Leon Zvarevashe and Nyasha Mhuru v Ethel Chichera N.O and The State

### Preamble
1
HH 608 - 25
HCH 2266/25
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LEON ZVAREVASHE

and

NYASHA MHURU

versus

ETHEL CHICHERA N.O

and

THE STATE

HIGH COURT OF ZIMBABWE

MAMBARA J

HARARE 6 & 8 October 2025

Court application for review

P. E. Chivhenge, for the applicants

F.I. Nyahunzvi, for the 2nd respondent

MAMBARA J:    This is an application for review of a decision made by a magistrate in ongoing criminal proceedings. The two applicants, Leon Zvarevashe and Nyasha Mhuru, are facing trial on a charge of fraud as defined in section 136(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The alleged fraud involves a misrepresentation that caused the complainant to unknowingly sign away her property rights under the guise of a loan transaction. After the State closed its case in the trial, the applicants applied to be discharged in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The magistrate (cited as the first respondent) dismissed that application, finding that the State had established a prima facie case requiring the applicants to be put to their defence.

Dissatisfied with the magistrate’s ruling, the applicants have approached this Court seeking a review of that interlocutory decision. They contend that the refusal to discharge them was based on gross misdirection and irregularities. The second respondent, the Prosecutor-General, opposes the application and maintains that the magistrate’s decision is sound. The key question is whether this Court should exercise its review powers to interfere with an unfinished criminal trial by overturning the magistrate’s refusal to grant a discharge.

Factual Background

The fraud charge against the applicants arises from a purported loan transaction that was allegedly a sham. The complainant, Debra Mullin, owned a house in Hillside, Harare valued around US$250,000. In early 2023, the complainant through her daughter sought a loan of US$30,000. The applicants offered to facilitate this loan. On 6 February 2023, the complainant and her daughter met with the applicants at a house in Harare, No. 12 Chataway, Hillside to sign what the complainant believed were loan agreement documents. Also present was a woman identified as Mrs. Evans, who produced forms for the complainant to sign. Eager to obtain the funds, the complainant signed the documents and even affixed her fingerprint without reading their content. After signing, the complainant’s daughter handed over the title deed of the house to the second accused as security.

Following this, the applicants disbursed part of the loan to the complainant. They promised that the balance of US$10,000 would be paid by 24 February 2023, but when that date arrived the complainant’s daughter was given only US$7,500, after the applicants deducted a US$2,500 fee. The complainant’s daughter nonetheless began to repay what she believed was a legitimate loan. She managed to pay back about US$7,500 by March 2023 before running into financial difficulties. When she defaulted on further payments, the complainant became concerned and revisited the paperwork she had signed. Only then did she discover that the document was actually an Agreement of Sale for her house – not a loan agreement. In other words, she realized she had unwittingly agreed to sell her home for $30,000, when she thought she was merely securing a loan. The complainant reported the matter to the police, leading to fraud charges against the applicants. The charge sheet explicitly alleges that on 6 February 2023 the applicants “unlawfully and intentionally misrepresented to Debra Mullin by making her sign a contract for a US$30,000 debt, when in fact it was an agreement of sale for her house… thereby causing potential prejudice of US$250,000”.

At the trial, the State led evidence from the complainant, her daughter, and other witnesses. A formal Agreement of Sale bearing the complainant’s signature/fingerprint was produced, as were receipts evidencing the exchange and partial repayment of money. The State also tendered an audio recording of the meeting on 6 February 2023 as part of its evidence. The applicants objected to this recording, disputing its authenticity and relevance, but the magistrate allowed it to be admitted and played in court. The prosecution’s theory was that this evidence, taken together, established that the applicants duped the complainant into an unintended sale of her property under the guise of a loan.

Applicants’ Arguments

The applicants’ position is that they should have been discharged at the close of the State’s case because the prosecution failed to establish a prima facie case of fraud. They assert that the essential elements of fraud are not supported by the evidence. In particular, the applicants argue that there was no intentional misrepresentation on their part – they maintain that the complainant knowingly signed an agreement of sale and later regretted it, which would be a civil matter rather than a criminal fraud. If the complainant in fact understood the nature of the document she was signing, then, the applicants submit, no fraud was committed. They contend that the State did not prove that the complainant was misled or that any deceit by the applicants induced her to act.

