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AMOS MUDEFI
and
EMMANUEL CHITENDERU
and
KENNETH CHITENDERU
versus
MS CHIBANDA N.O
and
THE PROSECUTOR GENERAL

HIGH COURT OF ZIMBABWE

DEME J
HARARE, 15 September, 2022 and
23 February 2023

Application for Review

Mr T Muzana, for the applicants

Mr C Muchemwa, for the 2nd respondent
No appearance for the 1st respondent

DEME J: It is a well-established principle of our jurisprudential undertone that this

court is loath to interfere with unterminated proceedings at the lower courts. The applicant
wishing to convince this court to interfere with such uncompleted proceedings must
demonstrate existence of exceptional circumstances. The applicants made tireless and spirited
efforts to display exceptional state of affairs but this court is of the opinion that the
applicants’ case is not a discernable paragon meeting the requisite threshold.

The first to the third applicants (hereinafter called “the applicants”) approached this
court seeking an order for review for the decision of the court a quo made by the first
Respondent. The court a quo made an order for the dismissal of the applicant’s application
for discharge at the close of the State case. The applicants’ grounds for review are as follows:

“1. The 1st Respondent grossly misdirected himself (sic) by dismissing applicant’s application
for discharge at the close of the State case in circumstances where he ( sic) had no
discretion to write otherwise as the evidence adduced on behalf of the State was so
manifestly unreliable that no reasonable court could safely act on it in that:
(a) The evidence of the key witness Manyandure Manyumbu, the Investigating officer clearly
did not prove the exertion of illegitimate pressure by the accused persons, leaving only
the complainant to state about the extortion of pressure without any evidence leaving the
trial to be a boxing ring.
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(b) The evidence led clearly show (sic) that $400 was never paid and therefore it was never
recovered and therefore the complainant never lost the $400 as alleged on the charge
sheet.
(c) The investigating officer said he was transferred before finishing the investigations and
the State chose to close its case before calling the investigating officer who completed the
investigations.
2. The 1st Respondent grossly erred by failing to discharge Applicant (sic) at the close of the
State case in circumstances where the evidence led on behalf of the State did not establish
a prima facie case in that:
(a) No credible evidence was led to prove that the accused persons exerted any pressure on
the complainant.
(b) The two of the payments that is the $5 and the $400 were actually paid to third parties and
these third parties were not called to explain the payments.
(c) The payment of $200 was not proven at all as the complainant sent a person to pay money
to a person whom he did not know and the money could have been paid to somebody else
not the accused person.
(d) The state failed to prove any connivance among the accused persons.
3. The decision reached by 1st Respondent was so grossly irrational in its defiance of logic
and common sense that it can only be explained on the basis of bias on her part or an
inadvertent disregard of the rules governing considerations of applications made in terms
of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].
4. The 1st respondent failed to analyze the exhibits which were submitted by the state which
failed to support the state case as they were at variance with the evidence of the state
witnesses especially
(a) The call records did not show any single call which was made by the 1 st, 2nd and 3rd
accused yet the complainant and the investigating officer said the accused persons were
extorting the complainant through phoning the complainant.
(b) The letter by S. Rugwaro and Associates demanding the $400 cannot be imputed to the
accused persons and is better explained by S. Rugwaro and Associates.
(c) The calls of Farai Delight Ndudzo are at variance with his narration and this proves that
he was misleading the court and his evidence should have been thrown out especially
considering that
(i) He was never phoned by the complainant as he alleged.
(ii) He phoned his employer, the complainant, after he had already contacted the 1 st accused.
(iii) He deviated from his statement on the issue of the second call but the police officer
confirmed that he actually told the investigating officer that he made the second call.
5. The 1st Respondent grossly misdirected herself when she took the exhibits to be evidence
on a balance of probability when in actual fact they proved nothing for the state and this
gave rise to a gross miscarriage of justice.
6. The 1st Respondent grossly misdirected herself when she relied on the ecocash statement
which was obtained without authorization from the court and was therefore
unconstitutionally obtained.
7. The 1st Respondent committed a gross irregularity when he (sic) relied on a duplicate
record as the original record is at the High Court.
8. The 1st Respondent misdirected herself when she failed to decipher the import of our
application for discharge in that
(a) She dealt with the application perfunctorily and failed to apply her mind in that she
misconstrued the degree of evidence that we used which is the requisite scale which is on a
balance of probability.”
In light of the above-stated grounds, the applicants prayed for the setting aside of the
decision of the court a quo. The applicants were arraigned before the court a quo charged
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with the offence of extortion as defined in terms of s 134 of the Criminal Law (Codification
and Reform) Act [Chapter 9:23] which provides as follows:

“(1) Any person who—

(a) intentionally exerts illegitimate pressure on another person with the purpose of extracting an
advantage, whether for himself or herself or for some other person, and whether or not it is
due to him or her, from that other person or causing that other person loss; and
(b) by means of the illegitimate pressure, obtains the advantage, or causes the loss;
shall be guilty of extortion and liable to—
(i) a fine not exceeding level thirteen or not exceeding twice the value of any property
obtained by him or her as a result of the crime, whichever is the greater; or
(ii) imprisonment for a period not exceeding fifteen years;
or both.
(2) For the avoidance of doubt it is declared that where a person, for the purpose of inducing or
compelling the payment of any money or property as damages or as marriage compensation in
respect of a deceased person, leaves or deposits the deceased person’s body, he or she shall be
guilty of extortion or, if he or she fails to induce or compel the payment of any money or
property, attempted extortion.
(3) If a court convicting a person of extortion is satisfied that, as a result of the crime, any money
or property was paid to the convicted person, the court may order the convicted person to repay
that money or property to the person who paid it to him or her.
(4) Subsection (2) of section 366 and sections 367 and 375 of the Criminal Procedure and
Evidence Act [Chapter 9:07] shall, with the necessary modifications, apply in relation to any
order under subsection (3) as if it had been made in terms of Part XIX of that Act.”
The allegations of the State are that for the period extending from December 2016 to
June 2017, the Applicants, on different occasions, and at 51 Selous Avenue, Harare, one or
both of them, demanded substantial amount, exerted and obtained an amount of US$605 from
Martin Murimirambeva (hereafter called “the complainant”). It is the State case that the
Applicant intentionally threatened to cause harm to the complainant’s family if he did not
yield to their demands. The State also alleged that the applicants made threats of causing the
arresting and prosecution of the complainant if he did not meet their demands. According to
the State, the applicants also threatened the complainant with the causing of his dismissal
from his employment if he did not yield to their demands. The applicants, according to the
State, also indicated to the complainant that they would publish his incompetence in the
newspapers of his duties as the executor to the Chitenderu Family Trust unless the chairman
of the Chitenderu Family Trust was removed.

The State further alleged that the first applicant called the complainant some time in
December 2016 where he inquired whether the complainant was the executor of the estate of
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the late Reuben Chitenderu and the complainant responded affirmatively having been
appointed as such on 3 November 2012. The State further alleged that the second and third
applicants visited the complainant during December 2016 and they informed the complainant
that he was supposed to assist them as an executor in the removal of the chairman of
Chitenderu Family Trust. It is further alleged that the complainant advised the second and
third applicants that it was not his duty to remove the chairman but this was the duty of the
family members to remove the chairman.

It is further alleged by the State that the Applicants made police report against the
complainant of false fraud charges with a view of exerting illegitimate pressure upon the
complainant. On 23 May 2017, it is further alleged that the first applicant made further
demands of more money which saw him receiving US$200 from Zvikomborero Marvelous
Tigere on the instruction of the complainant.

The State also alleged that on 24 May 2017, the first applicant demanded that the
complainant must meet the legal costs of the second and third applicants to Messrs Rugwaro
and Associates for the Court Application which they had filed with Harare High Court which
they intended to cause the removal of the Chitenderu Family Trust chairman. According to
the State, part of the payment was to ensure that the second and third applicants withdraw
their fabricated fraud allegations against the complainant. It is further alleged by the State
that on 24 May 2017, the complainant initiated the payment of US$400 to Rugwaro and
Associates before stopping the transaction two days later upon realizing that he was extorted
by the applicants.

It is also alleged that on 25 May 2017, the first applicant made further demands of
more money from the complainant. The complainant made payments of US$5 through the
Ecocash account of the third party namely Farai Ndudzo. It is also the case of the State that
the US$5 was deposited into the Ecocash account of the first applicant’s wife. It is further
alleged by the State that the details of the Ecocash account into which money was to be
deposited were supplied to Farai Ndudzo by the first applicant.

