THE State V Prosper Chinatsi

### Preamble
1
HCMSCR 1056-25
HMA 32-25
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THE STATE

Versus

PROSPER CHINATSI

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J with Assessors Mr Nish and Mr Magate

MASVINGO 14 and 16 October 2025

Criminal trial

B. E. Mathose for the State

O. Mafa for the accused

DUBE-BANDA J:

[1] The accused appears 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] (“Criminal Law Code”). It being alleged that on 4 March 2025 and at Dube Night Club, Gororo business centre, Chivi, the accused unlawfully caused the death of Wellington Bako (“deceased”), by stabbing him with an okapi knife on the chest and back intending to kill him or realising that there was a real risk or possibility that death may result from his conduct and continued to engage in that conduct despite the risk or possibility.

[2] The accused was represented throughout the trial. He pleaded not guilty, and on the basis of that plea, the matter proceeded to trial.

[3] The State tendered an outline of the State case, which is before the court and marked as Annexure A, and the accused tendered into the record an outline of his defence case, which is before the court and marked as Annexure B. The State tendered, with the consent of the accused, the Postmortem Report No. 006631, which is on record and marked as Exhibit 1. In addition, the State produced an okapi knife, weighing 50g and with a length of 10cm when closed. It is Exhibit 2. No further measurements were provided; however, the court made certain observations about this okapi knife.

[4] The prosecutor sought and obtained admissions from the accused in terms of s 314 of the Criminal Procedure & Evidence Act [Chapter 9:07] (CP & E Act). The admissions relate to the evidence of Assistant Inspector Simon Panganayi (“investigating officer.”) and Dr G. Zimbwa (“doctor”). The evidence of the I.O. is that on 5 March 2025, at around 0050hrs, he received a report that the deceased had been stabbed by the accused and had succumbed to the injuries at Gororo Clinic. At the clinic, he noted two stab wounds, one on the left chest and the other on the left back shoulder. The accused was arrested a few hours later, and the okapi knife was recovered from him. The Evidence of Dr Zimbwa is that he is a registered medical practitioner practising as such. On 7 March 2025, he examined the remains of the deceased at Masvingo Hospital and noted a stab wound in the mid-clavicular area on the left side, approximately 3cm, traversing through the chest wall into the lung. He also noted a stab wound on the left scapular area, approximately 2cm and severe bleeding. He concluded that death was due to haemorrhagic shock and stab wounds.

[5] The State adduced oral evidence from two witnesses, and the accused testified in his defence. The first State witness, Alois Mureba, testified that the accused confronted the deceased, alleging that he had insulted him on a previous occasion. The deceased said he was going home, and the accused produced a knife and opened it, first he stabbed him below the left shoulder, he stabbed him again for the second time of the left side of the chest. This witness testified that the accused and the deceased did not hold each other. The accused closed his knife and left the scene. The deceased bled and was taken to a medical facility in a motor vehicle. Under cross-examination, this witness testified that visibility was good, as there was a light at the Veranda, and it was illuminating the place where the stabbing occurred. When challenged that he did not witness the stabbing, he was emphatic that he saw the accused stabbing the deceased twice. When put to him that the accused will say, the witness fled when the fight escalated, he said there was no fight between the accused and the deceased. Alois Mureba was a good witness; he was honest and candid in his evidence. His evidence is accepted without reservation.

[6] The second State witness, Brighton Sithole, testified that he was in the company of the deceased at Dube nightclub. The accused came and said the deceased had insulted him in a previous occasion, and he ordered the witness to move away from the scene. The witness complied and retreated to about three metres away from the spot where the deceased and the accused were. He saw the accused producing a knife, first stabbing the deceased on the chest, and stabbing him a second time on his back. The deceased's shirt got soaked in blood. The deceased fell about fifteen meters away from the point where he was stabbed. The accused left the scene. This witness testified that, prior to the stabbing, the deceased did not do anything to the accused.  Under cross-examination, this witness testified that he did not see Alois Mureba when the stabbing occurred. When it was put to him that he did not witness the stabbing, he was emphatic that he was the one who stabbed the deceased twice. When it was further put to him that the accused would say he stabbed the deceased in self-defence, his answer was that the accused is lying. Mr Brighton Sithole was a credible and honest witness. His account of what happened is accepted without qualification.

[7] The accused testified that a week before the fatal stabbing, the deceased confronted him and threatened to beat him up, alleging that he was a young man. The deceased is said to have been restrained by one Mubako from beating the accused. He testified that on the date of the stabbing, the deceased approached him and said the two had unfinished business, and they were supposed to fight. The accused testified that he was in a sitting position, and the deceased, who was in a standing position, held him by the collar. He said the deceased started to beat him using clenched fists. He tried to release himself from the grip, and he fell to the ground, and the deceased sat on his stomach. The accused testified that he realised he was being injured, he then produced a knife and stabbed, first in the neck, and while wrestling for the knife, the deceased was cut on his back. The accused further testified that the reason he stabbed the deceased was that he was about to kill him.

