S v Chenjelani (42 of 2024) [2024] ZWCHHC 42 (21 May 2024)

1 HCC 42/24 CRB 2/23 THE STATE Versus RICHARD CHENJELANI HIGH COURT OF ZIMBABWE BACHI MZAWAZI J CHINHOYI, 10 March 2023 – 21 May 2024 Assessors: Mr. Chivanda Mr. Mutombwa Criminal Trial T. H. Maromo, for the State N. W. Dlamini, for the accused BACHI MZAWAZI J: INTRODUCTION This case illustrates the proliferation and prevalence of incidents whereby life is lost through petty squabbles emanating from excessive consumption of alcohol and the uncontrolled wanton use of dangerous lethal weapons. What is more disturbing is the modern society’s derelict of traditional amicable dispute resolution mechanisms in settling scores. It is further compounded by the lack of censor and implementation of legal frameworks restricting the use and possession of prohibited dangerous weapons. Needless to say, the courts can only do so much. The ball lies in the court of the legislative arm of government to enact laws addressing and curbing the sprouting and mushrooming of illegal drinking places and the enforcement of laws that govern those liquor outlets that operates within the parameters of the law. ALLEGATIONS It is alleged that the accused person Richard Chenjelani, on the 24th of July 2022, at Chirombodzi Farm Compound, Chief Magonde Mhangura had a fist fight with the now deceased, Mike Gengezha. At the peak of the fight accused produced a Colombian knife and stabbed his opponent on the chest and lower abdomen. The deceased succumbed to the HCC 42/24 CRB 2/23 injuries and died shortly afterwards. The two were related. They worked together as security guards. The cause of the fight was a ten dollar note, which was given to the deceased to purchase some beer and ear phones. He brought the purchased items but failed to account for the change. Begrudgingly, the accused accepted the bought goods but did not ask for his change. Much later, after the parties had imbibed the liquor the issue of the change featured resulting in the exchange of blows. Accused was on the receiving end of the punches and decided to introduce a knife. He thereby stabbed the deceased twice. CHARGE He was arrested and charged of murder in terms of s47 (1) of the Criminal Law (Codification and Reform Act) [Chapter9:23]. DEFENCE As is the norm, accused pleaded not guilty. His defence is that he does not deny the prolonged fist fight with the deceased, his consanguine relative and work mate, but states that he wrestled the knife from the deceased during the fight. That being so, when the deceased felled him to the ground, he fell holding the knife. The deceased fell on top of the knife. Therefore, the stab wounds were as a result of his falling on the knife. Therefore, it was accidental. He asserts that he never set out to kill the deceased and lacked the intention to murder him. However, it is important to note that, the accused’s version of events in his defence outline and defence in court departed materially from that in his tendered produced confirmed warned and cautioned statement, which was taken when the events were still fresh. THE STATE CASE The State case opened by tendering several exhibits in relation to the commission of the offence in terms of the governing law. Amongst these are: the autopsy report, the confirmed warned and cautioned statement by the accused, the sketch, indications and affidavits from the medical doctors, one who certified the body dead and that of the pathologist who determined the cause of death. These were produced by consent. The murder weapon was not produced. HCC 42/24 CRB 2/23 Of the eight witnesses initially lined up by the State, the summarized evidence of five of them was tendered by mutual consensus without the need for calling the witnesses to testify. It led oral evidence from three witnesses. The court found the evidence of all the three witnesses very credible. The first two were present at different intervals of the fight. Both testified that there was a long (drunken) fist brawl. The first witness stated that, both the deceased and the accused were very drunk. She told the court that there was an exchange of vulgar insults and it is the deceased who ushered the first blow landing the accused on the floor. She also told the court that the two were not only related through marriage but were work mates, employed as guards and spent most of the time together. This witness did not witness the actual stabbing, neither, did she confirm that she saw the knife used. What she saw, was a black “something”, in the hands of the accused but could not decipher what it was, as it was dark. However, she heard the deceased saying he had been stabbed and saw him bleeding. The second witness, a neighbour to the accused and deceased intervened in an effort to stop the fight after the brawl had gone on for some time. He said that, when he got between the fighting pair, the accused was holding a knife and the deceased exclaimed that, “You are restraining me but I have already been stabbed”. This witness saw the first wound on the stomach and the blood oozing therefrom. The