12—1

CHAPTER 12

MENTALLY DISORDERED ACCUSED

Section Page

1. Mentally disordered persons ......................................................................................... 12—1

(1) police powers to deal with mentally disordered person ...................................... 12—2
(2) mental illness disclosed pending trial .................................................................. 12—2
(3) mental illness disclosed during trial
(a) mental disorder rendering accused unfit for trial ......................................... 12—4
(b) mental disorder not rendering accused unfit for trial .................................. 12—6
(4) recovery of person found unfit to plead or stand trial ......................................... 12—7
(5) mental disorder becoming apparent after conviction .......................................... 12—7
(6) accused person who was mentally disordered at the time the offence
was committed ..................................................................................................... 12—8
(a) requirements for a special verdict ................................................................ 12—9
(b) evidence and onus
(i) onus ...................................................................................................... 12—9
(ii) evidence required ............................................................................... 12—10
(iii) affidavit or documentary evidence .................................................... 12—10
(iv) aapplicability of audi alteram partem rule ........................................ 12—10
(c) what constitutes a mental disorder or intellectual handicap ...................... 12—10
(i) automatism ......................................................................................... 12—12
(ii) irresistible impulse ............................................................................. 12—12
(iii) amnesia .............................................................................................. 12—12
(d) diminished responsibility and mitigating effect of mental illness ............. 12—12
(7) appeal and review .............................................................................................. 12—13

2. Accused persons who are deaf or mute or both .......................................................... 12—13

1. MENTALLY DISORDERED PERSONS

Section 192 of the CP&EA provides that:

“ If at any time after the commencement of any criminal trial it is alleged or appears that the
accused is not of sound mind, or if on such a trial the defence is set up that the accused
was not criminally responsible on the ground of mental disorder or defect for the act of
omission alleged to constitute the offence with which he is charged, he shall be dealt with
in a manner provided by the law relating to mental disorders.”

The law relating to mental disorders is contained in the Mental Health Act 1996 [Chapter 15:12]
(MHA).

There are, effectively, five situations that may be encountered:

12—2 Criminal Procedure in Zimbabwe

• a person who appears mentally disordered is arrested by the police on a petty charge;
• the accused is awaiting trial and facts come to the attention of the court indicating that the
accused is or may be mentally disordered or intellectually handicapped;
• after the trial has begun, facts come to the attention of the court indicating that the accused
is or may be mentally disordered or intellectually handicapped;
• it appears after conviction that the accused’s mental condition is in question; and
• evidence led at the trial shows that the accused was mentally disordered or intellectually
handicapped at the time he committed the offence.

(1) POLICE POWERS TO DEAL WITH MENTALLY DISORDERED PERSON

Under Part II of the MHA, a magistrate or judge may make an order under s 8 directing that a
patient be removed to and detained in an institution.1 Such an order is known as a reception order.
A reception order may be applied for on Form MH 12 by a spouse or other near relative of the
patient or by any other person over the age of 18 years. This means that a police officer may apply
for a reception order. A police officer who does so must state that he is applying in his capacity as
a police officer. The form also requires the applicant to state the grounds on which he believes the
patient to be mentally disordered or intellectually handicapped.

It is appropriate for the police to apply for an reception order to act in accordance with Part II of
the Act where the offence is petty. For example, a person who is clearly mentally disordered or
intellectually handicapped may be arrested on a charge arising out of conduct caused by his mental
disorder. A typical charge would be one of contravening s 3(o) of the Miscellaneous Offences Act
[Chapter 9:15], that is, shouting, screaming or swearing in a public place. It is neither necessary
nor desirable to brings such cases before the courts.

On receipt of the application, the magistrate may examine the patient himself. He must, in any
case, have the patient examined by two medical practitioners and obtain from the practitioners
certificates as to the patient’s mental state. If one medical practitioner is available, the second
certificate may be from a psychiatric nurse practitioner, a designated3 psychiatric nurse, a designated
social worker or a designated clinical psychologist.4 One of the medical practitioners must be a
Government medical officer, unless a relative of the patient requests otherwise. If, on consideration
of the certificates, the magistrate is satisfied that the patient is mentally disordered or intellectually
handicapped, he may issue a reception order.

In more serious cases, the procedures set out in Part III of the Act should be followed.

