THE State V Obert Mabhadho Chandirekera

### Preamble
1
HMA 51-19
CRB 14/19
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THE STATE

vs

OBERT MABHADHO CHANDIREKERA

HIGH COURT OF ZIMBABWE

MAWADZE J

MASVINGO, 21 & 22 October and 6 November, 2019

Criminal Trial

Assessors

Mr Mutomba

Mrs Chademana

M. Tembo for the State

E. Muranda for the accused

MAWADZE J:  	The accused was arraigned before this court on a charge of murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The charge is that on the 24th September 2010 at Mundondo beer hall in Mucheke, Masvingo the accused stabbed the now deceased Vengai Mariwo with an okapi knife causing his death.

The facts in this case as to what transpired are largely common cause.

Both the now deceased then aged about 21 years old and the accused were residents of Mucheke, Masvingo at the material time. The now deceased was in the business of hiring out push carts belonging to his relative at Mucheke bus terminus. The accused was a tout at the same bus terminus.

On 24 September 2010 the accused’s young brother Fanuel Chandirekera hired out the now deceased’s push cart for a fee of US$1.00 to ferry a customer’s goods in town. Apparently Fanuel Chandirekera did not manage to use the push cart as Masvingo Municipal police were impounding the push carts. As a result he returned the push cart to the now deceased and explained his predicament. Fanuel Chandirekera did not pay the fee of US$1.00.

Later that day at around 20.00 hrs the now deceased together with his elder brother Tawanda Mariwo and a friend Edmore Ngezimani were in Mundondo beer hall in Mucheke, Masvingo. Fanuel Chandirekera and one Ranganai Madondo later came into the same beer hall. The accused was in Chigudu bar also in Mucheke, Masvingo.

The now deceased approached Fanuel Chandirekera demanding payment of the US$1.00 for the hired push cart from Fanuel Chandirekera. Fanuel Chandirekera refused to pay the US$1.00 arguing that he had not used the push cart. A misunderstanding erupted between the now deceased and Fanuel Chandirekera resulting in a brawl. As a result, the now deceased’s elder brother Tawanda Mariwo and Edmore Ngezimani got involved in the brawl. The accused who was in Chigudu bar was alerted by Ranganai Madondo and proceeded to Mundondo beer hall where the accused and Ranganai Madondo also became entangled in this brawl. The accused pulled out an okapi knife and stabbed the now deceased twice, first on the biceps of the left arm and on the left side of the chest. The accused left the knife in Mundondo bar which knife was picked by a police detail, Cst Mark Mangwiro, who witnessed the brawl and was off duty. The accused, his young brother Fanuel Chandirekera and Ranganai Madondo fled from Mundondo beer hall and members of the public failed to apprehend them. In the process the accused who was at one time held in a bid to apprehend him wriggled free leaving his shirt. Police at nearby ZRP Chikato station were alerted and they intercepted the accused and his brother Fanuel Chandirekera together with Ranganai Madondo and arrested them. Meanwhile the now deceased who had been fatally injured in the chest collapsed and died before he could get any medical help.

The accused in his defence outline protests that his confirmed warned and cautioned statement was wrongly recorded by the police. In that statement the accused said it is him who had hired the now deceased’s push cart for a fee of US$1.00 instead of his young brother Fanuel Chandirekera. The investigating officer Rtd Sgt Tichaona Masawi insisted that the version recorded in accused’s warned and cautioned statement is what the accused told the police.

In our view the accused’s attempt to disown parts of his confirmed warned and cautioned statement cannot possible succeed. This statement is very detailed and virtually outlines what transpired in this case. There is no plausible reason as to why the police would simply alter the information on who had hired the now deceased’s push cart on the day in question as this was not material to the State case. In any case the accused conceded that he did not protest before the court which confirmed this statement. The truth of the matter is that it is the accused who lied in that statement that he, the accused, is the one who had hired the now deceased’s push cart in a bid to justify the accused’s involvement in this tragic beer ball brawl. Further, this issue is not really relevant as to what is to be resolved by this court other than denting the accused’s credibility.

