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HMT60-19 - THE STATE vs GEDION DHLIWAYO

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Indictment-viz intention re establishment of mens rea.
Charge-viz intent re establishment of mens rea.
Indictment-viz intent re persons lacking capacity to commit criminal offences iro mentally challenged persons.
Charge-viz intention re accused persons lacking capacity to commit a criminal offence iro mentally incapacitated persons.
Murder-viz intention re establishment of mens rea.
Procedural Law-viz defences re intent iro establishment of mens rea.
Procedural Law-viz defences re diminished mental responsibility iro insanity.
Procedural Law-viz defences re diminished mental capacity iro mental disorder.
Murder-viz section 47  of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Children Violations-viz murder.
Procedural Law-viz rules of evidence re circumstantial evidence iro inferential reasoning.
Procedural Law-viz rules of evidence re expert evidence iro postmortem report.
Murder-viz cause of death re  post-mortem report.
Procedural Law-viz rules of evidence re findings of fact iro agreements between counsel.
Procedural Law-viz rules of evidence re findings of fact iro concessions between counsel.
Procedural Law-viz rules of evidence re expert opinion iro psychiatric evaluation.
Procedural Law-viz rules of evidence re admissions iro unchallenged evidence.
Procedural Law-viz rules of evidence re admissions iro undisputed averments.
Procedural Law-viz rules of evidence re admissions iro uncontroverted submissions.
Procedural Law-viz circumstantial evidence re evidence aliunde iro confirmed warned and cautioned statement.
Procedural Law-viz circumstantial evidence re evidence aliunde iro indications.
Procedural Law-viz rules of evidence re digital evidence iro photographic evidence.
Procedural Law-viz findings of fact re agreements between counsel iro Statement of Agreed Facts.
Procedural Law-viz findings of fact re concessions between counsel iro the Statement of Agreed facts.
Procedural Law-viz defences re diminished capacity iro the Mental Health Act [Chapter 15:12].
Procedural Law-viz defences re insanity iro the Mental Health Act [Chapter 15:12].

Direct and Circumstantial Evidence, Causation, Inferential Reasoning, Confessions & the Principle of Evidence Aliunde


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

It is alleged, that, on 1 February 2018, and at Plot Number 63 Nafaton Farm, Chipinge, the accused unlawfully caused the death of Nyashadzashe Maphosa by using unknown means and disposed the body, which was later eaten by dogs, intending to kill her 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 the said Nyashadzashe Maphosa died.

The brief facts are that on the day in question, the accused picked the five (5) month old deceased and went away with her to a bush.

The accused used unknown means to kill the deceased and disposed of the body.

The body was eaten by dogs, leaving some body parts which were recovered in an advanced state of decomposition.

On 5 February 2018, the recovered remains were examined by Doctor Joel Tapi who compiled a post mortem report in which the cause of death was indeterminate because of decomposition and missing parts. The postmortem report was tendered as exhibit 2.

Both State and defence counsel proposed that we proceed with the matter in terms of the Mental Health Act [Chapter 15:12].

This decision was informed by the manner the offence was allegedly committed and the medical evidence by Doctor Fungisai Mazhandu, a psychiatrist.

The affidavit of evidence, by Doctor Fungisai Mazhandu, opinioned, that, the accused is now fit to stand trial, but, however, at the time of commission of the offence, the accused was mentally unwell.

The State further adduced evidence, by consent, the sketch plan, exhibit 3, showing the general layout of the scene; the confirmed warned and cautioned statement by the accused, exhibit 4; indications by the accused, exhibit 5; and three (3) photographs of the remains of the deceased, exhibit 6.

From the Statement of Agreed Facts compiled by both counsels, the accused, who was mentally disordered, took his five (5) month old child to the bush. The accused used unknown means to kill the deceased and then disposed of the body.

The charge the accused is facing consists of both the unlawful conduct and intentional killing of another.

In light of the medical evidence, the accused was thus not capable of formulating an intention to kill.

Accordingly, therefore, as prayed by counsels, this is a case in which the circumstances cry loud for returning of a special verdict of not guilty by reason of insanity.

The accused is stable, and, both counsels have submitted that he is not a danger to himself or the community. The relatives, inclusive of the mother and brother, have expressed willingness to have him released in their custody.

Accordingly, it is ordered that:

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

2. By consent, the accused is released in the custody of his biological mother, Mrs Senyani Masvosva Muhlauri and brother, Senyani Admire Dhliwayo.

