S v Muzondo (284 of 2023) [2023] ZWHHC 236 (11 May 2023)

HH 284-23 CRB 04/23 THE STATE versus LEOBA MUZONDO HIGH COURT OF ZIMBABWE MUTEVEDZI J HARARE, 13 February 2023 and 11 May 2023 Assessors: Mr Chakuvinga Mr Gweme Criminal Trial

B Murevanhema, for the State T.Chakurira, for the accused MUTEVEDZI J: A MARRIAGE MADE IN HELL! That certainly could be a perfect title for the tragic end to a tumultuous marriage which appeared doomed from the day the accused started showing signs of mental illness. On hindsight the tragedy could have been avoided. When lives are needlessly lost we all have a duty to remind the responsible public institutions of their duties. A stitch in time saves nine. A little education on mental health issues to the general public and relatives of those who live with people suffering from such conditions may be all it takes to prevent calamities. But before we begin this judgment and in passing we wish to point out that we use language that may appear insensitive to people experiencing different mental health conditions. What is poignant however is that the language is extracted directly from the Mental Health Act [ Chapter 15:12] (the MHA) and the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code) both of which govern the defence of mental disorder. Courts cannot circumvent the language used in a statute. If they do the likely outcome is a misinterpretation of the legal provisions. We can only therefore do no more than urge parliament to revise not only these two statutes but a host of others which insinuate discrimination or insensitivity to members of vulnerable groups of our society. Language is dynamic. What may have been previously acceptable can become clearly insensitive in the wink of an eye. It is the reason why words such as imbecile or idiot which used to be common features of our mental health law were struck down from the statutes. Emily Bulthius, a

HH 284-23 CRB 04/23 behavioural health expert criticises the use of seemingly innocuous words such as mental illness where it is employed as a collective term or descriptions such as “afflicted by mental illness”; “suffers from mental illness” ; or “is a victim of mental illness .”1 We use in this judgment, such or similar terms not as a mark of disrespect to those who may be in those circumstances but to convey the true intention of the legislature. The indictment in this case alleges that on 18 December 2021 at Madhirihora Retreat Park, Waterfalls in Harare, Leoba Muzondo (hereinafter the accused) unlawfully and with intent to kill attacked Farai Tsatsa (the deceased) with a metal hoe hitting him on the forehead and chest. The injuries which he sustained were fatal. The background to the charge is that the accused and the deceased were married. They had a domestic misunderstanding. It revolved around the deceased’s shoes which the accused appeared to have been holding as a lien on her property allegedly previously damaged by the deceased. The argument later degenerated into a physical brawl. The deceased accused his wife of infidelity and disrespect. She had allegedly given her boyfriend food in his presence. The accused’s friend called Cleopatra joined in the argument resulting in further commotion. At some point the deceased and Cleopatra also engaged in a physical fight. It was then that the accused retrieved a metal hoe from underneath the wardrobe and struck the deceased with it. The deceased was allegedly being held by Cleopatra. As already stated, the deceased died from the injuries he sustained. The accused denied the charge. She pleaded that at the material time she was suffering from a mental disorder which rendered her incapable of appreciating the consequences of her conduct. She said she was diagnosed with a mental disorder called bipolar sometime in 2017. Since then she had been on treatment and continuous observation by various doctors at Harare Hospital Psychiatric Unit. Her mental condition, she further alleged, caused her to experience severe mood swings which ranged from total calmness to extremely violent behaviour. Her condition is worsened if she is subjected to stressful situations. On many occasions prior to the incident she suffered from auditory hallucinations. During such attacks she would hear voices advising her that the deceased wanted to kill her. As a result, she lived with the fear that one day the deceased was going to attack and kill her. On the day in question she had an altercation with the deceased. When a physical fight broke out between him and her friend the ‘voices’ once again confronted her in a manner more incessant and louder than before. The voices warned her that the deceased was going to kill 1 https://www.healthpartners.com/blog/mental-illnesses-terms-to-use-terms-to-avoid/