The accused’s basic defence is that he stabbed the now deceased with a knife in self-defence. He said after Ranganai Madondo advised him when he, the accused, was in Chigudu bar that his young brother Fanuel Chandirekera was being assaulted by the now deceased he, the accused, rushed to Mundondo beer hall. Upon arrival accused said he learnt that the cause of the fight between the now deceased and Fanuel Chandirekera was payment of the US$1.00 and that the accused offered to pay it but the now deceased refused to accept it. The accused said the now deceased’s colleagues Tawanda Mariwo and Edmore Ngezimani joined in the fight against Fanuel Chandirekera. The accused said he intervened to stop the fight but the now deceased turned on to the accused. The accused said he was held and pressed against a braai stand as the now deceased throttled him. The accused said realising that he was being suffocated he drew out a knife and stabbed the now deceased firstly on the left arm and on the chest to cause the now deceased to release him. Thereafter he left the bar with Fanuel Chandirekera and Ranganai Madondo but police arrested them before they got home. He learnt of the now deceased’s death soon after his arrest and police assaulted him.

The post mortem report and accused’s confirmed warned and cautioned statement were produced by consent is Exhibit 1 and 2 respectively. The knife in question was not produced. The investigating officer Rtd Sgt Tichaona Masawi explained that he sent the knife to Harare for forensic examination together with the accused’s blood stained shirt and the items were never returned to the police.

The cause of the now deceased’s death is not in dispute. As per Exhibit 1 the post mortem report compiled by Dr Godfrey Zimbwa the cause of death was haemorrhagic shock arising from the stab wound in the chest. Upon examining the now deceased’s remains Dr Godfrey Zimbwa observed the following injuries:

“(1) single stand wound ± 4 cm on left side of the chest directly overlying the heart

(2) 2 cm stab wound on left arm”

As already said it is the accused who inflicted the fatal stab wound with the knife which knife belonged to the accused.

The evidence of Philip Midzi, Itai Munzira, Stephen Chimaka and Dr Godfrey Zimbwa was admitted in terms of s 314 o the Criminal Procedure and Evidence Act [Cap 9:07].

Tawanda Mariwo deceased’s elder brother, Mark Mangwiro and Rtd Sgt Tichaona Masawi the investigating officer gave viva voce evidence.

The accused testified and had no witnesses to call.

In summary the evidence which is common cause is as follows;

Phillip Midzi

Phillip Midzi knew the deceased as a vendor. He did not know the accused. He is the one who assisted the police with his motor vehicle to pursue the accused and accused’s young brother Fanuel Chandirekera together with Rangani Madondo who were fleeing from the crime scene leading to their arrest.

D/Sgt Munzira

D/Sgt Munzira is one of the armed police details from ZRP Chikato station who pursued accused and his colleagues after which he arrested them. He noticed that the accused had no shirt.

D/Sgt Chimaka

He attended the crime scene and later examined the now deceased’s body confirming the two stab wounds on the left arm and left side of chest.

Dr. Godfrey Zimbwa

Dr Zimbwa examined the now deceased’s remains to establish the cause of death and compiled Exhibit 1 the post mortem report already alluded to.

The only issue which falls for determination before us is whether in stabbing the now deceased fatally with the okapi knife the accused acted in self-defence. In resolving this we shall consider the evidence of Tawanda Mariwo, Cst Mark Mangwiro and the accused.

Tawanda Mariwo (Tawanda)

Tawanda is the now deceased’s elder brother. The bulk of his evidence as regards what led to the brawl between the now deceased and one Fanuel Chandirekera is not in issue.

