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HH149-09 - THE STATE vs K A JUVENILE

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Murder-viz diminished mental responsibility.
Procedural Law-viz rules of evidence re defences iro diminished mental responsibility.
Procedural Law-viz defences re diminished mental responsibility iro mental disorder.
Procedural Law-viz defences re diminished mental responsibility iro substance use disorder.
Procedural Law-viz rules of evidence re direct evidence iro confessions.
Procedural Law-viz rules of evidence re expert evidence iro psychiatric report.
Procedural Law-viz rules of evidence re expert evidence iro medical affidavit.
Procedural Law-viz rules of evidence re corroborative evidence.
Procedural Law-viz application for discharge re section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].
Procedural Law-viz rules of construction re peremptory provision iro use of the word "shall".
Procedural Law-viz rules of interpretation re mandatory provision iro use of the word "shall".
Murder-viz intention.
Defences-viz diminished mental responsibility re intellectual disorder iro section 29 of the Mental Health Act [Chapter 15:12].
Defences-viz diminished mental responsibility re mental disorder iro section 229 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Defences-viz diminished mental responsibility re insanity iro section 227 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Defences-viz diminished mental responsibility re mental disorder iro section 248 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Procedural Law-viz rules of construction re intention of the legislature iro error of reference.
Procedural Law-viz rules of interpretation re legislative intent iro error of reference.
Procedural Law-viz rules of evidence re onus iro the Constitutional right of an accused to remain silent.
Procedural Law-viz rules of evidence re unchallenged evidence.
Procedural Law-viz rules of evidence re undisputed averments.
Procedural Law-viz rules of evidence re uncontroverted submissions.
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.
Sentencing-viz juvenile offenders re probation officer's report.
Sentencing-viz youthful offenders re report of probation officer.
Sentencing-viz sentencing approach re prison conditions.
Murder-viz diminished mental responsibility re mental disorder.

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

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.

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

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].

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

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.

Application for Discharge, Evidential Deficit, Evidence Indicative of a Permissible Verdict & Prima Facie Concept

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….,.

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. It is a complete failure by the State to prove a case against the accused..,. It 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.

Rules of Construction or Interpretation re: Error of Reference

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]…., 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 227 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]..., 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.”…,.

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….,.

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 South African 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.

Rules of Construction or Interpretation re: Approach, Inconsistencies Between Statutes & Ambiguous Provisions

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 South African 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.”….,.

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 un-skilfulness 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.”

Onus re: Evidential Standard and Burden of Proof iro Approach and the Presumption of Innocence

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.

Corroborative Evidence re: Approach and Principle that Lies Told By Accused Amount to Corroboration of State Witnesses

The defence led evidence from Dr Madhombiro whose affidavit had already been accepted by consent…,.

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.

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

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.

Sentencing re: Approach iro Incarceration Conditions and the Effect of Pre-trial Detention and Constitutional Rights Violations

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….,. If the accused person has to be returned to prison in terms of section 29(2)(a) of the Mental Health Act [Chapter 15:12], the court must give that order and leave administrative issues to the institution.

Indictment or Charge re: Constitutional Rights iro Arrest, Detention or Incarceration and Prosecution ito Approach

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….,. If the accused person has to be returned to prison in terms of section 29(2)(a) of the Mental Health Act [Chapter 15:12], the court must give that order and leave administrative issues to the institution.

Onus re: Evidential Standard and Burden of Proof iro Right to Remain Silent & Doctrine of Concession and Avoidance


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.

UCHENA J: The accused is a 17 year old juvenile. He was indicted for trial on two counts of murder. The State alleges that he murdered his father and mother. According to the State, he shot and killed them on 19 April 2008. He was then aged 16. According to common cause evidence his parents loved him, and showered him with luxuries. During the December 2007 and January 2008 school holidays they took him on holiday to Dubai. They were educating him at expensive private schools. There was ordinarily no reason for him to gun them down.

The accused person pleaded not guilty to the charges of murder and raised defences of, automatism, mental disorder, intoxication, and mental disorder arising from intoxication.