Children Violations


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

It is alleged, that, on 1 February 2018, and at Plot Number 63 Nafaton Farm, Chipinge, the accused unlawfully caused the death of Nyashadzashe Maphosa by using unknown means and disposed the body, which was later eaten by dogs, intending to kill her 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 the said Nyashadzashe Maphosa died.

The brief facts are that on the day in question, the accused picked the five (5) month old deceased and went away with her to a bush.

The accused used unknown means to kill the deceased and disposed of the body.

The body was eaten by dogs, leaving some body parts which were recovered in an advanced state of decomposition.

On 5 February 2018, the recovered remains were examined by Doctor Joel Tapi who compiled a post mortem report in which the cause of death was indeterminate because of decomposition and missing parts. The postmortem report was tendered as exhibit 2.

Both State and defence counsel proposed that we proceed with the matter in terms of the Mental Health Act [Chapter 15:12].

This decision was informed by the manner the offence was allegedly committed and the medical evidence by Doctor Fungisai Mazhandu, a psychiatrist.

The affidavit of evidence, by Doctor Fungisai Mazhandu, opinioned, that, the accused is now fit to stand trial, but, however, at the time of commission of the offence, the accused was mentally unwell.

The State further adduced evidence, by consent, the sketch plan, exhibit 3, showing the general layout of the scene; the confirmed warned and cautioned statement by the accused, exhibit 4; indications by the accused, exhibit 5; and three (3) photographs of the remains of the deceased, exhibit 6.

From the Statement of Agreed Facts compiled by both counsels, the accused, who was mentally disordered, took his five (5) month old child to the bush. The accused used unknown means to kill the deceased and then disposed of the body.

The charge the accused is facing consists of both the unlawful conduct and intentional killing of another.

In light of the medical evidence, the accused was thus not capable of formulating an intention to kill.

Accordingly, therefore, as prayed by counsels, this is a case in which the circumstances cry loud for returning of a special verdict of not guilty by reason of insanity.

The accused is stable, and, both counsels have submitted that he is not a danger to himself or the community. The relatives, inclusive of the mother and brother, have expressed willingness to have him released in their custody.

Accordingly, it is ordered that:

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

2. By consent, the accused is released in the custody of his biological mother, Mrs Senyani Masvosva Muhlauri and brother, Senyani Admire Dhliwayo.

Findings of Fact re: Concessions or Agreements Between Counsel and the Abandonment of Concessions or Agreements


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

It is alleged, that, on 1 February 2018, and at Plot Number 63 Nafaton Farm, Chipinge, the accused unlawfully caused the death of Nyashadzashe Maphosa by using unknown means and disposed the body, which was later eaten by dogs, intending to kill her 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 the said Nyashadzashe Maphosa died.

The brief facts are that on the day in question, the accused picked the five (5) month old deceased and went away with her to a bush.

The accused used unknown means to kill the deceased and disposed of the body.

The body was eaten by dogs, leaving some body parts which were recovered in an advanced state of decomposition.

On 5 February 2018, the recovered remains were examined by Doctor Joel Tapi who compiled a post mortem report in which the cause of death was indeterminate because of decomposition and missing parts. The postmortem report was tendered as exhibit 2.

Both State and defence counsel proposed that we proceed with the matter in terms of the Mental Health Act [Chapter 15:12].

This decision was informed by the manner the offence was allegedly committed and the medical evidence by Doctor Fungisai Mazhandu, a psychiatrist.

The affidavit of evidence, by Doctor Fungisai Mazhandu, opinioned, that, the accused is now fit to stand trial, but, however, at the time of commission of the offence, the accused was mentally unwell.

The State further adduced evidence, by consent, the sketch plan, exhibit 3, showing the general layout of the scene; the confirmed warned and cautioned statement by the accused, exhibit 4; indications by the accused, exhibit 5; and three (3) photographs of the remains of the deceased, exhibit 6.

From the Statement of Agreed Facts compiled by both counsels, the accused, who was mentally disordered, took his five (5) month old child to the bush. The accused used unknown means to kill the deceased and then disposed of the body.

The charge the accused is facing consists of both the unlawful conduct and intentional killing of another.

In light of the medical evidence, the accused was thus not capable of formulating an intention to kill.

