S v Mutezo (126 of 2024) [2024] ZWHHC 126 (25 March 2024)

HH 126-24 Case No. CRB 6250/23 THE STATE versus PAUL MUTEZO HIGH COURT OF ZIMBABWE MUREMBA J HARARE; 27-29 February; 15, 18 & 25 March 2024 Criminal Trial Assessors: Mr Mhandu Mrs Chitsiga Ms R. M Mushonga, for the State T Chakurira, for the accused MUREMBA J: The accused is facing a charge of murder as defined in s 47(1) of the Criminal Law Codification and Reform Act [ Chapter 9:23] (The Criminal Law Code). It is alleged that on the 11 th of June 2023 at around 2100 hours at house number 2060 Overspill, Epworth, Harare, he murdered his wife Tsitsi Munemo by striking her on the head with a deformed bar several times. The accused person pleaded not guilty to the charge. In his defence outline the accused said that at the time material to the commission of the offence, he was suffering from a mental disorder which rendered him incapable of appreciating the consequences and the unlawfulness of his conduct. He said that he started receiving treatment for his mental disorder sometime in January 2022 at Harare Hospital where he was taken to by his relatives. He said that at the hospital he was diagnosed and confirmed as having been afflicted with a mental disorder. He said that he remained on treatment since then and throughout the period leading to the time material to the incident forming the factual background of the present charge against him. He further stated that his mental disorder alternated between stable and unstable throughout the period. The accused said that he did not have a clear recollection of the acts he would perform or the things he would say during the time he would be ill. His relatives are the ones that would tell him about his behaviour while afflicted with the mental illness. He said that his mental disorder

HH 126-24 Case No. CRB 6250/23 on the fateful night was triggered by the infidelity of the deceased which he had discovered immediately prior to the incident leading to the death of the deceased. The State’ s evidence The State produced the post-mortem report as exhibit no. 1 with the consent of the defence. The report states that the deceased’s death was caused by blunt force injuries to the head. Doctor Muzenda who examined the remains of the deceased made the following findings and comments. Bleeding inside the skull (subdural haemorrhage); flattening of gyri and narrowing of sulci of the brain, consistent with brain swelling; subgaleal haemorrhage over the left temporal and parietal areas; fractures involving left skull vault and base of skull; fracture of the lower jaw (mandible). The doctor did not give viva voce evidence. His evidence was formally admitted in terms of s 314 of the Criminal Procedure and Evidence Act (the CPEA) with the consent of the defence. The State went on to produce the accused’s confirmed warned and cautioned statement as exhibit no. 2 with the consent of the defence. The statement was recorded by the Investigating Officer Assistant Inspector Mabasa on 13 June 2023 at 0900 at ZRP Epworth. In the statement the accused said, “ I admit to the charge.” With the consent of the defence, the State produced the deformed iron bar that was used to assault the deceased as well as the weight certificate thereof as exhibits No. 3 and 4 respectively. The deformed bar weighed 1926 grams. The State led evidence from three witnesses, namely Rueben Fidze, Mabo Chimungungu, Dickson Mutezo. It also led evidence from James Mabasa who was the investigating officer. Rueben Fidze, who resides at 346 Muguta, Epworth, Harare, recounted his experience as follows. He was familiar with the deceased, who was married to his brotherin-law, the accused. Rueben had known her for a brief period, less than six months before the incident. Rueben shared a cordial relationship with the accused, his wife’s brother. In the early hours of June 12, 2023, after 2 am, he was awakened by a knock at his door. It was the accused, who, despite appearing troubled, insisted that Rueben accompany him to his house without disclosing the reason. The journey to the accused’s residence, a mere 10-minute walk, was shrouded in silence and unease as the accused continuously refused to disclose what was wrong. Upon arrival, the accused led the way. As the accused was opening the door to the house, he confessed to assaulting the deceased. The witness, Rueben, illuminated the scene with a torch and discovered the deceased lying motionless on the floor in the dining room where the two used to sleep. The deceased was bleeding from the head. She was partially covered by a blanket, and her injuries

