THE High Court has upheld an application for review filed by three opposition activists Denford Ngadziore, Makomborero Haruziviishe and Jonah Matoratora on a charge of disorderly conduct.
The three were arrested in 2019 as they entered the Harare Magistrates Court.
In their application for review, they cited presiding magistrate Standford Mambaje and the State.
Haruziviishe has since been granted asylum in Europe where he is studying.
In the application heard by Justice Siyabona Musithu, the accused persons said the magistrate erred in dismissing their application for discharge at the close of the State case.
According to court papers on October 22, 2019, the three were brought to court facing a charge of disorderly conduct in a public place.
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It is alleged that they gathered at the main entrance of the Harare Magistrates Court while singing abusive songs against police officers after they were denied entry to court for wearing jeans.
The trio denied the charges saying it was a case of mistaken identity.
They alleged that they were never part of the group which was singing provocative songs.
The trial commenced on November 18, 2019, and on March 30, 2020, the three made an application for discharge and it was dismissed by Magistrate Mambanje.
After hearing the arguments of both parties, Justice Musithu granted the application in their favour.
"Further, in order to prove its case, the State ought to have called independent witnesses such as the journalists who are alleged to have been covering the demonstration," the judge ruled.
"The evidence of the three witnesses who all happened to be police officers was inconclusive as none of therm claimed to have arrested the applicants.
"One of the officers disowned her statement alleging that it was tampered with. The investigating officer who allegedly altered the said statement was not invited to testify as a State witness."
The judge said the applicants claimed that they were mistakenly identified by the officers who arrested them.
"That defence was not rebutted through the evidence of an independent identification of the applicants as the perpetrators of the offence," the judge said.
"Resultantly it is ordered that the application for review succeeds with no order as to costs.
"It is also ordered that the decision of the first respondent (Mambanje) to put the applicants to their defence is hereby set aside and is substituted with the following:
"The State having failed to prove a prima facie case at the close of its case, the three accused persons be and are hereby discharged and acquitted."