UCHENA J: The accused is a
17 year old juvenile. He was indicted for trial on two counts of
murder. The State alleges that he murdered his father and mother.
According to the State, he shot and killed them on 19 April 2008. He
was then aged 16. According to common cause evidence his parents
loved him, and showered him with luxuries. During the December 2007
and January 2008 school holidays they took him on holiday to Dubai.
They were educating him at expensive private schools. There was
ordinarily no reason for him to gun them down.
The accused person pleaded not guilty to the charges of murder and
raised defences of, automatism, mental disorder, intoxication, and
mental disorder arising from intoxication.
In respect of automatism it was
submitted that his conduct was not voluntary, as he acted without
conscious knowledge or control. In respect of the mental disorder
defence it was submitted that he suffered from a mental disorder or
defect which made him incapable of appreciating his conduct or its
unlawfulness. In respect of the defence of intoxication it was
submitted that he involuntarily got intoxicated leading to his
suffering a mental disorder arising from intoxication. The accused's
defence was therefore that he did not have the requisite mens
rea when he shot his
parents. There is no issue on whether or not he shot them. He admits
the actus reas.
The State led evidence from
Precious Chawa, Admire Tapiwa Musasa, Patrick Makanjera, Spiwe
Chakuvinga, and Dr Dickson Chibanda. The evidence of the first four
witness's apart from confirming that they woke up to witness the
double murders, and suspected the accused, did not cast a strong
light on the accused's mens
rea, which is the only
element in issue. Their evidence however casts a weak light on the
accused's apparent unusual behaviour. They said he questioned why
Spiwe Chokuvinga was mourning. He bought himself coca cola which he
moved around drinking during the funeral. He hid some of the family's
weapons in the ceiling. The hiding of weapons in the ceiling tends to
suggest that he knew an issue would arise on their use in the
deceased's murders. He therefore wanted them out of the way. This
tends to show he knew what he had done and wanted to conceal it.
The State's case took a new and
definitive twist when it led evidence from Dr Dickson Chibanda. He is
a Government Psychiatrist of impressive credentials. He teaches
Mental Health Legislation and Human Rights Internationally through
the World Health Organisation. He examined the accused at Harare
Remand Prison. He found that the accused person was suffering from
post traumatic disorders and panic disorders. He suspected that the
accused could be suffering from temporal lobe epilepsy and
recommended that he be taken for an EEG scan. His suspicion was based
on the accused's admitted sudden violent behaviour and his
confession to him that he was in the habit of abusing drugs such as
marijuana and cocaine. He said sudden violent behaviour is a
characteristic common in patients suffering from temporal lobe
epilepsy. He said the alleged murders suggested some underlying neuro
psycho pathology in the accused person. Under cross examination by
counsel for the accused he agreed with the results of the EEG scan
done by Dr Mangwende, and the conclusions drawn there from by Dr
Madhombiro. He concluded that the accused was suffering from temporal
lobe epilepsy when he shot and killed his parents. In response to a
question asked by one of the Assessors in clarification he said the
accused was not responsible for his actions because of the mental
defect he suffered as a result of the temporal lobe epilepsy. That
was infact the finding of Dr Madhombiro whose affidavit he had been
shown and had agreed with under cross examination. The State then
closed its case leading to the defences' application for discharge
in terms of section 198(3) of the Criminal Procedure and Evidence Act
[Cap 9: 07],
which I will in this judgment refer to as the CP&E Act.
Application for discharge
Mr Mphofu for the accused applied
for discharge at the end of the State case arguing that the accused
person had not been proved to have had the requisite mens
rea when he shot and
killed the deceased persons. He went further and submitted that the
State's own expert witness had proved that the accused did not have
the requisite state of mind which would render him liable for his
actions.
There is no doubt that according to Dr Chibanda the accused did not
have the requisite intention to murder his parents. The element of
intention was therefore not proved by the State. Ordinarily that
would have led to his discharge at the end of the State case. Section
198(3) of the CP&E Act provides as follows:
“(3)
If at the close of the case for the prosecution the court considers
that there is no evidence that the accused committed the offence
charged in the indictment, summons or charge, or any other offence of
which he might be convicted thereon, it shall return a verdict of not
guilty.”