In respect of automatism it was submitted that his conduct was not voluntary, as he acted without conscious knowledge or control. In respect of the mental disorder defence it was submitted that he suffered from a mental disorder or defect which made him incapable of appreciating his conduct or its unlawfulness. In respect of the defence of intoxication it was submitted that he involuntarily got intoxicated leading to his suffering a mental disorder arising from intoxication. The accused's defence was therefore that he did not have the requisite mens rea when he shot his parents. There is no issue on whether or not he shot them. He admits the actus reas.

The State led evidence from Precious Chawa, Admire Tapiwa Musasa, Patrick Makanjera, Spiwe Chakuvinga, and Dr Dickson Chibanda. The evidence of the first four witness's apart from confirming that they woke up to witness the double murders, and suspected the accused, did not cast a strong light on the accused's mens rea, which is the only element in issue. Their evidence however casts a weak light on the accused's apparent unusual behaviour. They said he questioned why Spiwe Chokuvinga was mourning. He bought himself coca cola which he moved around drinking during the funeral. He hid some of the family's weapons in the ceiling. The hiding of weapons in the ceiling tends to suggest that he knew an issue would arise on their use in the deceased's murders. He therefore wanted them out of the way. This tends to show he knew what he had done and wanted to conceal it.

The State's case took a new and definitive twist when it led evidence from Dr Dickson Chibanda. He is a Government Psychiatrist of impressive credentials. He teaches Mental Health Legislation and Human Rights Internationally through the World Health Organisation. He examined the accused at Harare Remand Prison. He found that the accused person was suffering from post traumatic disorders and panic disorders. He suspected that the accused could be suffering from temporal lobe epilepsy and recommended that he be taken for an EEG scan. His suspicion was based on the accused's admitted sudden violent behaviour and his confession to him that he was in the habit of abusing drugs such as marijuana and cocaine. He said sudden violent behaviour is a characteristic common in patients suffering from temporal lobe epilepsy. He said the alleged murders suggested some underlying neuro psycho pathology in the accused person. Under cross examination by counsel for the accused he agreed with the results of the EEG scan done by Dr Mangwende, and the conclusions drawn there from by Dr Madhombiro. He concluded that the accused was suffering from temporal lobe epilepsy when he shot and killed his parents. In response to a question asked by one of the Assessors in clarification he said the accused was not responsible for his actions because of the mental defect he suffered as a result of the temporal lobe epilepsy. That was infact the finding of Dr Madhombiro whose affidavit he had been shown and had agreed with under cross examination. The State then closed its case leading to the defences' application for discharge in terms of section 198(3) of the Criminal Procedure and Evidence Act [Cap 9: 07], which I will in this judgment refer to as the CP&E Act.

Application for discharge


Mr Mphofu for the accused applied for discharge at the end of the State case arguing that the accused person had not been proved to have had the requisite mens rea when he shot and killed the deceased persons. He went further and submitted that the State's own expert witness had proved that the accused did not have the requisite state of mind which would render him liable for his actions.

There is no doubt that according to Dr Chibanda the accused did not have the requisite intention to murder his parents. The element of intention was therefore not proved by the State. Ordinarily that would have led to his discharge at the end of the State case. Section 198(3) of the CP&E Act provides as follows:

(3) If at the close of the case for the prosecution the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty.”


The language used by the legislature obliges the court to discharge the accused person at the end of the prosecution's case if it considers that there is no evidence proving that the accused committed the offence charged or any other offence of which he might be convicted arising from that charge. The court has no discretion; it must discharge the accused person if there is no evidence. It must therefore be guided by the evidence led by the prosecution.

In this case, there is no evidence to prove that the accused intended the death of his parents. On the contrary the Sate proved the absence of such an intention, but because the accused person suffers from a mental defect which amounts to a complete defence. In the absence of the provisions of s 229 of the Criminal Law (Reform and Codification) Act [Cap 9:23], and section 29 of the Mental Health Act [Cap 15:12], which will in this judgment be called the Code and the Mental Health Act, respectively, the application for discharge would have been granted.