The defence also highlights serious concerns with the quality and admissibility of the State’s evidence. A major point of contention is the audio recording. The applicants argue that the court a quo placed undue reliance on this recording as evidence of a “fraudulent misrepresentation,” despite the existence of a clear written contract. They submit that introducing an unverified audio tape to contradict or vary a written agreement offends the parol evidence rule, which holds that a written contract is the best evidence of its terms. Moreover, the applicants note that multiple people were present in the meeting, yet the State did not identify the voices on the recording or produce any expert evidence linking the recorded voices to the applicants. In their view, the recording’s probative value is questionable, and without it the State’s case rests largely on the testimony of the complainant – testimony which they argue is weak or unreliable.

Crucially, the applicants submit that the magistrate applied a wrong legal test in denying the discharge. In her ruling, the magistrate remarked that “a discharge is granted only in exceptional cases where the State has failed completely to link the accused to the offence”. The applicants contend that this standard is contrary to law. Section 198(3) of the Criminal Procedure and Evidence Act does not impose an “exceptional case” requirement. It simply requires a discharge if there is no evidence upon which a reasonable court might convict. By adopting an overly restrictive test, suggesting that only an utterly hopeless State case would justify discharge, the magistrate is said to have misdirected herself and set the bar too high. The applicants argue that this misdirection led to an irrational outcome – effectively forcing them to defend themselves despite the State’s failure to prove a case. They claim the magistrate “went on a frolic of her own” and even appeared to shift the onus onto the defence to prove innocence. In summary, the applicants believe that no reasonable court properly directing itself would have refused to acquit them on the evidence presented, and thus they seek the High Court’s intervention to correct this injustice.

Respondents’ Opposition

The Prosecutor - General, on behalf of the State, opposes the application and supports the magistrate’s decision. The State’s stance is that the magistrate correctly found a prima facie case and that no legal error was committed that warrants interference.

The respondents emphasize that the magistrate’s ruling was not a final determination of guilt but simply a finding that there is evidence requiring an answer. They point out that at this midway stage of the trial, the court does not need to be convinced beyond reasonable doubt. It only asks whether a reasonable court could convict on the evidence. In the State’s view, that standard was met here. The complainant’s testimony, the documents, and the surrounding circumstances all implicate the applicants in a scheme to defraud. The complainant’s credibility, they argue, remained intact enough that her allegations cannot be dismissed out of hand. Thus, the applicants were properly called upon to give their side of the story.

Addressing the applicants’ criticism of the legal test, the Prosecutor-General submits that the magistrate’s reference to “exceptional cases” was merely a reflection of the fact that discharges at the close of the State’s case are indeed rare when some evidence links the accused to the crime. In substance, the State argues, the magistrate applied the correct principle – namely, she looked at whether there was evidence connecting the accused to the offence. The phrase “failed completely to link” indicates that the court found the State had not completely failed. In other words, there was some evidence against the accused. The State contends that quibbling over semantics should not overshadow the reality that this was not a case of no evidence.

Furthermore, the State submits that nothing in the magistrate’s ruling reversed the burden of proof or violated the applicants’ rights. The applicants remain presumed innocent. They are simply being asked to respond to a case that has been made against them. The Prosecutor - General notes that the applicants are free to testify or remain silent, and the onus is still on the State to prove guilt beyond a reasonable doubt at the end of the trial. Requiring the defence to proceed is a normal incident of a prima facie case and does not imply any judicial bias or predetermination.

The respondents also argue that this application is premature and not one of the exceptional instances that justify higher court intervention in an ongoing trial. They invoke the principle that superior courts rarely intrude upon uncompleted proceedings except in cases of serious injustice. In the present matter, the State asserts, the applicants will have a full opportunity to present their defence in the magistrate’s court, and if they are ultimately convicted, they can appeal. There is no irreparable harm in allowing the trial to continue. On the contrary, halting it now would deprive the prosecution of the chance to have the evidence weighed in full. The State therefore urges this Court to decline to intervene, as no gross irregularity or failure of justice has been demonstrated.