The language used by the legislature obliges the court to discharge
the accused person at the end of the prosecution's case if it
considers that there is no evidence proving that the accused
committed the offence charged or any other offence of which he might
be convicted arising from that charge. The court has no discretion;
it must discharge the accused person if there is no evidence. It must
therefore be guided by the evidence led by the prosecution.
In this case, there is no
evidence to prove that the accused intended the death of his parents.
On the contrary the Sate proved the absence of such an intention, but
because the accused person suffers from a mental defect which amounts
to a complete defence. In the absence of the provisions of s 229 of
the Criminal Law (Reform and Codification) Act [Cap
9:23], and section 29
of the Mental Health Act [Cap
15:12],
which will in this judgment be called the Code and the Mental Health
Act, respectively, the application for discharge would have been
granted.
In view of the provisions of section 29 of the Mental Health Act and
section 229 of the Code, the parties should have agreed on a special
verdict instead of closing the State case as if anything would change
after the clear and definitive evidence of Dr Chibanda. It was also
in my view ill advised for counsel for the accused to apply for
discharge at the end of the State case when it was clear that the
accused's defence of a mental disorder amounting to a complete
defence had been accepted by the State's expert witness and the
logical conclusion was a special verdict. This is so because section
229 of the Code provides as follows-;
“Nothing
in this Part shall affect the operation of the Mental Health Act [Cap
15:12]
(Act No. 15 of 1996) in relation to -
(a)
the procedure to be followed when persons being tried are found to be
mentally disordered or defective or any verdict to be returned at any
such trial; or
(b)
the detention, examination or treatment of persons found to be
mentally disordered or defective.”
My understanding of section 229 of the Code is that if an accused
person is proved to have committed the acts constituting the crime
charged, but is also proved to have been suffering from a mental
disorder or defect at the time of committing the offence, which
mental disorder or defect constitutes a complete defence in terms of
section 227 of the Code, he must in terms of section 29(2) of the
Mental Health Act be found not guilty because of insanity, and be
dealt with in terms of the options provided in subsections (a) to (
c) of that section.
The part referred to in section 229 of the Code is Part V of the Code
which includes sections 226 to 229 of the Code. Section 29 of the
Mental Health Act refers to section 248 of the Code. That section
falls out of Part V. This raises questions on the applicability of
section 229 of the Code.
When the application for discharge was made both parties did not
refer to the provisions of section 229 of the Code and section 29 of
the Mental Health Act. Realising the effect of the provisions of
these sections on the application for discharge, I called the parties
back and asked them to address the Court on the meaning and the
effect of section 229 of the Code and the effect of section 29 of the
Mental Health Act referring to section 248 of the Code instead of
section 227 of the Code.
Section 229 of the Code
Mr Mpofu
for the accused submitted that there was no conflict between section
198(3) of the CP&E Act and section 229 of the Code. He therefore
submitted that his application for discharge could still be granted.
He also made two alternative submissions. In the first alternative he
submitted that the effect of section 198(3) of the CP&E Act, and
section 29(2) of the Mental Health Act as read with section 229 of
the Code leads to are the same result. He therefore submitted that
the court could proceed in terms of section 29(2) of the Mental
Health Act. He therefore indirectly admits that section 29(2) of the
Mental Health Act cannot be avoided in a case where the accused
raises mental disorder as a complete defence.
I must however state that Mr
Mpofu's
contention that the effect of section 198(3) of the CP&E Act and
section 29(2) of the Mental Health Act is the same is not legally
correct. Section 198(3) is intended for a case where the State failed
to present a prima
facie case against an
accused person by the time it closes its case. Section 29(2) of the
Mental Health Act, on the other hand, is intended for a case where an
accused person is proved to have committed the act constituting the
offence charged but cannot be convicted because of a mental disorder
or defect, which constitutes a complete defence. In that case the
court must in terms of section 29(2) of the Mental Health Act return
a special verdict to the effect that the accused is not guilty
because of insanity. The former is a complete failure by the State to
prove a case against the accused, while the later is a case where the
State has proved that the accused person committed the offence while
suffering from a mental disorder or defect. The later is guided by
the provisions of section 229 of the Code and leads to a special
verdict, to the effect that the accused is not guilty because of
insanity, and is followed by consequences provided by section 29(2)
(a) to (c) of the Mental Health Act, while the former leads to a
discharge, whose effect, is that the accused is found not guilty and
is acquitted with no consideration by the court of any further
consequences.