In view of the provisions of section 29 of the Mental Health Act and section 229 of the Code, the parties should have agreed on a special verdict instead of closing the State case as if anything would change after the clear and definitive evidence of Dr Chibanda. It was also in my view ill advised for counsel for the accused to apply for discharge at the end of the State case when it was clear that the accused's defence of a mental disorder amounting to a complete defence had been accepted by the State's expert witness and the logical conclusion was a special verdict. This is so because section 229 of the Code provides as follows-;

Nothing in this Part shall affect the operation of the Mental Health Act [Cap 15:12] (Act No. 15 of 1996) in relation to -

(a) the procedure to be followed when persons being tried are found to be mentally disordered or defective or any verdict to be returned at any such trial; or

(b) the detention, examination or treatment of persons found to be mentally disordered or defective.”

My understanding of section 229 of the Code is that if an accused person is proved to have committed the acts constituting the crime charged, but is also proved to have been suffering from a mental disorder or defect at the time of committing the offence, which mental disorder or defect constitutes a complete defence in terms of section 227 of the Code, he must in terms of section 29(2) of the Mental Health Act be found not guilty because of insanity, and be dealt with in terms of the options provided in subsections (a) to ( c) of that section.

The part referred to in section 229 of the Code is Part V of the Code which includes sections 226 to 229 of the Code. Section 29 of the Mental Health Act refers to section 248 of the Code. That section falls out of Part V. This raises questions on the applicability of section 229 of the Code.

When the application for discharge was made both parties did not refer to the provisions of section 229 of the Code and section 29 of the Mental Health Act. Realising the effect of the provisions of these sections on the application for discharge, I called the parties back and asked them to address the Court on the meaning and the effect of section 229 of the Code and the effect of section 29 of the Mental Health Act referring to section 248 of the Code instead of section 227 of the Code.

Section 229 of the Code

Mr Mpofu for the accused submitted that there was no conflict between section 198(3) of the CP&E Act and section 229 of the Code. He therefore submitted that his application for discharge could still be granted. He also made two alternative submissions. In the first alternative he submitted that the effect of section 198(3) of the CP&E Act, and section 29(2) of the Mental Health Act as read with section 229 of the Code leads to are the same result. He therefore submitted that the court could proceed in terms of section 29(2) of the Mental Health Act. He therefore indirectly admits that section 29(2) of the Mental Health Act cannot be avoided in a case where the accused raises mental disorder as a complete defence.

I must however state that Mr Mpofu's contention that the effect of section 198(3) of the CP&E Act and section 29(2) of the Mental Health Act is the same is not legally correct. Section 198(3) is intended for a case where the State failed to present a prima facie case against an accused person by the time it closes its case. Section 29(2) of the Mental Health Act, on the other hand, is intended for a case where an accused person is proved to have committed the act constituting the offence charged but cannot be convicted because of a mental disorder or defect, which constitutes a complete defence. In that case the court must in terms of section 29(2) of the Mental Health Act return a special verdict to the effect that the accused is not guilty because of insanity. The former is a complete failure by the State to prove a case against the accused, while the later is a case where the State has proved that the accused person committed the offence while suffering from a mental disorder or defect. The later is guided by the provisions of section 229 of the Code and leads to a special verdict, to the effect that the accused is not guilty because of insanity, and is followed by consequences provided by section 29(2) (a) to (c) of the Mental Health Act, while the former leads to a discharge, whose effect, is that the accused is found not guilty and is acquitted with no consideration by the court of any further consequences.

In his address on section 229 of the Code, Mr Matsinde for the State conceded that the State should have accepted the accused's plea of insanity after Dr Chibanda's evidence, and the case should have proceeded in terms of section 29(2) of the Mental Health Act. He submitted that section 229 of the Code makes it impossible to avoid the provisions of section 29 of the Mental Health Act once the accused is proved to have killed the deceased while suffering from a mental disorder which constitutes a complete defence in terms of section 227 of the Code. I agree with Mr Matsinde's submission.

