The accused was charged and convicted of assault as defined in section 89(1) of the Criminal Law (Codification and Reform) Act. From the record of proceedings, it was clear that the accused was mentally challenged both at the time he allegedly committed the offence and during his trial in the lower court. When the charge was put to the accused, he gave incoherent responses, claiming the complainant destroyed his target and was doing prostitution with police. A psychiatric examination concluded that the accused committed the offence while mentally challenged. The State tendered a medical affidavit which was accepted as an exhibit. The magistrate noted that the accused did not appreciate the proceedings and his mental capacity was challenged, making it impossible to conduct a trial. The magistrate returned a special verdict, finding the accused not guilty and acquitting him due to insanity without hearing any evidence.
The court ordered: (a) That the proceedings be and are hereby quashed; (b) That the magistrate be and is hereby directed to recall the accused and refer him for treatment to a special institution; (c) That the accused be tried only upon being certified to be fit to stand trial.
It is incompetent to put a mentally disordered or intellectually handicapped person on trial without first certifying through a psychiatrist's report that the person has recovered and is fit to stand trial. Where a court is unable to conclude whether an accused is mentally disordered or able to understand proceedings, the court must invoke section 28(9) of the Mental Health Act and order examination at an institution. A special verdict in terms of section 29 of the Mental Health Act can only be pronounced after evidence has been led and the court is satisfied that the accused committed the offence while mentally disordered to such an extent that they could not be held responsible for their conduct. Preference should be given to institutional examination orders under section 28(9)(a) to ensure public safety.
The court observed that generally, and in view of the unpredictability of mentally challenged persons, preference should be given to an order made in terms of section 28(9)(a) for removal to an institution because it reassures the court of the safety of members of the public from the conduct of the mentally sick accused person, as opposed to release for examination under section 28(9)(b).
This case is significant in Zimbabwean criminal procedure as it provides authoritative guidance on the proper procedure to be followed when dealing with mentally disordered or intellectually handicapped accused persons. It clarifies that such persons cannot be put on trial without certification of fitness, emphasizes the court's duty to invoke section 28(9) of the Mental Health Act when unable to determine mental capacity, and confirms that a special verdict can only be given after evidence has been led. The judgment protects the rights of mentally challenged accused persons while ensuring compliance with statutory mental health provisions.