The facts establish quite clearly, that the couple was in an abusive and unhappy marriage, characterized by domestic violence, strife and misery. On the fateful night they had had an altercation before retiring to bed...,. It was Mr., the expert witness' undisputed evidence that such encounters can trigger an attack in people susceptible to temporal lobe epilepsy leading to irrational conduct such as displayed by the accused on the night in question.

While I accept NDOU J's sentiments in the case of S v Munga., to the effect that defenses of diminished mental responsibility ought to be treated with extreme caution as the defense is easy to fabricate but difficult to rebut, it ought to be distinguished from the present one.

In the Munga case, expert evidence did not support the accused's assertion that he was mentally impaired at the material time so as not to be legally responsible for his conduct.,. To make matters worse, in that case, the accused refused to testify so that the credibility of his evidence regarding his mental status could be tested by way of cross-examination. In this case, the accused gave credible evidence that was corroborated by empirical scientific evidence establishing, on a balance of probabilities, that when she allegedly committed the offence she was not mentally responsible for her conduct by reason of a disease of the mind.

Having regard to all the evidence placed before us, I find on a balance of probabilities that when the accused set the deceased alight, thereby killing him in the process, she was suffering from a disease of the mind so as not to know the nature and quality of her conduct in this regard.

Section 29(2) of the Mental Health Act [Chapter 15:12] provides that:

"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 of 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 if insanity."

Having regard to the totality of the evidence placed before this court, I am satisfied, on a preponderance of probabilities that when the accused killed the deceased by setting him alight, she was mentally disordered or intellectually handicapped so as to have a complete defence at law.

The accused person was charged with the murder of Chipo Muyaya. It was alleged that on 29 January 2006, at Tienga Village, Chief Svosve in the Wedza communal area he killed the deceased by striking her on the head with a stone causing injuries from which she died on 6 February 2006.

In his plea, the accused person stated that he did not know what was happening at the time in question as he was suffering from a mental disorder. We entered a plea of not guilty.

The State did not call any witnesses. It moved, in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07], for the admission into evidence of the testimonies of the nine witnesses captured in the summary of the State case. Three affidavits were produced by consent. These were exhibit 1, the psychiatric report compiled by Dr Dickson Chibanda on 22 April 2009; exhibit 2, the post mortem report of 9 February 2006 complied by Dr Masokovere and exhibit 3, the medical affidavit of Dr Joka on the examination of the deceased on 1 February 2006. The State failed to produce the weapon used to inflict the injury which caused the death of the deceased.

The accused person testified and called the evidence of his cousin, Yonnah Mazenge, and the psychiatrist, Dr Chibanda.

The evidence that was led on how the deceased received the fatal injuries was common cause.

Yonnah Mazenge told us that the accused suffered from mental illness for the first time in 1998 when he was in Form 1. He missed school during the second and third terms of that year while receiving treatment from a traditional healer. He relapsed in December 2005 at a military recruitment camp in Wedza. He deserted the camp for his rural home in Wedza. At home, he joined others to weed the crops. He stopped everyone from weeding intimating that he would weed the whole field by himself that night. Thereafter, he ran into the bush, broke a branch of a tree which he alleged was his prophetic rod. The accused exhibited uncontrollable and excessive strength. He was taken to Mount St. Mary's Hospital for mental treatment by his brother and sister. He ran away and started scavenging for food in dust bins at Wedza Growth Point. He went back to his communal home where every one deserted the homestead in fear of him. He then disappeared. He injured the deceased during the time that they were looking for him. She located him after his arrest.

The evidence of Lydia Warikandwa, the deceased's daughter, set out how the deceased was injured. The accused arrived at their homestead on 29 January 2006 at around 4pm. He intimated his desire to kill five people and drink their blood. The deceased's attempts to make conversation were rebuffed. It dawned on the mother and child that the accused was mentally disordered. They left their homestead to look for firewood but he followed them and grabbed hold of the deceased by her left arm. A struggle ensued. Lydia called for help from Remigious and Plaxedes Sengudzwa. Remigious was assaulted by the accused person as he struggled to rescue the deceased. The accused shouted at him that he was a goblin that had been sent by God. The accused easily threw Plaxedes to the ground. The deceased managed to escape to her kitchen hut wherein she locked herself. Undeterred, the accused threw several stones into the hut through an open window. The deceased cried out in agony from inside the hut. The accused then left. In the hut, the deceased was bleeding from the head. There was a big stone that was blood-stained in the hut.

On 30 January 2006 the deceased went to Wedza police station where she was referred to Wedza Hospital where she was referred to Harare Hospital. At Harare Hospital she was attended by Dr Joka who observed that she had a laceration on the head which he sutured on 1 February 2006 and discharged her. She returned to her communal home on 2 February 2006. The deceased continued to complain of painful headaches. She died on 6 February 2006. The pathologist noted…, that she had sustained a blunt trauma on the right parietal area. He observed a depressed skull fracture of the right parietal bone and subdural haemorrhage and concluded that death was due to intracranial haemorrhage arising from the head injury.

Taurai Mupawaenda, a policeman, arrested the accused person on 30 January 2006 after he surrendered himself at the police station. He failed to record a warned and cautioned statement from him as he was incoherent. Sergeant Marowa retrieved the big stone that caused the injury and ferried the body of the deceased to Marondera Hospital mortuary.

While the weapon that caused the injury was not produced for us to determine whether subjective foresight of death could be attributed to the accused person, we are satisfied that death was occasioned by the injury that was inflicted on the deceased by the accused person. In the absence of the stone and taking into account the manner in which death occurred, we are not satisfied that the accused possessed the necessary constructive intention to cause death.

The evidence at hand indicated that he indiscriminately threw the stones into the hut where the deceased had sought refuge. It appeared that one of the stones managed to hit the deceased on the right side of her head close to the ear. The accused left the scene after the deceased cried out that she had been injured. She went to Harare Hospital where the doctor wrongly diagnosed that the injury was not life threatening. Death occurred eight (8) days later. We find these facts consistent with an objective appreciation that death could result rather than the existence of a subjective foresight that death would result. The facts reveal that the accused negligently caused the death of the deceased. In our view, his actions would have given rise to a conviction of culpable homicide rather than murder.

The psychiatrist testified. He confirmed the contents of his report…,. He referred to collateral history recorded in the reception order, the magistrate's report, and two medical reports compiled by two doctors and the State Outline. He noted from the collateral sources that the accused person was mentally disordered at the time he inflicted the injury. His opinion was justified by the evidence of Yonnah Mazenge, Lydia Warikandwa and the arresting detail, Taurai Mupawaenda.

When he examined the accused person he observed that he had responded well to medication and did not exhibit symptoms of psychopathology. He was no longer experiencing both auditory and visual hallucinations. He had good thought and speech processes and interacted well with other inmates. He certified him fit for trial.

In his oral testimony, he stated that the accused person was still on medication and would need to remain on medication for upwards of a year. He was receiving a weekly injection of 200 milligrams of chlorpromazine and a monthly dose of modicate. The modicate remained in his blood stream for a period of 6 weeks and was administered to those patients who were at risk of defaulting in taking medication. He emphasized that the accused would relapse if he stopped taking medication. He would recommend the accused's release to his family members who were prepared to regularly bring him to Harare Psychiatric Hospital for medication and review.

In their oral submissions, both the State and defence counsel were agreed that the accused person lacked the mental intention to commit murder by reason of the mental disorder that afflicted him. We agree that he did not possess the mens rea to commit the crime of culpable homicide that we would have found him guilty of had he not been suffering from a mental disorder. In terms of section 29(2) of the Mental Health Act [Chapter 15:12], we find the accused person did acts which would amount to culpable homicide but when he did so he was mentally disordered or intellectually handicapped to such an extent that he was not, at law, responsible for his actions.

We accordingly enter a special verdict of Not Guilty because of insanity.

KUDYA J:

Sentence

Counsel for the accused submitted that I should release the accused into the care of Yonnah Mazenge who is prepared to take him to Harare Psychiatric Hospital for treatment and review. Counsel for the State submitted that he be returned to a special institution for treatment.

I have the discretion on how to sentence the accused person. The three courses of action that I may take are set out in paragraphs (a), (b) and (c) of subsection 2 of section 29 of the Mental Health Act.

Paragraph (c) allows me to order the release of an accused person who has recovered. It is not applicable to the accused person who still requires intensive medication and management at a psychiatric institution. Paragraph (b) does not apply as he would not have been sentenced to a fine for culpable homicide arising from an assault. Even if a fine was suitable, it would have been more than level 3, which at present is equivalent to US$20=. The only viable option that remains is paragraph (a). The accused person still requires examination and continued treatment at a special institution. He remains a danger to himself, and others, if he defaults medication. He is assured of continued medication in a special institution rather than at home where the risk of default cannot be ruled out. I will order his return to custody for transfer to a special institution for treatment.

I have in mind Chikurumbi Hospital Extension which was declared a place in lieu of special institution by General Notice No.51/2000 published in the Government Gazette of 18 February 2000.

Accordingly, it is ordered that:

1. The accused is not guilty of culpable homicide because he was mentally disordered or intellectually handicapped at the time he committed the offence.

2. The accused shall be returned to prison for transfer to Chikurumbi Hospital Extension for treatment.

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 therefrom 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 [Chapter 9:07]…,.

Application for discharge

Counsel 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 Criminal Procedure and Evidence Act [Chapter 9:07] 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 section 229 of the Criminal Law (Reform and Codification) Act [Chapter 9:23] (“the Code”, and section 29 of the Mental Health Act [Chapter 15:12] (“the Mental Health Act”) the application for discharge would have been granted.

In view of the provisions of section 29 of the Mental Health Act [Chapter 15:12] and section 229 of the Criminal Law (Reform and Codification) Act, 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 Criminal Law (Reform and Codification) Act [Chapter 9:23] 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 Criminal Law (Reform and Codification) Act [Chapter 9:23] 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 Criminal Law (Reform and Codification) Act [Chapter 9:23], 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 Criminal Law (Reform and Codification) Act [Chapter 9:23] is Part V of the Criminal Law (Reform and Codification) Act which includes sections 226 to 229 of the Code. Section 29 of the Mental Health Act refers to section 248 of the Criminal Law (Reform and Codification) Act [Chapter 9:23]. That section falls out of Part V. This raises questions on the applicability of section 229 of the Criminal Law (Reform and Codification) Act [Chapter 9:23].

When the application for discharge was made both parties did not refer to the provisions of section 229 of the Criminal Law (Reform and Codification) Act [Chapter 9:23] 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 Criminal Law (Reform and Codification) Act [Chapter 9:23] and the effect of section 29 of the Mental Health Act referring to section 248 of the Criminal Law (Reform and Codification) Act [Chapter 9:23] instead of section 227 of the Criminal Law (Reform and Codification) Act [Chapter 9:23].

Section 229 of the Criminal Law (Reform and Codification) Act [Chapter 9:23]

Counsel for the accused submitted that there was no conflict between section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] and section 229 of the Criminal Law (Reform and Codification) Act [Chapter 9:23]. He therefore submitted that his application for discharge could still be granted. He also made two alternative submissions;

(i) In the first alternative, he submitted that the effect of section 198(3) of the Criminal Procedure and Evidence Act and section 29(2) of the Mental Health Act as read with section 229 of the Criminal Law (Reform and Codification) Act [Chapter 9:23] leads to 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 counsel for the accused's contention that the effect of section 198(3) of the Criminal Procedure and Evidence Act and section 29(2) of the Mental Health Act is the same is not legally correct.