Legal Principles

The starting point is the statutory provision governing discharge at the close of the prosecution case. Section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides in imperative terms:

“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… or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty.” (Emphasis added)

In other words, where the State’s evidence, taken at face value and in its totality, does not implicate the accused in the commission of the offence or a competent alternative offence, the court must discharge the accused. The legislature’s use of the peremptory “shall” leaves no discretion in such circumstances. The accused is entitled to an acquittal there and then. As was observed in S v Kachipare 1998 (2) ZLR 271 (S), this provision makes it clear that a court may not refuse to discharge an accused at the close of the state case in the hope that somehow the defence case might fill gaps in the prosecution evidence. If the State has not established a prima facie case by the close of its case, the trial cannot legitimately be continued. Gubbay Cj stated in Kachipare: “The wording of section 198(3)… made it clear that, where, at the end of the State case, there is no evidence upon which a reasonable court might convict, the court has no discretion – it must discharge the accused. The court may not exercise its discretion against the accused if it has reason to suppose that the inadequate State evidence might be bolstered by the defence evidence… The appellant should have been discharged at that stage of the trial.”.

Our courts have developed a substantial body of jurisprudence elucidating the circumstances that justify a discharge under s 198(3). Although the wording of the statute is succinct, “no evidence that the accused committed the offence”, case law has expanded on what “no evidence” entails in practice. It is now settled that a discharge at the close of the State case is appropriate not only when there is a complete absence of evidence on an element of the crime, but also in related situations where the evidence is so deficient or unreliable that no reasonable court could safely convict on it. In Attorney - General v Bvuma & Anor 1987 (2) ZLR 96 (SC), a seminal decision, the Supreme Court held that a trial court must acquit if the prosecution has not led evidence sufficient to establish a prima facie case on every essential element of the offence. Similarly, in S v Mpofu (2) 1985 (1) ZLR 285 (H) and A-G v Mzizi 1991 (2) ZLR 321 (S), it was affirmed that if there is no evidence on which a reasonable court, acting carefully, might properly convict, then the accused is entitled to discharge. Even where some evidence has been adduced, if it is so manifestly unreliable or discredited that no reasonable tribunal could base a conviction on it, a discharge may be warranted. This principle was recognized in cases such as S v Hurtlebury 1985 (1) ZLR 1 (H) and later endorsed by the Supreme Court in A-G v Tarwirei 1997 (1) ZLR 575 (S) and S v Kachipare (supra), among others.

The criteria for discharge at the close of the state case are often summarized in three categories, as was succinctly laid out in S v Tsvangirai & Ors 2003 (2) ZLR 88 (H) (per Garwe J) following Kachipare. A court shall grant a discharge where, at the close of the State case, it finds that:

there is no evidence to prove an essential element of the offence;

there is no evidence on which a reasonable court might properly convict the accused; or

the evidence adduced by the State is so inherently unreliable or manifestly discredited that no reasonable court could safely act on it.

It was noted, however, that cases falling under category (c) – where the State’s evidence is so hopelessly unreliable that rejection is the only proper course – will be rare and would occur “only in the most exceptional cases”. Generally, questions of witness credibility and minor inconsistencies are left to be resolved after hearing the defence, unless the prosecution witnesses have been so utterly discredited under cross-examination that no part of their testimony could be believed by any reasonable fact-finder. Indeed, Garwe J cautioned in Tsvangirai that an acquittal at the close of the state case on the basis of unreliable evidence should be confined to those exceptional cases where the witness’s credibility “is so utterly destroyed” that no reasonable court could possibly convict.

It bears emphasis that the test at this stage is not whether the accused’s guilt has been proven beyond reasonable doubt (that is the end-of-trial standard), but rather whether the prosecution has made out a prima facie case calling for an answer from the accused. The onus is not on the accused to prove his innocence Rather, the State must have produced enough evidence which, if unchallenged or unexplained, could justify a conviction by a reasonable court. If such evidence exists, the trial court is generally obliged to place the accused on his defence so that the matter can be decided on the totality of evidence. Conversely, if the State’s evidence, taken at its high-water mark, still falls short of establishing the essential elements or is so weak that a conviction would be unsafe, then the accused has “no case to answer” and must be discharged. This approach aligns with Commonwealth practice in other jurisdictions. For example, English law (from which our s 198(3) is derived) applies a similar standard: in R v Galbraith [1981] 1 WLR 1039 (CA), the Court of Appeal held that a submission of no case should succeed when;

there is no evidence such that a reasonable jury properly directed could convict, or

(ii) the evidence is so tenuous or unreliable that the judge concludes no reasonable jury could convict on it.