The Applicability of section 229 of the Code

Section 229 of the Code confines its operation to Part V of the Code. That part includes sections 226 to 229. However section 29(2) of the Mental Health Act which provides for a special verdict refers to section 248 of the Code as the section which provides for a mental disorder or defect being a complete defence. It provides as follows;

(2) If a judge or magistrate presiding over a criminal trial is satisfied from evidence, including medical evidence, given at the trial that the accused person did the act constituting the offence charged or any other offence of which he may be convicted on the charge, but that when he did the act he was mentally disordered or intellectually handicapped so as to have a complete defence in terms of section 248 of the Criminal Law Code, the judge or magistrate shall return a special verdict to the effect that the accused person is not guilty because of insanity, and may -

(a) order the accused person to be returned to prison for transfer to an institution or special institution for examination as to his mental state or for treatment; or

(b) if the judge or magistrate considers that, had the accused person been convicted of the offence concerned, he would not have been sentenced to imprisonment without the option of a fine or to a fine exceeding level three, order -

(i) the accused person to submit himself for examination, and, additionally, or alternatively,

treatment in any institution or other place in terms of Part VI; or

(ii) the accused person's guardian, spouse or close relative to make an application for the person to be received for examination and additionally, or alternatively, treatment in any institution or place in terms of Part VII or Part VIII; and may give such orders as may be appropriate for the accused person's release from custody for the purpose of such examination or treatment; or

(c) if the judge or magistrate is satisfied that the accused person is no longer mentally disordered or intellectually handicapped or is otherwise fit to be discharged, order his discharge and, where appropriate, his release from custody.”


Section 248 of the Code referred to by section 29(2) of the Mental Heath Act is not found in Part V of the Code. That raises questions on the applicability of section 229 of the Code to the situations referred to in section 29(2) of the Mental Health Act. An examination of the provisions of section 248 is therefore necessary. It provides as follows-;

248 Consent to medical treatment for non-therapeutic purposes

(1) In this section -

patient” means a person to whom medical treatment is given or upon whom a medical operation is performed;

qualified person”, in relation to any medical treatment or operation, means a person who, by virtue of his or her qualifications or training, is in all the circumstances qualified to give the medical treatment or perform the medical operation.

(2) Where a qualified person, with the consent of the patient concerned, gives any medical treatment to or performs any medical operation upon a patient -

(a) otherwise than to cure or alleviate any disease or disability; or

(b) in order to sterilise the patient;

such consent or authority shall be a complete defence to a charge of murder or assault arising out of that treatment or operation if -

(i) the consent complies with paragraphs (b), (c) and (d) of subsection (1) of section two hundred and forty-five; and

(ii) the treatment or operation is carried out competently in accordance with recognised medical procedures; and

(iii) in a case where the treatment consists of the administration of any new, untried or experimental drug, medicine or allied substance, such treatment is conducted pursuant to and in accordance with the procedures prescribed for the clinical trial of a medicine under the Part III of the Medicines and Allied Substances Control Act [Cap 15:03].”


Section 248 does not provide for a mental disorder or defect being a complete defence. It provides for consent to medical treatment for none-therapeutic purposes. It is therefore not the provision intended by the legislature in section 29(2) of the Mental Health Act. The legislature clearly intended to refer to a section of the Code which provides for a mental disorder or defect being a complete defence. There is no doubt in my mind that a wrong section was referred to in section 29(2) of the Mental Health Act. There is therefore an error of reference. The intention of the legislature was obviously to refer to the section which provides that a mental disorder or defect can be a complete defence. A reading of the Code reveals that section 227 of the Code deals with that issue. It provides as follows-:

227 Mental disorder at time of commission of crime

(1) The fact that a person charged with a crime was suffering from a mental disorder or defect when the person did or omitted to do anything which is an essential element of the crime charged shall be a complete defence to the charge if the mental disorder or defect made him or her -

(a) incapable of appreciating the nature of his or her conduct, or that his or her conduct was unlawful, or both; or

(b) incapable, notwithstanding that he or she appreciated the nature of his or her conduct, or that his or her conduct was unlawful, or both, of acting in accordance with such an appreciation.

(2) For the purposes of subsection (1), the cause and duration of the mental disorder or defect shall be immaterial.

(3) Subsection (1) shall not apply to a mental disorder or defect which is neither permanent nor long-lasting, suffered by a person as a result of voluntary intoxication as defined in section two hundred and nineteen.”

It is apparent that section 227 of the Code is the section which provides that, the fact that an accused person was suffering from a mental defect or disorder at the time he does anything which is an essential element of a crime charged, shall be a complete defence to the charge. The contents of Dr Madhombiro's affidavit which were fully endorsed by Dr Chibanda and on which counsel for the accused premised his application for discharge squarely falls within the provisions of section 227 of the Code.