Section 198(3) of the Criminal Procedure and Evidence Act 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 latter 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 Criminal Law (Reform and Codification) Act [Chapter 9:23] 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 Criminal Law (Reform and Codification) Act [Chapter 9:23], counsel 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 Criminal Law (Reform and Codification) Act [Chapter 9:23] 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 Criminal Law (Reform and Codification) Act [Chapter 9:23].

I agree with counsel for the State's submission.

The Applicability of section 229 of the Criminal Law (Reform and Codification) Act [Chapter 9:23]

Section 229 of the Criminal Law (Reform and Codification) Act [Chapter 9:23] confines its operation to Part V of the Criminal Law (Reform and Codification) Act [Chapter 9:23]. 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 Criminal Law (Reform and Codification) Act [Chapter 9:23] 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 Criminal Law (Codification and Reform) Act [Chapter 9;23], referred to by section 29(2) of the Mental Heath Act is not found in Part V of the Criminal Law (Codification and Reform) Act. That raises questions on the applicability of section 229 of the Criminal Law (Codification and Reform) Act to the situations referred to in section 29(2) of the Mental Health Act. An examination of the provisions of section 248 of the Criminal Law (Codification and Reform) Act 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 [Chapter 15:03].”

Section 248 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] 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 [Chapter 15:12]. The legislature clearly intended to refer to a section of the Criminal Law (Codification and Reform) Act [Chapter 9:23] 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 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] reveals that section 227 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] 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 Criminal Law (Codification and Reform) Act [Chapter 9;23] 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 Criminal Law (Codification and Reform) Act.

The issue which remains to be resolved is whether this court can substitute section 248 of the Criminal Law (Codification and Reform) Act with section 227 of the Criminal Law (Codification and Reform) Act 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…, 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…, 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)…, 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 sections 54(4) and 55(5) then there would be no penalty enacted for the offences of contravening sections 54(2) and 55(2) of the Act. The punishments, considered in meticulous detail, and set out in sections 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…, 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 Criminal Law (Codification and Reform) Act [Chapter 9:23] (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)…, 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 Criminal Law (Codification and Reform) Act (the Code), become applicable to this case.

Effect of section 229 of the Criminal Law (Codification and Reform) Act

Section 229 of the Criminal Law (Codification and Reform) Act (the Code), 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 Criminal Procedure and Evidence 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.

(ii) Counsel for the accused, 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 [Chapter 15:12]. 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) of the Mental Health Act. 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.

Counsel 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.

Counsel for the State, 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 section 29(2)(a) to (c) of the Mental Health Act 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) of the Mental Health Act 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) of the Mental Health Act. 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) of the Mental Health Act 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) of the Mental Health Act.

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.

Counsel 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 [Chapter 15:12].

In her defence, she stated that she was impregnated by one Gift Moyo who was a haulage truck driver. At the time of conceiving she was employed as a maid at Mbalabala, and her employer terminated her services after she had given birth.

She went to her rural home.

On her arrival, her father, and step-mother, chased her away, as they stated that they did not want her home with a fatherless child. She left and went back to Mbalabala to try and make a living under destitute conditions.

The accused, together with the deceased, who had been ill from birth having been diagnosed with the HIV, had been hospitalized in various health institutions for a period of five months.

According to the evidence submitted, which was uncontradicted, the deceased had experienced scrutiating pain as a result of gaping wounds, and open sores, all over the body. As such, she was always crying uncontrollably due to this endless pain. This, therefore, resulted in both mental and physical stress, and hopelessness, on the accused.

In view of this torment, the accused braved her previous expulsion from home by her father, and, again, proceeded to the rural home. On arrival, her father again, chased her away.

The second issue that arises is that the accused had just given birth, and, in that state, decided to kill it.

In a similar matter, in S v Ngwenya HB09-04, I emphasized the need to approach this type of offence from the basis of both a psychological and psychiatric point of view. The accused's state of mind is a recognized medical condition referred to as puerperal psychosis (temporary madness).

This condition, which the medical fraternity recognizes, affects most women immediately after birth.

Counsel for the accused further argued that the accused had been drinking.

Concerning the defence of blackout, counsel for the accused referred to the case of S v Evans 1985 (1) ZLR 95 (SC).

The defence of black-out does not appear to have sufficient foundation.

In the case of S v Evans 1985 (1) ZLR 95 (SC) the appellant was convicted of culpable homicide arising from the collision of the train he was driving with another. It was established the brakes in the train that was driven by the appellant had been applied accidentally. The appellant's defence was that he had a black out as he did not recall what happened prior to the accident. Commenting on this defence, on appeal,            DUMBUTHSENA CJ had this to say…,-

“The appellant's defence, as already mentioned, is that he had a blackout. He testified not remembering what happened after he had seen the distant warning signal. He denied having fallen asleep or having applied the air brakes. The appellant was persistent in his defence of a black out. In reply to the warn and caution he said: “From the time of seeing the amber until after the accident I had a black-out.“ In his evidence in court he asserted that he had a blackout and could not remember what happened before the accident.

Is this sufficient evidence to establish this type of defence?

In Bratty v Attorney-General for Northern Ireland [1963]  AC (HC) (NI), a case in which the appellant had told the police that when he was with the girl he had a “terrible feeling” and that a “sort of blackness” came over him; at his trial three separate defences were left open to the jury, namely ;

(1) Automatism by reason of suffering from psychomotor epilepsy;

(2) That he was guilty of only manslaughter because he was 'incapable of forming an intent to murder' on the ground that 'his mental condition was so impaired and confused and he was so deficient in reason that he was not capable of forming such intent';

(3) That he was guilty but insane in consequence of suffering from a disease of the mind within the McNaughton Rules.

The case is of interest to us because of what was said by LORD DENNING about the defence of black–out at 413-14:

'It is not sufficient for a man to say “I had a black out”: for 'blackout', as STABLE J said in Cooper v Mckenna, Ex Parte Cooper 'is one of the first refuges of a guilty conscience and a popular excuse.'

In R v Dervish [1968] Crim LR 37 Bratty's case was considered with approval by the Court of Appeal (Criminal Division). The commentary on that case explained the above words as follows:

'Of course a jury might, as a fact, be left in real doubt where they have nothing to go on but the bare, un supported word of the accused person, if he appeared to be a witness of truth; and it would be an artificial rule which debarred them from considering the defence in those circumstances. The requirement of some supporting evidence is based on obvious considerations of policy - otherwise it might be all too easy for guilty persons to procure an opportunity of acquittal on fabricated evidence.'

In his book Textbook of Criminal Law 2^nd Ed at 663, the learned author GLANVILLE WILLIAMS says of this defence;

'Although the “blackout” defence is legally recognized, it is a defence too easily feigned to be accepted without severe scrutiny. So the courts have laid down that the evidential burden in respect of the issue of non-insane automatism rests upon the defendant, and, moreover, that medical evidence must (where appropriate) be given in its support before the judge is bound to leave this issue to the jury. If there is sufficient evidence (whether coming from the defendant or from the Crown) to pass this 'initial hurdle' – to 'lay a foundation ' for the defence, as the judges sometimes say – the jury will be directed that the persuasive burden of proving the mental element rests on the prosecution. 

See also SMITH & HOGAN:- Criminal Law 4^th Ed at 40.'

There is, in the requirement for an accused person to lay a foundation for the defence of black-out, some similarity between that defence and the defence of compulsion. In the defence of compulsion, the accused should adduce some evidence to show that his mind was overborne by compulsion at the time of committing the offence. Mr Justice BARON ACJ, when considering the defence of compulsion in S v Mapfumo & Ors 1983 (1) ZLR 250 (SC), said, at 253 F-G, what I consider appropriate to the appreciation of the foundation to be laid in the defence of black out. The leaned Acting Chief Justice said:-

'There is…, no onus on an accused person; all that is required is that there emerge from the evidence, whether adduced by the prosecution or the defence, material sufficient to raise the issue in question as a realistic issue, and to speak of this as an onus resting upon an accused, quite apart from its extent, can be misleading.'”

In that case, the court concluded that the accused had laid sufficient foundation for a defence of blackout. It took into account that evidence was led from a doctor who was called by the State. Among other things, he was asked on what happens to a person when he experiences a black-out; to which he responded that he physically collapses and passes out. It was also put to the doctor the life of a train driver which he agreed was unusual on account of the irregular shifts, the early hours, irregular meals and lack of sleep.

In finding merit in such defence, the learned Chief Justice went further to say…,-

“In my judgment, the appellant, through Dr.Gwisayi, a prosecution witness, laid a proper foundation for the defence by introducing evidence from which it may reasonably be inferred that the appellant suffered a blackout. His evidence alone would not have been sufficient. It seems to me that on this evidence alone the foundation for the defence of a black out has been laid – albeit on a balance of probabilities. On this evidence alone, the persuasive burden of proving that the appellant was negligent now rests on the prosecution.”

In the present case, we are not persuaded that the accused laid a foundation for such a defence. Apart from his mere say so there is no other evidence from which one may infer that he experienced a black-out. It is incredible that he could recall how he assaulted the deceased with a stick but could not recall how he assaulted her with an axe. There is no evidence that there was a lull between the assault with a stick and the assault with the axe. In addition, the accused's son, who responded to the deceased's cry, did not find the accused present. We also note that the accused was able to recall what he did after injuring the deceased.

The accused further said her ability to properly assess the events and react appropriately was impaired by her having been drunk at the time she assaulted the deceased.

In his additional submissions, counsel for the State submitted that the accused is guilty of murder as she was no longer intoxicated when she attacked the deceased. He argued that she had the requisite state of mind when she caused the deceased's death. He repeated his earlier analysis of the accused's state of mind. He relied on section 221 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] for his submissions. Section 221 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides as follows -

“(1) If a person charged with a crime requiring proof of intention, knowledge or the realisation of a real risk or possibility;

(a) Was voluntarily or involuntarily intoxicated when he or she did or omitted to do anything which is an essential element of the crime; but

(b) The effect of the intoxication was not such that he or she lacked the requisite intention, knowledge or realisation; such intoxication shall not be a defence to the crime, but the court may regard it as mitigatory when assessing the sentence to be imposed.

(2) Where a person is charged with a crime requiring proof of negligence, the fact the person was voluntarily intoxicated when he or she did or omitted to do anything which is an essential element of the crime shall not be a defence to any such crime, nor shall the court regard it as mitigatory when assessing the sentence to be imposed.”

In terms of section 221(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the accused should have been intoxicated at the time she committed the act constituting the crime charged. In this case, counsel for the State argued that the accused was no longer intoxicated when she attacked the deceased. His reliance on section 221 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is therefore erroneous as the section only applies to cases where intoxication still had an effect on the accused.