Accordingly, therefore, as prayed by counsels, this is a case in which the circumstances cry loud for returning of a special verdict of not guilty by reason of insanity.

The accused is stable, and, both counsels have submitted that he is not a danger to himself or the community. The relatives, inclusive of the mother and brother, have expressed willingness to have him released in their custody.

Accordingly, it is ordered that:

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

2. By consent, the accused is released in the custody of his biological mother, Mrs Senyani Masvosva Muhlauri and brother, Senyani Admire Dhliwayo.

Expert Evidence, Opinion Evidence and Toolmark Evidence re: Approach and the Limited Expert Knowledge of the Court


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

It is alleged, that, on 1 February 2018, and at Plot Number 63 Nafaton Farm, Chipinge, the accused unlawfully caused the death of Nyashadzashe Maphosa by using unknown means and disposed the body, which was later eaten by dogs, intending to kill her 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 the said Nyashadzashe Maphosa died.

The brief facts are that on the day in question, the accused picked the five (5) month old deceased and went away with her to a bush.

The accused used unknown means to kill the deceased and disposed of the body.

The body was eaten by dogs, leaving some body parts which were recovered in an advanced state of decomposition.

On 5 February 2018, the recovered remains were examined by Doctor Joel Tapi who compiled a post mortem report in which the cause of death was indeterminate because of decomposition and missing parts. The postmortem report was tendered as exhibit 2.

Both State and defence counsel proposed that we proceed with the matter in terms of the Mental Health Act [Chapter 15:12].

This decision was informed by the manner the offence was allegedly committed and the medical evidence by Doctor Fungisai Mazhandu, a psychiatrist.

The affidavit of evidence, by Doctor Fungisai Mazhandu, opinioned, that, the accused is now fit to stand trial, but, however, at the time of commission of the offence, the accused was mentally unwell.

The State further adduced evidence, by consent, the sketch plan, exhibit 3, showing the general layout of the scene; the confirmed warned and cautioned statement by the accused, exhibit 4; indications by the accused, exhibit 5; and three (3) photographs of the remains of the deceased, exhibit 6.

From the Statement of Agreed Facts compiled by both counsels, the accused, who was mentally disordered, took his five (5) month old child to the bush. The accused used unknown means to kill the deceased and then disposed of the body.

The charge the accused is facing consists of both the unlawful conduct and intentional killing of another.

In light of the medical evidence, the accused was thus not capable of formulating an intention to kill.

Accordingly, therefore, as prayed by counsels, this is a case in which the circumstances cry loud for returning of a special verdict of not guilty by reason of insanity.

The accused is stable, and, both counsels have submitted that he is not a danger to himself or the community. The relatives, inclusive of the mother and brother, have expressed willingness to have him released in their custody.

Accordingly, it is ordered that:

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

2. By consent, the accused is released in the custody of his biological mother, Mrs Senyani Masvosva Muhlauri and brother, Senyani Admire Dhliwayo.

Indictment or Charge re: Charge Sheet, Framing of Charges, Essential Elements, Causation, Intention & Competent Verdict


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

It is alleged, that, on 1 February 2018, and at Plot Number 63 Nafaton Farm, Chipinge, the accused unlawfully caused the death of Nyashadzashe Maphosa by using unknown means and disposed the body, which was later eaten by dogs, intending to kill her 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 the said Nyashadzashe Maphosa died.

The brief facts are that on the day in question, the accused picked the five (5) month old deceased and went away with her to a bush.

The accused used unknown means to kill the deceased and disposed of the body.

The body was eaten by dogs, leaving some body parts which were recovered in an advanced state of decomposition.

On 5 February 2018, the recovered remains were examined by Doctor Joel Tapi who compiled a post mortem report in which the cause of death was indeterminate because of decomposition and missing parts. The postmortem report was tendered as exhibit 2.

Both State and defence counsel proposed that we proceed with the matter in terms of the Mental Health Act [Chapter 15:12].

This decision was informed by the manner the offence was allegedly committed and the medical evidence by Doctor Fungisai Mazhandu, a psychiatrist.

The affidavit of evidence, by Doctor Fungisai Mazhandu, opinioned, that, the accused is now fit to stand trial, but, however, at the time of commission of the offence, the accused was mentally unwell.

The State further adduced evidence, by consent, the sketch plan, exhibit 3, showing the general layout of the scene; the confirmed warned and cautioned statement by the accused, exhibit 4; indications by the accused, exhibit 5; and three (3) photographs of the remains of the deceased, exhibit 6.