The issue which remains to be resolved is whether this court can substitute section 248 of the Code with section 227 of the Code, in section 29(2) of the Mental Health Act.

Counsels for the State and the accused submitted, without citing authorities, that the court can, as the intention of the legislature is clear, and reference to section 248 was an obvious error. I agree with them, as in interpreting a statute the court must be guided by the clear intention of the legislature. Case law confirms that when the words used by the Legislature create an absurdity they can be modified to bring out the clear intention of the legislature. In the South African case of Skinner v Palmer 1919 WLD 39 at 44-45 WARD J said;

I take these two examples as showing that if a proper case arose, the Court could delete one word and read in another. But the court will not reject a word of clear meaning unless it is forced to do so ---- In Laird v Briggs an entirely different word was suggested. It seems to me to be authority for saying that if I am forced to the conclusion that the word “fifty-eight” should be read for “fifty-nine” I can so read it. But I cannot do so merely because I think the draughtsman made a mistake. I must be forced to the conclusion that the word “fifty-nine” makes the clause nonsense, or that they are opposed to the clear meaning of the section.”

In the case of Fernandez v SA Railways, 1926 AD 60 at 66 SOLOMON JA said-;

The language of this regulation is certainly far from clear. In the case of Behr v SA Railways and Harbours, 1925 AD 483, it was suggested that the word or is a mistake for on--- The substitution of on for or would certainly make the regulation intelligible, which it, certainly, is not as it stands---In the circumstances I think that we should now definitely decide what was left open in Behr's case, and in order to make the regulation intelligible, hold that the word or is a mistake for on and so give effect to what I am satisfied was the real intention of the framers of the regulation.”

See also another SA case of Ex parte Minister of Justice In re R v Jacobson & Levy, 1931 AD 466.

The Zimbabwean High Court dealt with the Court's power to modify the language of a statute in the case of S v Karani 1997 (2) ZLR 114 (HC) at 115 C- F where GILLESPIE J said-;

As was said by SCHREINER JA in Durban City Council v Gray 1951 (3) SA 568 (A) at 580B:

"[It] is within the powers of a court to modify the language of a statutory provision where this is necessary to give effect to what was clearly the legislature's intention."

Such power is undisputed where slavish literalism:

"leads to an absurdity so glaring that it could never have been contemplated by the legislature, or if it leads to a result contrary to the intention of Parliament as shown by the context or by such other circumstances as the court is justified to take into account."(Per de VILLIERS AJ in Venter v R 1907 TS 910 at 915).

If the court were not able to supply the relevant correction of ss 54(4) and 55(5) then there would be no penalty enacted for the offences of contravening ss 54(2) and 55(2) of the Act. The punishments, considered in meticulous detail, and set out in ss 54(4) and 55(5) would be completely otiose since they would refer only to a non-existent offence. Such an absurdity cannot be permitted to stand in the light of the obvious intention. The reference in each subsection to "an offence in terms of subsection (1)" must be read as "an offence in terms of subsection (2)."

See also the case of Bennett NO v Master of the High Court 1986 (1) ZLR 127 at 130G-131A where SMITH J said-;

According to the golden rule of interpretation of statutes, if there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences. It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the Legislature intended something which it omitted to express.”

I am satisfied that the Legislature in this case said what it did not intend to say. The rest of its words in section 29(2) of the Mental Health Act clearly points to its having intended to refer to section 227 of the Code. Its reference to section 248 of the Code is therefore a mistake which this court must correct to give effect to the clear intention of the Legislature.

The Supreme Court has confirmed the courts' power to modify the language of a statue. In the case of S v Aitken 1992 (2) ZLR 84 (SC) at 88G – 89D GUBBAY CJ said-;

Even if I am wrong in ascribing the meaning I do to the term "interlocutory", I am nonetheless convinced that the Legislature could not possibly have intended what that word signifies. On that ground alone this court would be justified in modifying the meaning. For to stand aside where the object and intention of the enactment are clear would be to allow it, contrary to good sense, to be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law. In this connection I can do no better than to echo, with approval, the observations by DENNING LJ (as he then was) in Seaford Court Estates Ltd v Asher [1949] 2 All ER 155 (CA) at 164 E-H:

"Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen, have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature."