The State also further alleged that on 19 June 2017, the complainant received the
threatening letter from Rugwaro Legal Practitioners demanding to know why the payment
was stopped. According to the State, the complainant never sought the services of Rugwaro
and Associates despite being pressured to make such payments.
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The Applicants tendered before the court a quo their defence outline which
summarized their defence. In their defence, the applicants denied having committed the
offence of extortion. According to the first applicant, he assisted the second applicant to
peruse the file of the estate in which the complainant was the executor. It is the second
applicant’s case that he picked the anomaly in the transfer of the farm, which formed part of
the estate of the late Reuben Chitenderu, in the estate which was duly reported to the Master
of the High Court as he, the second applicant, was operating through a power of attorney on
behalf of the surviving spouse and hence he was an interested party. The Applicants further
alleged that a meeting was held at the Master’s office which was attended by the second and
third applicants as they are related to the deceased and therefore were interested parties. The
applicants further affirmed that the Master wrote the letter to the complainant in his official
capacity and was not influenced by anybody but because the farm was transferred without the
following of due process.

According to the third applicant, he only attended the meeting at the Master’s office
and never dealt with the complainant in any way and is not aware why he is dragged into the
extortion allegations. The applicants further alleged that the complainant engaged Rugwaro
and Associates to assist in the reversal of transfer of the farm. It is the case of the applicants
that Mr Rugwaro then approached the second applicant to depose to an affidavit for the
application and the complainant paid for the application through bank transfer.

According to the applicants, it is Mr Rugwaro who demanded payment from his

client, the complainant, and the applicants claimed having no connection with the payment in
question and such payment has nothing to do with them. The applicants denied having
pressured the complainant to make the payment in dispute to Rugwaro and Associates.
According to the applicants, the complainant paid the payment to Rugwaro and Associates
and also consented to the application.

It is the first applicant’s case that he ceased being an employee of the Ministry of
Justice in 2013 and the allegations by the complainant that he was in the employ of the
Ministry of Justice are untrue and unfounded. The first Applicant further claimed that he
never, on his own or through any other person, received US$200. The applicants also
maintained, in their defence, that they did not demand any money from the complainant.
According to the applicants, the US$5 deposited in the Ecocash account of the first
applicant’s wife can be best explained by the wife of the first applicant.
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The Applicants further submitted that the police report of fraud allegations were bona
fide and there was no intention to extort. It is the defence of the applicants that every court
case is of public in nature and the fact that the complainant’s case was in the press has
nothing to do with the applicants but is a product of investigative journalism.

After going through its witnesses and tendering its evidence, the State chose to close
its case. The applicants made an application for their discharge at the close of the State case.
The application was made in terms of s 198(3) of the Criminal Procedure and Evidence Act
[Chapter 9:07] which provides as follows:

“(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.”

After interacting with the court, the counsel for the applicants, Mr Muzana, admitted
that the sixth ground of review was improperly placed before this court as it raises a
constitutional question which ought to have been referred to the Constitutional Court in terms
of s 175(4) of the Constitution. After this admission, the sole question of whether or not the
court a quo properly dismissed application for the discharge of the applicants at the close of
the State case continues to exercise the mind of the court. Once this issue is determined, all
the other issues raised by the applicants in their multiple grounds of review will be
automatically resolved as well. This is so because the grounds for review relied upon by the
applicants revolve around the height of evidence required for such application to succeed.

Application for discharge at the close of the State case has been resolved in our
jurisdiction and beyond and this now resembles a well toured road. For the purposes of such
application, the court will circumspectly examine whether or not the following issues have
been satisfied:

(a) Whether there is evidence to prove an essential element of the offence;

(b) Whether there is evidence on which a reasonable court, acting carefully, might
properly convict;
(c) Whether the evidence adduced on behalf of the State is so manifestly
unreliable to the extent that no reasonable court could safely act on it.
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In the case of The Prosecutor-General of Zimbabwe v Richard Masvaire and Ors1,

the court superbly postulated the essential requirements of the application for discharge of the
accused at the close of the State case in the following apposite remarks:

“The legal position therefore, in application brought in terms of s 198 (3), may be
summarised as follows:
(a) an accused person 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;
(b) in deciding whether the accused is entitled to be discharged at the close of the State case,
the court may take into account the credibility of the State witnesses, even if only to a
limited extent;
(c) where the evidence of the State witnesses implicating the accused is of such poor quality
that it cannot be relied upon, and there is accordingly no credible evidence on record upon
which a court, acting carefully, may convict, an application for discharge should be
granted.”

See also State v Shrien Prakash Dewani CC 15/2014 (Constitutional Court of South
Africa).

At that stage of a trial, the evaluation of the evidence is different from that involved at
the end of the trial. It is a sui generis interlocutory application, which typically raises a
question of law and not fact. A court seized with such an application must bear this in mind
when adjudicating an application in terms of s 198 (3) of the Criminal Procedure and
Evidence Act.