South African cases have likewise long held that an accused is entitled to be discharged if the evidence is insufficient to make out a prima facie case – see, e.g., R v Kritzinger 1952 (2) SA 401 (W) and R v Herholdt 1956 (2) SA 722 (W).

In applying these principles, Zimbabwean courts have also stressed that a magistrate or judge must exercise the discretion to discharge judicially, not capriciously or out of deference to extraneous considerations. The decision must be based strictly on the evidence or lack thereof before the court, and the governing legal test. As was pointed out in A-G v Bvuma (supra) and subsequent cases, the trial court does not have a free hand to refuse discharge when the conditions for discharge are met. If there is no evidence on which a reasonable court might convict, then “the court has no discretion but to acquit.” In Attorney - General v Tarwirei 1997 (1) ZLR 575 (S), the Supreme Court held it a misdirection for a magistrate to take into account extraneous factors or to treat unsworn statements by the accused, for instance, assertions made in cross-examination questions as evidence against the accused at the close of the state case stage. Such errors skew the analysis because they either place weight on matters not in evidence or effectively shift a burden onto the accused to rebut the State’s case before one is legally called for. In short, the proper approach is an objective assessment of whether the State’s evidence, if believed, could result in a conviction. If not, the accused should not be required to say anything and must be acquitted there and then.

The second prong of the legal framework relates to this Court’s power to interfere in ongoing criminal proceedings of a lower court. It is trite that the High Court has review jurisdiction over inferior courts, derived from statute and its inherent supervisory authority. However, that power is to be exercised sparingly in respect of interlocutory or unfinished proceedings. The general rule, firmly established in our law, is that a superior court should not lightly intervene in uncompleted criminal proceedings of a lower court except in exceptional circumstances. The rationale is to avoid piecemeal adjudication and undue disruption of trials, and to respect the integrity of the lower court’s process unless a clear miscarriage of justice would result from leaving the error uncorrected until the end of the trial. The case law in Zimbabwe and comparable jurisdictions reflects a consistent theme: only a gross irregularity or a grave injustice that cannot be remedied by the ordinary course of the trial or by appeal after verdict will justify intervention mid-stream.

Malaba Ja (as he then was) explained this principle authoritatively in Attorney -General v Makamba 2005 (2) ZLR 54 (S). He stated that a superior court may step in during ongoing proceedings “only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means,” or where the interlocutory decision in question “is clearly wrong as to seriously prejudice the rights of the litigant.” This dictum has been consistently cited with approval and encapsulates the high threshold that must be met. The learned judge in Makamba drew from South African authority, notably the remarks of Steyn Cj in Ismail & Ors v Additional Magistrate, Wynberg 1963 (1) SA 1 (A) at 4, that “a superior court should be slow to intervene in unterminated proceedings… and should generally… confine the exercise of its powers to rare cases where grave injustice must otherwise result or where justice might not by other means be obtained.”. The High Court echoed this stance in cases such as Ndlovu v Regional Magistrate, Eastern Division 1989 (1) ZLR 264 (H) and Masedza & Ors v Magistrate, Rusape 1998 (1) ZLR 36 (H), emphasizing that interlocutory interference is permissible only in “rare or exceptional” cases of a nature that would render the eventual trial or outcome irredeemably unfair.

