S v Babau (CRB 1 of 2016) [2016] ZWHHC 61 (11 January 2016)

1 HH 61-16 CRB 01/16 STATE versus SABAWO BABAU HIGH COURT OF ZIMBABWE CHITAPI J HARARE, 11 January 2016 Assessors: 1. Mr Gweme 2. Mr Chogugudza Criminal Trial A. Muzivi, for the State J. Chaka, for the accused (pro-deo) CHITAPI J: The accused is charged with the crime of murder as defined in s 47 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The state alleges that on 5 November 2008 and at Nyamakate Vegetable Market in Nyamakate, the accused acting with intent to kill unlawfully assaulted the late Juliet Gwiriko with clenched fists, booted feet and a stone thereby inflicting certain injuries from which the deceased died. There being no disputed facts, the trial proceeded with the State and Defence counsels submitting a statement of agreed facts which the court admitted in evidence as exh 1. The material facts surrounding the matter are as follows: 1. The accused and deceased were once married and had one child born of their union before they separated. 2. On 5 November 2008, the accused visited the deceased at Nyamakate Village along Harare – Chirundu Road. It was at night and the deceased was at a vending site. HH 61-16 CRB 01/16 3. The accused and deceased agreed to discuss their issues some distance away from the vending site and they moved to some distance where they then held their discussion. 4. A while later, the other vendors who had retired to sleep were awakened by deceased’s cries for help at which point, one, Clement Elephant proceeded in the direction where the cries for help could be heard. On arrival at the scene, he saw the accused walking away hastily from where the deceased was lying crying in agony. 5. Elephant rushed back to awaken other vendors to render assistance but the group of vendors found the deceased already dead. The deceased head was bashed and a huge stone lay next to the deceased’s head. 6. The accused was arrested and charged with the murder of the deceased. He was subsequently referred for mental examination to determine his mental state. 7. In addition to the statement of agreed facts, the following documents were produced by consent: (a) an affidavit by Fredy Kawanza who weighed the stone that the accused used to bash the deceased’s head with and found it to weigh 20 kilograms. It was admitted as exh 2. (b) the post mortem report on the examination of the deceased by Dr Godwin Muza who examined the deceased’s remains at Kariba hospital. He concluded that the cause of death was intra cranial hemorrhage secondary to a depressed skull fracture. He observed that there was a depressed fracture on the deceased’s right zygoma and infratemporal region. The deceased also had lacerations on the lower lip and fractured incisors, both lower and upper. The report was admitted as exh 3. (c) an affidavit by a psychiatrist Dr Patrick Mhaka who examined the accused on 29 June 2015. He certified the accused fit to stand trial and indicated further that the accused had been under treatment for a mental disorder for which he remains on medication, understood the offence he committed and was remorseful. The Doctor concluded that the accused was mentally disordered when he committed the offence. The affidavit was admitted as exh 4. HH 61-16 CRB 01/16 State and defence counsels in addressing the court submitted that the totality of the evidence showed that the accused was not criminally responsible for his actions by reason of his mental defect and moved the court to act in terms of s 29 (2) of the Mental Health Act, [Chapter 15:12]. We were in agreement with the State and Defence submissions and we found the accused not guilty because of insanity and returned a special verdict as required by law. With regards to accused’s fate after verdict, the court noted that the accused was still under medication and treatment. It was accordingly in the interests of the accused that he continues to be treated until full recovery. The circumstances of the accused with regards his mental defect did not at this stage allow for his discharge and indeed counsel for both the State and Defence agreed that the accused needed to be removed to a mental institution for further treatment. The institutionalization of the accused for further treatment is a protective measure which benefits both the accused and society. See S v Chikomba 2 000(Z) ZLR 311; S v Sindiso Donald Khumalo HB 61/06, S v Zvoushe HB 28/13, S v Pretty Matunga HH 23/2013 and is not to be regarded as a sentence of this court but as an administrative measure. His discharge or otherwise from the institution where the court commits him will now be a function of the Health Review Tribunal or such other competent body as provided for under the Mental Health Act . The court therefore ordered in terms of s 29 (2) (a) of the Mental Health Act that the accused be returned to prison for transfer to Chikurubi Psychiatric Unit or such other appropriate institution for his continued treatment and management until discharged therefrom. National Prosecuting Authority, State’s legal practitioners Lawman Chimuriwo Attorneys – at law, accused’s legal practitioners