Judgment No. CCZ 10/14 10 Constitutional Application No. SC 226/10 “For these reasons I am satisfied that the present application was correctly brought under s 24(1) of the Constitution. The order made by the magistrate was, in the particular circumstances, beyond his jurisdiction. This Court must now place itself in the position it would have been in had the magistrate, as he ought to have done, referred to it the question raised before him.” I now turn to deal with the applicant’s contention that his constitutional rights have been violated as if this was the court of first instance. The applicant’s main contention is that the State, at the close of its case, had not established any one of the essential elements of the offence of contravening s 3(2)(a), as read with ss 3(3) and 3(5), of the Act. Placing an accused person on remand, trial or on his defence at the close of the State case, when the allegations and/or the evidence led by the State do not constitute an offence, is a violation of an accused person’s right to the protection of the law, guaranteed by s 18(1) of the Constitution. See the cases of Martin v Attorney-General supra and Williams and Anor v Msipha N.O. and Ors 2010 (1) ZLR 552 (S) at 572G-575G. Thus, in casu if the evidence led by the State does not establish prima facie any one of the six essential elements of the offence the applicant is entitled to the relief he seeks, the stay of prosecution. The following are the essential elements of the offence the applicant is charged with – (a) the accused must be a former owner or occupier; (b) of gazetted land; (c) who has not ceased to occupy, hold or use that land; (d) after the expiry of the appropriate period referred to, which in the present case is forty-five days after the fixed date, being 4 February 2007; and