In his address on section 229 of
the Code, Mr Matsinde
for the State conceded that the State should have accepted the
accused's plea of insanity after Dr Chibanda's evidence, and the
case should have proceeded in terms of section 29(2) of the Mental
Health Act. He submitted that section 229 of the Code makes it
impossible to avoid the provisions of section 29 of the Mental Health
Act once the accused is proved to have killed the deceased while
suffering from a mental disorder which constitutes a complete defence
in terms of section 227 of the Code. I agree with Mr Matsinde's
submission.
The Applicability of section 229 of the Code
Section 229 of the Code confines its operation to Part V of the Code.
That part includes sections 226 to 229. However section 29(2) of the
Mental Health Act which provides for a special verdict refers to
section 248 of the Code as the section which provides for a mental
disorder or defect being a complete defence. It provides as follows;
“(2)
If a judge or magistrate presiding over a criminal trial is satisfied
from evidence, including medical evidence, given at the trial that
the accused person did the act constituting the offence charged or
any other offence of which he may be convicted on the charge, but
that when he did the act he was mentally disordered or intellectually
handicapped so as to have a complete defence in terms of section 248
of the Criminal Law Code, the judge or magistrate shall return a
special verdict to the effect that the accused person is not guilty
because of insanity, and may -
(a)
order the accused person to be returned to prison for transfer to an
institution or special institution for examination as to his mental
state or for treatment; or
(b)
if the judge or magistrate considers that, had the accused person
been convicted of the offence concerned, he would not have been
sentenced to imprisonment without the option of a fine or to a fine
exceeding level three, order -
(i) the accused person to
submit himself for examination, and, additionally, or alternatively,
treatment in any institution
or other place in terms of Part VI; or
(ii) the accused person's
guardian, spouse or close relative to make an application for the
person to be received for examination and additionally, or
alternatively, treatment in any institution or place in terms of Part
VII or Part VIII; and may give such orders as may be appropriate for
the accused person's release from custody for the purpose of such
examination or treatment; or
(c)
if the judge or magistrate is satisfied that the accused person is no
longer mentally disordered or intellectually handicapped or is
otherwise fit to be discharged, order his discharge and, where
appropriate, his release from custody.”
Section 248 of the Code
referred to by section 29(2) of the Mental Heath Act is not found in
Part V of the Code. That raises questions on the applicability of
section 229 of the Code to the situations referred to in section
29(2) of the Mental Health Act. An examination of the provisions of
section 248 is therefore necessary. It provides as follows-;
“248
Consent to medical treatment for non-therapeutic purposes
(1)
In this section -
“patient”
means a person to whom medical treatment is given or upon whom a
medical operation is performed;
“qualified
person”, in relation to any medical treatment or operation, means a
person who, by virtue of his or her qualifications or training, is in
all the circumstances qualified to give the medical treatment or
perform the medical operation.
(2)
Where a qualified person, with the consent of the patient concerned,
gives any medical treatment to or performs any medical operation upon
a patient -
(a)
otherwise than to cure or alleviate any disease or disability; or
(b)
in order to sterilise the patient;
such
consent or authority shall be a complete defence to a charge of
murder or assault arising out of that treatment or operation if -
(i)
the consent complies with paragraphs (b),
(c)
and (d)
of subsection (1) of section two
hundred and forty-five;
and
(ii)
the treatment or operation is carried out competently in accordance
with recognised medical procedures; and
(iii)
in a case where the treatment consists of the administration of any
new, untried or experimental drug, medicine or allied substance, such
treatment is conducted pursuant to and in accordance with the
procedures prescribed for the clinical trial of a medicine under the
Part III of the Medicines and Allied Substances Control Act [Cap
15:03].”