In terms of section 221(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] if the effect of the intoxication “was not such that he or she lacked the requisite intention, knowledge or realisation; such intoxication shall not be a defence to the crime.” This means, if it is proved that the intoxication did not prevent the accused from appreciating what she was doing the defence of intoxication will not succeed. The fact that the accused was intoxicated, though not to the extent of preventing her from appreciating what she was doing, can only be considered as mitigation.

Counsel for the State's submission is that the accused was no longer intoxicated. He is therefore saying the defence of intoxication is not available to the accused even to the extent of being merely mitigatory. His submission can therefore not be based on section 221 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as that section is intended for an accused who acts with intention while drunk, but not to the extent of not knowing what he is doing.

In the event that the accused succeeds in the defences advanced in counsel for the accused's further submissions, and, as he submitted, is convicted of a crime requiring proof of negligence, in terms of section 221(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], intoxication would not be a defence to such an offence and cannot be considered in mitigation.

Counsel for the State's application of section 221 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] to the facts of this case, though erroneous, is persuasive when considered from the correct perspective. We do not agree with counsel for the State's submission that the accused was completely sober when she assaulted the deceased. We are of the view that the accused, though appreciating what she was doing, as demonstrated by her detailed narration of how she assaulted the deceased, was still intoxicated - but not to the extent of not being able to formulate the requisite intention. We hesitate to find that she was completely sober because she had just woken up from her drunken sleep. She had been brought home completely drunk, at, or just before, lunch time. She had slept on the verandah because of her drunken state, and had just woken up. We therefore conclude that she was drunk, but, the effect of the intoxication was not such that she lacked the requisite intention, knowledge or realization.

The charge against the accused is that of murder, the allegations being that on 1 July 2009 at Village 8, Chief Wedza Zvishavane, he unlawfully and intentionally struck his mother in law, Etty Maronga, then aged 50, three (3) times on the head with an axe causing her death.

The accused pleaded not guilty to the charge and tendered a two (2) pronged defence namely;

(1) That of non-pathological criminal incapacity as a result of being subjected to severe mental stressus which had increased progressively over the years as a result of being deserted by his wife and her subsequent improper association with other men, and in particular, a certain Mr Phiri who was employed by Mimosa and drove a Nissan Bakky.

(2) That he was severely provoked by the deceased who had hurled insults at him accusing him of being sterile, that his children with his wife Unite, were not his, he had not paid lobola, was a pauper when she wanted a son in law with money. As a result of the insult, he had lost his senses and struck the deceased in the heat of the moment.

The State led evidence which was simple and straight forward. Most of the evidence is generally common cause.

The accused, who was 66 years at the time of the incident and is now about 68 years old, was customarily married to one Unite Maronga, who was regarded as a daughter of Etty Maronga, the deceased, in the extended family set up. The said Unite Maronga was some 41 years younger than the accused. They have two children born of the union. The accused's homestead is directly opposite his in-laws' homestead and the two are separated by a road. The distance between them is such that one can see what is transpiring at the other homestead and vice versa. Some few months before the events which led to the death of the deceased, the accused's wife, Unite Maronga, had deserted him after he had refused to co-operate when she wanted to go and look after a sick relative in Zvishavane. She proceeded to Zvishavane notwithstanding and remained there for a while. Upon her return to the village, she did not go back to the accused's homestead electing to return to her parents. The parents then decreed that Unite Maronga would not return to the accused until he had paid the bride price which was outstanding. This did not go down well with the accused who kept on insisting that his wife and children should return to him.

On 1 July 2009, the accused had been aware that Unite Maronga would be proceeding to Mimosa to sell milk as the two had had some discussions earlier in the morning after Unite Maronga had tried to borrow an axe from the accused which she intended to use to chop firewood but had aborted that assignment at the behest of the deceased who wanted her to go and sell milk instead. The accused had then waylaid Unite Maronga some 1km away from the homestead as she went to sell milk. He was armed with a knife and an axe….,. When Unite Maronga arrived, accompanied by one Taritha Ncube, the accused unceremoniously got rid of Taritha Ncube directing her to disappear. He told her she was not going to see Unite Maronga alive again. Left alone with Unite Maronga, the accused is said to have declared to Unite Maronga that on that day he was going to kill her and that their children were going to be orphans. He said this as he held Unite Maronga's right hand.

What followed was an hour-long pitched battle between the two during which the accused assaulted Unite Maronga, stabbed her twice on the leg with a knife, attempted to strike her with an axe (exhibit 5) and she tenaciously fought back. She removed part of her clothing and fled from the scene going back to her parents' home.

The accused, who by then was extremely angry, followed Unite Maronga still armed aforesaid. He was spotted by Fungai Zhou entering the homestead walking very fast. A short while after that a noise was heard and when Fungai Zhou investigated, she saw the accused deliver blows with an axe directed at the deceased's head sending her to the ground. Fungai Zhou ran to render first aid as the accused proceeded to Hlambi Mkwannanzi's homestead which is next to the deceased's homestead. He was still pursuing Unite Maronga who had fled to that homestead. Hlambi Mkwananzi, whose evidence was admitted by the accused in toto, says that when he heard Fungai Zhou crying he went to investigate. Whereupon he saw the accused standing over the deceased who was lying on the ground at the back of the hut. He hid Unite Maronga but the accused came after her telling this witness that he wanted to kill Unite Maronga. After this witness had persuaded the accused to abandon his mission, the accused said to the witness;

“Let me go and finish off the one I struck.”

He proceeded to where the deceased was lying and struck her on the back of the neck with the blunt side of the axe. After causing a commotion, the accused is said to have burnt down three (3) huts and a granary at the deceased's homestead before retiring to his home.

The accused later absconded and was arrested three (3) days later some 50 to 70km away, in Fort Rixon, as he was attending a funeral there. He says he wanted to sell his cattle there to raise money to pay bail.

While the circumstances of the deceased's death are common cause, the accused says when he got to the deceased's homestead wielding an axe he was desirous of discussing her problems with Unite Maronga - a person he had stabbed a kilometre away from the scene. He says by then he was so angry that he did not care how the episode would play out and he was no longer afraid of or respected his mother-in-law. He says if the deceased had not come in his way he would have allowed her to continue with her laundry as the person he was after was Unite Maronga. He says that when the deceased confronted him – he says the two of them went to each other which is to say the accused charged towards the deceased while the latter also charged towards accused - the deceased uttered the insults he complains of. This resulted in him having a blackout secondary to the provocation.

He does not know what transpired thereafter. He says as he heard people mourning, he underwent a Damascan experience as he embarked on his “sermon on the mount” by the nearby hills which resulted in him piecing together the events which led to the demise of the deceased. He was then able to give a statement to the police stating how it had happened.

For the defence of non-pathological incapacity to succeed, the accused must have lost self-control so much that he could not refrain from committing the offence. He must have been unable to control himself. A brief emotional disturbance would not satisfy the defence.

Here is a man who had been deserted by his young wife a couple of months earlier. His in-laws had told him to pay a paltry sum of R1400= to get his wife back. He had the wherewithal to raise that money. The wife had repeatedly assured him that if he paid the money, or part of it, she would gladly return to him. Three days earlier, his mother-in-law had called him in and they had a fruitful and amicable discussion during which she encouraged him to pay something of the money due to have his family back. Earlier on in the morning of the same day, the wife had met him behind her mother's back and they had an amicable discussion in between the homesteads.

We are unable to see what the source of his emotional stressus is. In short, he was not emotionally distressed. He had no reason to.

The inescapable conclusion is that the defence of non-pathological incapacity is clearly not available to the accused. He was firmly in control of his mental faculties. He made decisions, planned his actions meticulously, and when the time came, he implemented his project.

There are no factual disputes in this case. It is common cause that the accused became mentally ill sometime in 2002. She was treated for her mental condition at Parirenyatwa Psychiatric Hospital.

She was subsequently placed on medication and released on instructions to take the medication for life. She, however, defaulted in taking the medicine under the mistaken belief that she had recovered from her illness. As a result of the default she relapsed and killed her grandson while mentally disordered. She now stands charged with murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. There can be no doubt whatsoever that the accused struck and killed the deceased while suffering under a disease of the mind.

Section 29(2) of the Mental Health Act regulates the criminal liability of persons who commit a crime while labouring under a disease of the mind. It provides that:

“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 not to be responsible for the act, the judge or magistrate shall return a special verdict to the effect that the accused person is not guilty because of insanity.”

Having regard to the undisputed evidence before this court, I can only find it as a fact proved beyond reasonable doubt that the accused was suffering from a disease of the mind so as not to be responsible at law for her conduct at the time she struck and killed the deceased.

The accused said he had taken straits of kachasu and was so drunk that he did not know some of the things which happened.

The accused further states that he acted out of frustration, anger and under the influence of intoxicating substances….,.

The thrust of the accused's defence is that he had no intention of killing the deceased to or cause her death. He acted out of frustration, anger and was influenced by intoxicating alcohol and dagga. He says when he threw the metal pipe at the deceased he did not aim at any part of her body but he wanted to scare her away because she had cornered him and he could not leave the homestead because she had somehow blocked his path since he wanted to use the main gate. The accused failed to explain why he could not use the smaller gate which was just behind him….,.

The accused is a male adult aged 26 years at the time of the commission of the offence. He stands accused of the crime of murder, it being alleged that on the 9^th December 2009, he killed one Letwin Muremba, a female aged 18 years at the relevant time.

The accused has tendered a plea of not guilty by reason of insanity.

The brief facts are that on the fateful day, the deceased was at home at Village Mabodza, Chief Chiwundura, in the Midlands Province and doing her laundry. The accused was also present at the homestead. The accused and the deceased had a minor misunderstanding after the accused had delayed bringing water for the laundry. The accused person then armed himself with an axe and struck the deceased twice on the head with the cutting edge of the axe and the deceased fell to the ground. The accused then lifted the deceased to his bedroom and placed her on the floor. He then proceeded to strike the deceased several times on the head with the axe until he crushed her skull. The deceased's skull was opened and she died instantly. The accused person locked the door and disappeared from the crime scene. The remains of the deceased were discovered by her husband, one Henry Zvoushe, who alerted other villagers leading to his arrest by the police….,.

It is evident from the Statement of Agreed Facts which has been tendered as exhibit 1 by both State and Defence counsel that the accused did commit the terrible crime. It is also clear that the attack was serious and unprovoked and the circumstances support the submission that the accused must have suffered from some mental disability at the time the crime was committed….,.

The State further produced, by consent, an affidavit in terms of section 278(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] which is marked exhibit 3. The report by a Psychiatrist Consultant, Dr Elena Poskotchinova, details the mental history of the accused person. I will not repeat the entire report of the Psychiatrist but it important to observe that the accused is a known psychiatric patient. He had been treated at Ingutsheni Hospital on two occasions, from April 1998 to May 1999. He was being treated for a mental illness known as Schizophrenia paranoia. In January 1998, he escaped from Gokwe Hospital where he was due for treatment for a mental problem after he tried to kill his uncle and set him on fire. The Psychiatrist concluded that in her opinion, at the time of the alleged offence, the accused was indeed suffering from mental disorder and was so affected that he could not possibly have been legally responsible for his actions. Her findings were that the accused person was a danger to society as he had been arrested for attempted murder in 1998 and murder in 2000, and that the accused required mental treatment.

