence and adherence to court-imposed or self-imposed deadlines. While this is a Zimbabwean case, it may have persuasive value in South African courts dealing with similar discharge applications under section 174 of the Criminal Procedure Act.