The State v Gedion Senyani Dhliwayo

On 1 February 2018, at Plot number 63, Nafaton Farm, Chipinge, the accused took his 5-month-old child, Nyashadzashe Maphosa, to the bush. The accused used unknown means to kill the deceased and disposed of the body. The body was subsequently eaten by dogs, leaving only some body parts which were recovered in an advanced state of decomposition. On 5 February 2018, the recovered remains were examined by Doctor Joel Tapi who compiled a Post Mortem Report in which the cause of death was indeterminate due to decomposition and missing parts. The accused was charged with murder as defined in s 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act.

• Whether the accused was mentally sound at the time of committing the alleged offence
• Whether the accused could form the requisite intention to kill given his mental state
• Whether a special verdict of not guilty by reason of insanity should be entered
• Whether the accused posed a danger to himself or the community warranting detention

1. The accused is not guilty by reason of insanity. 2. By consent, the accused is released into the custody of his biological mother Mrs Senyani Masvosva Muhlauri and brother Senyani Admire Dhliwayo.

Where medical evidence establishes that an accused person was mentally disordered at the time of committing an alleged offence and was therefore incapable of formulating the requisite intention to commit the crime, a special verdict of not guilty by reason of insanity must be entered. The essential element of intention in murder cannot be proven where the accused lacked the mental capacity to form such intention due to mental illness. Furthermore, where an accused found not guilty by reason of insanity is deemed stable and not a danger to himself or the community, and family members are willing to take custody, the court may order release into family custody rather than detention in a mental health facility.

The court observed that "the circumstances cry loud for returning of a special verdict of not guilty by reason of insanity," indicating judicial recognition that the manner and nature of the offence itself suggested mental disorder. The court also noted the cooperation and agreement between State and defence counsel as supporting the appropriate disposition of the case, and acknowledged the willingness of family members (including the mother and brother) to take responsibility for the accused's care and supervision.

This case demonstrates the application of the Mental Health Act in criminal proceedings in Zimbabwe, particularly in murder cases. It establishes the procedure for dealing with accused persons who were mentally disordered at the time of the commission of an offence, even in serious cases involving the death of a child. The case illustrates the court's willingness to prioritize medical evidence over punitive measures where mental incapacity is established, and shows the availability of release into family custody where the accused is deemed stable and not dangerous. It reinforces the principle that criminal liability requires mental capacity to form the requisite intention.