HH 284-23 CRB 04/23 both herself and her friend Cleopatra. She felt compelled to fight the deceased to save both their lives. She only realised the consequences of her actions much later when the damage had already been done. Against that background, the accused prayed for the court to return a special verdict in terms of s 29 (2) of the MHA. State Case The state’s case was brief. The prosecutor applied and the court granted the application with the consent of the defence, to have the evidence of various witnesses which was uncontentious admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:10 ] (the CP&E Act). As a result the evidence of witnesses Naume Madenga, Blessed Kanyemba, Kelvin Date, Raymond Nyamvura and Godwill Chakari was formally admitted into evidence as it appeared on the state’s summary of evidence. The essence of each of the witnesses’ evidence was lost to the court. They all had neither witnessed the assault nor knew anything about the accused’s alleged mental illness. All of them had arrived at the scene when the deceased had been killed. There was no contestation about what they testified on. Once again by consent, the prosecutor sought the production of the accused person’s confirmed, warned and cautioned statement. In that statement, the accused essentially repeated what she stated in her defence outline minus the allegation of mental illness. The court duly admitted it. The prosecutor further applied to produce the post mortem report compiled by the pathologist who examined the deceased’s remains which once more was uncontested. For purposes of completeness, the results of the post mortem examination indicated that the deceased had died as a result of hemopericadium ruptured posterior left ventricle and left pneumothorax. The murder weapon was equally admitted by consent. It was a metal hoe with a handle about 1.2 metres long, a blade which was triangular in shape, measuring about 10-15 centimetres long and 10 centimetres wide. The hoe’s entire weight was about half a kilogram. Oral evidence was led from a single witness called Angeline Tsatsa, a juvenile daughter of the deceased and the accused. She witnessed the murder and described the events leading to the assault in the following terms. The accused and the deceased had a misunderstanding over the deceased’s shoes. The accused was holding the shoes as security for payment of compensation for her plastic dish and laundry basket which the deceased had damaged in September 2021. The deceased who from the testimony appeared to have been living separately from the accused had arrived around 1300 hours and demanded his shoes.

HH 284-23 CRB 04/23 The accused had taken the shoes to her friend for safe keeping. She promised to go and collect them after she had been given USD $12 as part payment for the property which she valued at USD $14. It therefore meant she was owed only $2. Whilst the accused went to collect the shoes, the deceased went out to look for the balance. Although they arrived separately, they both returned around 1800 hours. The deceased then demanded to know if his shoes had been brought. The witness answered him but was immediately scolded by the accused. The deceased then went out again and returned when the family was preparing supper. They finished and when they started eating the accused took a pot which contained some food. She went out to give two men who were outside. That did not amuse the deceased who got very angry, picked a stone and feigned a throw at the two men. They both fled. The deceased started shouting at the accused. In turn the accused also got angry and a fight broke out. The witness said she tried to restrain them. At the same time a man called Aaron’s father passed by and separated the protagonists. The deceased however head butted the accused. She developed a bulge on the head. They all went outside with the deceased shouting that the fight was over. The accused’s friend later arrived and advised that the two men who had earlier fled the premises were waiting for the deceased outside. The deceased picked a quarrel with the accused’s friend. He advised her to leave the house because her talk about men was toxic. They pushed each other with the friend threatening to deal with the deceased and threatened that she was not like his wife whom he abused. She picked a dish which was on the table and struck the deceased with it on the head. The accused was standing by the wardrobe. She came running at the deceased and pushed him out of the room. The accused’s friend was strangling the deceased. The accused struck the deceased on the forehead with a hoe. She struck him for the second time on the chest and then dropped the hoe to the ground. When she noticed that a crowd had gathered the accused’s friend then pretended to call out accused as if to restrain her from further attacking the deceased. The accused was apprehended. The friend fled the scene at that moment. When she was restrained, the accused claimed that the crowd was not aware of the abuse which the deceased subjected her to. Under cross examination the witness admitted that she knew that the accused had mental health issues. In her own words the accused was mentally disturbed and took medication for it. She advised the court that at one time the accused had attacked and almost injured her. Then, so she said, she was not aware of what was going on. The accused’s behaviour vacillated from one extreme to the other. She would at times, shout and cry for no apparent reason yet that could suddenly shift to unexplained happiness and running around

