The State v Zexteen Dzemwa

The accused, Zexteen Dzemwa, was charged with murder under s 47 of the Criminal Law (Codification and Reform) Act. On 17 August 2021 at Madhishi village, Chief Musana in Shamva, the accused attacked his young daughter Valentine Nyasha Dzemwa with an axe and stick, killing her instantly. The accused pleaded not guilty, claiming he had no recollection of the events. He stated that while preparing breakfast for his children, he saw what he thought was a huge snake and a whirlwind, after which he remembered nothing until he found himself tied to a tree and was informed he had killed his daughter. The accused had a history of mental abnormality dating to 2017 following an insect bite, which caused a mental blackout lasting over a day. He belonged to an apostolic sect that discouraged medical treatment, relying instead on faith-based healing. His family had a history of mental illness (paternal aunt). Three of his six children had died of natural causes prior to this incident, causing him psychological distress. Witnesses testified that the accused was singing hymns, running around with wooden rods, talking to himself about being troubled by spirits, and appeared to be in a trance-like state. His behavior was completely out of character for a loving father. After the attack, he remained delirious, violent, and confused for hours, claiming to be a prophet.

• Whether the accused had the requisite mens rea to commit murder
• Whether the defence of insane automatism under s 216(4) read with s 227 of the Criminal Law Code was established
• Whether the defence of sane automatism under s 216(1) of the Criminal Law Code was available
• Whether medical evidence was sufficient to prove mental disorder at the time of the offence
• The distinction between sane automatism and insane automatism
• The evidentiary burden on an accused pleading automatism versus insanity
• Whether s 28 or s 29 of the Mental Health Act applied to determine mental state at the time of the offence

The accused was found not guilty of murder and acquitted unconditionally.

1. Sane automatism under s 216(1) of the Criminal Law Code and insane automatism under s 216(4) read with s 227 are distinct defences with different requirements and consequences. 2. Sane automatism is involuntary conduct caused by external stimuli (physical or psychological) that is transient and non-recurrent, not arising from a disease of the mind; it leads to unconditional acquittal. 3. Insane automatism is involuntary conduct resulting from a mental disorder or defect and leads to a special verdict under s 29(2) of the Mental Health Act. 4. An accused pleading insane automatism or insanity bears the burden of proving it on a balance of probabilities and must adduce medical evidence as required by s 29(2) of the Mental Health Act. 5. An accused pleading sane automatism need only discharge an evidential burden by laying a foundation for the defence; the State must then disprove it beyond reasonable doubt. 6. Medical examinations under s 28 of the Mental Health Act (fitness to stand trial) are distinct from and irrelevant to determinations under s 29 (mental state at time of offence). 7. Overwhelming psychological and emotional stress can constitute external stimuli sufficient to cause sane automatism where it deprives the accused of the capacity to appreciate the wrongfulness of conduct and to control muscular movements voluntarily. 8. Where sane automatism is established, the actus reus is absent as the conduct was involuntary, and criminal responsibility cannot attach.

The court made significant observations about systemic challenges in Zimbabwe's criminal justice system, noting the serious shortage of psychiatric practitioners and the absence of any psychiatric doctors employed by Zimbabwe Prisons and Correctional Services. The court expressed concern that financial constraints prevent outsourcing of mental examinations, leading to delays in trials and enabling accused persons to abuse the system by falsely claiming mental illness to delay proceedings. The court also commented on the precarious history of the defence of sane automatism in Rhodesian/Zimbabwean law, noting that it had been effectively eliminated by cases like R v Senekal and R v Mavonani which conflated it with insanity, and that lesser defences like diminished responsibility and hysterical dissociation emerged to fill the gap. The court observed that codification of criminal law resurrected sane automatism but reintroduced its common law frailties. The court noted that in criminal procedure, unlike civil procedure, courts may extend to an accused a defence not directly pleaded if the evidence supports it and the accused has laid a foundation for it. The court also made observations about the limitations of faith-based healing in the context of legal requirements for medical evidence, noting that while an accused's religious beliefs may be deeply held, the law does not recognize psychiatric diagnoses by traditional or faith-based healers.

This case is significant in Zimbabwean criminal jurisprudence as it clarifies and revitalizes the defence of sane automatism following codification of criminal law. The judgment comprehensively distinguishes between sane automatism (s 216(1)) and insane automatism (s 216(4) read with s 227), rejecting the earlier approach in cases like R v Senekal and R v Mavonani that had effectively conflated the two defences. The court confirmed that the Criminal Law (Codification and Reform) Act resurrected sane automatism as a complete defence leading to unconditional acquittal, distinct from insanity which leads to a special verdict under s 29(2) of the Mental Health Act. The judgment establishes important principles regarding: (1) the different evidentiary burdens for sane automatism (evidential burden only) versus insane automatism (proof on balance of probabilities); (2) the necessity of medical evidence to establish mental disorder at the time of the offence; (3) the distinction between s 28 examinations (fitness to stand trial) and s 29 examinations (mental state at time of offence); and (4) that external psychological and emotional stressors can constitute the external stimuli necessary for sane automatism. The case also highlights systemic challenges in Zimbabwe's criminal justice system regarding shortage of psychiatric practitioners.