We are satisfied that from the evidence that has been placed before us that the concession that has been made by the State, in accepting a plea of not guilty by reason of insanity, was properly made.

Ephraim Khabo who is taller and of bigger stature than the accused was unable to apprehend the accused because of the struggle he put and was only able to disarm him of the log.

Although the accused raised the defence of intoxication and abuse of drugs, he openly confessed that he was in full control of all his faculties when he committed the horrific crime.

I will deal briefly with the defence of intoxication.

This defence would succeed as a partial defence if the court makes a specific finding that the accused had lost control of his senses to the extent that he became incapable of forming the specific intent to murder the deceased.

The reference for review of the proceedings was prompted by a letter of complaint dated 9 October 2014 addressed to the Chief Justice and copied to his deputy by the accused's mother.

Her complaint was that her daughter had been convicted of a criminal offence despite being mentally disordered and incapable of appreciating the nature of her conduct. She blamed the trial magistrate for not conducting the trial in terms of the Mental Health Act despite that her daughter was a known mental patient previously detained at Ingutsheni Mental Hospital. Although she claimed to have the relevant medical records, they were never placed before the trial magistrate, and, consequently, they are not part of the record before me. Despite her claims to the contrary there is nothing in the record of proceedings to suggest that the police and the trial magistrate were appraised and made aware of the accused's alleged mental disability.

The facts giving rise to the proceedings, according to the record before me, are as follows:

The accused is a young lady of 34 years of age residing at House Number F27, Mzilikazi, Bulawayo. On 4 October 2014, at around 23:30 hours, she was at Kudu Bar in Hatfield Harare. Whilst outside the bar she struck and damaged the windscreen of the bar owner's motor vehicle with an empty beer bottle causing damages assessed at US$299=.

On those facts, she was arrested and charged with malicious damage to property as defined in section 140 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. She pleaded guilty to the charge. The trial magistrate properly canvassed, and the accused unequivocally admitted, all the essential elements of the offence. She was accordingly convicted by the magistrate sitting at Harare on 8 October 2014 upon her unequivocal admission of her guilt. The record of proceedings reads:

“Q. Admit that on dates unknown to the prosecutor but on 4 October 2014, and at Kudu Bar, you unlawfully and intentionally caused damage to the property of Richard Mufunani?

A. Yes.

Q. Admit caused damage to property, namely a Toyota Land Cruiser Reg. Number AAY 0463.

A. Yes.

Q. How did you cause damage to the property?

A. I struck his vehicle windscreen with 2 bottles of pilsner. 

Q. Admit realised that there was a real risk or possibility that damage could result due to your actions?

A. Yes.

Q. Any right?

Q. Any defence to offer?

A. No.

Mitigation

(i) 34 years.

(ii) Single.

(iii) One child.

(iv) Into buying and selling $150=/fortnight.

(v) $2= on person.

(vi) No money at home.

(vii) No savings.

(viii) No assets of value.

Q. Why did you commit this offence?

A. I was angry at the complainant as he had assaulted me and thus I decided to strike his car so he would also feel my pain. My relatives have money and we are willing to restitute same.”

It is apparent from a reading of the record of proceedings that the accused's response to the magistrate's questions was entirely rational and reasonable. When asked why she damaged the complainant's motor vehicle she explained that she was venting her anger on the complainant because he had assaulted her. She therefore had a sound rational motive for committing the crime. Hers was not a mindless irrational criminal behaviour often displayed by mental patients. At no time did she give the trial magistrate any reason to believe or suspect that she was suffering from a disease of the mind at the time she committed the offence. According to the record of proceedings before me no one, including her mother, ever brought it to the trial magistrate's attention that she may have been of unsound mind at the time she committed the offence.

The accused's mother did not herself interact with the police or the trial magistrate. All her unfounded allegations against them are entirely based on hearsay. In my considered view, it is highly unlikely and not in the least probable that both the police and the trial magistrate would have failed to record the accused's alleged mental illness had the issue been raised with them.

While our law, in the ordinary run of things, places the onus of poof on the State, it creates an exception in respect of the defence of insanity by shifting the burden of proof onto the accused to prove his mental status at the material time on a balance of probabilities. This is for the simple reason that our law presumes everyone to be normal until proven otherwise. That is the position both at common law and statute. The proviso to section 18 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] places the burden of proof squarely on the accused. It reads:

“18 Degree and burden of proof in criminal cases

(1)…,.

(2)…,.

(3)…,.

(4) Except where this Code, or any other enactment, expressly imposes the burden of proof of any particular fact or circumstance upon a person charged with a crime, once there is some evidence before the court which raises a defence to the charge, whether or not the evidence has been introduced by the accused, the burden shall rest upon the prosecution to prove beyond a reasonable doubt that the defence does not apply:

Provided that where an accused pleads that, at the time of the commission of a crime, he or she was suffering from a mental disorder or defect as defined in section two hundred and twenty-six, or a partial mental disorder or defect as defined in section two hundred and seventeen, or acute mental or emotional stress, the burden shall rest upon the accused to prove, on a balance of probabilities, that he or she was suffering from such mental disorder or defect or acute mental or emotional stress.” 

Thus, the onus was on the accused and her mother to establish, on a balance of probabilities, that at the time she committed the acts constituting the offence she was suffering from a disease of the mind rendering her incapable of appreciating that what she was doing was wrong.

This they did not do.

On the contrary, she knew that what she had done was wrong and was liable and willing to compensate the complainant for the damage she had caused. She knew the exact amount of money she had on her person and that it was insufficient to compensate the complainant. She also knew that she could ask for help from her relatives to help her pay reparations.

Case law establishes quite clearly that what matters is the accused's mental state as at the time of commission and not at any other time. In the case of Obert Nyamini Mapfumo v The State AD–48–79 McDONALD CJ quoted the trial court with approval and had this to say at page 1 of the cyclostyled judgment:

“The appellant's mental state was exhaustively investigated at the trial and the trial court made the following finding on this aspect of the case, '…., the court considers that the most that it can say consistently with the medical evidence is that there is a possibility that the accused was suffering from hysterical dissociative condition at the time of the shooting but I cannot put it higher than that. There is no evidence that the accused was unaware of the nature and quality of his acts and that what he was doing was wrong. Mr. Chidyausiku, who appeared at the trial and who now appears in this appeal, has informed the court he feels unable to challenge this finding in the light of the evidence led.”

Like what I have already indicated above, the accused's answers to the magistrate's questions, while canvassing the essential elements of the offence, established beyond question that the accused knew the nature and quality of her conduct and that what she was doing was wrong. She knew that she had been assaulted and she deliberately took a conscious unlawful decision to retaliate by damaging the complainant's car. When asked, she had an independent recollection of the details of her criminal conduct at the material time. That cannot be the attributes of a person suffering from a mental disease at the time of commission of the crime or trial. There is nothing patently unusual about her conduct in this respect.

The effect of the defence of voluntary intoxication as a defence to a charge which requires proof of intention or mens rea is provided for in section 221(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The degree of intoxication can vitiate the requisite mens rea or intention….,.

Voluntary intoxication is not a mitigatory factor in assessing sentence where an accused has been convicted of the offence of culpable homicide, as provided for in section 221(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]…,.

There is an old folklore song which was also sung by the late musician Jonah Sithole whose lyrics sound like this in shona;

'Handiza guta, kana ndaguta ndinorova mai. Doro renyu rinonaka, kana ndaguta ndicharova mai.'

Loosely translated, the person is saying once he or she gets drunk after consuming very intoxicating traditional beer he or she will assault his or her mother!

This is exactly what the accused did in this case.

The next issue we considered is how to deal with the accused after returning a special verdict.

The court is guided by the provisions of section 29(2)(a) to (c) of the Mental Health Act [Chapter 15:12] which gives the court three options on how to deal with the accused.

We note with great concern that cases of murder committed by mentally ill persons are worryingly prevalent, especially in Masvingo.

In our view, there may be great need for the society in general and relatives, in particular, to closely monitor those members of our society who are mentally disordered. This is to ensure that they do not take alcohol or other intoxicating drugs. If they are on treatment, it is important to ensure that they religiously adhere to treatment to avoid relapsing.

In this particular case, the accused was consuming alcohol despite his known mental state. As a result, a life was lost over a silly and petty dispute sparked by the now deceased who was the initial aggressor. From the facts before us, the accused was also known to be of violent disposition. In fact, it is said he once burnt a neighbour's house for no apparent reason. It is therefore our considered view that we have a duty to protect the society from the accused and also protect the accused himself. In the circumstances, it would be foolhardy to release the accused back into society. There are a number of reasons why this would be improper.

The accused was last examined by a psychiatrist, as per Exhibit 3, on 1 August 2016, some 6 months ago. The purpose of that examination was to determine if the accused was not fit to stand trial. No examination was carried out to determine whether the accused was now fit to be released back to society. A lot may also have happened from August 2016 to date in relation to the accused's mental state. We do not have sufficient evidence or information as to whether it would be safe and in the interest of justice to release the accused back into society. The proper course of action to take is to send the accused back to Masvingo Prison so that he would be transferred to Chikurubi Prison Psychiatric Unit for examination and/or treatment. Thereafter, the accused can only be released back into society after a proper evaluation by the experts who would be satisfied that the accused is no longer a danger to himself or to society. As a court, and on the evidence before us, one cannot guarantee that the accused would not relapse and that these tragic events would not recur.

Section 221(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides as follows:

Section 221 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] does not recognize voluntary intoxication as a defence to crimes like murder which require proof of intention. This is so where, despite intoxication, the accused retains the requisite intention to commit the crime charged. Such voluntary intoxication, if established, can only be considered as mitigatory after conviction.

Section 222 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] does not render voluntary intoxication a full defence even in circumstances where such intoxication rendered an accused incapable of forming the requisite intention for the offence charged…,.

The accused's detailed and accurate narration of events did not give room to any suggestion that he was drunk to the extent of not being able to be in full control of his faculties. His evidence showed he clearly knew what he was doing and his every move was intelligently calculated.

Second accused's plea of diminished responsibility

The second accused person pleads an unsound mind and diminished responsibility. The psychiatrist report also states that there is a reasonable possibility that at the time of the alleged crime the accused was suffering from a disorder (substance use disorder). At the time of crime he was in a state of diminished responsibility due to alcohol and cannabis intoxication.

The facts of this matter, as a result of the possession of the deceased's motor vehicle after killing him show, that the second accused person killed the deceased during the course of stealing from him. They went with the deceased wherever they were going and lured him to the place with the disused mine pit that they could throw his body into after killing him. This entails pre-meditation. There was planning prior to the subsequent assault on the deceased and theft of his motor vehicle.

It is our considered view that a person of an unsound mental state cannot, however, be alive to issues enough to recognize a robbery victim as well as a robbery opportunity. Not only did they rob the deceased after killing him but they planned on the disposal of his body with hope that it would never be found. They also took away his motor vehicle and told Evans Mangisi that it was for their brother in the Republic of South Africa and that they were selling it. Months after the death of the deceased, the two accused persons were still pursuing their motive of selling the motor vehicle to realize money. It can thus not be said that an offence that involves planning, spanning across several months, can be said to have occurred when a person's responsibility had been diminished. Such a finding can only be made in those at “the spur of the moment offences.” It cannot be held, in our view, that a person who plans a robbery, lures his victim so that he creates the opportunity to rob, kills his victim and dumps his body in a dis-used mine pit to conceal the evidence, travels with the loot from the deceased all the way from Filabusi to Gokwe, and even finds a potential buyer, can be held to be of unsound mind. In fact, the facts point otherwise. This is, in fact, a person with a very active mind.

