State v Noel Tswipa

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                                                                                 HH 669-18
                                                                                 CRB 74/18



STATE
versus
NOEL TSWIPA


HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 18 October 2018


Criminal Trial


Assessors:     Mr Barwa
               Mr Mafunga
K Mufute, for the State
E Matsanura, for the accused



   TSANGA J: The accused who was charged with the murder of his father whom he killed
with an axe on 9th May 2012, tendered a special plea of not guilty by reason of insanity. The
agreed facts as per exhibit one were as follows:

   1. The now deceased was accused’s father and they both resided at the deceased’s
       homestead in Chimunda Village, Chief Chiswiti, Mukumbura , Mt Darwin.
   2. Relations between accused and deceased were strained by allegations of witchcraft.
       Accused blamed the now deceased for possessing goblins that had caused problems in
       his life as well as the death of his mother.
   3. On 9 May 2012 at around 18:00 hours and at Paradzai Chigango’s homestead,
       Chimunda Village, Chief Chiswiti, Mukumbura, Mt Darwin , the accused approached
       the now deceased who was seated on a reed mat outside whilst holding an axe.
   4. Accused sat down on a 20 litre plastic container and leaned the axe against the wall of
       the bedroom hut.
   5. Accused had a discussion with the deceased and later on remarked to the deceased
       “baba nyaya yapera” literally meaning that the issue was over.
   6. Accused suddenly picked up the axe and struck the now deceased twice on the head
       and he died on the spot.
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   7. A post-mortem was subsequently carried out by Doctor Mapiye who concluded that
       the cause of death was head injury due to assault.
   8. The accused was admitted at Chikurubi Psychiatric Unit following the commission of
       the offence that he is being charged with. On 5 April 2018 the accused was examined
       by Dr Mhaka, a duly registered medical practitioner employed as a Psychiatrist. He
       observed that accused became of sound mind after taking medication for mental
       disorder. Doctor Mhaka concluded in terms of an affidavit that he deposed to on 5
       June 2018 that the accused was mentally disordered at the time of the commission of
       the offence but that he was now fit to stand trial.
   9. The accused cannot be properly found guilty of murder as he lacked the requisite
       mental capacity at the time of the commission of the offence and should appropriately
       be dealt with in terms of the Mental health Act [Chapter 15:12].

    The following documents / exhibits were produced by consent in addition to the agreed
statement of facts.

   a) The psychiatrist’s affidavit and report. His finding was as follows:

       “Noel’s first psychiatric episode was in the 1990’s. He used to be aggressive and
       confused. Unfortunately he was not treated medically up until the time of the offence.
       At the time of the offence he was psychotic (sign of mental disorder) and could not
       appreciate the wrongfulness of his actions. He is now on treatment with Haloperidol
       (medication for mental disorder). He is now of sound mind.
       The accused is fit to give evidence in court.” Exhibit 2.
   b) The affidavit by Dr Mapiye who examined the deceased after the offence and carried
       out the post-mortem. Exhibit 3 (a).
   c) The post-mortem report by the same doctor. Exhibit 3 (b).
   d) The affidavit by Rodrick Gomo who weighed the axe. It weighed 1.580 kgs. Exhibit
       4.
   e) The accused’s warned and cautioned statement in which he detailed the reasons for
       his belief that his father was bewitching him. Exhibit 5.
   f) The axe used in the commission of the offence. Exhibit 6.

   The state and the defence accordingly moved for a special verdict in terms of s 29 (2) of
the Mental Health Act [Chapter 15:12] on the totality of the evidence which indicated that the
accused was not criminally responsible for his actions by reason of insanity. The court and
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the assessors were in agreement and returned a special verdict of not guilty by reason of
insanity.

       The accused’s brother one Sabastian Tswipa who was available at the hearing
indicated his willingness to take custody of the deceased upon his release in light of the
psychiatrist’s report that he has since recovered. He is married with five children. He
indicated that he will reside with him at Stand No. 1869, Nhewe Road, Dzivarasekwa,
Harare. Accordingly, this court ordered as follows:

       Accused is referred back to the Chikurubi Psychiatric Unit for official release into the
       custody of his brother Sebastian Tswipa, if the Institution’s doctor remains satisfied,
       following his report of 5 June 2018, that he is ready for release.




National Prosecuting Authority, State’s Legal Practitioners
Chinyama & Partners, Accused’s Legal Practitioners: (Pro Deo)