SIKHANGEZILE DUBE

And

TAMUKA MANGONO

And

JUSTICE MAKONI

And

LIBERTY JERANYAMA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

NDUNA J

BULAWAYO 14 JANUARY AND 2 FEBRUARY 2026

Assessor: Mr M Ndlovu

Ruling for application for discharge at the close of state case

N. Mugiya, for the applicants

K. M Guveya, for the state

NDUNA J: Amongst the litany of fair trial rights that exist in our criminal and procedural law is the presumption of innocence. This right provides that an accused person is presumed to be innocent until proven guilty. The presumption of innocence obliges the state to show guilt beyond a reasonable doubt in order for an accused to be convicted. Therefore, for a conviction to ensue, the state is required, at the close of state case, to have rebutted the presumption of innocence by leading sufficient evidence against the accused, upon which a reasonable person could convict.

A failure by the state to mount sufficient evidence for a conviction at the close of its case, gifts the accused the opportunity to escape having to be put on their defence. This gift takes the form of a procedural device in the Criminal Procedure & Evidence Act, [Chapter 9:07] namely section 198(3), which provides;

198 Conduct of trial

(1) …..

(2) …..

(3) If at the close of the case for the prosecution the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty

Clearly, the new Constitutional dispensation would reinforce the Zimbabwean criminal law and procedure, and it did so in respect of section 198(3), supra. applications. In Sections 50, 69 and 70, of the Constitution, the rights in issue here are captured.

The accused persons are facing one count murder which occurred in 2020 at Plumtree area. The four accused entered pleas of not guilty to the charge upon advice from their Counsel and the state led evidence and closed its case. They then instructed counsel to apply for discharge as they allege that not enough evidence has been placed before the court calling for their defence to the charges. They seek to rely on provisions of section 198(3) (supra). The state insists that they have led sufficient evidence for the placement of all the accused persons to their defence.

In S v Luxaba 2000 (2) SACR 703 at 707D the South African court, emphasising the acquittal of an accused at this stage expressed itself as follows;

“I have no doubt that an accused person (whether or not he is represented) is entitled to be discharged at the close of the case for the prosecution if there is no possibility of a conviction other than if he enters the witness box and incriminates himself. The failure to discharge an accused in those circumstances, if necessary mero motu, is in my view a breach of the rights that are guaranteed by the Constitution and will ordinarily vitiate a conviction based exclusively upon his self-incriminatory evidence. ... .”

It is a realisation of the requirements of presumption of innocence and fair trial rights that a court, where an accused is not represented by Counsel at law, and where the state does not back out of a case seemingly hopeless, the court must on its own motion move to consider whether the evidence placed before it legally establishes the basis for the accused to be put to his defence. A case that demands an answer from accused should have been established by the closure of state case in order for accused to be lawfully put to his defence. It is commonly referred to as prima facie case; and defined thus; “one of which was that prima facie evidence left uncontroverted might be found to be sufficient proof of guilt.” (as per S v Mukungatu 1998 (2) ZLR 244 (SC))

The law regarding the operation of the provision in question is very simple to all legal minds. In its simple terms, it dates back to beyond 1935 when it