[8] Under cross-examination, the accused testified that the two State witnesses were not present when he was confronted by the deceased a week before the date of the stabbing. He disputed that the stabbing had anything to do with the confrontation that occurred a week before the stabbing. He said on 4 March 2025, the deceased approached him and said he was younger than him, and he would beat him up. In his evidence, the accused was peddling falsehoods. His description of the second stab was incomprehensible, utterly false and cannot be taken seriously. The totality of his evidence amounted to a rehearsed falsehood.

The law and evaluation of the evidence

[9] It is trite law that the burden of proof is on the State to prove the guilt of the accused beyond a reasonable doubt to secure a conviction. There is no onus on the accused to prove his innocence. The accused is not expected to convince the court as to the truthfulness of his version; whatever explanation he gives, no matter how improbable it may be, the court cannot dismiss it unless it has been shown to be not only improbable but beyond doubt false. See R v Difford 1937 AD 370; S v Jochems 1991 (1) SACR 208 (A); S v Jaffer 1988 (2) SA 84 (C), S v Kubeka 1982 (1) SA 534 (W) at 537 F-H. However, the accused’s version is not looked at in isolation but in light of the evidence led against them, and the probabilities of the whole case.

[10] In his defence outline and his evidence in court, the accused admitted that he stabbed the deceased twice. According to the postmortem report, it is these stab wounds that caused the death of the deceased. In addition, the evidence of the investigating officer and the doctor admitted in terms of s 314 of the CP&E Act, lends credence to the fact that it is the accused who used an okapi knife, exhibit 2, in stabbing the deceased. Therefore, we are satisfied that the totality of the facts and the evidence adduced in this trial shows that the injuries on the deceased were caused by the accused. The post-mortem report shows that the injuries inflicted by the accused caused the death of the deceased.

[11] In his defence outline and in his evidence, the accused raises the defence of self-defence. This common law defence has been codified in s 253 of the Criminal Law Code. CR Snyman, in the well-known academic work, Criminal Law 6th edition (2014), at page 102, defines private defence as follows:

“A person acts in private defence, and her act is therefore lawful, if she uses force to repel an unlawful attack which has commenced, or is imminently threatening, upon her or somebody else’s life, bodily integrity, property or other interest which deserves to be protected, provided the defensive act is necessary to protect the interest threatened, is directed against the attacker, and is reasonably proportionate to the attack.”

[12] Prof. G. Feltoe, in his well-known book, A Guide to the Criminal Law in Zimbabwe, p.42, clarifies that the law provides that a person is entitled to take reasonable steps to defend himself against an unlawful attack. Harm, and even sometimes death, may be inflicted on the assailant to ward off the attack. The requirements for this defence are these: an unlawful attack upon the accused or a third party where the accused intervened to protect that third party; the attack must have commenced or be imminent; the action taken must be necessary to arrest the attack; and the means used to avert the attack must be reasonable. At its best, self-defence is a complete defence.

[13] The first question that arises for determination is whether the accused, when he stabbed the deceased, causing his death, was under an unlawful attack? The evidence shows that the two State witnesses were present and saw the accused stabbing the deceased. Sithole did not say Alois Mureba was not at the scene; he said he did not see him at the time the stabbing occurred. This is understandable because there were many people at the bottle store, and there is nothing untoward about Sithole not, at the time of stabbing, seeing Mureba. It does not mean Mureba was not at the scene and did not witness the attack.

[14] The two State witnesses differed in respect of the sequence of stabbing, with Mureba testifying that the deceased was first stabbed below the left shoulder, and the second stab was on the left side of the chest. Sithole submitted that the accused first stabbed the deceased on the chest and stabbed him a second time on the back. This discrepancy is inconsequential. It is of no moment. One of the two witnesses might genuinely be mistaken. However, both testified that the deceased was stabbed twice, and this is corroborated by the postmortem report and the accused, although the accused sought to put a spin on the second stabbing. In addition, this was a moving and frightening incident; mistakes on certain details can be made without any intention to mislead.

[15] The acceptable evidence is that the accused had a motive to confront the deceased, and he did so on 4 March 2025 at Dube nightclub. The two State witnesses who were not present during the altercation a week before the stabbing incident would not have known about it, had the accused not raised it on 4 March 2025. The witness testified that prior to the stabbing, the deceased did not do anything to the accused. The accused lied when he testified that on the date of the stabbing, the deceased approached him and said the two had unfinished business, and they were supposed to fight. He was deceptively alternating roles, imputing to the deceased what was done and said by him. It was the accused who confronted the deceased about the previous incident and stabbed him twice.