Section 248 does not provide for a mental disorder or defect being a
complete defence. It provides for consent to medical treatment for
none-therapeutic purposes. It is therefore not the provision intended
by the legislature in section 29(2) of the Mental Health Act. The
legislature clearly intended to refer to a section of the Code which
provides for a mental disorder or defect being a complete defence.
There is no doubt in my mind that a wrong section was referred to in
section 29(2) of the Mental Health Act. There is therefore an error
of reference. The intention of the legislature was obviously to refer
to the section which provides that a mental disorder or defect can be
a complete defence. A reading of the Code reveals that section 227 of
the Code deals with that issue. It provides as follows-:
“227
Mental disorder at time of commission of crime
(1)
The fact that a person charged with a crime was suffering from a
mental disorder or defect when the person did or omitted to do
anything which is an essential element of the crime charged shall be
a complete defence to the charge if the mental disorder or defect
made him or her -
(a)
incapable of appreciating the nature of his or her conduct, or that
his or her conduct was unlawful, or both; or
(b)
incapable, notwithstanding that he or she appreciated the nature of
his or her conduct, or that his or her conduct was unlawful, or both,
of acting in accordance with such an appreciation.
(2)
For the purposes of subsection (1), the cause and duration of the
mental disorder or defect shall be immaterial.
(3)
Subsection (1) shall not apply to a mental disorder or defect which
is neither permanent nor long-lasting, suffered by a person as a
result of voluntary intoxication as defined in section two
hundred and nineteen.”
It is apparent that section 227 of the Code is the section which
provides that, the fact that an accused person was suffering from a
mental defect or disorder at the time he does anything which is an
essential element of a crime charged, shall be a complete defence to
the charge. The contents of Dr Madhombiro's affidavit which were
fully endorsed by Dr Chibanda and on which counsel for the accused
premised his application for discharge squarely falls within the
provisions of section 227 of the Code.
The issue which remains to be resolved is whether this court can
substitute section 248 of the Code with section 227 of the Code, in
section 29(2) of the Mental Health Act.
Counsels for the State and the
accused submitted, without citing authorities, that the court can, as
the intention of the legislature is clear, and reference to section
248 was an obvious error. I agree with them, as in interpreting a
statute the court must be guided by the clear intention of the
legislature. Case law confirms that when the words used by the
Legislature create an absurdity they can be modified to bring out the
clear intention of the legislature. In the South African case of
Skinner v Palmer
1919 WLD 39 at 44-45 WARD J said;
“I
take these two examples as showing that if a proper case arose, the
Court could delete one word and read in another. But the court will
not reject a word of clear meaning unless it is forced to do so ----
In Laird
v Briggs
an entirely different word was suggested. It seems to me to be
authority for saying that if I am forced to the conclusion that the
word “fifty-eight” should be read for “fifty-nine” I can so
read it. But I cannot do so merely because I think the draughtsman
made a mistake. I must be forced to the conclusion that the word
“fifty-nine” makes the clause nonsense, or that they are opposed
to the clear meaning of the section.”
In the case of Fernandez
v SA Railways, 1926 AD
60 at 66 SOLOMON JA said-;
“The
language of this regulation is certainly far from clear. In the case
of Behr v SA Railways and Harbours, 1925 AD 483, it was suggested
that the word or is a mistake for on--- The substitution of on for or
would certainly make the regulation intelligible, which it,
certainly, is not as it stands---In the circumstances I think that we
should now definitely decide what was left open in Behr's case, and
in order to make the regulation intelligible, hold that the word or
is a mistake for on and so give effect to what I am satisfied was the
real intention of the framers of the regulation.”
See also another SA case of Ex
parte Minister of
Justice In re R v
Jacobson & Levy,
1931 AD 466.
The Zimbabwean High Court dealt
with the Court's power to modify the language of a statute in the
case of S
v Karani
1997 (2) ZLR 114 (HC) at 115 C- F where GILLESPIE J said-;
“As
was said by SCHREINER JA in Durban
City Council v Gray
1951 (3) SA 568 (A) at 580B:
"[It] is within the
powers of a court to modify the language of a statutory provision
where this is necessary to give effect to what was clearly the
legislature's intention."