HH 284-23 CRB 04/23 the yard. The witness added that at the relevant time the accused had somehow stopped taking her medications. It was the medications which helped to calm her down and control her abnormal behaviour. Needless to say, this was a young girl who clearly loved both her parents. When her father was attacked and left injured she cried hysterically and sought help for him. Yet she also perfectly understood the challenges which her accused mother was going through. She appeared to us to have simply told the story as it occurred. Her demeanour in the witness stand was calm and composed. We are sure that the caregivers whom we were told took custody of her and her siblings soon after the murder did a wonderful job in caring and nurturing the children. There was no trace of dishonesty in her narration of events. We conclude so because she did not appear to take anyone’s side. She incriminated the deceased where he did wrong but exonerated him where he was right. For instance she told the court that it was the deceased who first attacked the accused and caused the commotion with the two men outside the house resulting in the accused becoming angry. In the same breath she admitted that the deceased had immediately relented and called for a ceasefire which the accused and her friend would have none of. She is a child who obviously knew nothing about the defence of mental disorder. She therefore had no reason to raise the mental disorder issues unless they were a reality that she witnessed her accused mother go through. In fact, she did not raise the issues in her examination in chief but did so under cross examination. That signifies that she may not have even been aware of their importance in the case. We did not and we doubt if anybody would, have anything else other than admiration for her truthfulness. With the young girl’s evidence, the state closed its case. The defence case The accused testified in her own defence. She incorporated her defence outline into her evidence. She started her testimony by making a very telling point in that when one is mentally ill he or she wouldn’t know that they are mentally ill. During the Easter holidays of 2017, she went to her rural home in Wedza. She stated that when she returned therefrom she was advised that she had fallen mentally sick and that her sisters’ in law who included Leona Tsatsa, had taken her to hospital. What she remembers was that she visualised snakes and other objects which she felt wanted to attack and kill her. She also remembered prophesying and being threatened with death all the time. She had come to realise some of her problems when she went through her medical records. Everyone in the family, and by that the accused

HH 284-23 CRB 04/23 meant her husband’s sisters and the deceased himself, was aware of her medical condition. The hospital she was taken to is Harare hospital. There she saw many doctors and psychologists. They informed her that she had been diagnosed with a condition called bipolar. She was prescribed a regime of medicines which she mentioned by name to stabilise her. Although the medicines assisted in calming her down they had side effects such as making her hands numb and weak to the extent that she could not even perform her household chores such as doing laundry. The doctors had no choice but to take her off the medications. She was then put on a drug which she described as sodium valproate. From that time she lived with the condition. She would frequently visit the hospital and narrate her experiences to the doctors. Now and again, she would hear voices which appeared like they came from her neighbours threatening to harm her. The deceased accompanied her to hospital on many of those visits. The doctors kept prescribing different pills to her. Between 2017 and 2020 she was admitted into hospital for treatment on several occasions. She would spend like two days at home and the next three days in hospital. The problem unfortunately did not go away. Crucially the accused advised us that on the fateful day and at the relevant time she had gone for some time without taking her medicines. She had visited Harare hospital where she was advised that the drugs were out of stock and that she was required to buy them from private sources. When the quarrel with her husband started she said she once again heard the voices which usually haunted her. The voices were that of the deceased threatening to kill her. She saw the deceased’s visions and a multitude of his friends in attendance. She believed, when she assaulted the deceased, that she was fighting many people. She did not and could not stop to check who she was fighting with. In her description the assault on the deceased was indiscriminate because she genuinely believed that she was under siege. She advised the court that it was only later after she had been handcuffed and taken to the police station that she calmed down and was advised that the deceased had died from the earlier assault. When she was remanded into the custody of the Zimbabwe Prisons and Correctional Services, she intimated to the officers that she was on medication but did not have the pills. She told the officers the type of pills. They administered the medication on her and she stabilised. She was released on bail some two or so months later. She immediately visited Harare hospital where she saw Doctor Dube who recommended an increase in the dosage of the medicines because given the stressful conditions the accused was going through there was a real danger that she could relapse.

HH 284-23 CRB 04/23 As of now, the accused said she feels perfectly fine. She has not suffered any relapse and collects her medication from Harare hospital regularly when it is available. She survives on cooking sadza for resale and stays at the same place where she used to stay with the deceased. She assured the court that there is no danger of her relapsing because as long as she takes her medication her condition remains normal. During cross examination, the prosecutor’s line of questioning started from the premises that the accused had not advised the police that she had defaulted to take her medication and that she did not mention to them the issue of her mental illness. The accused’s response to that was clear. The police officers who arrested her were all from a police station where her mental history was well documented. She and the deceased had been to the station on countless times pursuant to domestic fights. On all of the occasions the deceased would tell the police to release her without charge because of her mental illness. She therefore did not find it necessary to explain to them these issues in detail. When she mentioned it, the officers accused her of seeking to hide behind the mental illness to evade the charge of murder. She said she did not recall seeing the investigation officer let alone giving a statement to him. She simply did not appreciate it. Quizzed on that her statement had been confirmed by a magistrate but that in it she had not raised the issue of mental illness, the accused repeated that she had but her story had been dismissed for the reasons earlier stated. The accused withstood the prosecutor’s examination and explained that the events of the day must have put her under a lot of pressure resulting in her snapping and going into a frenzied attack on the deceased. