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.