(2) MENTAL ILLNESS DISCLOSED PENDING TRIAL

If it appears to:
• the Attorney-General or anyone to whom the Attorney-General has delegated any of his
duties (this would include a public prosecutor); or

1 Ss defined in s 2 of the MHA.

2 See the Mental Health Regulations 1977 (RGN 792 of 1977).
3 Under s 108 of the MHA.
4 MHA s 5.
Mentally disordered accused 12—3

• a person in charge of the place in which a person is detained;

that a person who is detained:

• for the purposes of a preparatory examination, trial or sentence; or
• in terms of any enactment for any other purpose and is not a convicted prisoner;

is mentally disordered or intellectually handicapped, this fact must be reported without delay to a
magistrate of the province in which the person is detained.5 If the trial or preparatory examination
has already begun, the report must be made to the judge or magistrate presiding at the trial or
preparatory examination.6 In the latter event, the procedure provided by s 28 applies.7 This is dealt
with in the next section.

There is no reason why the defence should not, if so advised, request the prosecuting authorities to
obtain an order for the examination of the accused.8

Note that the accused must have been detained; the provision does not apply to accused persons
who are out of custody.9

When such a report has been made to a magistrate, the magistrate must, within 24 hours of receiving
the report, direct two medical practitioners (or, if two medical practitioners are not immediately
available, one medical practitioner and a psychiatric nurse practitioner) to examine the accused
and certify as to the accused’s mental state.10 In practice, the magistrate will ask the superintendent
of the prison in which the accused is detained to arrange for the examination. The case will have to
be remanded for long enough to enable to examination to take place (but not for more than two
weeks at a time). Copies of any statements in the prosecutor’s possession which may indicate the
accused’s mental condition and any other relevant information on the subject should be forwarded
with the request for medical examination.

The court record and warrant should be endorsed “For examination by two doctors in terms of s 27
of the Mental Health Act”.

The magistrate will consider the medical practitioners’ certificates and make whatever other enquiry
he thinks fit. If he is satisfied that the person is mentally disordered or intellectually handicapped
and, in the case of a person under detention pending preparatory examination, trial or sentence,
that the person would not be able to understand the nature of any criminal proceedings or conduct
his defence properly, he must issue an order directing that the person be removed to and detained
in an institution (or in a special institution, if the medical practitioners have certified that the
person is a danger to others).11 Such an order has the same effect as a reception order.12

5 MHA s 27(1).
6 MHA s 27(1), proviso.
7 Ex p R 1968 (2) RLR 119 (G).
8 G Feltoe “Investigating the mental condition of persons charged with murder” (1989) Legal Forum vol 1 no 4 p 30.
9 Ex p R supra.
10 MHA s 26(2) to (5).
11 MHA s 27(3)(a).
12 MHA s 27(4).
12—4 Criminal Procedure in Zimbabwe

If the magistrate considers that the offence for which the PE or trial is being held will not result in
imprisonment without the option of a fine or a fine of over $500, he must order the proceedings to
be stayed for a definite period or indefinitely and either order the accused to submit himself for
treatment or order the accused’s guardian, spouse or a close relative to apply for the accused to be
received for treatment in an institution in terms of Part VII or VIII of the Act.13

If he is not satisfied that the person is mentally disordered or intellectually handicapped or whether
the person would be able to understand the nature of any criminal proceedings or conduct his
defence properly, the magistrate may order that the person be removed to an institution for further
examination. No person may be detained for the purposes of examination for more than 8 weeks.14
Alternatively, the magistrate may order the release of the person, for such period and on such
conditions as he specifies in the order, for the purpose of examination of his mental state.15

Proceedings under s 27 may be dealt with in chambers.

The primary concern at this stage is whether the accused is so mentally disordered or intellectually
handicapped that he would not be able to understand the nature of any criminal proceedings or
conduct his defence. If he is so mentally disordered or intellectually handicapped, he will be
removed to an institution. As explained below, he could be tried later, if he recovers from his
mental illness.

Amnesia in respect of the facts and circumstances of the offence with which the accused is charged
does not in itself make him unfit to stand trial for that offence.16

The documents that should be prepared before the medical examination and following a decision
to commit the person to an institution are set out in The Prosecutor’s Handbook 3 ed pp 196-197.