From the Statement of Agreed Facts compiled by both counsels, the accused, who was mentally disordered, took his five (5) month old child to the bush. The accused used unknown means to kill the deceased and then disposed of the body.

The charge the accused is facing consists of both the unlawful conduct and intentional killing of another.

In light of the medical evidence, the accused was thus not capable of formulating an intention to kill.

Accordingly, therefore, as prayed by counsels, this is a case in which the circumstances cry loud for returning of a special verdict of not guilty by reason of insanity.

The accused is stable, and, both counsels have submitted that he is not a danger to himself or the community. The relatives, inclusive of the mother and brother, have expressed willingness to have him released in their custody.

Accordingly, it is ordered that:

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

2. By consent, the accused is released in the custody of his biological mother, Mrs Senyani Masvosva Muhlauri and brother, Senyani Admire Dhliwayo.

Murder and Permissible or Competent Verdicts re: Approach, Intent, Motive, Corpse, Cause of Death & Inquest Proceedings


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

It is alleged, that, on 1 February 2018, and at Plot Number 63 Nafaton Farm, Chipinge, the accused unlawfully caused the death of Nyashadzashe Maphosa by using unknown means and disposed the body, which was later eaten by dogs, intending to kill her 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 the said Nyashadzashe Maphosa died.

The brief facts are that on the day in question, the accused picked the five (5) month old deceased and went away with her to a bush.

The accused used unknown means to kill the deceased and disposed of the body.

The body was eaten by dogs, leaving some body parts which were recovered in an advanced state of decomposition.

On 5 February 2018, the recovered remains were examined by Doctor Joel Tapi who compiled a post mortem report in which the cause of death was indeterminate because of decomposition and missing parts. The postmortem report was tendered as exhibit 2.

Both State and defence counsel proposed that we proceed with the matter in terms of the Mental Health Act [Chapter 15:12].

This decision was informed by the manner the offence was allegedly committed and the medical evidence by Doctor Fungisai Mazhandu, a psychiatrist.

The affidavit of evidence, by Doctor Fungisai Mazhandu, opinioned, that, the accused is now fit to stand trial, but, however, at the time of commission of the offence, the accused was mentally unwell.

The State further adduced evidence, by consent, the sketch plan, exhibit 3, showing the general layout of the scene; the confirmed warned and cautioned statement by the accused, exhibit 4; indications by the accused, exhibit 5; and three (3) photographs of the remains of the deceased, exhibit 6.

From the Statement of Agreed Facts compiled by both counsels, the accused, who was mentally disordered, took his five (5) month old child to the bush. The accused used unknown means to kill the deceased and then disposed of the body.

The charge the accused is facing consists of both the unlawful conduct and intentional killing of another.

In light of the medical evidence, the accused was thus not capable of formulating an intention to kill.

Accordingly, therefore, as prayed by counsels, this is a case in which the circumstances cry loud for returning of a special verdict of not guilty by reason of insanity.

The accused is stable, and, both counsels have submitted that he is not a danger to himself or the community. The relatives, inclusive of the mother and brother, have expressed willingness to have him released in their custody.

Accordingly, it is ordered that:

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

2. By consent, the accused is released in the custody of his biological mother, Mrs Senyani Masvosva Muhlauri and brother, Senyani Admire Dhliwayo.

Corroborative Evidence re: Admissions, Unchallenged Evidence, Right to Examine Witnesses & Audi Alteram Partem Rule


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

It is alleged, that, on 1 February 2018, and at Plot Number 63 Nafaton Farm, Chipinge, the accused unlawfully caused the death of Nyashadzashe Maphosa by using unknown means and disposed the body, which was later eaten by dogs, intending to kill her 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 the said Nyashadzashe Maphosa died.

The brief facts are that on the day in question, the accused picked the five (5) month old deceased and went away with her to a bush.

The accused used unknown means to kill the deceased and disposed of the body.

The body was eaten by dogs, leaving some body parts which were recovered in an advanced state of decomposition.

On 5 February 2018, the recovered remains were examined by Doctor Joel Tapi who compiled a post mortem report in which the cause of death was indeterminate because of decomposition and missing parts. The postmortem report was tendered as exhibit 2.