To much the same effect are the remarks of WESSELS ACJ in Ex parte Minister of Justice: In re Jacobson & Levy 1931 AD 466 at 476 in fine-477.”

I am therefore satisfied that the State and defence counsel correctly submitted that this court must in this case substitute the words “section 248” in section 29(2) of the Mental Health Act with the words “section 227”, as that was the clear intention of the legislature. The reference to section 248 is clearly an error which this court must correct to give effect to the intention of the legislature.

In view of the modification of section 29(2) of the Mental Health Act, the provisions of section 229 of the Code, become applicable to this case.

Effect of section 229 of the Code

Section 229, which has already been quoted above, clearly states that nothing in Part V of the Code shall affect the operation of the Mental Health Act in relation to the procedure to be followed when persons being tried are found to be mentally disordered or defective, or any verdict to be returned at such trial, or the detention, examination or treatment of persons found to be mentally disordered or defective. This in my view means if at the end of the State case it has been proved that the accused killed his parents and that he did so while suffering from a mental disorder or defect, then the accused person cannot avoid the provisions of section 29(2) of the Mental Health Act. This is exactly what the prosecution did in this case, therefore the accused cannot be discharged in terms of section 198(3) of the CP&E Act. He must present his defence case to enable the court to arrive at a decision on the verdict. In the result the accused's application for discharge was dismissed and the trial was ordered to continue to enable the Court to arrive at an appropriate verdict after hearing the defence's case.

Mr Mpofu in his second alternative submitted that the accused be dealt with as a child in need of care. He however conceded that this can only be done if the court finds the option in section 29(2)(c) of the Mental Health Act, the appropriate option. This can therefore only be dealt with after a special verdict has been returned, and when consideration is being given as to which of the options under section 29(2) of the Mental Health Act is appropriate.

Further Evidence

The accused was called to give evidence, in his own defence. He declined to give evidence, and refused to answer questions put to him by the prosecutor. The defence then led evidence from Dr Madhombiro whose affidavit had already been accepted by consent when Dr Chibanda who gave evidence for the State was cross examined on it. Dr Chibanda agreed with Dr Madhombiro's affidavit on the accused's mental state. They agree that he suffers from a condition called temporal lobe epilepsy which renders him incapable of being responsible for his actions.

The State and the defence later advised the court that they were both satisfied that the court should return a special verdict in terms of section 29(2) of the Mental Health Act. We adjourned the proceedings to consider the parties submissions on the retention of the special verdict. In view of the common evidence from both the State's and defence's expert witness we were satisfied that the parties' concessions on the special verdict were properly made.

The remaining issue is on how to deal with the accused person after retaining the special verdict. The State urged the court to proceed in terms of section 29(2)(a) of the Mental Health Act, while the defence urged the court to proceed in terms of section 29(2)(c) of the Mental Health Act.

The defence relied on the evidence of Drs Chibanda and Madhombiro as complimented by that of Jealous Gambiza, in urging the court to proceed in terms of section 29(2)(c). Jealous Gambiza is the Superintendent of North Court Children's Home. He told the court of how the accused has been staying at the Home on remand, and the Home's willingness to continue looking after him after the passing of the special verdict and his attaining the age of majority. The evidence of Yeukai a probation officer was admitted by the State. It proves that if the court allows the accused to remain at North Court, she would on his attaining the age of majority apply for an order authorizing his continued stay at North Court or any other institution.

Mr Mpofu for the defence then made spirited submissions on why the court should not proceed in terms of section 29(2)(a) of the Mental Health Act, but urged the court to proceed in terms of section 29(2)(c). He relied on Drs Chibanda and Madhombiro's evidence that sending the accused to Chikurubi Psychiatric Unit would be like signing his death warrant. They explained that their view was based on the existing conditions of that prison.

Mr Chikosha on the other hand submitted that the accused should be returned to prison in terms of section 29(2)(a), because North Court does not have the capacity to look after him as demonstrated by the incident in which the accused caused Tinashe to lose consciousness at North Court on 24 July 2009. He submitted that the incident demonstrates that North Court does not have the capacity to look after the accused.