Our courts have applied these principles specifically to refusals of discharge at the close of the State case. A magistrate’s decision to put an accused on his defence, even if arguably mistaken, is not routinely subject to immediate review. As the Supreme Court observed in Makamba (supra), and as illustrated by subsequent cases, a superior court will interfere with a magistrate’s refusal to discharge only if that decision is so egregiously wrong as to constitute a gross irregularity or if it results in such prejudice that justice cannot be attained by any other means. For instance, in Mutasa & Anor v Mapfumo N.O. & Ors HH 84/21 Kwenda J with Charewa J concurring intervened on review in an application for discharge at the close of the state case matter, but that was an exceptional scenario with peculiar facts. In that case, the magistrate had effectively changed the charge or theory of the case at the close of the State case. The ruling on the discharge application “had the effect of upholding” the no-case submission on the original charge, yet the magistrate illogically proceeded to place the accused on their defence on what was essentially a new factual allegation beyond the charge. This was deemed a “gross irregularity” falling into the category of “rare or exceptional cases where this court can properly intervene in uncompleted proceedings to avert a gross injustice.” The High Court in Mutasa found that the applicants had been constructively acquitted of the charge as laid, and the magistrate’s attempt to continue the trial on a different basis destroyed the legal validity of the proceedings. Accordingly, the High Court set aside the magistrate’s ruling in that instance. By contrast, where the magistrate’s refusal to discharge does not amount to such a patent irregularity – for example, where it is a judgment call on the sufficiency of evidence – the higher courts have generally been inclined to let the trial run its course. Even a mistaken refusal to acquit at the close of the state case can usually be corrected on appeal by quashing any ensuing conviction if it turns out the refusal was indeed unwarranted rather than by stopping the trial upfront.

The Supreme Court has also had occasion to pronounce on this issue in the context of appeals following a completed trial. In S v Muserere & Ors SC 147/21, for example, the appellants who had been convicted after being put to their defence argued on appeal that the trial court erred in refusing to discharge them at the close of the State case. The Supreme Court reiterated that an appellate court will not lightly interfere with a trial court’s discretionary factual findings or evaluative decisions unless they are manifestly unreasonable. It held that to succeed in such an argument, an appellant must show that the lower court’s decision to refuse a discharge was so irrational or so unsupported by the evidence that no reasonable court acting properly could have arrived at it. In other words, short of a finding of gross unreasonableness – a standard closely akin to the “no reasonable court” test – a conviction will not be overturned merely because another court might have exercised the discretion differently. This underscores again that the primary forum to contest the evidentiary merits of a no-case ruling is the trial itself and any subsequent appeal, rather than a collateral mid-trial intervention.

It is against this backdrop that the present review application must be assessed. The legal framework summarized above can be distilled into two controlling propositions:

The magistrate was obliged to acquit the applicants at the close of the State case if, and only if there was no evidence upon which a reasonable court might convict on the charge or permissible alternative charge. If some evidence did implicate the accused on each element of the offence, and if that evidence was not utterly unworthy of credence, then the magistrate was entitled or even required to refuse a discharge and call for the defence. The concept of “exceptional circumstances” is not part of the legal test for discharge. Rather, it is an observation that only in clear-cut cases lack of evidence or totally discredited evidence will a discharge be granted. It is not a freestanding requirement that the accused must meet some higher threshold to justify an acquittal at this stage.

This Court should interfere now (before the trial concludes) only if the magistrate’s refusal to discharge represents a gross irregularity or a grave injustice that cannot be corrected later. If the magistrate simply (even if erroneously) misjudged the evidence or applied a slightly wrong test but without vitiating the integrity of the proceedings, then the matter should be left for appeal after verdict. The Court’s intervention now is reserved for exceptional situations where continuing the trial would itself amount to a miscarriage of justice.

With these principles in mind, I turn to analyse the case at hand.

Analysis

Having considered the submissions and the record, this Court is not persuaded that the magistrate’s ruling reveals a reviewable irregularity. Even evaluating the decision against the correct legal test, the outcome – refusal to discharge – appears justified.

The applicants’ main complaint is that the magistrate’s “exceptional cases” formulation was a misdirection. Strictly speaking, the magistrate did err in suggesting that a discharge is granted only in exceptional circumstances. The test is simply whether there is no evidence upon which a reasonable court might convict. However, when one examines her reasoning in context, it is evident that she found the State had led sufficient evidence linking the applicants to the offence, and thus she did not view this as a case warranting a discharge. In other words, while her phrasing was imperfect, her conclusion aligned with the substance of the law. There was a case to answer. This Court has therefore considered the matter on the basis of the proper legal standard, and asks: was there indeed evidence on which a reasonable court might convict the applicants of fraud?

The answer is in the affirmative. The core allegation is that the complainant was deceived about what she was signing. On this point, the complainant herself testified unequivocally that she believed she was signing a loan agreement, not a sale. If a court believes that testimony, then a misrepresentation is established. Notably, the surrounding facts lend some credence to her claim. The transaction was structured as a loan. Money was advanced and then partially repaid, which is inconsistent with an outright sale where no repayments would be expected. The title deed was handed over, which could suggest a security arrangement, and the agreed amount of $30,000 was only a fraction of the property’s value – all factors that a trial court might find indicative of a sham transaction designed to ensnare the complainant. None of these points are conclusive on their own, but collectively they provide context that supports the complainant’s version. More importantly, at this stage, no aspect of the State’s evidence has been shown to be so discredited that it must be rejected out of hand. The complainant was cross-examined, but there is nothing before this Court to suggest that her credibility was destroyed to the point of nullifying her evidence. Her daughter’s testimony presumably reinforced key aspects of the story such as the signing meeting and the exchange of money. In addition, the signed agreement of sale, which is an exhibit, objectively exists. It corroborates that the complainant did sign a document effecting a sale of her house. Whether she understood it or not is a matter of fact to be determined, but its existence at least confirms that the events in question did occur as alleged.

Even setting aside the contested audio recording, which the applicants heavily criticize, the State’s case had enough evidence to require an answer. The audio might have been intended to bolster the proof of misrepresentation, but it is not indispensable to the prosecution – the complainant’s testimony and the documents are the primary evidence. Thus, even if the applicants are correct that the audio was not properly authenticated, that alone would not entitle them to an acquittal at this juncture. The trial court could simply give the recording little or no weight and still have sufficient evidence, if believed, to consider. The applicants will have the opportunity during the defence case to refute the State’s allegations. They may explain their version – for instance, that the complainant fully understood the contract – or otherwise raise doubt about her credibility. But those are matters for the trial proper. At the close of the State’s case, the magistrate was not required to decide between the complainant’s version and any hypothetical defence version. She only needed to ascertain that the complainant’s evidence was not so untenable that it could never sustain a conviction. That threshold was clearly met.

The contention that the magistrate’s ruling has effectively shifted the onus onto the applicants is misconceived. Requiring an accused to be placed on his defence does not mean the court has found him guilty or that he must prove his innocence. It means simply that the State’s case is strong enough to warrant a response. The burden of proof remains on the State throughout. If the applicants choose to remain silent, the court will still have to decide if the State’s evidence is sufficient to convict beyond a reasonable doubt. There is no violation of the applicants’ fair trial rights in the mere act of dismissing a no-case submission when evidence exists.

Regarding the question of intervention by this Court, it is not lost on the Court that stepping in now would be an extraordinary measure. The applicants have not demonstrated that continuing with the trial will result in irreparable injustice. On the contrary, continuing the trial will allow the evidentiary picture to be completed. If the magistrate ultimately errs in her final judgment, the applicants can appeal. At present, however, no blatant illegality or miscarriage of justice has occurred. The magistrate’s decision was one a reasonable court could reach in light of the evidence, notwithstanding the unfortunate wording about “exceptional cases.” That alone does not justify halting the proceedings.

I also consider that the applicants are not left without remedy or protection. During the defence case, they remain shielded by the presumption of innocence and the right to silence. They cannot be compelled to incriminate themselves. They may choose to testify or not. If they choose to remain silent, the magistrate cannot draw adverse inferences unless the State’s case was strong enough to require an answer in the first place. And if the applicants do present a defence, they will have the opportunity to explain how the transaction was done and rebut any inference of criminal conduct, which could only strengthen their position that no offence occurred. The trial process itself, therefore, can resolve the issues in a manner that either vindicates the applicants or, if they are convicted, creates a record for a meaningful appeal. Intervening now would deny the appellate court that fuller record. It would amount to this Court stepping into the arena to evaluate evidence that is arguably incomplete since the defence hasn’t been heard, a role the High Court should be loath to assume except where the incompleteness of the record is immaterial because the State’s case is non -existent. Here, I cannot say the State’s case was non-existent. It was simply arguable or debatable.