In the case of S v Chikanda SC99-05, on the issue of medical evidence pointing to a diminished responsibility, the Supreme Court had the following to say:

“The applicant claimed that he was not in his full senses at the time of the murder. He said he was drunk, he was angry, he was provoked by his wife, she was accusing him of having been with some prostitutes. The doctor in that case recorded that in his opinion, at the time of the alleged offence, the accused suffered from a diminished responsibility. The doctor's opinion in, that case (like in this case) was not based on any physical examination of the applicant immediately before or immediately after the incident. It was based on the history of the applicant's behavior and interviews with his relatives. It was not (like in this case) supposed by factual evidence of what happened at the time of the murder. There was no evidence (like in this case) which pointed towards any strange adult of the applicant immediately before or after the murders he had committed.”

The judge went on to the case of Walton v The Queen 1978 (1) ALL ER 542, where the House of Lords made it clear that where medical reports of diminished responsibility are not supported by some other facts from the evidence the jury is entitled to reject the claim of diminished responsibility if there are factors which justify that rejection.

It is for the reasons we have alluded to above that we reject Accused Two's defence of diminished responsibility and we also reject the psychiatrists report as it is not founded on fact.

Although the accused did not specifically plead intoxication as a defence, the fact that it is revealed by the evidence means that this court is required, by law, to consider it as a possible defence.

Voluntary intoxication is self-induced in that it occurs where a person becomes drunk as a result of voluntarily consuming alcohol or drugs. The Criminal Law (Codification and Reform) Act [Chapter 9:23] (Code), in section 221(1), provides as follows:

“221 Intoxication - No Defence to Crimes Committed with Requisite State of Mind

(1) If a person charged with a crime requiring proof of intention, knowledge or the realization of a real risk or possibility –

(a) Was voluntarily or involuntarily intoxicated when he or she did or omitted do anything which is an essential element of the crime, but

(b) The effect of the intoxication was not such that he or she lacked the requisite intention, knowledge or realization: such intoxication shall not be a defence to the crime, but the court may regard it as mitigatory when assessing the sentence to be imposed.”

Applying this to the proved facts, it is our conclusion that intoxication in casu did not negative the mens rea. It is common cause that the accused was moderately drunk. Even her conduct before, during and after the stabbing, does not show that the effect of the intoxication was to prevent her from formulating the requisite intention.

For this reason, intoxication, as a defence, is not available.

The position of our law is that voluntary intoxication, at most, can be a partial defence. In specific intent crimes, like murder, which the accused is presently facing, where it has been established that the accused person voluntarily consumed alcohol to the extent of losing self-control or inhibitions, that defence will reduce the crime to a lesser crime, for instance culpable homicide.

Professor G. FELTOE, A Guide to the Criminal Law of Zimbabwe, 3^rd edition, Legal Resources Foundation…, makes the important observation that the court must therefore explore, carefully, the actual effect upon the accused of his consumption of liquor or drugs. The learned author goes on to say:

“Liquor and drugs affect different people in different ways. It may be that, although he consumed a considerate amount of liquor, the liquor did not remove his ability to discern what he was doing and he was still able to form the intention to commit the crime. Some people become easily intoxicated and become drunk after consuming a small amount of liquor and others are able to consume a considerate amount of liquor and still remain in control over their mental faculties.”

The accused's uncontroverted evidence, which incidentally got support from Thomas Dube and Ritha Nxumalo, was that both the accused and the deceased appeared to have been drunk when they picked up a misunderstanding.

We must therefore assume that their power of judgment must have been compromised.

The accused person is facing two counts of murder, the first one arising out of the death of his estranged wife, Janet Nyathi, on 1 June 2005 at Village 10 Nkankezi Area, Filabusi, while the second one relates to the death of an inmate at Khami Remand Prison on 5 January 2012.

The second killing occurred at a prison cell which the accused was sharing with the deceased, Themba Nkiwane, and another inmate, Ethical Dube, while he awaited trial for the killing of his wife.

At the time that Janet Nyathi met her untimely death she was aged 18 years old while the accused was 20 years old. Despite their young ages, the two had managed to find time not only to get married and sire a child, they had also managed to quarrel over the death of their child and to separate.

It is alleged that on 1 June 2005, the two had an argument over the same issue as a result of which the accused had accosted the deceased at a watering hole in the presence of witnesses. As the deceased took to her heels, the accused is said to have given chase and stabbed her four times on the body with a spear and a knife killing her on the spot.

In the second count, it is alleged that the accused and the deceased were sleeping in the same cell but in different blankets on the night of 5 January 2012. During the course of the night the deceased quarreled with a third inmate, Ethical Dube. The accused woke up and assaulted the deceased with fisticuffs while Ethical Dube throttled him as a result of which the deceased died.

The State has produced a medical affidavit by Dr Nemache Mawere who examined the accused person on 26 May 2016. In the doctor's opinion:

“…, at the time of the alleged crime, the accused was suffering from seizural disorder (which causes unprovoked violence and is episodic). He did not appreciate the wrongfulness of his actions on both occasions.”

The State has urged of us the return of a special verdict in consideration of the medical evidence. Significantly, in his Defence Outline, submitted earlier, and orally, by his legal practitioner in court the accused person stated that he is indeed a psychiatric patient and that at the time that he committed the first killing he had lost control of his mental faculties. That seems consistent with the medical evidence of the doctor which has been placed before us.

In terms of section 29(2) of the Mental Health Act [Chapter 15:12], if the court is satisfied from the evidence, including the medical evidence, given at the trial that the accused person did the act constituting the offence charged 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, it shall return a special verdict.

In light of the evidence that has been produced, which is unchallenged, we are indeed satisfied that the accused person was mentally handicapped when he committed the two offences for which he is charged.

Accordingly, in respect of both counts, it is ordered that:

1. The accused person is found not guilty by reason of insanity.

2. The accused person shall be returned to prison for transfer to a special institution for treatment.

While in terms of section 221(2) of the of the Criminal Law (Codification and Reform) Act [Chapter 9:23] voluntarily intoxication is not a mitigatory factor in assessing sentence on an offence involving negligence (I am still to be educated why this is the case) we nevertheless cannot close our minds to the fact that the accused persons and the now deceased were drinking beer from 0700 hours until 1400 hours when this tragic incident happened.

From the evidence presented before us, while the accused had consumed alcohol he sought to exaggerate his degree of intoxication. Judging by his own detailed and coherent evidence the accused fully appreciated what he was doing that night….,.

In our view, voluntary intoxication has not meaningfully lowered the accused's moral blameworthiness in this case.

I note that both husband and wife may have been under the influence of intoxicating liquor but this does not lower the moral blameworthiness of the accused.

We shall take note of the fact that the accused had consumed alcohol. However, there is nothing in the evidence before us that the accused's judgment was meaningfully impaired by the alcohol he had consumed.

It cannot be argued with any conviction that the accused was suffering from some mental disorder which induced in him non-pathological criminal incapacity as a result of emotional stress….,.

We are convinced that the detail reflected in his warned and cautioned statement correctly reflects a perverted mind rather than an emotionally psychologically stressed mind.

Again, defence counsel lamely argues that the accused is not guilty because he was drunk.

But, no evidence was led on what amount of alcohol the accused had consumed. At any rate, in terms of Chapter XIV Part IV of the Criminal Law (Codification and Reform) Act [Chapter 9:23], voluntary intoxication that leads to unlawful conduct is not a defence to crimes committed with the requisite state of mind.

The accused who is facing a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] offered a limited plea to the lesser charge of culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State declined to accept the limited plea.

The charge is that on 15 May 2017, at Down Town Bar, Mashingaidze Business Centre, Zaka, Masvingo the accused unlawfully and with the intent to kill stabbed Peter Chinyaka once on the right leg and once on the collar bone causing his death.

Both the accused and the now deceased were well known to each other. It is common cause that on 15 May 2017 the accused and the 30-year-old now deceased were among beer patrons enjoying themselves drinking beer, dancing to music and watching TV in Downtown Bar at Mashingaidze Business Centre in Zaka, Masvingo. The State case is that when the accused entered the bar he pulled out an okapi knife and went on to challenge other beer patrons in the bar waiving the knife. It is alleged the now deceased felt offended and took up the challenge. The now deceased is said to have proceeded to kick the accused who fell down.

It is the State case that as the accused lay down he stabbed the now deceased on the right leg above the ankle after which he stood up and fled from the bar still armed with the knife. The now deceased is said to have chased after the accused out of the bar. The State alleges the accused then stabbed the now deceased with the okapi knife on the collar bone outside the bar after which he fled from the scene. The now deceased is said to have returned to the bar bleeding where he collapsed and died.

In his Defence Outline, the accused said he started to drink beer at the business centre at 1600hrs on that fateful day. The accused said he partook a cocktail of opaque beer called “scuds” which he mixed with a lethal brew called “chimusoja” with a very high alcohol content and also black label. The accused said when he was in Downtown Bar the now deceased pestered him asking for beer but the accused replied that he no longer had any money to buy the beer for the now deceased. The accused said around 2100hrs the now deceased assaulted him causing him to fall down. The accused said he stabbed the now deceased on the leg and fled from the bar. The accused said he later realized that he too had been injured on his leg but he has no recollection of how he got injured or at what stage. The accused said he was shocked to be arrested in relation to the now deceased's death.

The accused puts into issue all the evidence incriminating him.

It was indeed an arduous task to try and appreciate the accused's defence throughout this trial.

Was the accused denying stabbing the now deceased at all? If so, why then was he offering a limited plea of the charge of culpable homicide?

Is the accused alleging he only stabbed the now deceased on the leg and not on the collar bone?

Again, the accused seems to say that he was so intoxicated to such an extent that he has no recollection of how the now deceased was fatally injured. This would probably entail that allegation that the intention to kill was vitiated due to the high degree of intoxication.

These are the issues we grappled with in this case.

The evidence of the accused can be summarized as follows;

The accused said from about 1600hrs he spent $14= drinking the opaque beer, the lethal brew called “chimusoja”, and black label when this incident happened. He said when he went into Downtown Bar he found the now deceased drinking beer with one Francis Magweregwede. The accused said when the now deceased asked him to buy beer for the now deceased he told him that he no longer had money but the now deceased would not accept that. The accused said as a result the now deceased attacked him. He explained how the attack took place.

The accused said the now deceased followed him and slapped him in the face. The accused said he was carrying a knife which he had intended to use to skin a beast for the Beef Committee that day but the said beast was however not slaughtered. The accused said he pulled out the knife from his pocket. He said the now deceased kicked him on the head causing him to fall. The accused said he was kicked as he lay down trying to get up. He said when he managed to get up he fled from the bar. From that stage he said he has no recollection of what transpired. Besides this altercation the accused said he had no previous issues with the now deceased.

Under cross examination, the accused's evidence became muddled up further.

The accused denied waiving the said knife at all in the bar. He however admitted stabbing the now deceased on the leg. The accused insisted he had no recollection of what transpired as he was excessively drunk. He even disowned his confirmed warned and cautioned statement in which he admitted to have stabbed the now deceased twice, once on the leg and once on the shoulder. He now seemed to allege that these words were put in his mouth by the police.

In support of its case, the State led evidence from Passmore Mhaka, Peter Mubaiwa, Raymond Mamvura and Dr Zimbwa whose evidence was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The State led viva voce evidence from Jonisias Chiringa, the proprietor of Downtown Bar, Francis Magweregwede, the now deceased's drinking mate, and the Investigating Officer, Sgt. Mbonisi Kaweni.

A total of three (3) exhibits were produced by consent, being Exhibit 1, the post mortem report; Exhibit 2 the accused's confirmed warned and cautioned statement; Exhibit 3(a) the okapi knife; and Exhibit 3(b) being the certificate of weight relating to the okapi knife.

As per exhibit 3(b), the okapi knife weighs 0.055kg, its length is 24cm and the blade is 11cm. Indeed, an okapi knife is a lethal weapon if used to attack another person - especially in relation to the vulnerable part of the human anatomy.

The cause of the now deceased's death is not in dispute. As per exhibit, 1 the post-mortem report, the doctor noted the following injuries;

“1. Deep stab wound in right supravicular fossa, reaches apex of right lung; lung is puncture (air expels on chest compression); ±4cm wide, smooth straight edges.

2. Deep laceration right tibia area ±7cm (to bone level).”

The cause of death is stated as haemorrhagic shock arising from stab wounds.

The narrow question we have to answer, therefore, is whether the accused inflicted the fatal injuries.

We first deal with the evidence admitted in terms of the Criminal Procedure and Evidence Act [Chapter 9:07].

Dr Zimbwa

Dr Zimbwa carried out the post mortem of the now deceased and authored exhibit 1.

Raymond Mamvura

He is a police officer based at Zaka police station and was the one who attended the scene. He found the now deceased already dead lying on the floor with stab wounds on the right ankle and right collar bone. He is the detail who arrested the accused and observed that the accused had a wound on his right leg. He then recovered the okapi knife, exhibit 3(a), after which he witnessed the recording of the accused's confirmed warned and cautioned statement.

Peter Mubaiwa

Peter Mubaiwa is a local teacher at Mashingaidze Primary School near the business centre where this incident happened and was known to both the accused the now deceased. He was telephoned at night on 15 May 2017 and asked to rush to Downtown Bar in order to ferry the now deceased to hospital in his vehicle. As he was about to leave for the business centre the accused passed by, limping, and he offered to also take him to hospital but the accused refused. He drove to Downtown Bar and found the now deceased already dead.

Passmore Mhaka

He was one of the beer patrons inside Downtown Bar. He said at around 2130hrs he saw the accused holding an okapi knife, exhibit 3(a), shouting that he would kill anyone who dared to provoke the accused. Moments later, he saw both the accused and the now deceased in a scuffle and the accused fell down but still holding the knife. He said the now deceased tried to kick the accused's hand holding the knife but missed and he saw the accused getting up and running out of the bar with the now deceased chasing after him. He said within seconds the now deceased returned to the bar with his T/shirt soaked in blood. He saw that the now deceased had a deep cut on the right collar bone. He then observed the deceased sitting near the counter where he collapsed and died.

We now turn to viva voce evidence;

Jonisias Chiringa (Chiringa)

Jonisias Chiringa is the proprietor of Downtown Bar and both the accused and the now deceased were local beer patrons who frequented his bar.

He said on 15 May 2017 he arrived at the bar at 20:00 hours where he started to sell beer. He saw both the accused and the now deceased in his bar.

Jonisias Chiringa said the now deceased approached him requesting for a song by Allen Chimbetu called “Dear Rosy”. The now deceased was in a very jovial mood saying he wanted to dance and enjoy that song. He said as the now deceased was dancing to the song Chiringa went to the toilet out of the bar. Upon his return the song had finished playing. The now deceased was standing by the counter looking sad. Chiringa said he asked the now deceased if he could repeat that song or play other songs. The now deceased then said he was worried as the accused was waving a knife threatening the now deceased saying he did not care about the now deceased's big stature because the accused was capable of killing the now deceased like a chicken.

Jonisias Chiringa said the now deceased reacted by kicking the accused who fell down still holding the knife. He said the now deceased tried to step on the accused's hand holding the knife but the accused moved the hand. As a result, he said the now deceased proceeded to kick the accused. The accused then stood up fleeing. At that point Chiringa said the now deceased held his thigh as he had been stabbed but still ran after the accused who went out of the bar. He said seconds later the now deceased returned to the bar injured on the collar bone with blood flowing down up to the now deceased's shoes.

He said that the now deceased said the accused had stabbed him and that he was dying.

Jonisias Chiringa said the now deceased's last words were that the accused's family would be haunted by an avenging spirit.

Chiringa said the now deceased failed to stand and sat down breathing heavily. Realizing the gravity of the situation, Jonisias Chiringa ran out of the bar to find transport to ferry the now deceased to hospital. A local teacher, one Mubaiwa, answered his call saying he had seen the accused limping. Chiringa said upon his return to the bar he found the now deceased dead.

Jonisias Chiringa said the now deceased was not drunk. Instead, he said the accused was moderately drunk as he was not staggering and was able to fend off the now deceased's blows as the now deceased kicked him about three times. Further, he said the accused was able to flee running from the now deceased. Chiringa said the now deceased was heavily built and was regarded as a giant whereas the accused was of a small stature. Chiringa said he was very much familiar with both the now deceased and the accused's state of sobriety or degree of intoxication as his regular patrons.

Francis Magweregwede (Francis)

Francis was drinking beer with the now deceased when this incident happened. He said the accused was moderately drunk as he could properly dance to music, walk properly, and, later on, fled from the now deceased without staggering.

Francis Magweregwede said when the accused and the now deceased conversed, Francis was seated on a bench some 5m away watching television. He said suddenly the accused fled from the now deceased as the accused had a knife. Francis said he tried to intervene but other patrons told him that the accused had a knife. He said he saw the accused lying down but could not tell what caused him to fall. He said the accused then stabbed the now deceased on the leg after which the accused stood up and fled out of the bar. The now deceased chased after him.

Francis said he tried to follow the two but met the now deceased by the door of the bar. The now deceased had been severely injured with his T/shirt soaked in blood. He said the now deceased had an upper chest injury.

According to Francis Magweregwede the now deceased said he was dying and that his avenging spirit would forever haunt the accused's family. Thereafter, the now deceased collapsed and died and he saw a deep wound on the right leg and on the chest.

Francis said the report the now deceased made was that he had been stabbed by the accused at the veranda of Downtown Bar, he was dying, and that his avenging spirit would haunt the accused's family.

Sergeant Mbonisi Kaweni (Sgt Kaweni)

In our view, nothing turns on the evidence of Sergeant Kaweni, the investigating officer, as his testimony is more of formal evidence. He is the one who recorded the accused's confirmed warned and cautioned statement and caused the accused and witnesses to make indications. He confirmed the accused had an injury on his thigh, possibly caused by a knife, and that the accused could have injured himself as he allegedly waived the knife in the bar moreso as the now deceased did not have a knife and never dispossessed the accused of the knife. He said the accused himself could not say how he was injured.

The evidence of the State witnesses was largely uncontested at all.

In order to answer the question as to how the now deceased was fatally injured, or, precisely as to who fatally injured the now deceased; one can simply say reps ipsa loquitor (the facts speak for themselves).

The accused's own confirmed warned and cautioned statement answers this question. This is what the accused said;

“…,. I stabbed Peter Chinyaka with an okapi knife once on his leg and once on his shoulder after he slapped me with open hands on my face, kicking me several times on the stomach, and throttling me as he was taking me outside the bar. He was assaulting me because I had denied him beer (sic) I was drinking. When I stabbed him, I then fled, and, after I had run for an estimated distance of 300m, I discovered that I was bleeding on my left thigh. I do not know what injured me.”

It is clearly foolhardy for the accused to now try to allege that he did not stab the now deceased fatally on the collar bone. Despite the obvious half-truth and lies in his statement that he was throttled, the accused is clear in that statement that he is the one who stabbed the now deceased in the chest. This version finds favour with the evidence of the State witnesses to the effect that as soon as the now deceased ran after the accused out of the bar, the now deceased returned within seconds, injured, after which he immediately collapsed and died.

The only inference one can make is that he had been fatally stabbed by the accused who had bolted out of the bar wielding the okapi knife.

Lastly, in terms of section 221(i) of the Criminal Law Codification and Reform Act [Chapter 9:23] the accused dismally failed to show that his degree of intoxication vitiated the requisite mens rea to commit the offence of murder.

From the evidence before us it is untruthful that the accused did not appreciate what he was doing or the events of that day, never mind the falsehoods in his confirmed warned and cautioned statement. To illustrate this point, the accused had a clear recollection of the following as per his own evidence;

(i) The time he arrived at the business centre at 1600hrs.

(ii) The type of beer he consumed; “scuds”, “chimusoja”, and black label.

(iii) The exact amount of money he spent on the beer - $14 and the change he remained with which is $1.

(iv) The exact manner he was attacked by the now deceased; that he was slapped in the face, kicked in the head; and how he fell down and kicked in the stomach.

(v) That he stabbed the now deceased on the leg; how he got up and ran out of the bar.

(vi) That he met a local teacher, Peter Mubaiwa, who offered to take him to hospital and that he refused.

(vii) That he realized he was bleeding from his leg after running for about 300m.

The only time the accused pleads amnesia relates to how the now deceased was stabbed on the collar bone!

No reasonable court can believe such evidence.

Both Jonisias Chiringa and Francis Magweregwede explained why they believed the accused was moderately drunk. Indeed, this explains how he managed to outpace the now deceased who was virtually sober.

For those reasons we dismiss the accused's evidence that he was hopelessly drunk to such an extent that mens rea would be vitiated.

Our finding is that it is the accused who stabbed the now deceased with the okapi knife on the collar bone. The degree of force used was severe in that the knife damaged the lung. The intention was to cause death nothing else. The now deceased died immediately.

In the result, the accused is found guilty of contravening section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to murder with actual intent.

VERDICT

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

The accused is facing a charge of murder; it being alleged that on 4 April 2014 at House Number 32443 Entumbane, Bulawayo, the accused did wrongfully, unlawfully, and intentionally kill and murder his elder brother Eddington Muchairi.

According to the State summary, Annexure “A” the deceased was 40 years old at the time he met his demise, while the accused was aged 35 years. The two brothers stayed at the same house, 32443 Entumbane. At around 19:30 hours, on the fateful day, the deceased and the accused had an altercation on family issues which resulted in the accused striking the deceased with a hoe on the head and he collapsed. The deceased was rushed to Mpilo Hospital where he succumbed to his injuries on 6 April 2014.

In his Defence Outline, annexure “B” the accused, in denying the charge, denied the intention to kill and raised self defence.