Such power is undisputed where
slavish literalism:
"leads
to an absurdity so glaring that it could never have been contemplated
by the legislature, or if it leads to a result contrary to the
intention of Parliament as shown by the context or by such other
circumstances as the court is justified to take into account."(Per
de VILLIERS AJ in Venter
v R
1907 TS 910 at 915).
If
the court were not able to supply the relevant correction of ss 54(4)
and 55(5) then there would be no penalty enacted for the offences of
contravening ss 54(2) and 55(2) of the Act. The punishments,
considered in meticulous detail, and set out in ss 54(4) and 55(5)
would be completely otiose since they would refer only to a
non-existent offence. Such an absurdity cannot be permitted to stand
in the light of the obvious intention. The reference in each
subsection to "an offence in terms of subsection (1)" must
be read as "an offence in terms of subsection (2)."
See
also the case of Bennett
NO v Master of the High Court
1986 (1) ZLR 127 at 130G-131A where SMITH J said-;
“According
to the golden rule of interpretation of statutes, if there is nothing
to modify, alter or qualify the language which the statute contains,
it must be construed in the ordinary and natural meaning of the words
and sentences. It is a corollary to the general rule of literal
construction that nothing is to be added to or taken from a statute
unless there are adequate grounds to justify the inference that the
Legislature intended something which it omitted to express.”
I am satisfied that the Legislature in this case said what it did not
intend to say. The rest of its words in section 29(2) of the Mental
Health Act clearly points to its having intended to refer to section
227 of the Code. Its reference to section 248 of the Code is
therefore a mistake which this court must correct to give effect to
the clear intention of the Legislature.
The Supreme Court has confirmed
the courts' power to modify the language of a statue. In the case
of S v Aitken
1992 (2) ZLR 84 (SC) at 88G – 89D GUBBAY CJ said-;
“Even
if I am wrong in ascribing the meaning I do to the term
"interlocutory", I am nonetheless convinced that the
Legislature could not possibly have intended what that word
signifies. On that ground alone this court would be justified in
modifying the meaning. For to stand aside where the object and
intention of the enactment are clear would be to allow it, contrary
to good sense, to be reduced to a nullity by the draftsman's
unskilfulness or ignorance of the law. In this connection I can do no
better than to echo, with approval, the observations by DENNING LJ
(as he then was) in Seaford
Court Estates Ltd v Asher [1949]
2 All ER 155 (CA) at 164 E-H:
"Whenever a statute comes
up for consideration it must be remembered that it is not within
human powers to foresee the manifold sets of facts which may arise,
and, even if it were, it is not possible to provide for them in terms
free from all ambiguity. The English language is not an instrument of
mathematical precision. Our literature would be much the poorer if it
were. This is where the draftsmen of Acts of Parliament have often
been unfairly criticised. A judge, believing himself to be fettered
by the supposed rule that he must look to the language and nothing
else, laments that the draftsmen, have not provided for this or that,
or have been guilty of some or other ambiguity. It would certainly
save the judges trouble if Acts of Parliament were drafted with
divine prescience and perfect clarity. In the absence of it, when a
defect appears a judge cannot simply fold his hands and blame the
draftsman. He must set to work on the constructive task of finding
the intention of Parliament, and he must do this not only from the
language of the statute, but also from a consideration of the social
conditions which gave rise to it and of the mischief which it was
passed to remedy, and then he must supplement the written word so as
to give 'force and life' to the intention of the legislature."
To
much the same effect are the remarks of WESSELS ACJ in Ex
parte Minister
of Justice: In re Jacobson & Levy 1931 AD 466 at 476 in
fine-477.”
I am therefore satisfied that the State and defence counsel correctly
submitted that this court must in this case substitute the words
“section 248” in section 29(2) of the Mental Health Act with the
words “section 227”, as that was the clear intention of the
legislature. The reference to section 248 is clearly an error which
this court must correct to give effect to the intention of the
legislature.