For completeness, I must address the applicants’ reliance on various precedents. They cited S v Kachipare, A-G v Bvuma, S v Mpofu, S v Muserere, among others, in support of the proposition that the magistrate’s test was wrong and that they should have been discharged. I have already acknowledged that the magistrate’s formulation was wrong under those authorities. To the extent the applicants suggest those cases compel this Court to enter a verdict of not guilty now, that is a misunderstanding. Those cases clarify the legal test and would certainly be relevant on appeal in assessing whether a conviction can stand or whether an acquittal ought to have been granted. However, none of the cited cases save Mutasa v Mapfumo, discussed above, directly deals with a superior court stopping a trial mid-course because a magistrate refused a discharge. Kachipare was a Supreme Court appeal after a conviction – the accused had been wrongfully refused discharge, testified under compulsion, was convicted, and on appeal the Supreme Court set aside the conviction because indeed no case had been made out by the State. Bvuma similarly was an appeal by the Attorney-General against a discharge that had been granted – clarifying the test but not involving a mid-trial review. Mpofu and Muserere appear to have been considered either in appeals or other contexts perhaps constitutional or review contexts, but again, they reinforce the legal principles rather than mandate interlocutory intervention. What emerges from comparative Commonwealth jurisprudence – whether English, South African, or our own – is a consistent reluctance to allow appeals or reviews at the halfway stage. The English Court of Appeal in R v Galbraith (supra), while setting the standard for no-case submissions, does not permit the prosecution to appeal a wrongful discharge nor the defence to appeal a refusal at that stage; matters are resolved after verdict. South African law, too, generally confines challenges to a refusal of discharge to the appeal after conviction except in extraordinary cases akin to a gross irregularity. Zimbabwe’s approach is aligned with this general practice. Therefore, while the applicants are correct on what the law ought to be, that is, that they should have been discharged if no evidence was led on an element, the procedural posture of obtaining that relief now is what runs counter to ordinary principle.

Before concluding, I note for the record that the magistrate’s loose use of “exceptional circumstances” is indeed concerning. While I ultimately decline to interfere at this juncture, this should not be taken as approval of the magistrate’s approach. Trial courts must scrupulously adhere to the test in s 198(3) and the guidelines laid down in Kachipare and progeny. It is perhaps worthwhile to restate: at the close of the State case, the court’s duty is to consider the evidence logically and lawfully. If there is no legally sufficient evidence, the court must acquit – doing so is not a rare indulgence, but a fundamental right of the accused. If, however, there is some evidence on which a conviction might be based, the court should generally put the accused to his defence but even then, the court should be cautious not to require the accused to prove his innocence. The decision must not be influenced by sentiment or a desire to have “both sides of the story” at all costs. In the present matter, had the applicants demonstrated that the magistrate’s decision was wholly unsupported by the evidence – for example, if the magistrate refused discharge despite absolutely no evidence of a misrepresentation or theft – this Court would not hesitate to intervene, for that would represent an injustice. But as explained, the situation here is more nuanced and does not cross the threshold for interlocutory relief.

In sum, the magistrate’s invocation of “exceptional circumstances” was a misdirection, but one that does not fatally taint the proceedings so as to justify aborting the trial. The evidence, while arguably weak, was not so non - existent or utterly unreliable that no reasonable court could have declined to discharge. The applicants will have the opportunity to persuasively renew their no-case argument if they choose to stand on their right to silence, or to present their version to rebut the State’s case, Either course can only clarify the proper outcome. Should they be convicted and if it turns out that the conviction is not supported by evidence, as they strongly maintain, they can rest assured that the superior courts on appeal will set it aside in line with the authorities cited. What this Court should not do is short-circuit the normal trial and appellate process absent a truly compelling reason. Having weighed all circumstances, I find no such compelling reason here.

Conclusion

In sum, the magistrate’s refusal to discharge the applicants at the close of the State’s case was not grossly unreasonable or based on any illegality that would trigger this Court’s review powers. The State had made out a prima facie case of fraud, and the applicants were properly called upon to present their defence. The alleged misdirection in articulating the test for discharge, while noted, did not result in any substantial miscarriage of justice in the circumstances of this case. There are no exceptional factors warranting the High Court’s interference with the ongoing trial.

Accordingly, the application for review is dismissed. The trial in the court below should proceed to its completion, and the applicants’ remedies, if any, lie in the normal course of trial and appeal.

Mambara J: ………………………………………………………………..

Rubaya & Chatambudza, applicants’ legal practitioners

The National Prosecuting Authority, second respondent’s legal practitioners