(3) MENTAL ILLNESS DISCLOSED DURING TRIAL

(a) Mental disorder rendering accused unfit for trial

Section 28 of the MHA sets out the procedure to be followed where a preparatory examination or
trial has begun and the accused appears to the presiding judge or magistrate to be mentally disordered
or intellectually handicapped or where a report is made to the judge or magistrate by the Attorney-
General, his representative or the person in charge of the place at which the accused is detained.
The trial, for this purpose, begins at the arraignment of the accused, even if the charge has not been
put to the accused.17

The judge or magistrate, for the purpose of enquiring into the accused’s mental condition, may
adjourn the proceedings for a period not exceeding fourteen days. The accused will be remanded
into prison custody. Note that this could apply to an accused who until this point has been out of
custody. The judge or magistrate will direct two medical practitioners (or, if two are not immediately
available, one medical practitioner and one psychiatric nurse practitioner) to examine the accused
and certify as to his mental state.18

13 MHA s 27(3)(a)(iii). 14 MHA s 27(3)(b).

15 MHA s 27(3)(b)(ii). 16 R v Njiri 1959 (2) R & N 241 (SR).
17 Ex p R supra; R v Sibanda 1968 (2) RLR 167 (G).
18 MHA s 28(3).
Mentally disordered accused 12—5

If, having considered the medical evidence19 and such other evidence as he deems fit, the judge or
magistrate considers that the accused is so mentally disordered or intellectually handicapped20 that
he would not be able to understand the nature of the proceedings or properly conduct his defence,
the judge or magistrate must record a finding to that effect.

In the case of a judge, he must then either:

(a) issue an order directing that the accused be removed to an institution and detained there
for a definite or an indefinite period;21 or

(b) if the evidence leads the judge to the conclusion that the accused would be a danger to
others and a medical certificate by a designated medical practitioner22 recommends that
the accused be detained in a special institution, issue an order directing that the accused
be detained in a special institution for a definite or indefinite period; or

(c) if he considers that the offence for which the PE or trial is being held will not result in
imprisonment without the option of a fine or a fine of over $500, order the proceedings to
be stayed for a definite period or indefinitely and either order the accused to submit himself
for treatment or order the accused’s guardian, spouse or a close relative to apply for the
accused to be received for treatment in an institution in terms of Part VII or VIII of the
Act.23

An order by a judge that the accused be detained has the effect of an order under s 18. This could
include the appointment of a curator bonis.24

In the case of a magistrate, he must either:

(a) issue an order directing that the accused be removed to an institution and detained there;
or

(b) if the evidence leads the magistrate to the conclusion that the accused would be a danger
to others and a medical certificate by a designated medical practitioner25 recommends
that the accused be detained in a special institution, issue an order directing that the accused
be detained in a special institution; or

(c) if he considers that the offence for which the PE or trial is being held will not result in
imprisonment without the option of a fine or a fine of over $500, order the proceedings to
be stayed for a definite period or indefinitely and either order the accused to submit himself
for treatment or order the accused’s guardian, spouse or a close relative to apply for the

19 Which may consist solely of the certificate, which is admissible on its mere production in terms of s 119 of the MHA,
though in this regard, as in other situations, the court could require the medical evidence to be given orally.
20 As defined in s 2 of the MHA.
21 This applies even where the “mental disorder or intellectual handicap” is merely one of arrested development: R v
Joseph 1968 (2) RLR 243 (A).
22 That is, one whose name appears on the list of names prepared by the Secretary for Health and Child Welfare in terms
of s 108 of the MHA.
23 MHA s 28(3)(a).
24 MHA s 28(5).
25 That is, one whose name appears on the list of names prepared by the Secretary for Health and Child Welfare in terms
of s 108 of the MHA.
12—6 Criminal Procedure in Zimbabwe

accused to be received for treatment in an institution in terms of Part VII or VIII of the
Act.26

An order by a magistrate for the detention of the accused has the same effect as a reception order.27

If he is not able to conclude that the accused is mentally disordered or intellectually handicapped
or whether the accused would be able to understand the nature of any criminal proceedings or
conduct his defence properly, the judge or magistrate may order that the accused be removed to an
institution for further examination. The accused may not be detained for the purposes of examination
for more than 8 weeks. Alternatively, the judge or magistrate may order the release of the accused,
for such period and on such conditions as he specifies in the order, for the purpose of examination
of his mental state.28

If the accused has pleaded, a finding that he is mentally disordered or intellectually handicapped
does not entitle him to demand that he be either acquitted or convicted. The trial in effect is held in
abeyance until the accused recovers.29

(b) Mental disorder not rendering accused unfit for trial

It may happen that, although the accused is found to be mentally disordered or intellectually
handicapped, he is able to understand the nature of the proceedings and conduct his defence properly.
However, if the medical evidence from two medical practitioners (one of whom must be a designated
practitioner) indicates that the accused is a danger to others, then special procedures follow.