He averred that he was defending himself from the deceased who was approaching him with the intention of attacking him with a stone and from the deceased's wife who had picked up the hoe first and later had thrown it into the garden where he then picked it up.

He added provocation by the deceased and intoxication whose combined effect he alleged made him not realize the real risk/possibility his conduct would cause.

The other addendum was that the deceased, who was intoxicated, had earlier on fallen to the ground a couple of times on a hard surface with rocks.

He said he struck the deceased with a hoe once on the back, slightly below the neck, and once on either shoulder. He denied the allegation that he uttered the phrase “minus one” soon after assaulting the deceased.

The following exhibits were tendered by the State by consent:

(i) Exhibit 1 - affidavit deposed to by Constable Mwembe who identified the deceased's body to Dr I. Jekenya on 7 April 2014.

(ii) Exhibit 2 - the post mortem report number 86/67/2014 by the pathologist Dr I. Jekenya.

(iii) Exhibit 3 - the metal hoe used by the accused to strike the deceased with the following specifications:

(i) Weight = 2,5kg.

(ii) Length of handle = 84,5cm.

(iii) Length of blade = 14cm.

(iv) Sharp edge = 16cm.

Two witnesses, Tragedy Muchairi, the accused and the deceased's sister, and Sikhumbuzo Ncube, the accused's neighbour, gave viva voce evidence for the State.

The evidence of Lovemore Mutsakani, the police officer who recovered the hoe, and that of the pathologist, Dr I. Jekenya, was introduced by consent in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The accused gave evidence and closed his case.

What is common cause in casu is that on the day in question the accused did strike the deceased three (3) times with the hoe, exhibit 3, bearing the specifications alluded to supra. He denied landing the blows on the deceased's head saying he struck him once on the back and once on either shoulder.

He sought to throw spanners into the fireworks by saying, before the assault, the deceased had slipped and fallen twice on a rocky surface. He did not say the deceased sustained injuries as a result of the fall.

We are not persuaded any bit that the deceased sustained the head injuries observed by the pathologist which occasioned his demise from the alleged fall. We are satisfied that it was the accused who caused those head injuries.

This is corroborated by the evidence of Tragedy Muchairi, whose testimony we accept, that although she did not actually see the accused deliver the blows on the deceased's head; when the accused approached her and the deceased on the road, she jumped across a drain and then heard “boom” the sound of the hoe striking the deceased three (3) times. When she later checked the deceased, he was lying down in a pool of blood.

Sikhumbuzo Ncube also heard the same sound, and after the accused had run away, he found the deceased lying in a pool of blood bleeding from his head.

Also, the pathologist found no injuries on the parts of the deceased's body the accused said he aimed the blows at.

The accused raised three (3) possible defences viz -

(i) Self-defence;

(ii) Provocation; and

(iii) Intoxication.

The latter two (2) can be quickly dismissed as mere sophistry, which, at best, amounts to either extenuation or mitigation or both.

Granted, both the accused and the deceased were intoxicated, but, the accused, clearly, from the evidence, knew what he was doing. He could run and he recalled with clarity all that transpired.

The accused appeared before the court charged with the crime of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is the State's contention that on 12 April 1997, and at Chabvukwa Village, the accused unlawfully and with intent to kill or realising there was a real risk or possibility that death might result, struck Kustera Muyambo with a stick and log all over the body thereby inflicting injuries from which the said Kutsera Muyambo died.

In his response to the charge the accused stated that it happened but that when it happened he was unwell, which culminated in the court entering a plea of not guilty.

There being no disputed facts, the trial proceeded with the State and defence counsels submitting, by consent, a Statement of Agreed Facts as exhibit 1. Further submitted by consent was an affidavit of evidence by Dr Walter Mangezi. The affidavit confirmed that the accused was mentally disordered and required further management in a long term special psychiatric institution. The post mortem report by Dr B Dhliwayo, which concluded that the deceased Kustera Muyambo died as a result of head injury following deep cuts to the head, was also tendered as exhibit 3 by consent. Finally, in evidence by consent, a sketch plan by the attending details was submitted as exhibit 4.

The circumstances surrounding the matter were aptly captured in the Statement of Agreed Facts…,;

“STATEMENT OF AGREED FACTS

1. The Accused is a male adult who ordinarily resides in Chabvukwa Village, Chief Musikavanhu in Chipinge.

2. On the 13^th day of April 1997, and at Chabvukwa Village, Musikavanhu in Chipinge the Accused approached Kutsera Muyambo (the Deceased), who was working in his fields with his family, with the intention of asking the Deceased why he was bewitching the Accused person.

3. The Accused was not satisfied with the response given to him by the Deceased, and, in anger, he began to assault the Deceased with a small stick on his back.

4. The Deceased took the stick from the Accused, after which the Accused picked up a log and continued to assault the Deceased all over his body.

5. The Accused left the Deceased lying in the field, badly injured but still breathing, to go home.

6. Upon arriving at his house the Accused decided to return to the scene, and, upon arrival, he again continued to assault the Deceased with a log all over his body.

7. The Deceased attempted to roll away to escape the assault and rolled down an escarpment where he died after landing on rocks at the bottom.

8. The Accused was admitted to Chikuribi Psychiatric Unit following the commission of the offence that he is being charged with, from 1997 to 2001, after which he was discharged. The Accused was again examined in 2016 by Dr Mangezi, a duly registered Medical Practitioner employed as a Psychiatrist. He observed that the Accused became of sound mind after taking medications for Epilepsy and Mental Disorder. Dr Mangezi concluded, in terms of an affidavit that he deposed to on 1 December 2016, that the Accused was mentally disordered at the time of the commission of the offence, but that he was now fit to stand trial.

9. The Accused cannot properly be found guilty of murder as he lacked the requisite mental capacity at the time of the commission of the offence and should be appropriately dealt with in terms of the Mental Health Act [Chapter 15:12].

10. Dr Walter Mangezi recommended that the Accused be managed in a long term special psychiatric institution to assist in his rehabilitation and anger management.”

Given the evidence presented we found no reason to disagree with both the State and defence counsels' position. We were moved to act in terms of the Mental Health Act [Chapter 15:12].

Given the accused's stated mental condition we agreed to return a special verdict of not guilty because of insanity.

As regards the accused's fate after the special verdict; again, as correctly observed by both the State and defence counsels who addressed us, we found no basis and justification for discharging the accused person. This is moreso when one considers the specialist doctor's opinion that the accused still requires assistance to manage this mental condition. The accused requires management and rehabilitation at a psychiatric institution. It is our considered view that it is in the interests of the accused, and society at large, for the court not to prematurely release the accused.

In the circumstances of this matter, the institutionalization of the accused for further treatment and management is viewed as a protective measure that ensures the accused, and community at large's safety while the interests of administration of justice is also safeguarded. See S v Sonaiso Donald Khumalo HB61-06; S v Zvoushe HB28-13; and also S v Pretty Mutunga HH23-13. The institutionalization is an administrative measure which will enable his further management and release at the appropriate time by the Health Review Tribunal or other competent body as provided for by the Mental Health Act.

Accordingly, having returned a special verdict that the accused is not guilty because of insanity, and having found that the accused still requires institutionalization for further treatment and management, it is ordered that:

1. The accused is not guilty because of insanity.

2. The accused be returned to prison for transfer to Chikurubi Psychiatric Unit or such other appropriate institution for his continued treatment and management until discharged therefrom by a competent body.

This case involves an allegation of murder of one brother by the other blood brother. It is the State's contention that on 15 August 2017, and at Village 51 Nyamusosa, Mayo, the accused unlawfully caused the death of Gabriel Masomera by striking him with a log once on the head with the intention to kill him or realizing that there was a real risk or possibility that his conduct might cause death and continued to engage in that conduct despite the risk or possibility, resulting in injuries from which Gabriel Masomera died.

The accused pleaded not guilty to the charge of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]....,.

In his Defence Outline, the accused pointed out that the brothers, who had been assisting their parents at the brick kiln, had a misunderstanding over allegations by the deceased that the accused had extra marital affairs. This issue was brought to the attention of the accused in the presence of his 10 year old son, one Wisdom Masomera. This did not go down well with the accused hence the two engaged in a war of words. The mother, on realising the two were argumentative, ordered them to proceed to their respective homes. Whilst on the way, according to the accused's version, the deceased started physically assaulting the accused thus prompting the accused to pick a log and strike the deceased once and then the accused fled as he was in fear that the deceased would get up and follow him to fight again.

The summary of the State case captured the basis of the allegations on the day in question as follows:

The accused and the deceased were at their parents' home assisting their parents to bum bricks at a kiln. The deceased remonstrated with the accused on the latter's behaviour of having extra-marital affairs and this led to a misunderstanding. The accused left for his home but decided to waylay the deceased who followed and the accused struck him with a log.

The issue that falls for determination is whether or not the accused had the requisite mens rea when he caused the death of the deceased.

The State adduced evidence by tendering documentary evidence and leading evidence from witnesses. The confirmed warned and cautioned statement of the accused. The post mortem report by Dr Roberto Trecu, Affidavit of evidence by Dr Matsvai and sketch plan drawn through indications of witnesses and the accused were produced as exhibits 1-4 respectively by counsel.

Evidence of all the other witnesses, 2 and 4-11, was formally admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Rosemary Chitagu, the mother of the accused and the deceased, and Winston Muchineripi Masomera gave oral evidence.

Rosemary Chitagu's evidence was on common cause aspects that on the day in question their children, including the deceased and the accused, were assisting them at the brick kiln. In the evening, the family gathered by the fire outside while the father and mother were inside the kitchen hut. According to the witness, the children, that is the boys, were drinking beer courtesy of the witness and her husband, the second witness. According to the witness, the beer purchased for the “boys” was two (2) crates of opaque beer commonly known as “scud”. The witness told the court that not all the beer was consumed and none of their children was drunk. The witness told the court that the deceased remonstrated with the accused over his wayward behaviour of having extramarital affairs. This did not go well with the accused who left for his home. The deceased remained behind and indicated he would stroke the fire to ensure that the fire at the kiln was attended to. Thereafter, the deceased bade his mother farewell.

Within a short space of time she heard noise and words to the effect “arise, arise, muka, muka” and advised her husband that their children were fighting but the latter was dismissive. The witnesses went out to investigate and she found the accused standing while the deceased was lying on the ground injured. The witness told the court that the accused was shouting in a weird manner that she thought maybe he was possessed given she was used to him being a respectable young man, but, on that day, when she sought clarity from him he disrespected referring to her in the singular; “hey you don't talk to me.” The accused went away with the log while the witness was trying to resuscitate the deceased using water after she had notified her other son Benjamin. The deceased regained consciousness and was taken to the clinic then hospital where he eventually died.

The witness' evidence was straight forward and she maintained, understandably, as a mother, that she was shocked in the manner the accused had struck his brother given ordinarily the two were close and the accused respected his elder brother. She maintained that there was no illicit brew of nipper or kachasu/tototo partaken by the children at the residence. She also suggested she did not know how to brew this beer.

Her evidence in this respect, and on all material aspects, was confirmed and corroborated by the husband Winston Muchineripi Masomera.