HH 126-24 Case No. CRB 6250/23 were obscured by her hair weave. The accused asked Rueben what they were to do. Rueben urged immediate medical attention as the deceased was still breathing. The accused revealed a quarrel over messages the deceased had deleted from her phone, but he did not disclose further details of those messages. When the accused went out of the house in order to bring his car closer to the door, Rueben alerted the accused’s mother, Mabo Chimungungu, who lived with the accused, the deceased, and their daughter, to the tragic incident. Rueben also called the accused’s brother, Dickson Mutezo, who lived in the same neighbourhood to the scene. Together, they transported the deceased to Parirenyatwa Hospital in the accused’s car. It is the accused who was driving. At the hospital, while the accused’s brother handled admission procedures, the accused and the witness went to notify the police about the incident at the police post. Despite being alive upon arrival at the hospital, the deceased passed away as she was being attended to by a doctor. The accused was immediately arrested. During cross-examination, Rueben was questioned about the accused’s mental health incident in 2022. He said that he knew nothing about the accused’s mental illness. However, he acknowledged hearing about an assault on the accused that led to the accused being taken to hospital. He said he received this information from his wife Rudo Mutezo . Rueben said he had limited observation of the accused’s mental state due to his work schedule and working hours. Mebo Chimungungu, the accused’s mother, testified that she had only known the deceased, her daughter-in-law, for six months, as she began living with them following the accused’s mental health episode in January 2023. On the night in question as she was sleeping in her bedroom she was alerted by a scream. The accused, his wife and their threeyear-old daughter were sleeping in the dining room. She asked if all was well but there was no response. She went back to sleep. Later on, her son-in-law Rueben knocked at her door and asked her to come into the dining room. Upon entering the dining room, she found the deceased lying on the floor where she had been sleeping, bleeding from the head, with her daughter sitting silently beside her. A lot of blood was flowing onto the pillows and blanket. After securing the child, she instructed the men to take the deceased to the hospital. Her other son Dickson Mutezo had come. The accused’s mother testified that her son had no history of mental illness until after an assault by a group, which led to him being taken to Harare hospital. This incident happened when the accused and his wife were staying in Waterfalls. The accused’s mental health deteriorated and he came with his wife and daughter to stay with her at her house in

HH 126-24 Case No. CRB 6250/23 Epworth. The accused’s behaviour had become erratic. He was proclaiming divine instructions to start a religious sect and would become violent towards others, except for her, his wife and brother. To manage his violent behaviour, they would sometimes restrain him to a tree. He had been taken to Harare hospital twice. Despite being prescribed medication, he never received a psychiatric evaluation due to financial constraints. The mother described the accused’s mental state as fluctuating between lucid and non-lucid periods, with the former lasting longer. He would be lucid for three weeks and non-lucid for two weeks. At one point the accused was taken to a traditional healer in Mbare by his brother and sister. In the days leading up to the incident, he was notably silent and withdrawn. The only person that he would talk to was his wife, the deceased. The mother was unaware of any infidelity issues that might have been a factor in the disagreement between the accused and the deceased. The accused’s adherence to medication on the day of the incident was uncertain, as the deceased was responsible for administering it. The accused did not spend the day at home as he was attending prayers at an apostolic sect with his brother Dickson Mutezo. Dickson Mutezo, the accused’s elder brother, resides at number 2414 Overspill, Epworth, Harare. He knew the deceased as his sister-in-law and had known her since 2022 when she was staying with the accused. The deceased and the accused had a child named Angel. On the fateful night, he received a phone call from his brother-in-law Rueben Fidze, informing him of an emergency. He was asked to rush to his mother’s house. Upon arriving at the house, he found Rueben and the accused holding the deceased, who was wrapped in a blanket. There was blood on her shoulder. He asked what had happened, and Rueben Fidze responded by telling him that the accused had injured the deceased. They needed to rush her to the hospital. During the car ride to the hospital, the accused kept talking to himself in a low tone. The accused was driving the car, which belonged to him. At the hospital the deceased died as she was being attended to by one Dr. Musona. Dickson Mutezo said that the accused later told him that he had seen some messages in the deceased’s phone, and that she was cheating on him. In the unfolding events described by this witness, we gain insight into the accused’s mental state and the efforts made to address it. The witness recounted receiving a call from the deceased in January 2023, alerting him that the accused was behaving erratically, running and shouting toward Koala Park. The witness promptly sought assistance, enlisting his sister and a spiritual leader, Madzibaba, to help apprehend the accused. Upon encountering the accused, the witness found him in a combative mood. It was only when the deceased

