By Court Reporter
Harare Magistrate Tafadzwa Miti has dismissed the application made by the state to admit a video into evidence, citing the need for the court to establish the video’s authenticity before it can be tendered.
The video in question contains allegations against Job Sikhala and Geoffrey Sithole.
In her ruling, Magistrate Mhiti emphasized that the state must first prove the originality and authenticity of the video before it can be accepted as evidence in the case.
The decision comes after the investigating officer in the matter, Detective Sergeant Gift Mutamba of CID Law and Order Harare, testified that he had seen the video online and downloaded it for evidentiary purposes.
The state, represented by Ephraim Zinyandu, had applied for the video to be viewed in court, however, Sikhala’s lawyers, Jeremiah Bamu and Harrison Nkomo, as well as Sithole’s representative, Oliver Marwa, opposed the application.
Bamu argued, “The basis upon which the application has been made is fatal and cannot sustain it. What is clear is that this matter is not about the platform but whether the video can be produced as an exhibit. A video, by its nature, does not amount to electronic evidence. It is video evidence and quite distinct from electronic evidence.”
He further referenced previous legal cases, stating, “Superior courts have already outlined how videos can be tendered. In State vs Tsvangirai 2004, the court accepted that the correct law relating to admissibility of evidence was set out in the SA case of S vs Rambobin and others 1986. The State made a fatal submission. He says he does not seek to prove the originality. He had therefore refused to conform himself to the requirements of the law.”
Bamu stressed that the state must first prove the video’s originality, and only then can the court consider its admissibility.
He also raised concerns about the video’s custody, stating that it was not in the possession of the witness and thus the witness cannot speak about what happened to it during that time.
Marwa supported Bamu’s argument, stating, “Whenever the State seeks to produce a statement, it immediately assumes the onus of proving that the statement was made as a matter of fact by the alleged author of the statement and that the legal requirements have been complied with.”
Marwa further questioned the relevance of the video to the dispute at hand, stating, “Is the production of a flash bearing a video that has not discharged the onus set out in the Bennet case relevant to the dispute you are sitting to resolve? It is not, and the application for the tendering of the flash must fail.”
With the court dismissing the state’s application, the trial will continue without the video being admitted as evidence.