third witness was the investigating officer who also attended the crime scene. The crime scene attendant’s evidence was to the effect that he attended the scene, ferried the body from the scene, viewed the wound and despatched it to the mortuary. He was also responsible for recording both the warned and cautioned statement, sketch plan and indications from the accused and witnesses. THE COMMON CAUSE FACTS It is a common fact that the accused person and the deceased were;  Related through marital ties  Worked together as security guards  They were friends as well as drinking buddies  On the day in question-their day started and progressed cordially  Accused gave the deceased cash to purchase beer and earphones whilst they were at some shopping centre HCC 42/24 CRB 2/23  Deceased did not recount for the change  Accused hesitated in asking for the change until the late evening when they were preparing to go for their evening shift  They were both very drunk after the whole day binge  The deceased did not take well the request for change  Insults were traded as a result  Deceased, who was the younger of the two launched the first blow, landing the accused on the ground  Sometime during the fight or struggle a knife was produced  The accused was seen holding the knife after the deceased cried that he had been stabbed  Deceased was stabbed on two spots, chest and lower stomach  The deceased died as a result of the stab wounds WHAT IS IN DISPUTE What is contested is that, the knife did not originate from the accused but the deceased. The deceased was accidentally killed by falling on a knife extracted from him. ISSUES TO BE DETERMINED 1. Was the death of the deceased person accidental? 2. Did the accused person have the actual intention to kill? 3. Did the accused person foresee that his actions will result in the death of the deceased? ANALYSIS In determining the first issue the court took into account the accused person’s already admitted warned and cautioned statement. The law is very clear that an unchallenged confirmed warned and cautioned statement can be introduced into evidence on mere production. In essence, its evidence is taken on face value. It is real evidence. Section 256 (2) of the Criminal Procedure and Evidence Act [Chapter 9:07] states that, a confession or statement confirmed in linking of subsection 113 of the Act shall be received in evidence before any court upon its mere production, by the prosecutor without further proof. See, the Magistrate Handbook pages 199 and 201 by Geoff Feltoe 2021/UNDP. The rationale being that the Magistrate being a court of competent jurisdiction ascertained and was convinced as HCC 42/24 CRB 2/23 to the veracity of the contents of the statement and the circumstances surrounding its recording. The author of the statement would have also been given the leeway to challenge or deny the statement if it did not originate from him. Turning to this case, accused person admitted to stabbing the deceased twice on the stomach and the chest after renditioning the facts already stated herein as the cause of the fight between them, in his confirmed warned and cautioned statement now part of record. Of interest, in that written statement he pointed out that the knife was his and he used to travel with it. This is in contradiction to his viva voce evidence wherein he shifted the possession and ownership of the knife to the deceased. With these contradictions between the evidence given in court and that given when everything had just happened, the court is persuaded to accept the first version on the confirmed warned and cautioned statement and rejects the defence of accidental stabbing as an afterthought. Moreover, it is already real and direct evidence produced uncontested. In that regard, the defence which would have entitled the accused to a verdict of culpable homicide or otherwise fails. On the second issue, from the sequence of events and as deduced from facts and arguments before the court we do not believe that the accused had the actual intention to kill the deceased. It is clear they started off on a good note, as relative and working pals. There was no dolus directus. The accused did not set out to kill the deceased and made it his main and dominant purpose to cause his death. He had no actual mens rea to kill the deceased. We agree with both the defence and the State on this aspect that the accused did not desire to bring about the death of his victim. See, State v Mungwanda (215/2001) 215/2001 and State v Mungwanda 2002 (1) ZLR 574 (5). Given the fact that they were both drunk, which inhibited their restraint as the provocation involved the degree of culpability is less. All these factors do not point to planned killing. We thus find that the elements of s47 (1) (a) had not been met and acquit the accused on murder with actual intent. The last issue is that of contravention s47 (1) (b) which reads: 1. Any person who causes the death of another person a) Intending to kill the other person, or HCC 42/24 CRB 2/23 b) Realizing that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the