HH 126-24 Case No. CRB 6250/23 addressed him by their child’s name that he calmed down. They apprehended him and proceeded with him to his residence in Waterfalls, where they planned to use his car to transport him to their mother’s house. However, touching the accused’s car triggered another aggressive episode. Undeterred, they eventually reached their mother’s residence, where the accused’s violence escalated. They sought assistance from other people in order to contain him. They then took him to Harare Hospital, where he received injections. They were instructed to purchase specific tablets for his condition. Subsequently, he was cared for at his mother’s home, where medication induced sleep. The witness and his family continued their search for solutions. Traditional healers and apostolic sects were consulted, including one Baba Kaipa. As the situation deteriorated, they turned to Mamoyo, who then referred them to Sekuru Svova in Mbare. Under Sekuru Svova’s care, the accused regained clarity, and they were advised to visit their rural area for a lasting solution. Following this guidance, they travelled to Mount Darwin, their mother’s communal home. There, another advisor reinforced the importance of visiting their communal home. The family went to Bvumba, Mutare, and witnessed continued improvement in the accused’s condition. Encouraged by progress, they returned to Epworth, where they closely monitored the accused’s well-being at their mother’s house. Eventually, they resumed their own lives, leaving the accused in the care of their mother and his wife. During cross-examination, the witness said that when the accused was arrested, he (the witness) informed the investigating officer, James Mabasa, about the accused’s mental illness. The witness said that financial constraints prevented further hospital visits. The witness said that the accused did not consume any intoxicating substances. After the accused’s release on bail, he resided with the witness and exhibited signs of illness. Unfortunately, due to financial constraints resulting from unemployment, the witness was unable to seek medical assistance for the accused. It was the accused’s friends who stepped in to provide the necessary funds for bail. James Mabasa, a police officer stationed at Epworth Police Station, testified about his involvement in the investigation. In June 2023, he received the assignment to investigate this case. Upon learning that the accused was detained at Harare Central Police Station, he went to retrieve him and transported him to Epworth Police Station. There, he recorded the accused’s warned and caution statement, which confirmed his culpability in the fatal killing of his wife. Accompanied by Officer Munyoro and other witnesses, they visited the crime scene. There were no signs of struggle in the dining room where the deceased was assaulted.

