Harare Magistrate Tafadzwa Mhiti has dismissed the application by the state to use a video downloaded from the internet as evidence against Citizens Coalitions for Change legislators Job Sikhala and Geoffrey Sithole.
In her ruling, Magistrate Mhiti said, “the state must first prove the originality, authenticity of the video before tendering it in”.
Investigating officer in this matter, Gift Mutamba who is a detective Sergeant CID Law and Order Harare told the court said that he saw the video online and caused it to be downloaded for evidence.
The state represented by Ephraim Zinyandu had applied that the video should be viewed in court.
But Jeremiah Bamu, Harrison Nkomo who are representing Sikhala and Oliver Marwa who is representing Sithole opposed to the application.
“The basis upon which the application has been made is fatal and cannot be sustained. What is clear in this matter is not 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.
“For the reason the State had not made a proper conviction for the admissibility of the flash or the video, the application must fail. 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 therefor refused to conform himself to the requirements of the law,” argued Bamu.
He added that the law says the state must first prove originality.
Bamu also argued that the video which the state wanted to use was not in the custody of the witness but was taken from one Mandiranga.
“He cannot speak about what has happened to it during that time. It would be improper to have this witness produce the video. The next requirement is the identification of the speakers. What is required is a witness who can attest to what happened,” he said.
He firther cited the Tsvangirai case, in which the State flew two witnesses out from Montreal in Canada. First one was Tara Thomas who was operating the recording device and said the video could have been the work of a content creator or someone who photoshopped the footage. It cannot be accepted.
He said the State must prove that what was said in the video was made voluntarily.
Marwa also argued that, “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. The former is a question of fact and the latter is question of law.
“The application before you to produce the video is being challenged. The State is encumbered with two burdens. To prove that the statement was made by the alleged author. Has the State complied with the law? I go back to why this court has convened. There is an argument on whether or not the accused recorded and posted that video. 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,” he said.