[16] In his defence outline, the accused merely stated that the deceased grabbed him by the collar and pushed him to the ground. However, in his evidence in court, he testified that he was in a sitting position, and the deceased, who was in a standing position, held him by the collar. He said the deceased started to beat him using clenched fists. He tried to release himself from the grip, and he fell to the ground, and the deceased sat on his stomach. The accused testified that he realised he was being injured, he then produced a knife and stabbed, first on the neck, and while wrestling for the knife, the deceased was cut on his back. The accused further testified that the reason he stabbed the deceased was that he was about to kill him. If indeed the deceased conducted himself in the manner described by the accused, the witness would have said so in their evidence. In addition, the accused would have stated it in his defence outline. He did not. This was just an afterthought.

[17] The deceased did not attack the accused. He did not fight the accused. He did not insult the accused. In fact, it was the accused who was the aggressor. The accused was not under any attack at all.  Therefore, the defence of self-defence as codified in s 253 of the Criminal Law Code is not available to the accused in whatever form as a defence.

[18] On one hand, Mr Mathose for the State sought that the accused be convicted of murder in terms of s 47(1) of the Criminal Law Code.  On the other hand, Mr Mafa, for the accused, sought that the accused be found not guilty and acquitted, and in the alternative, he be convicted of the crime of culpable homicide. The accused stabbed the deceased with a lethal weapon, i.e., an okapi knife. He targeted the chest, which houses vital organs of the human body. The force was so severe that the knife cut through the chest wall and into the lungs. No human being could survive such a violent knife attack.

[19] This is not a case of culpable homicide. Culpable homicide has no place in such a case. This is a case of murder. In stabbing the deceased, the accused objectively foresaw death as a substantially certain result and proceeded regardless. See S v Mugwanda 2002 (1) ZLR 547 (S); S v Tailo & Anor HB 126/22).

[20] Having carefully weighed the evidence adduced in this trial, we find, on one hand, that the accused’s version is false beyond a reasonable doubt, and on the other hand, that the State has proved as required by the law that he is guilty of murder. Proof beyond a reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it required such proof because it would rarely be achieved. See Musimike v The State SC 57/20.

[21] It is no longer necessary in our law to specify whether the accused is guilty of murder in terms of s 47(1) (a) or (b). See Mapfoche & Another v The State SC 84/21.

In the result, the accused is found guilty of murder as defined in terms of s 47 (1) of the Criminal Law (Codification & Reform) Act [Chapter 9:23].

Sentence

[22] It is important to restate the trite position of the law, that after the court convicts an accused of murder, the prosecutor and the counsel for the offender must make submissions on whether the murder was committed in aggravating circumstances in the reading of s 47(2)(3) of the Criminal Law Code. See The State v Marazani HH 212/23. Thereafter, the court must, before submissions in mitigation and aggravation, make a finding whether the murder was committed in aggravating circumstances or not.  Such a determination is important because, in terms of s 47(4) of the Criminal Law Code, the sentence which a court may impose is entirely circumscribed by the presence or absence of aggravating circumstances. In addition, it is also important because the parties must know before making submissions in mitigation and aggravation whether the murder was committed in aggravating circumstances or not, to structure their submissions accordingly.

[23] In casu, this court has made a finding that the murder which the offender has been convicted of was not committed in aggravating circumstances as envisaged in s 47(2)(c) and (3)(a) & (b) of the Criminal Law Code. In the circumstances, this court is not limited to the sentences provided in s 47(4) of the Criminal Law Code but may impose any sentence that it considers appropriate.

[24] It is firmly established that in determining upon an appropriate sentence, a court should have regard to the nature of the crime, the interests of the community, and the individual circumstances of the offender. See S v Zinn 1969 (2) SA 537 (A). The court must also consider the provisions of the Criminal Procedure (Sentencing Guidelines) Regulations, 2023 and the Victim Impact Statement.

[25] The offender is 28 years old. He is a first offender. He is married, and his wife gave birth less than a month ago. He is the sole provider for his family. He paid the expenses associated with the funeral and burial of the body of the deceased. The family of the deceased charged the offender twenty-five head of cattle as compensation for causing the death of the deceased. He has so far given the family seven head of cattle.

[26] The evidence shows that the offender was the aggressor. He stabbed the deceased using an okapi knife. This is a lethal weapon. He targeted the chest, which houses vital organs of the human body. The stab wound on the chest was vicious; it cut through the chest wall into the lungs. In addition, the stab wound on the back was also vicious; it was about 2 cm deep. This explains the reason the deceased was pronounced dead on arrival at the medical facility. After stabbing the deceased, the offender just closed his knife and put it in his pocket and walked away. He did not render any form of assistance to the deceased, who was bleeding profusely. What a horrible way to end the life of another human being.

[27] Society frowns on a man who violently ends the life of another human being. It is in this context that this court must send a proper message and a proper signal that no one is allowed to take the life of another. The use of okapi knives and other lethal weapons at places of drinking must come to an end.

[28] The following sentence will meet the justice of this case. The offender is sentenced to 18 years' imprisonment.

National Prosecuting Authority, state’s legal practitioners

Mutendi, Mudisi and Shumba, accused’s legal practitioners