HH 126-24 Case No. CRB 6250/23 There were no broken plates or scattered items. Instead, they discovered two blood-soaked pillows and a blanket on the floor. These items were initially taken by CID Law and Order but later deemed unnecessary and returned to the family. At the crime scene they also recovered the murder weapon, a blood-stained deformed iron bar. They retrieved it from a mealie meal sack where it was being used as a stopper to prevent cockroaches and rodents. James Mabasa took it to Parirenyatwa Hospital for the post-mortem examination. The doctor’s findings revealed that the injuries on the deceased were consistent with the weapon’s impact. There were no other injuries apart from those inflicted on the head, suggesting no struggle occurred. The skull bore deformities, and the area just above the eye had collapsed. The investigating officer, James Mabasa, said he interviewed the accused’s brother, Dickson Mutezo. Dickson revealed that the accused suffered from mental illness and had moved in with their mother for care. James requested medical cards as evidence, but Dickson promised to provide them without following through. Attempts to follow up on the cards were futile as Dickson indicated that there had been a break-in at the accused’s house, and that the cards could not be found. James said when he collected the accused from Harare Central Police Station, he observed no signs of mental illness. The accused appeared sober, scared, and remorseful. Without Dickson’s information, James would have remained unaware of the accused’s condition, as their interaction revealed no abnormalities. The accused’ s evidence The accused steadfastly maintained his defence of mental illness. He recounted being diagnosed in January 2023 and seeking treatment from both a hospital and traditional healer, Peter Netsai Rakandwa, as well as an apostolic faith bishop, Moffat Kaipa, both of whom he called as defense witnesses. Exhibit no. 5, a medical card that the accused produced, indicates that he was first treated on January 19, 2022. At the time, he exhibited violent behaviour. Dr Machonje, who attended to him, noted a history of substance abuse but found no evidence of psychiatric disorders. The doctor raised questions about whether the accused’s illness was related to substance abuse. The doctor recommended the accused to see a psychologist or a psychiatrist, it is not clear. The medical card reveals that on January 19, 2023, the accused was attended to by Dr. Musimwa. The doctor observed that the accused was tied and talkative and identified this as a case of substance misuse. Specifically, the accused admitted to daily cannabis use. Despite having no psychiatric history, the accused’s uncle was also reported to use cannabis. Dr. Musimwa prescribed CPZ (Chlorpromazine), an antipsychotic medication,

HH 126-24 Case No. CRB 6250/23 along with a recommendation for the accused to consult a psychologist. The accused claimed to have been taking medication for mental illness until August 2023, but his medical card contradicts this statement. The card indicates that he was treated on January 19, 2023, and thereafter, there is no record of further hospital visits. Moreover, the prescribed medication from January could not have lasted until August 2023. According to the accused, his actions on the fateful night were beyond his awareness due to his mental condition. The accused’s counsel did not prompt the accused to recount the events leading to the fatal incident when he killed his wife. Additionally, the accused was not questioned about his admission of daily cannabis use to medical doctors, which dates back to January 2022. During crossexamination, the State counsel did not inquire about the events leading to the fatal incident when the accused killed the deceased on that fateful night. Instead, she focused on the accused’s efforts to seek help from his brother-in-law after assaulting the deceased. The accused finally disclosed the full account of what transpired on the fateful night when the court sought clarification on matters that had remained unclear during both the State’s and the defence counsels’ questioning. The accused provided insight into how the events unfolded that evening. He explained that he had spent the day with his brother, Dickson Mutezo, seeking help from the apostolic sect. Fatigued from their efforts, he returned home around 6 PM and rested on a sofa at his mother’s residence. He later went to the shops to collect the deceased, who had returned from work. She had called him to pick her up. Upon arriving home, the deceased began preparing a meal. The accused requested her phone to view cartoons downloaded for their child, Angel. The accused and the deceased retired to bed, but their night took an unusual turn. The accused woke up to perform an oil ritual at midnight, as instructed. The deceased had also awakened, and they whiled away the time as the oil burned. Seated on the sofa, the accused stood up once the oil was fully consumed, covering himself in its fumes. Meanwhile, the deceased received messages on her cell phone, sparking his curiosity. When he inquired about her communication, she dismissed him, labelling him as “crazy.” Feeling dizzy from the oil’s smoke, he eventually returned to sleep on the floor. Later, the deceased woke him, urging him to join her in bed. However, the lingering effects of the oil prevented an immediate return to bed. The deceased demanded to see the messages he had mentioned earlier. However, she had already deleted them. Undeterred, she continued shouting insults, accusing him of madness. In the throes of this confrontation, the accused witnessed a horrifying transformation: the deceased’s head morphed into that of an unidentifiable creature—a pig or some other beast. Startled and