If the accused is discharged, the court may, immediately following the discharge, order that he be
returned to prison and subsequently transferred to and detained in a special institution.30 An order
by a magistrate may not authorise the detention of the accused for longer than eight weeks. If the
magistrate makes such an order, the papers must be sent to the Attorney-General, who in turn must
send them to the registrar for consideration by a judge in chambers.31 The judge may make an
order for the definite or indefinite detention of the accused or order his immediate discharge.32

If the accused is convicted, the judge or magistrate passing sentence may, in addition to any sentence
imposed, order that the accused be returned to prison and subsequently transferred to and detained
in a special institution.33 If the sentence has been one of imprisonment, the sentence will be served
at the institution.34 If the court makes such an order, the accused may not be sentenced to corporal
punishment, even if he were otherwise liable to it.35 An order for the removal of the accused to a
special institution may not be made if the accused is sentenced to death. However, if the sentence
is subsequently commuted, the President may direct that the accused be detained in a special
institution.36

26 MHA s 28(3)(b).
27 MHA s 28(5)(b); and see s 8, for the limits of a reception order.
28 MHA s 28(9). 29 MHA s 28(11).
30 MHA s 38(2)(a). 31 MHA s 38(4).
32 MHA s 38(5). 33 MHA s 38(2)(b).
34 MHA s 38(6)(a). 35 MHA s 38(6)(b).
36 MHA s 38(2)(b), proviso (ii).
Mentally disordered accused 12—7

A magistrate’s order that the accused be detained in a special institution after conviction is subject
to review.37 If the order is set aside on review or appeal, the accused may be transferred from the
special institution to a prison to continue serving his sentence. For the purposes of appeal, such an
order (whether by judge or magistrate) is treated as a conviction.38

(4) RECOVERY OF PERSON FOUND UNFIT TO PLEAD OR STAND TRIAL

If a person who is in an institution because of an order under s 27 or s 28 of the MHA recovers, or

becomes fit to plead and conduct his defence properly, he may not be released unless the
superintendent of the institution has given the Attorney-General at least 14 days’ notice of the
proposed discharge of the patient. The Attorney-General will decide whether or not to revive the
prosecution. Since the accused may not be tried unless he is mentally fit to plead and conduct his
defence, there may be a long period between the time of the offence and the time of the trial — if
a trial takes place at all.

It is useful, therefore, when ascertaining the mental state of the accused in terms of s 27 or s 28, to
take the extra step of finding out whether the medical practitioners consider that the accused is
likely to have been mentally disordered or intellectually handicapped at the time the offence was
committed. This may save a repeat examination if the accused recovers, is prosecuted and is
convicted. It also has the advantage that the Attorney-General may, on considering the proceedings
relating to any initial committal order on the grounds of unfitness to stand trial, can determine
immediately whether the accused should be released on recovery or put on remand for trial. If the
accused was insane at the time of the offence, there would be no point in prosecuting him after he
had recovered. Such a prosecution would only result in a “special verdict” and the accused’s
possible further commitment to a mental institution, resulting in a waste of time and public money
and further overcrowding of already overcrowded mental institutions. On the other hand, if the
medical practitioners conclude that although the accused is unfit to stand trial because of his
mental condition but was not insane at the time of the offence, the Attorney-General will be able
safely to instruct a prosecution on the accused’s recovery. This avoids the result of an unnecessary
re-committal in terms of s 29 of the Act and the accused would, in the event of conviction, serve a
normal sentence.39

(5) MENTAL DISORDER BECOMING APPARENT AFTER CONVICTION

Where it becomes apparent for the first time after conviction in a magistrates court that the accused
was mentally disordered, the appropriate procedure would for the High Court to set aside the
verdict on review and have the accused medically examined in terms of s 28 of the MHA. Thereafter,
the magistrate will be free to deal with the accused either in terms of s 28(4) of the Act or, if the
accused is found to be able to understand the nature of the proceedings, to proceed with the trial in
the usual way, having regard to the possibility that a special verdict could be entered.40