In view of the modification of section 29(2) of the Mental Health
Act, the provisions of section 229 of the Code, become applicable to
this case.
Effect of section 229 of the Code
Section 229, which has already been quoted above, clearly states that
nothing in Part V of the Code shall affect the operation of the
Mental Health Act in relation to the procedure to be followed when
persons being tried are found to be mentally disordered or defective,
or any verdict to be returned at such trial, or the detention,
examination or treatment of persons found to be mentally disordered
or defective. This in my view means if at the end of the State case
it has been proved that the accused killed his parents and that he
did so while suffering from a mental disorder or defect, then the
accused person cannot avoid the provisions of section 29(2) of the
Mental Health Act. This is exactly what the prosecution did in this
case, therefore the accused cannot be discharged in terms of section
198(3) of the CP&E Act. He must present his defence case to
enable the court to arrive at a decision on the verdict. In the
result the accused's application for discharge was dismissed and
the trial was ordered to continue to enable the Court to arrive at an
appropriate verdict after hearing the defence's case.
Mr Mpofu
in his second alternative submitted that the accused be dealt with as
a child in need of care. He however conceded that this can only be
done if the court finds the option in section 29(2)(c) of the Mental
Health Act, the appropriate option. This can therefore only be dealt
with after a special verdict has been returned, and when
consideration is being given as to which of the options under section
29(2) of the Mental Health Act is appropriate.
Further Evidence
The accused was called to give evidence, in his own defence. He
declined to give evidence, and refused to answer questions put to him
by the prosecutor. The defence then led evidence from Dr Madhombiro
whose affidavit had already been accepted by consent when Dr Chibanda
who gave evidence for the State was cross examined on it. Dr Chibanda
agreed with Dr Madhombiro's affidavit on the accused's mental
state. They agree that he suffers from a condition called temporal
lobe epilepsy which renders him incapable of being responsible for
his actions.
The State and the defence later advised the court that they were both
satisfied that the court should return a special verdict in terms of
section 29(2) of the Mental Health Act. We adjourned the proceedings
to consider the parties submissions on the retention of the special
verdict. In view of the common evidence from both the State's and
defence's expert witness we were satisfied that the parties'
concessions on the special verdict were properly made.
The remaining issue is on how to deal with the accused person after
retaining the special verdict. The State urged the court to proceed
in terms of section 29(2)(a) of the Mental Health Act, while the
defence urged the court to proceed in terms of section 29(2)(c) of
the Mental Health Act.
The defence relied on the evidence of Drs Chibanda and Madhombiro as
complimented by that of Jealous Gambiza, in urging the court to
proceed in terms of section 29(2)(c). Jealous Gambiza is the
Superintendent of North Court Children's Home. He told the court of
how the accused has been staying at the Home on remand, and the
Home's willingness to continue looking after him after the passing
of the special verdict and his attaining the age of majority. The
evidence of Yeukai a probation officer was admitted by the State. It
proves that if the court allows the accused to remain at North Court,
she would on his attaining the age of majority apply for an order
authorizing his continued stay at North Court or any other
institution.
Mr Mpofu
for the defence then made spirited submissions on why the court
should not proceed in terms of section 29(2)(a) of the Mental Health
Act, but urged the court to proceed in terms of section 29(2)(c). He
relied on Drs Chibanda and Madhombiro's evidence that sending the
accused to Chikurubi Psychiatric Unit would be like signing his death
warrant. They explained that their view was based on the existing
conditions of that prison.
Mr Chikosha
on the other hand submitted that the accused should be returned to
prison in terms of section 29(2)(a), because North Court does not
have the capacity to look after him as demonstrated by the incident
in which the accused caused Tinashe to lose consciousness at North
Court on 24 July 2009. He submitted that the incident demonstrates
that North Court does not have the capacity to look after the
accused.
In my view the issue does not
depend on North Court's willingness to look after the accused. It
depends on what the law says should be done after a special verdict
has been retained in respect of an accused person who has not yet
recovered from his mental illness.
