The State versus Tamisayi Brian Mapako

The accused was charged with Criminal Insult under section 95(1)(a) of the Criminal Law (Codification and Reform) Act. Between 16 May 2024 and 28 June 2024, at Fidelity House in Bulawayo, the accused unlawfully and intentionally impaired the dignity of Casey Jade by accosting her and writing several letters demanding sexual intercourse and requesting her participation in a "threesome romp." Despite warnings, the accused continued writing threatening letters mentioning a "holocaust" and "sacrifices." The complainant reported the matter to the police. The accused had a long psychiatric history, having been treated at Ingutsheni Hospital 12 times since 1999 for Schizophrenia, with previous detentions at Mlondlozi for criminal offenses in 1997, 2001, and 2018. He received a special verdict in 2018, was released by a Tribunal Board in 2023, but defaulted on treatment and relapsed. At trial, the accused pleaded not guilty, admitting sending the letters but claiming he was "love-stricken" and did not know his conduct was wrongful.

• Whether the trial magistrate correctly applied the procedure under section 28(2) of the Mental Health Act regarding mental fitness to stand trial
• Whether the trial magistrate correctly understood and applied the defence of mental disorder at the time of commission of the crime under section 227 of the Criminal Code and section 29 of the Mental Health Act
• Whether the trial magistrate properly distinguished between a special verdict of not guilty by reason of insanity and an ordinary acquittal
• Whether the trial magistrate erred in conducting a pre-sentencing inquiry after returning a special verdict of not guilty by reason of insanity
• Whether the procedural irregularities vitiated the trial proceedings

The High Court withheld its certificate on automatic review due to the procedural irregularities and errors in the trial magistrate's approach, but did not set aside the special verdict of not guilty by reason of insanity as it was substantively correct based on the psychiatric evidence.

A special verdict of not guilty by reason of insanity under section 29(2) of the Mental Health Act is fundamentally different from an ordinary acquittal. The special verdict means the accused is found not guilty but carries consequences - the court retains authority to commit the accused for treatment where evidence shows the accused poses a danger to the public. An ordinary acquittal comes with no strings attached and the accused must be released unconditionally. When a special verdict is returned, no sentencing inquiry is appropriate, no victim impact statement is necessary, and the accused cannot be punished. The defence of mental disorder at the time of commission of the offence (section 227 of the Criminal Code read with section 29 of the Mental Health Act) applies where an accused has recovered sufficiently to be fit to stand trial and understand the proceedings, but raises as a defence that at the material time of the offence, he was suffering from mental disorder rendering him incapable of understanding the nature and quality of his actions. This is distinct from current unfitness to stand trial under section 28(2) of the Mental Health Act.

Mutevedzi J observed that where a prosecutor agrees that an accused was mentally disordered at the time of commission of the crime after the accused has recovered, there may be no need to drag such a person before the courts in a full trial except where the state wishes the court to commit the person for further treatment for public protection. In such cases, the proper procedure is for the state and accused to proceed by way of a statement of agreed facts rather than calling witnesses to prove uncontentious issues. The judge also noted that the requirement in section 28(2) that a court may adjourn trial for not more than 14 days for psychiatric examination is not idle - it is intended that when the medical report is submitted, the court must have regard to it within that two-week window, particularly for accused persons who frequently relapse into mental illness when defaulting on medication. The judge further observed that victim impact statements are not necessary to prove guilt or innocence but only serve the purpose of assessing appropriate sentence and should ordinarily only be produced for that purpose.

This case is significant in Zimbabwean criminal procedure and mental health law for clarifying the proper application of sections 28 and 29 of the Mental Health Act and section 227 of the Criminal Code. It establishes important distinctions between: (1) unfitness to stand trial due to current mental disorder (section 28) versus mental disorder at the time of commission of the offence as a substantive defence (section 29); (2) a special verdict of not guilty by reason of insanity versus an ordinary acquittal - the former being a qualified finding that allows for continued commitment and treatment where the accused poses a danger to society, while the latter requires unconditional release; and (3) the inappropriateness of conducting pre-sentencing inquiries or considering victim impact statements when returning a special verdict. The case provides important guidance to magistrates on proper procedure when mental health issues arise in criminal proceedings, emphasizing that statements of agreed facts should be used where the state accepts the accused was mentally disordered at the material time, and that psychiatric evidence must be properly interrogated during trial rather than admitted as an afterthought.