The State v Garikai Chihuri and Tinashe Hastone Mphaka

On 23 October 2017 at Cam and Motor Bar, Eiffel Flats, Kadoma, the deceased Kuda Raisi was fatally stabbed after he intervened to assist a woman, Yvonne Manhenga, who was being physically attacked by a group of bar revellers. The first accused, Garikai Chihuri, had approached Yvonne for sex, which she refused. He then kicked her friend and subsequently attempted to slap Yvonne but was restrained by the second accused, Tinashe Hastone Mphaka. The first accused later grabbed Yvonne and dragged her outside where she was assaulted by a group of about 7 people including both accused persons using mops and fists. When the deceased intervened asking why they were assaulting a woman, the second accused produced a machete and stabbed him. The second accused was heard saying "tamupedzera" (we have finished him) and was seen with blood-stained clothes. He fled the scene with the first accused in a car. The deceased died from excessive bleeding from stab wounds. The second accused fled to Bindura where he was arrested on 1 March 2018, initially denying his identity and any connection to Kadoma.

• Whether the first accused was guilty of murder or the lesser charge of public violence
• Whether the second accused was guilty of murder under s 47(1)(b) of the Criminal Law (Codification and Reform) Act
• Whether circumstantial evidence was sufficient to prove the second accused stabbed the deceased with a machete
• Whether a prior assault conviction in the magistrate's court precluded conviction for public violence in the High Court
• What constitutes public violence under s 36 of the Criminal Law (Codification and Reform) Act
• Appropriate sentencing for public violence and murder under s 47(1)(b)

The first accused, Garikai Chihuri, was found not guilty of murder but guilty of public violence under s 36 of the Criminal Law (Codification and Reform) Act and sentenced to 6 years imprisonment with 2 years suspended for 5 years on condition that he does not commit a crime involving public violence during that period for which he is sentenced to imprisonment without the option of a fine (effective sentence: 4 years imprisonment). The second accused, Tinashe Hastone Mphaka, was found guilty of murder in terms of s 47(1)(b) of the Criminal Law (Codification and Reform) Act and sentenced to 25 years imprisonment.

The binding legal principles established are: (1) Public violence under s 36 of the Criminal Law (Codification and Reform) Act is a competent alternative verdict on a murder charge under s 275 read with the Fourth Schedule, without requiring a prior conviction for culpable homicide. (2) The factors in s 36(2) must be considered to determine whether a disturbance is sufficiently serious to constitute public violence, including nature and duration, occurrence in a public place, use of weapons, bodily injury, and manner of ending. (3) Oral witness testimony may expand upon written statements, as statements serve to revive memory and provide a framework rather than a complete account of events; a witness is not confined to simply repeating what is in their statement. (4) Circumstantial evidence can create logical inferences sufficient to prove guilt beyond reasonable doubt where it forms a coherent picture consistent with other evidence. (5) A conviction for assault against a specific individual does not bar conviction for public violence arising from the same incident where the public violence charge encompasses broader conduct affecting the public at large. (6) Persons who carry dangerous weapons like machetes in public places and use them to inflict fatal injuries demonstrate the intention required for murder under s 47(1)(b). (7) Public violence that results in loss of life warrants custodial sentences reflecting the seriousness of the offense and the need to protect public spaces.

The court made several important non-binding observations: (1) TSANGA J strongly condemned the crude attitude toward women in bars and the harassment they face, stating that the attitude that women in public spaces like bars are there for men's sexual pleasures is an invasion of rights and unacceptable. (2) The judge commented on the "deadly mind-set" of those who seek to display power over women and then over men who defend them. (3) The court observed that the second accused's behavior suggested his primary consideration was to display power over a woman and then power over another man when his version of masculinity was challenged. (4) The court noted that statements are often recorded by personnel who are not lawyers and may not appreciate the significance of certain facts. (5) The court observed that a machete is not a weapon one would expect to be carried on a day-to-day basis nor a self-defense weapon, but is associated with thugs and bandits and indicates intention to inflict maximum damage. (6) The court commented that the investigating officer's characterization of the accused persons as having "monster type minds" who "love violence" was not necessarily inappropriate given their conduct. (7) The court emphasized that public spaces need to be safe for all members of society to frequent and that antisocial conduct in such spaces warrants stiff punishment.

This case is significant in Zimbabwean criminal law for several reasons: (1) It clarifies the application of alternative verdicts under s 275 and the Fourth Schedule of the Criminal Law (Codification and Reform) Act, confirming that public violence is a competent verdict on a murder charge without requiring a prior finding of culpable homicide. (2) It addresses the interpretation of s 36 on public violence, applying the factors to determine whether disturbance is sufficiently serious, particularly in the context of bars and public spaces. (3) It reinforces that women in public spaces like bars have rights that must be protected and condemns the attitude that women in bars are available for men's sexual pleasure. (4) It provides guidance on the relationship between witness statements and oral testimony, emphasizing that statements serve to revive memory and provide a framework, not a complete account, and that witnesses may expand on facts in court. (5) It demonstrates the court's approach to circumstantial evidence in murder cases. (6) It clarifies that a previous conviction for assault against a specific individual does not preclude conviction for public violence arising from the same incident where the public violence charge encompasses broader conduct. (7) It provides sentencing guidelines for public violence resulting in death and murder under s 47(1)(b) involving weapons in public places.