The provisions of setion 29(2)(a) to (c) are clear as to what should
be done. The section provides as follows;
“(2)
If a judge or magistrate presiding over a criminal trial is satisfied
from evidence, including medical evidence, given at the trial that
the accused person did the act constituting the offence charged or
any other offence of which he may be convicted on the charge, but
that when he did the act he was mentally disordered or intellectually
handicapped so as to have a complete defence in terms of section 227
of the Criminal Law Code, the judge or magistrate shall return a
special verdict to the effect that the accused person is not guilty
because of insanity, and may -
(a)
order the accused person to be returned to prison for transfer to an
institution or special institution for examination as to his mental
state or for treatment; or
(b)
if the judge or magistrate considers that, had the accused person
been convicted of the offence concerned, he would not have been
sentenced to imprisonment without the option of a fine or to a fine
exceeding level three, order-
(i) the accused person to
submit himself for examination and additionally, or alternatively,
treatment in any institution
or other place in terms of Part VI; or
(ii) the accused person's
guardian, spouse or close relative to make an application for the
person to be received for examination and additionally, or
alternatively, treatment in any institution or place in terms of Part
VII or Part VIII; and may give such orders as may be appropriate for
the accused person's release from custody for the purpose of such
examination or treatment; or
(c)
if the judge or magistrate is satisfied that the accused person is no
longer mentally disordered or intellectually handicapped or is
otherwise fit to be discharged, order his discharge and, where
appropriate, his release from custody.”
My understanding of section 29(2)(a) is that if the accused person
still needs to be mentally examined or to be treated, he has to be
returned to prison where he will be transferred to an institution or
special institution for examination or treatment.
If the offence the accused person was facing and for which a special
verdict has been retained was one for which the accused could not
have been sentenced to imprisonment or a fine exceeding level three,
then the accused can be released to be dealt with in terms of section
29(2)(b). That subsection is not appropriate in this case because if
the accused had been convicted of the two counts of murder he would
not have been sentenced to a sentence of a fine, of or below level
three.
Section 29(2)(c) only applies if the court is satisfied “that the
accused person is no longer mentally disordered or intellectually
handicapped or is otherwise fit to be discharged”. In this case, Dr
Madhombiro said the accused has not yet recovered from mental
illness. He is still under treatment. He will only refer him to the
Special Review Board when he is satisfied of his recovery after a
period of six months from the middle of July 2009. The accused person
is therefore still mentally ill. He is not fit for discharge. He
therefore cannot be dealt with in terms of section 29(2)(c).
The only option available to the court is section 29(2)(a). It must
be invoked in spite of the conditions at Chikurubi Psychiatric Unit
described by Dr Chibanda. The condition of a prison does not justify
the court's refusal to send to prison those the law says must be
sent there. In an ordinary case not under the Mental Health Act the
court would at most reduce the period of imprisonment in recognition
of the hardship to be faced by the prisoner. In the case of a special
verdict retained because of the accused's mental disorder, the
court has to proceed in terms of the correct option. If the accused
person has to be returned to prison in terms of section 29(2)(a) of
the Mental Health Act, the court must give that order and leave
administrative issues to the institution.
It must also be stated that the institution to which an accused on
whom a special verdict has been retained must be transferred to by
prisons, is one which falls under the definition of “institution”
as defined by section 2 of the Mental Health Act. An institution is
there defined as “any mental hospital which the Minister, by notice
in the Gazette, has declared to be an institution for the purposes of
this Act”.
It is therefore clear that the accused person who is still mentally
ill cannot be dealt with other than in terms of section 29(2)(a) the
Mental Health Act.
Mr Mpofu for the accused did not indicate whether or not North Court
is an institution in terms of the Mental Health Act. In the absence
of that information it cannot be considered to be an institution to
which the accused can be transferred to in terms of section 29(2)(a)
of the Mental Health Act. On being returned to prison the accused
must be transferred to a designated institution or a special
institution. The accused must therefore be returned to prison pending
transfer to a designated institution or special institution.
In the result the accused is found not guilty because of insanity,
and is returned to prison to be dealt with in terms of section
29(2)(a) of the Mental Health Act.
Attorney General's Criminal Division, State's legal
practitioners
Mawere & Sibanda, accussed's legal practitioners