The words “no evidence” have been interpreted to mean no evidence upon which a
reasonable court acting carefully may convict. Again the “no evidence” test is sui generis.

See S v Shuping.2 It will be seen that at this stage there is not an onus in the usual
sense of the law, and specifically not an onus on a prima facie basis to be met by the State.
“Prima facie” is defined as that: if a party on who lies the burden of proof goes as far as he
reasonably can in producing the evidence and that evidence calls for an answer, it is prima
facie evidence. In the absence of an answer from the other side, it becomes conclusive.
Therefore, once a prima facie case has been established the evidential burden will shift to the
accused to adduce evidence in order to escape conviction. However, the burden of proof will
remain with the prosecution.”

1
HH5/19.
2
1983 (2) SA 119 (B).
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See also the cases of S v Bvuma3, S v Muzizi4, A.G. v Tarwirei5,6 S v Kachipare7,8 S v

Tsvangirai9, AG v Makamba10, S v Benjamin Paradza11, S v Christopher Tichaona
Kuruneri12, , S v Bennet13 and S. v John Arnold Bredenkamp14.

The cases of Prosecutor-General of Zimbabwe v Richard Masvaire (supra and

Kachipare (supra)), have established a three-pronged approach to the application for
discharge. Firstly, the court must cautiously analyse whether there are essential elements for
the offence in question. Secondly, the court must investigate whether any court acting
carefully may properly convict the accused persons. Lastly, the court must critically assess
whether the evidence adduced is palpably unreliable

In casu, for the offence of extortion to have been committed, certain essential
elements must be proved. Most of the offences in our jurisdiction do require the proof of
mens rea and actus rea. Mens rea is the intention or mental capacity possessed by the
accused at the time of the alleged commission of the offence while actus rea refers to the
physical act involved in the alleged commission of the offence. Intention is to be proved
using a subjective test according to s 13 of the Criminal Law (Codification and Reform) Act
[Chapter 9:23]. Thus, there must be an intention to exert pressure on another person by the
Applicants as one of the essential requirements of extortion as established by Section 134(1)
of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. . For purposes of
proving actus rea, the State must demonstrate that illegitimate pressure was exerted by the
accused to gain an advantage for the accused concerned or for another person.

The complainant, in his testimony before the court a quo, highlighted that he was
pressured in many respects. Firstly, he claimed that he was pressured by the first applicant to
3
1987 (2) ZLR 1996.
4
1991 (2) ZLR 321.
5
1997 (1) ZLR 575.
6
1997 (1) ZLR 575.
7
1998 (2) ZLR 271 S.
8
1998 (2) ZLR 271 at 276C-277A.
9
2003 (2) ZLR 88 at 89H-91A.
10
2005(2) ZLR 54 at 64 G-65 B.
11
2006 (1) ZLR 20 at 24G-25F.
12
HH 59-2007.
13
2011 (1) ZLR 396 at 400D-401B.
14
HH305/13.
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deposit money into the account of the first applicant’s wife which he eventually did through
Farai Ndudzo. Farai Ndudzo confirmed that he deposited US$5 into the Ecocash account of
Caroline Chamunorwa, the first applicant’s wife. According to Farai Ndudzo, the first
applicant instructed him to deposit into that Ecocash account. The evidence-in-chief for Farai
Ndudzo is from pp 178 to 183 of the record.

The State begged leave to tender Ecocash statement confirming the allegations. The
defence counsel vehemently opposed the request. Eventually, the court a quo ruled that the
Ecocash statement should be part of the record. According to the Ecocash statement which is
on p 247, US$5 was deposited into the Ecocash account of 0777693299 which is the phone
number of the first applicant’s wife. The phone number of the initiator of the transaction is
0778553326, which is the phone number of Farai Ndudzo. This evidence was not destroyed
by cross-examination which is on pages 183-187. The first applicant did not deny that
Caroline Chamunorwa is his wife. According to the defence outline filed, the applicants
submitted that the Ecocash transaction can only be explained by the first applicant’s wife.
Consequently, it is necessary that answers be extracted from the applicants as there are a lot
of unclear areas. The only means of extracting such answers is to put the Applicants to their
defence.