In my view the issue does not depend on North Court's willingness to look after the accused. It depends on what the law says should be done after a special verdict has been retained in respect of an accused person who has not yet recovered from his mental illness.

The provisions of setion 29(2)(a) to (c) are clear as to what should be done. The section provides as follows;

(2) If a judge or magistrate presiding over a criminal trial is satisfied from evidence, including medical evidence, given at the trial that the accused person did the act constituting the offence charged or any other offence of which he may be convicted on the charge, but that when he did the act he was mentally disordered or intellectually handicapped so as to have a complete defence in terms of section 227 of the Criminal Law Code, the judge or magistrate shall return a special verdict to the effect that the accused person is not guilty because of insanity, and may -

(a) order the accused person to be returned to prison for transfer to an institution or special institution for examination as to his mental state or for treatment; or

(b) if the judge or magistrate considers that, had the accused person been convicted of the offence concerned, he would not have been sentenced to imprisonment without the option of a fine or to a fine exceeding level three, order-

(i) the accused person to submit himself for examination and additionally, or alternatively,

treatment in any institution or other place in terms of Part VI; or

(ii) the accused person's guardian, spouse or close relative to make an application for the person to be received for examination and additionally, or alternatively, treatment in any institution or place in terms of Part VII or Part VIII; and may give such orders as may be appropriate for the accused person's release from custody for the purpose of such examination or treatment; or

(c) if the judge or magistrate is satisfied that the accused person is no longer mentally disordered or intellectually handicapped or is otherwise fit to be discharged, order his discharge and, where appropriate, his release from custody.”


My understanding of section 29(2)(a) is that if the accused person still needs to be mentally examined or to be treated, he has to be returned to prison where he will be transferred to an institution or special institution for examination or treatment.

If the offence the accused person was facing and for which a special verdict has been retained was one for which the accused could not have been sentenced to imprisonment or a fine exceeding level three, then the accused can be released to be dealt with in terms of section 29(2)(b). That subsection is not appropriate in this case because if the accused had been convicted of the two counts of murder he would not have been sentenced to a sentence of a fine, of or below level three.

Section 29(2)(c) only applies if the court is satisfied “that the accused person is no longer mentally disordered or intellectually handicapped or is otherwise fit to be discharged”. In this case, Dr Madhombiro said the accused has not yet recovered from mental illness. He is still under treatment. He will only refer him to the Special Review Board when he is satisfied of his recovery after a period of six months from the middle of July 2009. The accused person is therefore still mentally ill. He is not fit for discharge. He therefore cannot be dealt with in terms of section 29(2)(c).

The only option available to the court is section 29(2)(a). It must be invoked in spite of the conditions at Chikurubi Psychiatric Unit described by Dr Chibanda. The condition of a prison does not justify the court's refusal to send to prison those the law says must be sent there. In an ordinary case not under the Mental Health Act the court would at most reduce the period of imprisonment in recognition of the hardship to be faced by the prisoner. In the case of a special verdict retained because of the accused's mental disorder, the court has to proceed in terms of the correct option. If the accused person has to be returned to prison in terms of section 29(2)(a) of the Mental Health Act, the court must give that order and leave administrative issues to the institution.

It must also be stated that the institution to which an accused on whom a special verdict has been retained must be transferred to by prisons, is one which falls under the definition of “institution” as defined by section 2 of the Mental Health Act. An institution is there defined as “any mental hospital which the Minister, by notice in the Gazette, has declared to be an institution for the purposes of this Act”.

It is therefore clear that the accused person who is still mentally ill cannot be dealt with other than in terms of section 29(2)(a) the Mental Health Act.

Mr Mpofu for the accused did not indicate whether or not North Court is an institution in terms of the Mental Health Act. In the absence of that information it cannot be considered to be an institution to which the accused can be transferred to in terms of section 29(2)(a) of the Mental Health Act. On being returned to prison the accused must be transferred to a designated institution or a special institution. The accused must therefore be returned to prison pending transfer to a designated institution or special institution.

In the result the accused is found not guilty because of insanity, and is returned to prison to be dealt with in terms of section 29(2)(a) of the Mental Health Act.



Attorney General's Criminal Division, State's legal practitioners

Mawere & Sibanda, accussed's legal practitioners

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