State v WZ

On 28 May 2018 at around 0300 hours, the accused WZ sneaked out of the room where she was sleeping with her mother, taking her four-year-old child with her. She proceeded to Hunyani river, approximately 400 metres from her homestead, where she threw herself and the child into the river in an attempt to kill herself and the child. The child drowned while the accused became unconscious and was washed to the river bank. She was picked up by passers-by whilst the deceased child was retrieved downstream. A post mortem concluded that death was due to mechanical asphyxia and liquid penetration of the respiratory tract due to river drowning. The accused had become mentally ill in 2017, exhibiting symptoms including wandering from home, reduced self-care, violence and aggression toward others, auditory and visual hallucinations. She was taken to faith healers but did not improve. A psychiatric report concluded that her symptoms at the time of the alleged offence would have prevented her from fully comprehending the wrongfulness of her actions.

• Whether the accused could be found guilty of murder where she committed the act while mentally disordered
• Whether the accused should enter a special verdict of not guilty because of insanity in terms of section 29(2) of the Mental Health Act [Chapter 15:12]
• Whether the accused was suitable for release into the custody of her brother following treatment and stabilization

On 9 December 2019, the court entered a special verdict of not guilty because of insanity and ordered that the accused be released into the custody of her brother Chamunorwa Zhuwao as per the psychiatrist's second report.

Where a person pleads insanity and there is evidence in support of that plea, including medical evidence showing that the accused was mentally disordered at the time of committing the offence and this prevented her from comprehending the wrongfulness of her actions, the court shall enter a special verdict of not guilty because of insanity in terms of section 29(2) of the Mental Health Act [Chapter 15:12]. Where the court is satisfied based on psychiatric assessment that an accused person found not guilty because of insanity is no longer mentally disordered and is fit to be discharged, the court may order discharge and release from custody in terms of section 29(2)(c) of the Mental Health Act.

The court made extensive observations on systemic issues in mental health care, noting that cases involving homicides by mentally ill persons continually bring to the fore the vulnerability of family members, particularly children, to loss of life at the hands of the mentally ill. The court observed that often by the time a patient is placed in an institution for assessment and treatment, a homicide will already have been committed, meaning damage which could possibly have been averted with timely medical intervention will already have been done. The court cited several similar cases (S v M CRB 20/19, S v CM CRB 93/19, S v K CRB 84/19) to illustrate this pattern. The court raised critical questions about whether families and communities have adequate awareness of the law and steps available under the Mental Health Act for committing mentally ill persons to institutions before the commission of offences. The court noted that in this case, the family resorted to faith healers rather than following statutory procedures, possibly because such alternatives are viewed as more ready, easier and accessible compared to the procedures laid out in the Mental Health Act. The court emphasized that the overall critical issue is fundamentally that of the right to treatment for mental illness as a legal right for which the state should assume greater responsibility, calling for urgent wider engagement across relevant disciplines on what this right should practically entail.

This case is significant in Zimbabwean jurisprudence as it highlights critical gaps in mental health care and early intervention systems that place vulnerable family members, particularly children, at risk. The judgment emphasizes the importance of timely medical intervention for mentally ill persons before homicides occur. It draws attention to the need for greater public awareness of the Mental Health Act procedures for committing mentally ill persons to institutions, the accessibility of mental health services particularly in rural areas, and the fundamental right to treatment for mental illness as a state responsibility requiring urgent cross-disciplinary engagement.