The complainant also maintained his evidence that an amount of US$200 was paid in
cash to the 1st Applicant through Zvikomborero Tigere, after being pressured by the 1 st
Applicant. Zvikomborero Tigere was called to substantiate this testimony. The evidence-in-
chief of this witness is from p 169 up to p 171. The applicants, through their counsel, failed to
shake Zvikomborero Tigere under cross-examination which is from p 172 up to p 178 of the
record. The cross-examination leaves a lot of grey areas which require an answer from the
Applicants. Such answer can only be obtained through putting the applicants to their defence.

The complainant also asserted that he was pressured to deposit US$400 into the bank
account of the Rugwaro and Associates after being compelled by the applicants. The
document on p 241 of the record was tendered as exhibit. This document reflects an
attempted transfer of US$400 to Rugwaro Legal Practitioners. The complainant then later
successfully reversed the transaction two days later, on 26 May 2017. The communication to
reverse the transaction addressed to the bank is on p 242 of the record. Evidence of this
nature definitely requires reply from the applicants.
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In the circumstances, in my view, it is apparent, on a prima facie basis, that the

essential elements of extortion are available with regard being had to testimonial and
documentary evidence which was laid before the court a quo. On a prima facie footing, one
can draw an inference that the applicants haboured intention to exert pressure on the
complainant. After reaching this conclusion, a reasonable court acting carefully may properly
convict. In the premises, the evidence led by the State cannot be deemed to be patently or
manifestly unreliable.

Now turning to the grounds of review, it is pertinent to note that the investigating
officer, Manyanya Marandure, is not a key witness as correctly observed by the State. The
Applicants, in their first ground of review, had challenged the evidence of the investigating
officer. The court will not bother itself in analyzing his evidence in light of the evidence of
the three eye witnesses. In my view these three are key witnesses. Mr Muchemwa, on behalf
of the second respondent, correctly argued that the investigating officer is not a key witness.
The evidence of the investigating officer will be assessed by the court a quo at the
appropriate time upon the conclusion of the trial. In any event, for the purposes of the
application for discharge at the close of the State case, the court may take into account the
credibility of the State witnesses, even if only to a limited extent as set out in the case of
Richard Masvaire (supra). The credibility of the three key witnesses called to testify on
behalf of the State before the court a quo met this threshold of the limited extent.

In the seventh ground of review, the applicants had attacked the first respondent for
using the duplicate record where the original record was before this Court. This ground is not
clear as the applicants did not go on to allege prejudice suffered by the applicants as a
consequence. The applicants did not aver that the duplicate record had insufficient
information or documents. Further, this ground of review was not pursued any further in the
subsequent pleadings and Heads of Argument. In the premises, in the absence of further
submissions made by the applicants, I find no merit in this ground of review.

The rest of the grounds of review, are concerned with the base of the evidence
established by the State. Having reached the conclusion that the State established a prima
facie case, the other grounds of review, with the exception of the sixth ground which was
abandoned, automatically fall away.
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The court a quo certainly cannot ignore evidence placed before it by the State
witnesses. Ignoring this evidence would put the administration of justice into disrepute. The
height of evidence, at this stage, is only to establish a prima facie case as opposed to proving
the case beyond a reasonable doubt which should be the case at the conclusion of the trial.
When the court is faced with the trial of extortion, it is called upon to exercise a high degree
of circumspection given that the accused may employ sophisticated organized systems to
ensure that it may be difficult if not impossible to link the alleged commission of the offence
with the accused.

In my considered view, the present matter does not fall within the province of the
examples of cases requiring this court’s interference with the unfinished proceedings of the
court a quo. According to the case of Richard Masvaire (supra), the issue that should
exercise the mind of the court when faced with this application is the question of law and not
the question of fact. This legal test can only be objectively determined after having regard to
all surrounding circumstances. The court has to employ the reasonable man’s test.

After a judicious and meticulous examination of all surrounding factual and legal
circumstances, it is my considered opinion that the first respondent correctly and properly
came to a logical conclusion that a prima facie case has been established. In accordance with
the case of Richard Masvaire (supra), the State went as far as it reasonably could in
producing the evidence and such evidence placed before the court a quo calls for an answer
from the applicants. I find no sound basis for setting aside the decision of the court a quo.
Setting aside such a decision may constitute a flagrant affront to the sense of justice, in my
view. The present application lacks merits. Consequently, the applicants must be put to their
defence to answer the prima facie case that has been established by the State. In the result, IT
IS ORDERED AS FOLLOWS:

The application be and is hereby dismissed with no order as to costs.

Tapera Muzana and Partners, first and third applicants’ legal practitioners
National Prosecuting Authority, second respondent’s legal practitioners.