If a convicted prisoner appears to the officer in charge of the prison to be mentally disordered, the
officer must report the matter to the nearest magistrate. The prisoner must then be medically

37 MHA s 38(7); see Chapter 26 below.

38 MHA s 38(8).
39 See Chief Magistrate’s Circular 9 of 1984, quoted in the Appendix to Prosecutor’s Handbook 3 ed p 195 ff.
40 R v Ayling 1969 (2) RLR 426 (G); S v Mageza 1979 RLR 399 (G).
12—8 Criminal Procedure in Zimbabwe

examined. If the prisoner is found to be mentally disordered or intellectually handicapped, the

magistrate must order his removal to an institution (or special institution). An such order committing
the prisoner to an institution has the effect of a reception order. It also has the effect of suspending
the warrant of committal to prison.41

(6) ACCUSED PERSON WHO WAS MENTALLY DISORDERED AT THE TIME THE OFFENCE WAS
COMMITTED

The fifth situation that a court may have to deal with is that where the accused sets up a defence
that he was not criminally responsible, on the ground of mental disorder or intellectual handicap,
for the act or omission constituting the offence with which he is charged.

If, having heard the evidence (including medical evidence42), the judge or magistrate finds that the
accused did the act or made the omission constituting the offence but was “mentally disordered or
intellectually handicapped so as not to be responsible for the act”, he must return a “special verdict”,
to the effect that the accused is not guilty because of insanity. He must also make one of the
following orders:

(a) that the accused be returned to prison for transfer to a mental institution for examination;

(b) if he considers that, if the accused had been convicted, he would not have been sentenced
to imprisonment without the option of a fine or a fine of over $500, either order the
accused to submit himself for examination or treatment or both, or order the accused’s
guardian, spouse or a close relative to apply for the accused to be received for treatment
in an institution in terms of Part VII or VIII of the Act. In connection with this, he may
make such orders as he considers appropriate for the accused’s release from custody for
the purposes of undergoing examination or treatment; or

(c) if he is satisfied that the accused is no longer mentally disordered or intellectually

handicapped or is otherwise fit to be discharged, order his discharge and, where appropriate,
his release from custody.43

If the judge or magistrate orders that the accused be returned to prison for transfer to aninstitution,
copies of the order must be sent by the registrar or clerk of court to:

(i) a magistrate of the province in which the accused was residing;

(ii) the officer in charge of the prison to which the accused has been returned; and

(iii) the superintendent of the mental institution to which the accused is to be transferred.44

The court may not specify a period during which the accused is to be kept in prison.45

41 MHA s 30.
42 The question as to whether medical evidence is essential is dealt with below.
43 MHA s 29(2).
44 MHA s 29(3).
45 S v MacGregor 1975 (1) RLR 77 (G).
Mentally disordered accused 12—9

Within 14 days of the accused’s reception into the institution, the superintendent of the institution
must certify in writing as to the accused’s mental condition. This certificate is transmitted to a
special board,46 with a copy to the Attorney-General. The special board makes recommendations
as to the patient’s release or further detention, care, management and treatment. Its recommendations
are sent to the Mental Health Review Tribunal, with a copy to the Attorney-General. The Tribunal
will make such directions as it thinks fit with regard to the the patient’s release or further detention,
care, management and treatment.47

This procedure is quite different from that which was in effect before the MHA was enacted.
Previously, because a “special verdict” meant that the accused remained in custody and was not
released until the time-consuming procedures for establishing his suitability for release has been
followed, it was usually only in such serious cases as murder that the accused or his representative
would have been wise to raise the defence of mental disorder.48 It is now possible to raise the
defence in other cases and it would be safe, from the accused’s point of view, to do so, provided
that the evidence showed either that the offence was petty or that, irrespective of the seriousness of
the offence, the accused had recovered and could safely be released.

(a) Requirements for a special verdict

For the defence of insanity to succeed and a special verdict to be returned, it must be shown that,
at the time of committing the act, the accused was labouring under such a defect of reason, from
disease of the mind, that:

(i) he did not know the nature and quality of what he did; or

(ii) if he did know what he was doing, he did not know that what he was doing was wrong; or

(iii) he acted under an irresistible impulse.