Both State and defence counsel proposed that we proceed with the matter in terms of the Mental Health Act [Chapter 15:12].

This decision was informed by the manner the offence was allegedly committed and the medical evidence by Doctor Fungisai Mazhandu, a psychiatrist.

The affidavit of evidence, by Doctor Fungisai Mazhandu, opinioned, that, the accused is now fit to stand trial, but, however, at the time of commission of the offence, the accused was mentally unwell.

The State further adduced evidence, by consent, the sketch plan, exhibit 3, showing the general layout of the scene; the confirmed warned and cautioned statement by the accused, exhibit 4; indications by the accused, exhibit 5; and three (3) photographs of the remains of the deceased, exhibit 6.

From the Statement of Agreed Facts compiled by both counsels, the accused, who was mentally disordered, took his five (5) month old child to the bush. The accused used unknown means to kill the deceased and then disposed of the body.

The charge the accused is facing consists of both the unlawful conduct and intentional killing of another.

In light of the medical evidence, the accused was thus not capable of formulating an intention to kill.

Accordingly, therefore, as prayed by counsels, this is a case in which the circumstances cry loud for returning of a special verdict of not guilty by reason of insanity.

The accused is stable, and, both counsels have submitted that he is not a danger to himself or the community. The relatives, inclusive of the mother and brother, have expressed willingness to have him released in their custody.

Accordingly, it is ordered that:

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

2. By consent, the accused is released in the custody of his biological mother, Mrs Senyani Masvosva Muhlauri and brother, Senyani Admire Dhliwayo.

Defence of Abandonment, Claim of Right, Mistake of Fact or Law and Establishment of Mens Rea or Intention


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

It is alleged, that, on 1 February 2018, and at Plot Number 63 Nafaton Farm, Chipinge, the accused unlawfully caused the death of Nyashadzashe Maphosa by using unknown means and disposed the body, which was later eaten by dogs, intending to kill her 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 the said Nyashadzashe Maphosa died.

The brief facts are that on the day in question, the accused picked the five (5) month old deceased and went away with her to a bush.

The accused used unknown means to kill the deceased and disposed of the body.

The body was eaten by dogs, leaving some body parts which were recovered in an advanced state of decomposition.

On 5 February 2018, the recovered remains were examined by Doctor Joel Tapi who compiled a post mortem report in which the cause of death was indeterminate because of decomposition and missing parts. The postmortem report was tendered as exhibit 2.

Both State and defence counsel proposed that we proceed with the matter in terms of the Mental Health Act [Chapter 15:12].

This decision was informed by the manner the offence was allegedly committed and the medical evidence by Doctor Fungisai Mazhandu, a psychiatrist.

The affidavit of evidence, by Doctor Fungisai Mazhandu, opinioned, that, the accused is now fit to stand trial, but, however, at the time of commission of the offence, the accused was mentally unwell.

The State further adduced evidence, by consent, the sketch plan, exhibit 3, showing the general layout of the scene; the confirmed warned and cautioned statement by the accused, exhibit 4; indications by the accused, exhibit 5; and three (3) photographs of the remains of the deceased, exhibit 6.

From the Statement of Agreed Facts compiled by both counsels, the accused, who was mentally disordered, took his five (5) month old child to the bush. The accused used unknown means to kill the deceased and then disposed of the body.

The charge the accused is facing consists of both the unlawful conduct and intentional killing of another.

In light of the medical evidence, the accused was thus not capable of formulating an intention to kill.

Accordingly, therefore, as prayed by counsels, this is a case in which the circumstances cry loud for returning of a special verdict of not guilty by reason of insanity.

The accused is stable, and, both counsels have submitted that he is not a danger to himself or the community. The relatives, inclusive of the mother and brother, have expressed willingness to have him released in their custody.

Accordingly, it is ordered that:

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

2. By consent, the accused is released in the custody of his biological mother, Mrs Senyani Masvosva Muhlauri and brother, Senyani Admire Dhliwayo.

Defence of Diminished Mental Responsibility or Diminished Capacity re: Substance Use, Intoxication and Insanity


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

It is alleged, that, on 1 February 2018, and at Plot Number 63 Nafaton Farm, Chipinge, the accused unlawfully caused the death of Nyashadzashe Maphosa by using unknown means and disposed the body, which was later eaten by dogs, intending to kill her 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 the said Nyashadzashe Maphosa died.

