The State v Desmond Ncube

### Preamble
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HB 213.19
CRB TSH 72/19,:834/19
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THE STATE

Versus

DESMOND NCUBE

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 30 DECEMBER 2019 & 9 JANUARY 2020

Criminal Review

TAKUVA  J:		This record was referred to me by the Acting Regional Magistrate Bulawayo with the following comment;

“Please place the above record before the Honourable Judge for direction.

Accused was facing 10 (ten) counts i.e 1 to 10 and he pleaded not guilty to all of them.

Trial was held in respect of count 1 and 2 and a verdict was entered.  From count 3 to 10 no trial was held.

However the trial Magistrate proceeded and entered a verdict of not guilty and acquitted the accused.

May the Honourable Justice direct as to whether the proceedings were proper or not and if not, may we be directed as to the way forward.” (my emphasis)

In fact, the above quotation does not capture the correct position which is that the accused appeared before a magistrate facing 8 not 10 counts.  He pleaded not guilty to all 8 counts and this plea was duly recorded against each count.  After that the prosecutor read the facts in respect of the 8 counts.  The accused indicated that he understood the facts after which he gave his defence outline in respect of the 8 counts.  Specifically, the accused opened his outline by stating that;

“I know nothing about the 8 counts”.

The State opened its case and called three witnesses whose testimony covered only counts 1 and 2.  The State then closed its case and the accused gave evidence under oath and was cross-examined by the prosecutor.  Accused maintained his innocence leading to the court delivering a judgment in which it acquitted him on all counts except count two where he was convicted of possession of stolen property suspected to have been stolen.

In its judgment the court a quo reasoned thus;

“It must be re-emphasized that in a criminal trial, the State must prove its case beyond reasonable doubt.  Nothing from the State evidence incriminated the accused as far as unlawful entry is concerned.  As regards the counts of theft, there was also no evidence that it was the accused who had stolen the items allegedly stolen or not.  In fact, in the majority of the counts that is counts 3 to 8 they remained allegations that accused did this and that with no single evidence adduced.  Surely, the State cannot expect a successful prosecution from cases whose allegations remain bold and unsubstantiated.”  (my emphasis).

Quite evidently, the court a quo addressed the inadequacy of the State’s evidence in its judgment.  For these reasons, I disagree that there was “no trial held” in respect to counts 3 to 8.  It appears that at the heart of the Acting Regional Magistrate’s query is the fact that the prosecutor did not withdraw these charges after plea.  Therefore it would be improper for the court to mero mota returned a verdict.  I disagree.

Section 198 (3) of the Criminal Procedure and Evidence Act (Chapter 9:07) provides that the court may return a verdict of not guilty after the State has closed its case and before the defence case has commenced.  In State v Tsvangirai & Others HH 119.03, the court summarized the circumstances in which discharge will be granted as follows;

“The court shall return a verdict of not guilty at the close of the State case if the court considers that there is no evidence that the accused committed the offence charged (or any other offence with which he or she could be convicted on that charge).  Thus, the court must discharge the accused at the close of the case for the prosecution where (a) there is no evidence to prove an essential  element of the offence; (b) there is no evidence on which a reasonable court acting carefully, might properly convict.  (c) the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it.  Instances of the last such cases will be rare, it would only be in the most exceptional case where the credibility of a witness is so utterly destroyed that no part of his or her material evidence can possibly be believed.”

In the present matter since the accused who was not legally represented had no case to answer as regards counts 3 to 8 the court was required to mero mota discharge him.  Failure to do so amounts to an irregularity which in turn amounts to a failure of justice.  In my view the court properly exercised its discretion to acquit the accused although strictly speaking, it should have done so at the close of the State case not at the end of the trial like it did in casu.  Be that as it may, the point is that the acquittal of the accused was properly done because at the end of the defence case no prima facie case had been made out and no reasonable court could convict the accused of the crimes charged on the basis of the evidence led by the State.  See State v Nzimande 1993 (2) SACR 218 (N).

I am unaware of any authority that places the responsibility to withdraw charges in such a scenario on the prosecutors shoulders.  Indeed, since the State’s entire case in so far as counts 3 – 8 had totally collapsed, one would have expected a diligent prosecutor to withdraw the charges.  Unfortunately he did not.  Instead of defending, he chose to be ball-watching and the accused scored a perfect goal that a judicial officer being a fair umpire ought not disallow.  Once an accused pleads to a charge, he is entitled to a verdict from the court.

Accordingly, I find that the proceedings in casu were conducted in accordance with real and substantial justice and are hereby so confirmed.