These requirements are what are known as the M’Naghten Rules.49 Under the M’Naghten Rules,
insanity requires “a defect of reason, from disease of the mind”. The meaning of the term and what
conditions fall under that description are dealt with below. Assuming that the necessary mental
condition existed, it must have led to (i), (ii) or (iii). In that event, the accused would “not be
responsible” for the crime.50

(b) Evidence and onus

(i) Onus
The burden of proving a defence based on mental disorder or defect lies on the accused.51 This rule

46 Established by the Minister of Health and Child Welfare under s 73 of the MHA.
47 MHA s 29(4), (5) and (6).
48 It has been raised in less serious cases: see Burchell and Hunt p 195.
49 They were set out as replies by the judges to questions posed by the House of Lords on the subject of the criminal
liability of insane persons: M’Naghten’s case (1843) 8 ER 718 at 722.
50 The Rumpff Commission of Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters (1967)
concluded that the M’Naghten Rules were unsatisfactory. The Rules have subsequently been modified by statute in South
Africa (s 78(1) of the Criminal Procedure Act 51 of 1977), but the law of Zimbabwe has not been modified.
51 R v Moyo 1969 (1) RLR 162 (G).
12—10 Criminal Procedure in Zimbabwe

has been criticised as illogical and inelegant.52 It is ironical that the onus of proving mental
abnormality lies on the one least capable of discharging it and often most anxious to deny it.53
There is nothing, though, to prevent the prosecution from affirming or denying the mental disorder
or defect, and undertaking the onus of proof, thus assisting the court to come to a just conclusion.
The inevitable tendency is for the courts to lighten the burden on the accused as much as possible.54
It is submitted that where the prosecution has in its possession evidence indicating that the accused
was or even may have been mentally disordered or intellectually handicapped, it would be the
duty of the prosecution to lead that evidence or, at the very least, make it available to the defence
(if the accused is legally represented).

(ii) Evidence required

The question of the need to lead medical evidence of the accused’s mental disorder or defect is
somewhat vexed. Section 29(1) of the MHA refers to “evidence, including medical evidence”
having been given that the accused was mentally disordered or intellectually handicapped. This
would appear to indicate that medical evidence leading to such a conclusion is essential. It has
been held, however, that medical evidence, though always helpful, is not necessary for proof of
insanity. Previous, contemporaneous and subsequent acts of the accused may sometimes carry
more weight than medical theory. However, where the case turns on abstruse psychiatric
considerations, which are unknown to the ordinary informed person, some medical evidence will
normally be required in order to negative the presumption of sanity.55

(iii) Affidavit or documentary evidence

A medical practitioner’s or a psychiatric nurse practitioner’s evidence and opinion relating to the
accused’s mental condition may be given by way of affidavit, provided that all the requirements
relating to the production of evidence by affidavit are complied with.56 A medical certificate or
report made for the purposes of the MHA is also admissible on its production by any person and is
prima facie evidence of the facts stated in the certificate or report and any opinion expressed by
the maker of the certificate or report.57

(iv) Aapplicability of audi alteram partem rule

The audi alteram partem rule does not apply to the compiling of reports by psychiatrists, since
they are not performing administrative, judicial or quasi-judicial functions, but conducting their
own enquiry in their own way to enable them to provide an opinion about the accused’s mental
capacity.58

(c) What constitutes a mental disorder or intellectual handicap

To come within the provisions of s 29 of the MHA, the accused must be suffering from some type
of mental disorder or intellectual handicap which the law recognizes as relieving him from

52 R v Benjamin 1968 (1) RLR 126 (G).

53 per MCNALLY JA in S v Taanorwa 1987 (1) ZLR 62 (S) at 65.
54 R v Benjamin 1968 (1) RLR 126 (G).
55 R v Dube 1968 (2) RLR 106 (G); followed in R v Moyo 1969 (2) RLR 111 (G) at 115-116.
56 See Chapter 19, below.
57 MHA s 119.
58 S v Dobson 1993 (4) SA 55 (E); 1993 (2) SACR 86 (E).
Mentally disordered accused 12—11

responsibility for his actions. That type of disorder is not defined in s 29, although the words
“mentally disordered or intellectually handicapped person” are defined as meaning that —

“ the person is suffering from mental illness, arrested or incomplete development of mind,
psychopathic disorder or any other disorder or disability of the mind”.