The brief facts are that on the day in question, the accused picked the five (5) month old deceased and went away with her to a bush.

The accused used unknown means to kill the deceased and disposed of the body.

The body was eaten by dogs, leaving some body parts which were recovered in an advanced state of decomposition.

On 5 February 2018, the recovered remains were examined by Doctor Joel Tapi who compiled a post mortem report in which the cause of death was indeterminate because of decomposition and missing parts. The postmortem report was tendered as exhibit 2.

Both State and defence counsel proposed that we proceed with the matter in terms of the Mental Health Act [Chapter 15:12].

This decision was informed by the manner the offence was allegedly committed and the medical evidence by Doctor Fungisai Mazhandu, a psychiatrist.

The affidavit of evidence, by Doctor Fungisai Mazhandu, opinioned, that, the accused is now fit to stand trial, but, however, at the time of commission of the offence, the accused was mentally unwell.

The State further adduced evidence, by consent, the sketch plan, exhibit 3, showing the general layout of the scene; the confirmed warned and cautioned statement by the accused, exhibit 4; indications by the accused, exhibit 5; and three (3) photographs of the remains of the deceased, exhibit 6.

From the Statement of Agreed Facts compiled by both counsels, the accused, who was mentally disordered, took his five (5) month old child to the bush. The accused used unknown means to kill the deceased and then disposed of the body.

The charge the accused is facing consists of both the unlawful conduct and intentional killing of another.

In light of the medical evidence, the accused was thus not capable of formulating an intention to kill.

Accordingly, therefore, as prayed by counsels, this is a case in which the circumstances cry loud for returning of a special verdict of not guilty by reason of insanity.

The accused is stable, and, both counsels have submitted that he is not a danger to himself or the community. The relatives, inclusive of the mother and brother, have expressed willingness to have him released in their custody.

Accordingly, it is ordered that:

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

2. By consent, the accused is released in the custody of his biological mother, Mrs Senyani Masvosva Muhlauri and brother, Senyani Admire Dhliwayo.

Criminal Trial (Mental Health Act)

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

It is alleged that on 1 February 2018 and at Plot Number 63, Nafaton Farm, Chipinge, the accused unlawfully caused the death of Nyashadzashe Maphosa by using unknown means and disposed the body which was later eaten by dogs intending to kill her or realising 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 the said Nyashadzashe Maphosa died.

The brief facts are that on the day in question, the accused picked the five (5) month old deceased and went away with her to a bush.

The accused used unknown means to kill the deceased and disposed off the body.

The body was eaten by dogs leaving some body parts which were recovered in an advanced state of decomposition.

On 5 February 2018, the recovered remains were examined by Doctor Joel Tapi who compiled a post mortem report in which the cause of death was indeterminate because of decomposition and missing parts. The Post Mortem Report was tendered as exhibit 2.

Both State and defence counsel proposed that we proceed with the matter in terms of the Mental Health Act [Chapter 15:12].

This decision was informed by the manner the offence was allegedly committed and the medical evidence by Doctor Fungisai Mazhandu a psychiatrist.

The affidavit of evidence by Doctor Fungisai Mazhandu opinioned that the accused is now fit to stand trial but however at the time of commission of the offence the accused was mentally unwell.

The State further adduced evidence by consent the sketch plan, exhibit 3, showing general layout of the scene, the confirmed warned and cautioned statement by accused exhibit 4, indications by accused exhibit 5 and 3 photographs of the remains of the deceased exhibit 6. From the Statement of Agreed Facts compiled by both counsels, the accused who was mentally disordered took his 5 month old child to the bush. The accused used unknown means to kill the deceased and then disposed off the body.

The charge the accused is facing consists of both the unlawful conduct and intentional killing of another.

In light of the medical evidence, the accused was thus not capable of formulating an intention to kill.

Accordingly therefore as prayed by counsels, this is a case in which the circumstances cry loud for returning of a special verdict of not guilty by reason of insanity.

The accused is stable and both counsels have submitted that he is not a danger to himself or community. The relatives, inclusive of the mother and brother, have expressed willingness to have him released in their custody.

Accordingly it is ordered that:

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

2. By consent, the accused is released in the custody of his biological mother, Mrs Senyani Masvosva Muhlauri and brother Senyani Admire Dhliwayo.


National Prosecuting Authority, State's legal practitioners

Chibaya & Partners, Accused's legal practitioners

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