A HARARE magistrate has discharged Bulawayo entrepreneur and farmer Elephi Khumbula Gula-Ndebele at the close of the State’s case, ruling that prosecutors failed to establish a prima facie case linking him to cocaine allegedly found in a vehicle he was driving.
The ruling was delivered on June 19 by Harare magistrate Lisah Mutendereki following an application for discharge filed in terms of section 198(3) of the Criminal Procedure and Evidence Act by Ndebele’s lawyers Chikuni Associates.
The State did not oppose the application.
In the application, the defence argued that the State’s evidence was “manifestly unreliable” due to a broken chain of custody involving the alleged dangerous drugs.
Ndebele was facing a charge of possession of dangerous drugs under section 157(1) of the Criminal Law (Codification and Reform) Act after police allegedly recovered a white substance from his vehicle, which tested positive for cocaine.
However, the defence contended that prosecutors failed to prove that the substance allegedly recovered from the vehicle was the same one submitted to police forensic laboratories for testing.
According to court papers, the State did not produce a notice of seizure documenting exactly what was recovered from the accused’s vehicle.
The defence further argued that Detective Sergeant Mupome, who submitted the sample for forensic testing, was not part of the arresting team and there was no documentation showing how he came into possession of the substance.
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“There is no evidence of where Sergeant Mupome obtained the sample he submitted to forensics for testing,” the application stated.
The lawyers argued that because of the broken chain of custody, the cocaine exhibit became inadmissible and could not be safely relied upon by the court.
The defence also challenged the State’s ability to prove intent to possess the alleged drugs.
Court papers indicate that the investigating officer conceded during cross-examination that the vehicle bore corporate branding and was used by several people besides the accused.
The officer reportedly admitted that it was possible that other users of the vehicle might have known about the drug while Ndebele himself did not.
The defence argued that such concessions weakened the State’s case and rendered the evidence unreliable.
At the close of the State’s case, the magistrate granted the application for discharge and acquitted Ndebele without requiring him to present a defence.
