James Chiora v Joseph Mabeza N.O and National Prosecuting Authority

### Preamble
1
HB 55/23
HC 2263/22
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JAMES CHIORA

Versus

JOSEPH MABEZA N.O

And

NATIONAL PROSECUTING AUTHORITY

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 26 JANUARY AND 6 APRIL 2023

Review Judgment

MAKONESE J:	This matter was set down in motion court on the 26th January 2023 as an unopposed matter.  It is a review application seeking the following order:

“1.	The decision of the 1st respondent in the case undercover CRB BYO R 515/22 to dismiss the application for discharge at the close of the state case be and is hereby set aside and in its place it is ordered that:-

“(a)	The application for discharge at the close of the state case be and is hereby granted and the accused person is found not guilty and acquitted.”

The learned Judge sitting in motion court raised with Counsel the propriety of seeking an order setting aside proceedings in a criminal trial before a single Judge.  The query was informed by the provisions of section 29 of the High Court Act (Chapter 7:06).

I took over this matter as KABASA J had two other similar applications in motion court where she raised the same concerns.  In a judgment delivered on 16 March 2023 under HB 35-23, the learned Judge delivered a detailed judgment on how she perceived such matters should be handled.

The High Court is empowered in terms of section 29 of the High Court Act to review proceedings of inferior courts.  In particular section 29 (2) of the Act provides that:-

“If on review of any criminal proceedings of an inferior court or tribunal, the High Court considers that the proceedings …

……..

(b)	are not in accordance with real and substantial justice, it may, subject to this section

(i)	alter or quash the conviction

(ii)	reduce or set aside the sentence or any order of the inferior court or tribunal or substitute a different sentence from that imposed by the inferior court or tribunal.

(iii)	……………

(iv)	……………

(v)	remit the case to the inferior court or tribunal with such instructions relative to the further proceedings to be heard in the case as the High Court thinks fit.

Provided that a Judge of the High Court shall not exercise any of the powers conferred by sub-paragraph (i), (ii) or (iii) of paragraph (b) of subsection (2) unless another Judge of the High Court has agreed with the exercise of the power in that regard.”

This application was filed against the following background;

The applicant appeared before the 1st respondent facing a charge of smuggling as defined in section 182 of the Customs and Excise Act (Chapter 23:02).  Applicant pleaded not guilty to the charge.  Applicant averred that on the day of his arrest he was driving a recently imported vehicle from Namibia to Zimbabwe.  Inside the truck was another vehicle, a Toyota Hilux and some other goods whose description he did not know.  Applicant averred that he is a runner for those importing goods from outside Zimbabwe and the truck and everything else in it belonged to his client one Blessing resident in the United Kingdom.  Applicant stated in his defence outline that on the day in question he passed through Kazungula Border Post, Victoria Falls where he surrendered the truck and everything else to an agent Innocent Magore.  The agent attended to declaring the goods to Zimbabwe Revenue Authority, for duty purposes, in liaison with Blessing the owner of the goods.  Applicant stated that at all material times he was not aware that some of the goods had not been cleared by Customs as this was done by the agent.  Applicant contended that he had no intention to smuggle any goods into the country.

The matter went to trial.  The trial commenced before the 1st respondent.  3 witnesses were called to testify.  At the close of the state case applicant submitted a written application for discharge.  1st respondent dismissed the application for discharge at the close of the state case.  Dissatisfied with the ruling made by 1st respondent applicant filed an application for review with this court.  The basis for the review is that the decision to place the applicant on his defence was contaminated with gross irregularities.  Applicant was placed on his defence despite his protestation that he was a runner and that he left everything to the agent to proceed with all the formalities with ZIMRA.  Applicant argued that there was no evidence led to show that he formulated an intention to smuggle the goods in question.  In its response to the application for discharge, the prosecution had this say;

“From the above, it will indeed seem like the accused did not know what was in the truck and as such he cannot be said to possess the mental knowledge.  However, looking closely at the evidence, they are pointers that he actually knew.”

From the foregoing it is apparent that it was necessary for evidence  to be led from the applicant to establish whether the applicant had the requisite intention to smuggle the goods in question.

In his written ruling, dismissing the application for discharge, the learned Magistrate in the court a quo stated as follows:-

“…. At this juncture can it be said that the state has proven a prima facie case against accused person or not.  Have the essential elements of the crime been fulfilled for a court to convict on the basis of such evidence.  At this juncture it is the court’s view that all the essential elements of smuggling have been properly canvassed by the state.  Accused’s application for discharge is dismissed.”

It is clear that the learned Magistrate was alive to the fact that the state was required to prove all the essential elements of the offence in order to secure a conviction.  The learned Magistrate arrived at the conclusion that all the essential elements of the charge had been canvassed.  At the close of the state case however, the state only had to establish a prima facie case.

It is trite that a court should discharge an accused person at the close of the state case where:-

There is no evidence to prove an essential element of the offence; AG v Bvuma & Anor 1987 (2) ZLR 96.

(b)	There is no evidence on which a reasonable court acting carefully, might properly convict; AG v Mzizi 1991 (2) ZLR 321

(c)	The evidence adduced on behalf of the state is manifestly unreliable that no reasonable court could safely act on it; AG v Tagwirei 1997 (1) ZLR 575.

In this case, upon a perusal of the record and in the light of the evidence led by the state, it was shown that the state had succeeded in establishing that there was a prima facie case made against the applicant. There was no irregularity in the proceedings. The learned Magistrate was indeed correct in dismissing the application for discharge at the close of the state case.

In the result, and accordingly, the following order is made:-

1. 	The application be and is hereby dismissed.

2.	No order as to costs.

Moyo and Nyoni, applicant’s legal practitioners

National Prosecuting Authority, respondents’ legal practitioners