The latter confirmed that their children were, on the day in question, drinking opaque beer commonly known as “scud”. This was after assisting the parents at the brick kiln. His evidence as regards the sequence of events was the same as that of his wife. The accused left after having been remonstrated with over having extra marital affairs and an argument about tobacco seed. A while later the witness was called to the scene where the deceased was lying unconscious. Despite taking the deceased to the clinic and hospital the latter died.

The witness was firm that there was no illicit brew being partaken at his house on the night in question but opaque beer. He, just like his wife, pointed out that his wife could not brew the illicit beer as she was a member of the apostolic sect. He was equally surprised at how the accused turned violent on the night in question as he ordinarily respected his elder brother.

The accused was the only witness in the defence case.

He maintained that he was acting in self-defence and that he was intoxicated.

Upon considering the totality of the evidence, the court is left to decide on whether or not the defences of self defence and intoxication can be sustained in this case; or, put in other words, whether or not the defences, as suggested by the accused, negate the intention to kill the deceased.

The accused, in his account, pointed out that the deceased punched him with clenched fists and also struck with open hands. This, he said, happened while at the homestead when they had a misunderstanding about his alleged issues of extramarital affairs. This alleged physical combat was not confirmed by the State witnesses who pointed out that their children/sons only shouted at each other about the issue but there was no exchange of blows.

Both the father and the mother intended to stop the argument over tobacco seed and/or extra marital affairs.

By the way, we have no reason to doubt the State witnesses' evidence....,.

The other defence raised, but not really pursued in the defence case, is, intoxication.

The accused's version was that he and his brothers had partaken illicit brew, kachasu. This was contrary to the evidence of both the mother and the father of the accused who gave evidence to the effect that opaque beer was consumed and that none of the children was drunk. Even, if it was to be accepted the accused was drunk, such voluntary intoxication leading to drunkenness is not a defence to murder but might be mitigatory. 

The accused, in testifying and recounting the sequence of events, revealed he was appreciative of what was going on. He was not amused to be remonstrated with over extra-marital affairs in the presence of his child which would be natural. 

This reaction by the accused shows he was in control of his faculties.

The accused was charged with murder in that on the 8^th day of September 2016, at Umsweswe Bottle Store, Pingo in Kadoma, he unlawfully and with intent to kill caused the death of Linda Runyararo Mushangi by stabbing her on the stomach with a knife causing injuries from which she died.

The summary of the State's case was that on the day in question, the accused, Arnold Jeri, who had been drinking beer at Umsweswe Bottle Store when the deceased, Linda Mushangi, visited her friend, Tatenda Gwata, had tried to endear himself to the deceased but had been spurned. This had apparently irked the accused who had slapped the deceased on the face with an open hand and had intensified his assaults with booted feet. The deceased had picked up an empty beer bottle and had hit him with it.

Attempts had been made to stop the accused from assaulting the deceased. She had used this window of opportunity to run away from the accused by seeking refuge from some patrons. The accused had followed her with a knife and had tried to stab her from both left and right sides before he succeeded in stabbing her in the stomach from the left. She had screamed and had run out of the room and had collapsed at the foot of the veranda. The accused was said to have run way from the scene. He had eventually surrendered himself at ZRP Nyamapanda on 14 November 2016.

The accused's defence was that the deceased had shouted at him using obscene language and that she had caught him unaware and struck him twice with a beer bottle on the head. He had used his knife in self-defence as he wanted to disarm the deceased whom he said was holding a broken beer bottle. It was during this time that he had accidentally stabbed the deceased's stomach....,.

It was therefore not in dispute that the accused had stabbed the deceased in the stomach....,.

The State's evidence

Tatenda Gwata: She worked as bar lady for the owner who had several bars and bottle stores. The deceased was her friend who would come to the bar to assist her with relief duties and preparing food. She knew her as a relative of one of the women who also worked at the bar. She also knew the accused as a patron at the bar. He was called Pipiro by his friends. She had been working at that particular bar for a week as the owner had several bars.

Her collection of the events of that day was that Kabanga Muyambo had been the first to arrive at the bar and she had sold him beer. The accused had then arrived later. The deceased had arrived between 16:30 and 17:00 hours. They had discussed what they would eat and had decided on buying plain sadza to consume with milk. It was when the deceased was coming from buying the sadza that the accused had thrown an empty bottle of water at her and the deceased had protested and indicated that she did not like that behaviour. The accused had not responded, but, when they started eating he had returned again and wanted to know why he had been excluded from joining them in their meal. He had not been answered.

It was at around 20:00 hours that the accused had again approached the deceased saying she should come to him as he had summoned her on several occasions. The deceased had responded that she had already told him that she was not interested in his advances. She had asked the deceased if she had any relationship with the accused to which she had said no. The accused had, at that point, slapped the deceased on the face and had kicked her resulting in her hitting the refrigerator. He had also gotten hold of the deceased and had head butted her several times. At that point this witness had screamed and had thrown a bottle top at Kabanga Muyambo, the accused's friend, who had been asleep. So vicious was the attack against the deceased that she had had to close her eyes and hold her face in her hands as she let out that the accused would injure the deceased from the way he was head-butting her. It was also at this point in the assault that the deceased had taken an empty beer bottle and had hit the accused with it.

Kabanga Muyambo had woken up and had tried to pull the accused away but he had been beaten and pushed against some empty crates stacked against the wall. The accused had pushed Kabanga Muyambo outside the bottle store and had himself come back to continue his pursuit of the deceased who had now taken refuge behind one of the three patrons who were in the bar. He had continued his assault even as one of the men stood between the accused and the deceased as a human shield.

It was also her evidence that two of the men had managed to subdue the accused and had taken him out of the bar but he had come right back in. It was when he returned again that he had drawn a knife from his satchel which he had been carrying on his back. He had, once again, gone to the deceased who was behind a patron and had tried to stab her several times until he had been successful in doing so on the left side. The deceased had screamed that she was dying and had run outside at that point before collapsing to the ground.

The accused had put back the knife in his satchel and had walked out of the bar.

Whilst at the height of the assault on the deceased, she had hidden behind a door; she had, nonetheless, been able to continue observing from a vantage point provided by wide gap between the hinges.

The police had been called and had attended the scene. She had only left the following morning when her statement and photographs from the scene had been taken.

Asked to comment on the accused's sobriety at the time of the assault she stated, in her examination in chief, that on that day she herself had not observed him drinking but had noticed that he was carrying a bottle of water which looked like it had water inside although she did not verify its actual contents. She however did not think he was drunk.

As to whether the deceased had provoked the accused in any manner she had not heard anything and certainly at no time had she heard the deceased hurl any insults at the accused.

In cross examination, she confirmed when asked that she had heard that the deceased was a sex worker but that she had not seen her solicit at the bar in question.

Counsel for the accused had also put it to her that she herself was a sex worker like her friend before the court objected to this line of questioning of the witness's moral turpitude as irrelevant to the case at hand.

She conceded that hitting someone with a bottle was dangerous.

She was asked why the other three men who were drinking in the bar had not intervened at the time of the slap on the basis that if she had done nothing to the accused they would not have left him to assault the deceased. She did not know their reasons for not intervening then.

She had also stood steadfast that the deceased was no longer armed with a bottle and was merely hiding behind the man in question for protection when she was stabbed by the accused.

As regards the accused's sobriety, it was put at her that the bottle of water that the accused was carrying may in fact have contained alcohol and that she could therefore not dispute that he was drunk.

From her evidence, therefore, what we deduced materially were the following crucial points:

(a) It was the accused who had assaulted the deceased first and had engaged in a vicious assault including pushing and head-butting the deceased.

(b) It was during this assault by the accused on the deceased that the latter had retaliated by hitting him with a bottle.

(c) Efforts had been made to restrain the accused from further assaulting the deceased before the fatal stab.

(d) At the time of the stabbing, the deceased had been standing behind a patron who had stood as a buffer between the accused and the deceased.

Kabanga Muyambo: His evidence was that he had arrived at the bar at 11am in the morning whilst the deceased had arrived at around 15:00 hours. He said he had bought the accused three opaque beers and that when the accused had finished these he had consumed a drink called double punch mixed with water. He himself had fallen asleep at around 18:00 hours whilst the accused whilst still drinking his double punch.

However, he had still been awake when the deceased and Tatenda Gwata, the first witness, had eaten their meal. He had observed the accused talking to the deceased but said he had not heard what the conversation had been about but the tone had been cordial. He said he had been awoken suddenly by glass shards falling on him when a bottle hit the accused. He had seen the accused head butting the deceased and had grabbed the accused who shook himself free and jumped over the counter and continued beating the deceased. He had followed him and dragged him from there and the accused had started beating him until he fell against some crates alongside the wall. He said he had managed to pull the accused outside but the latter had rushed back in again.

This corroborated Tatenda Gwata's evidence that there had been efforts to restrain the accused from assaulting the deceased save to say that she had said it was the accused who managed to push this witness outside whilst the witness said it was him who pushed the accused outside. This was not material since no two persons experiencing the same event have identical experiences particularly because they cannot be precisely at the same place at precisely the same time; BARRY R. MORRISON and WARREN COMEAU, Judging Credibility of Witnesses 25 Advoc. Q. 411 2001-2002…,.

The crucial point on which there was consensus was the clear effort to restrain the accused.

Further corroborated was Tatenda Gwata's evidence that the deceased had sought shelter behind one of the patrons and that the deceased had not been holding any beer bottle fragment at that time.

As this witness was about to return inside he had observed the accused putting something in his bag and walking away.

His view was that the deceased was not a violent person and that if any provocation had taken place it was likely to have been the accused who had provoked the deceased as he had witnessed the two talking nicely before.

He further corroborated the first witness's evidence that on that day the deceased was definitely not drinking at the very least up to the point he fell asleep. He told the court that he had known the accused for over a year and that he had at least three girlfriends at the same time....,.

The Accused's evidence

The accused then gave his evidence.

He could not remember what time he had arrived at the bottle store as he had no watch. He surmised it was in the afternoon around 14:00. He confirmed that he was drinking beer bought by Kabanga Muyambo and not by himself. He could also not recall what time the deceased had entered the bottle store save that she had arrived when he was already there. His evidence was that the deceased had come to the counter where he was and they had started talking and drinking together. It was whilst they were talking that the deceased had stated that she wanted to sleep with him for a small fee. He had told her he had no money but she had been persistent.

According to him, the deceased had then hurled insults at him calling him useless and a pauper and had then poked him on his forehead with her finger. She had used profanities and had even slapped the accused after uttering the profanities. He had become angry at the insults and had slapped her and grabbed her head and butted her. That is also when she had hit him with a bottle.

He said she had continued uttering profanities and had come after him with a broken bottle. That was when Kabanga Muyambo got hold of him but he had shaken him loose. The deceased was by now behind one of the patrons but was still trying to advance to him with a broken bottle. He had taken out the knife to scare her from using the bottle and had intended to strike her on the arm. He had stabbed her in the stomach instead when he thought he had stabbed her in the arm. He had the knife on him because he had intended to go hunting....,.

The issue of the accused, and everyone else in that bar, being drunk on that day was also raised by defence counsel throughout the trial.

Voluntary intoxication, in terms of section 221 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code) is merely mitigatory rather than exculpatory. See S v Masina HH245-10.