Tawanda said when he was in Mundondo beer hall with the now deceased and Edmore Ngezimani at around 2000 hrs the now deceased saw Fanuel Chandirekera whom he approached demanding US$1.00 for the hired push cart. A scuffle ensued between the now deceased and Fanuel Chandirekera. Tawanda rushed to restrain the two. At that time he said the accused arrived and alleged that his brother Fanuel Chandirekera was being harassed unnecessarily. Thereafter accused left momentarily saying he would return to deal with the now deceased, Tawanda and Edmore Ngezimani who were trying to quell the brawl between the now deceased and accused’s young brother Fanuel Chandirekera.

Tawanda said accused returned with another man (Ranganai Madondo) and they all joined forces against the now deceased. This prompted Tawanda and Edmore Ngezimani to intervene pulling away Ranganai Madondo and Fanuel Chandirekera. The accused remained fighting with the now deceased. Immediately Tawanda heard the now deceased crying out that he had been stabbed. The accused and his colleagues fled from the scene. Tawanda and Edmore Ngezimani persued them. Tawanda said he held accused but accused hit Tawanda causing him to fall, wriggled out of the shirt and fled without a shirt. Accused and his colleagues picked stones threatening people who persued them.

Tawanda said when this incident occurred he was sober as he had just entered the beer hall. He denied joining in the fight but simply tried to pull away accused’s colleagues who were attacking the now deceased. He did not see accused being throttled or how the now deceased was stabbed. Tawanda said the now deceased was of bigger frame, taller and more powerful compared to the accused. He said deceased passed on before he could get any medical help.

We do not agree with Mr Muranda for the accused that Tawanda did not fare well as a witness. It is an incorrect analysis of his evidence that he contradicted himself in any material way. In our assessment Tawanda despite being the now deceased’s older brother was fairly objective. He limited himself to what he witnessed. He was truthful that he did not see how the now deceased was stabbed. That is the hallmark of a truthful witness. In our view he gave his evidence well.

Cst Mark Mangwiro (Cst Mangwiro)

Cst Mangwiro is a key witness in this matter. He was not known to either the accused or the now deceased hence can be said to be a fairly objective witness who had absolutely no reason to be biased.

Cst Mangwiro said he was off duty and not in uniform in Mundondo beer hall. As he proceeded to the toilet in that beer hall he saw accused and the now deceased fighting in the beer garden section of the beer hall. He explained in detail what he witnessed as follows;

The now deceased was holding the accused by the collar after they had briefly exchanged blows but ended up holding each other pushing and shoving.

As they held each other accused’s hands were free and he pulled out a knife from his trousers pocket and stabbed the now deceased on the shoulder. The now deceased asked why he was being stabbed and kept holding the accused.

The accused did not respond but instead delivered second blow stabbing the now deceased in the chest and threw away the knife.

The accused was then pulled away by his colleague as the now deceased staggered, collapsed bleeding profusely.

Cst Mangwiro quickly rushed and recovered the okapi knife. The accused and his colleagues fled from the scene. Tawanda tried to apprehend the accused but he was hit and accused fell on the tarmac.

Fanuel Chandirekera then kicked Tawanda. The accused and his colleagues fled throwing stones at the people who persued them Cst Mangwiro then alerted his colleagues at ZRP Chikato who then apprehended the accused and his colleagues.

Under cross examination Cst Mangwiro disputed that the accused was being throttled when he stabbed the now deceased but was merely being held by the collar. He said the first blow was delivered as the now deceased was behind the accused. He said the second blow was delivered after the now deceased had released his grip and the now deceased was almost by accused’s side.

Cst Mangwiro maintained that the now deceased’s life was not in any danger. As regards the defence of self-defence the following exchange took place between Cst Mangwiro and Mr Tembo for the State;

“Q.	The accused said he acted in self-defence when he stabbed the now deceased, comment?

No. You cannot stab someone twice in self-defence. The accused’s life was not

in danger because when he delivered first blow on the shoulder the deceased did let go his grip and when he delivered the second blow on the chest accused had been released.”