A psychopathic disorder is —

“ a persistent disorder or disability of the mind, whether or not subnormality of intelligence

is present, which —

(a) has existed or is believed to have existed in the patient from an age prior to that of
eighteen years; and

(b) results in abnormally aggressive or seriously irresponsible conduct on the part of the
patient”.59

The scope of the words “mentally disordered or intellectually handicapped” in s 29 is not limited
to the meaning given in the definition, wide though that definition is.60 It is also unnecessary for
the mental disorder or intellectual handicap to be permanent in nature or of a nature that is likely
to recur; it can be of a purely temporary character. The cause of the mental disorder or defect is
also irrelevant. The law is concerned with the result, not the cause. The only issue is whether the
accused’s mental condition prevents him from knowing the nature and quality of his act or that it
is wrong, or gives rise to an irresistible impulse.61

It is not necessary in a book of this nature to go into great detail about what is or is not regarded as
a mental disorder or intellectual handicap which could give rise to a special verdict. A state of
automatism due to head injuries received would not entitle the accused to an acquittal but only to
a special verdict.62 An adult who is feeble-minded with the mental age of a young child falls within
the definition of a “mentally disordered or intellectually handicapped” person and would be entitled
to a special verdict.63 A state of hysterical dissociation associated with a trance can also give rise
to a special verdict,64 as can a somnambulistic condition.65 Voluntary intoxication or consumption
of drugs would, on the other hand, not give rise to a special verdict, even if because of the alcohol
or drugs the accused did not know what he was doing or that it was wrong.66 However, if the
consumption of alcohol or drugs had resulted in a mental disease such as delirium tremens, the
defence of insanity would be available.67 A black-out not caused by injury would not constitute a
mental disorder, although it could be a defence to a charge.68

59 MHA s 2.
60 Per BEADLE CJ in Attorney-General v Senekal 1969 (2) RLR 368 (A) at 376; 1969 (4) SA 478 (RA) at 486; Bennett v
Bennett [1969] 1 All ER 539 (PDA) at 541.
61 Burchell and Hunt op cit pp 199-200.
62 Attorney-General v Senekal supra.
63 R v Joseph 1968 (2) RLR 243 (A).
64 R v Mawonani 1970 (1) RLR 41 (A); 1970 (3) SA 448 (RA).
65 S v Ncube 1977 92) RLR 304 (G).
66 J Reid Rowland “Is voluntary intoxication a mental disorder?” 1971 (2) RLJ 145, cited with approval in S v MacGregor
1975 (1) RLR 77 (G).
67 Burchell and Hunt p 236; and see R v Moyo supra, where a special verdict was returned, the accused’s mental disorder
being possibly induced by drug-taking.
68 S v Evans 1985 (1) ZLR 95 (S).
12—12 Criminal Procedure in Zimbabwe

(i) Automatism
The question of whether sane automatism is a defence to a charge, leading to acquittal, or would
give rise to a special verdict, is a matter of doubt. The first question to be asked is: what is
automatism? It has been defined as

“ the performance of simple or complex acts, without the individual being aware of them at
the time or afterwards. To the onlooker the performer appears fully purposeful and aware.”69

Because of the wide interpretation given to s 29 of the MHA in Senekal and Mawonani, it may be
advisable to treat traffic accident cases, where there is no question of disease, disorder or disability
of the mind, as cases of accident or misadventure, where the accused is excused from liability
because of lack of intention. Epilepsy is a condition which could result in misconduct, such as a
driving offence. It has been suggested that it would be wrong to treat such offences on the same
footing as acts of violence resulting from epilepsy.70

(ii) Irresistible impulse

Even if the accused knew the nature and quality of his act and that it was wrong, the defence of
insanity will still avail him if he can show that at the time of the act in question he was suffering
from a “disease of the mind” which resulted in an impulse which was not merely uncontrolled but
irresistible. The impulse must be one which could not be resisted by the accused in the particular
circumstances. It does not have to be one which could not be resisted by anyone in any
circumstances.71

(iii) Amnesia
Amnesia, or inability to remember what happened, is not in itself a defence to criminal liability,72
unless it is associated with a form of mental disorder or unconscious action amounting to
automatism.

