The State v Zilolwazi Siqedeni Ndlovu

On 20 June 2019 at around 0300 hours, the accused (aged 50 years and HIV positive) was sleeping in her bedroom with the deceased (aged 3 years) at Anele Ncube's homestead, Malandu Village, Sun Yet Sen, Zimbabwe. The accused woke up and strangled the deceased using a woollen hat tied around the deceased's neck. She then placed the body inside a travelling bag and concealed it with clothes. The accused had been behaving strangely the previous day. On 20 June 2019 around 1900 hours, a neighbour sent her son Germany Ncube to check on the accused. Germany found the accused hallucinating, saying the deceased had been taken by angels. When the accused's husband arrived, she revealed to him that she had killed the deceased by strangulation. The accused was arrested by police who found the deceased's remains in the travelling bag with a woollen thread around the neck. The post-mortem report revealed the cause of death as asphyxia due to strangulation and assault. A psychiatric report indicated that the accused suffered from neurocognitive disorder (transient psychosis) at the time of the offence, had no history of mental illness, but was behaving strangely and suffering from hallucinations before the murder.

• Whether the accused had the requisite mental capacity to commit the offence of murder by reason of her mental state at the time of the commission of the offence
• Whether the accused lacked sufficient mental capacity to appreciate the wrongfulness of her actions
• Whether the accused should be released back into society under section 29(2)(c) of the Mental Health Act
• Whether a special verdict should be entered on grounds of insanity

1. The accused is found not guilty by reason of insanity in terms of section 29 of the Mental Health Act (Chapter 15:21). 2. The accused shall be returned to prison pending transfer to Mlondolozi Special Institution for further examination and care. 3. The accused shall immediately be reviewed by a Psychiatrist and a report shall be submitted on her mental condition and suitability for early release.

Where an accused person is found to have been suffering from a mental disorder at the time of committing an offence such that they lacked the mental capacity to appreciate the wrongfulness of their actions, they cannot be held criminally liable and a special verdict of not guilty by reason of insanity must be entered in terms of section 29 of the Mental Health Act. The determination of whether an accused lacked mental capacity must be based on expert psychiatric evidence. A court cannot release an accused person found not guilty by reason of insanity back into society unless there is sufficient and cogent evidence from expert mental health practitioners indicating that the accused has recovered and is no longer a danger to society.

The court observed that cases of violent murder committed by mental patients are on the rise and emphasized the urgent need for adequate mental health care for persons such as the accused. The court noted the importance of establishing proper mechanisms to follow up on those detained in terms of the Mental Health Act and ensuring that persons committed under special verdicts are properly assessed and, where appropriate and safe, released. The court expressed concern that courts are not equipped to release persons back into society based on submissions from counsel alone, without reliable medical expert evidence on the accused's current mental state. The court also implicitly criticized the non-functionality of the Mental Health Tribunal, acknowledging defense counsel's concerns that accused persons might spend inordinate time in special institutions without adequate medical attention and assessment.

This case is significant in Zimbabwean criminal law and mental health jurisprudence as it addresses the application of the insanity defense in murder cases and highlights systemic issues with mental health care in the criminal justice system. The judgment emphasizes the need for adequate mental health care for accused persons, functional Mental Health Tribunals, and proper follow-up mechanisms for persons detained under special verdicts. It underscores the courts' reliance on expert psychiatric evidence in determining both criminal responsibility and the appropriateness of release. The case also draws attention to the increasing prevalence of violent crimes committed by persons suffering from mental disorders and the need for comprehensive mental health interventions within the justice system.