Cst Mangwiro said he had a clear view of what transpired and clearly saw how accused stabbed the now deceased and how he wriggled free leaving his shirt. He said the second blow in the chest was delivered with a lot of force and that the accused literally threw away the knife.

In our view, Cst Mangwiro’s evidence reads well. It was not contradictory or inconsistent in a material way. Further he has no interest in this matter. His evidence clearly rebuts accused’s defence.

Rtd Sgt. Tichaona Masawi (Rtd Sgt Masawi)

The evidence of Rtd Sgt Masawi, the investigating officer is not relevant to the issue to be resolved by the court.

The accused’s evidence

The accused’s version is summed up partially in his defence outline.

In his evidence the accused said when he arrived at where the now deceased and Fanuel Chandirekera were, the now deceased was throttling Fanuel Chandirekera. He said in a bid to stop the scuffle the accused got in between the now deceased and Fanuel Chandirekera who were holding each other. At that stage the accused said the now deceased released Fanuel Chandirekera and turned on to the accused, by wrapping deceased’s hand round accused’s neck from back in a vice grip manner throttling him. The accused said he was pushed against a generator cage still being throttled and could not free himself as no one came to his rescue. At that stage he decided to use the knife by first stabbing the now deceased on the hand but the grip was not loosened. The accused said he delivered second blow without aiming at any particular part and the knife fell down. The now did not release him until when Fanuel Chandirekera pulled the accused away. By then accused said people surrounded accused and his colleagues hence he fled and could not tell how his shirt remained behind.

The accused said he never fought the now deceased who was taller, more strong and of bigger frame. The accused said he was moderately drunk and fairly appreciated all what happened.

The law

In terms of s 253(1) of the Criminal Law (Codification and Reform) Act [Cap 9:23] the defence of self-defence is a complete defence if an accused person satisfies the requirements outlined in s 253(1) (a) to (d) of [Cap 9:23]. These factors are considered in a conjunctive manner and all have to be satisfied. Further in assessing these factors the court should consider all the circumstances of the case. See S v Collet Baira Manzonza HMA 2/16 at pages 11 – 12 of cyclostyled judgment; S v Banana 1994 (2) ZLR 271 (S) at 274 F – H.

The evidence before us clearly shows that the accused did not satisfy the requirements of self-defence. We say so because of the following reasons:

As already pointed out the accused’s evidence is tainted with falsehoods as is shown in his confirmed warned and cautioned statement when he misrepresented that he is the one who had hired the now deceased’s push cart.

When the accused came to where the now deceased and Fanuel Chandirekera were fighting he uttered the words that he would return to deal with the now deceased. Coincidentally when he returned he had a knife in his pocket.

It is critical to note that accused develops amnesia on two critical issues. These are where he directed the second blow or fatal blow and how he lost the knife. It is incredible that accused would recall all minute details but fall short of these two critical issues. After stabbing the now deceased the accused fled from the scene. He did not proceed to the police but to his residence.

While it is true that the accused fought with the now deceased or that he was under unlawful attack, we do not accept that when he pulled out a knife to stab the now deceased such conduct was necessary to avert the unlawful attack. It is our finding that the means he used were not reasonable in the circumstances and grossly disproportionate to the harm alleged. The evidence of Cst Mangwiro which we accept is clear that the accused’s life was not in danger. The accused dismally failed to fulfil the requirements of self-defence. Our finding is that the accused used a lethal weapon, a knife, with a lot of force to stab the now deceased on left side of the chest. The injury inflicted was fatal. The blow was directed to the vulnerable part of the body. It is clear that the accused’s intent was to kill the now deceased. Accused’s conduct is consistent with actual intent.

VERDICT:

Guilty of contravening section 47(1) of the Criminal Law (Codification and Reform) Act [Cap 9:23] – Murder with actual intent.

National Prosecuting Authority, counsel for the State

Mavhiringidze & Mashanyare, pro deo counsel of the accused