(d) Diminished responsibility and mitigating effect of mental illness

If the accused’s mental condition at the time of the offence does not satisfy the requirements of
insanity, but was abnormal, he will be legally responsible for the offence and must be convicted.
However, if his mental condition, although falling short of legal insanity, prevented the accused
from forming the intent required for the crime charge, he may, if such a verdict is competent, be
convicted of a less serious crime.73 Thus, in a murder trial, a successful plea of diminished
responsibility reduces the crime of murder to one of culpable homicide.74

Diminished responsibility is usually the finding in cases of epilepsy and mental deficiency which
do not amount to legal insanity.75 However, since psychopathic disorders are included in the list of

69 Gradwohl Legal Medicine p 531, quoted in G Feltoe “Sane Automatism: the demise of a defence?” 1971 (1) RLJ 19 at
22.
70 Feltoe op cit p 35.
71 Burchell and Hunt p 207.
72 R v Johnson 1970 (1) RLR 58 (G).
73 Burchell and Hunt pp 213-214.
74 S v Chitiyo 1987 (1) ZLR 235 (S) at 239.
75 Burchell and Hunt loc cit.
Mentally disordered accused 12—13

conditions which would bring a person into the definition of a “mentally disordered or intellectually
handicapped” person, it is not clear whether psychopathy would result in a finding of diminished
responsibility, as suggested by Burchell and Hunt.

Diminished responsibility will almost invariably reduce the accused’s moral blameworthiness,
and afford a finding of extenuating circumstances in cases of murder and mitigating circumstances
in others.76

(7) APPEAL AND REVIEW

Where a magistrate returns a special verdict, that verdict is subject to review by a judge.77 A
special verdict is regarded as a conviction for the purposes of any appeal or reservation of a
question of law.78

On an appeal against conviction or sentence, if it appears to the appeal court that, although the
appellant did the act or made the omission charged against him, he was mentally disordered or
intellectually handicapped at the time so as not to be responsible for his actions according to law,
the court may set aside the sentence passed at the trial and order the appellant to be kept in custody
at some prison and thereafter be dealt with as though a special verdict had been entered at the
trial.79 This power would be in addition to the appeal court’s power to set aside the conviction and
remit the matter to the trial court for further evidence.80

2. ACCUSED PERSONS WHO ARE DEAF OR MUTE OR BOTH

The final matter to be considered is that of the person who is deaf or mute or both. Such people are
not necessarily mentally disordered; the main problem in such cases is how to communicate with
them. It may be necessary to find a person who is conversant with sign language for the deaf and
dumb, if the accused has been trained in such language.

The law previously had treated deaf mutes in the same way as persons who were mentally disordered
or intellectually handicapped and a deaf mute who was perfectly sane might find himself being
committed to a mental hospital and being housed with abnormal people, a situation rightly criticised
as “grotesque”.81 It took many years before the law was amended to its present form, which will
now be discussed.

Section 193 of the CP&EA82 deals with the situation where it appears to the court that the accused
is unable to conduct his defence properly because he is deaf or mute or both, although he is not
actually mentally disordered or intellectually handicapped. If the court is satisfied, having heard
such evidence as the State may lead and such other evidence as the court may deem necessary or

76 S v Sibiya 1984 (1) SA 91 (A); S v Chitiyo supra; S v Chiwambutsa 1987 (2) ZLR 59 (S); S v Taanorwa supra; S v
Jordaan 1994 (1) SACR 150 (A).
77 MHA s 29(9); see Chapter 26 below.
78 MHA s 29(10).
79 HCA s 39(3); SCA s 14(3).
80 SCA s 17(d); HCA s 41(d).
81 Per YOUNG J in In re Pupu 1959 (1) R & N 377 (SR) at 383.
82 Introduced by Act 37 of 1975.
12—14 Criminal Procedure in Zimbabwe

desirable, that it is necessary in the interests of the safety of the public or for the protection of the
accused that he should be kept in custody, it may order that the accused be kept in custody in a
prison.83 The nature of the evidence required is not specified in the section, but it is submitted
there would certainly have to be convincing medical evidence of the need for the accused to be
kept in custody, before an order would be justified. If an order is issued, the order must be transmitted
to the Minister of Justice, Legal and Parliamentary Affairs, who ascertains the decision of the
President in relation to the further detention or care of the accused in an institution or other place,
including a prison.

83 CP&EA s 193(1).