real risk or possibility shall be guilty of murder. On further analysis, we agree that the parties were very drunk hence the prolonged fight with no one willing to surrender or backdown. We also appreciate that the deceased was initially the aggressor and seemingly the dominating opponent in the fight. However, since the defence of intoxication nor provocation was proffered by the defence, we will only consider that in mitigation in the interests of justice. See State v Ncube HB 119/16. What is perturbing is that the accused moved around with not only a prohibited dangerous okapi knife but introduced the same lethal weapon in a clean fist fight. He had the option of giving in or walking away. More so, he was stopped by a neighbour after the first stabbing. He would have stopped on the first stab but proceeded to stab yet again for the second time. All the stab knife blows were aimed and directed at the most delicate part of the human torso, the chest. On assessment, by examining the nature of the weapon used, and the area where the attacks were directed, we cannot help but conclude that the reasonable foreseeability that death will ensue was evident. The post mortem report clearly described the nature of the wounds. One of the blows perforated the left lobe of the liver resulting in blood clots in the abdominal cavity. If one uses and aims a knife at any part of the human anatomy, if not readily medically attended may result in death. In actual fact, important veins and arteries intricately interwoven making up the human body are bound to be lacerated. See State v Dube HB 170 of 2022. There was dolus eventualis, it is evident that death was reasonably foreseeable when the accused pulled the knife and attacked the deceased in the manner alleged. The use of a knife demonstrates the reasonable foresight of the nature of harm that ends up befalling the victim. It is worsened by the areas where the blows were directed. Thus, it cannot be discounted that any person who causes the death of another person realizing that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the real risk or possibility shall be guilty or murder. See State v Mungwanda (supra). HCC 42/24 CRB 2/23 The court is thus of the view that Mr. Maromo for the State has proved beyond reasonable doubt that the accused’s action falls within the ambit of s47 (1) (b). The defence also made the same concession. The accused person is accordingly found guilty of murder with constructive intent. SENTENCE The court had taken into account both the submissions on mitigation and aggravation. Accused person is a first offender aged 36 years. He is a family man with three minor children. He has spent 8 months in pre-trial incarceration. He was a friend, relative and workmate of the deceased. They were both drunk on the day in question. The deceased provoked the fight by not accounting for the change and ushering the first blow. The court has also considered the effect of one living with the thought of having ended another person’s life alongside the trauma and the haunting effect. More so the everlasting label or stigma of being called a murderer. Furthermore, the struggle that accused will encounter to be accepted and fit into society after such a heinous incident. Cumulatively, this is a sword or dagga which will forever be suspended and hanging over his head. In aggravation however, the rate at which innocent life, is lost in similar set ups or compounds, after drinking beer over pittance amounts is alarming. The rampant disregard of the law by purchasing and moving around armed with a dangerous weapon which means nothing but death. It is sad that two young lives are completely destroyed. In this case a young life was lost over a very small amount of money less than US$5.00. Given the initial amount was US$10.00, what is left after the purchase of beer and earphones. The court has also noted that it is not only the length of the imprisonment sentence that is deterrent. The fact that the culprit or offender has been punished for his offences suffices. The court sought guidance from the cases of State v Mungodza HMT 1/18. The accused was in almost similar circumstances. He was sentenced to 10 years effective. In State v Ncube HB 170 of 2022 the accused was sentenced to 13 years and his intoxication state was disregarded. The court has also taken into account the period that the accused has spent in pretrial incarceration and all the factors both in mitigation and aggravation. The most appropriate penalty in the circumstance of this case is 8 years imprisonment. 3 years imprisonment is HCC 42/24 CRB 2/23 wholly suspended for 2 years on condition that he does not commit offences involving violence, assault or murder upon which if convicted will be imprisoned without an option of a fine. Notably, this judgment was delivered on the 10th of March 2023. This is the typed version of the handwritten judgment delivered in court. National Prosecuting Authority, the State’s legal practitioners N. W. Dlamini, accused’s legal practitioners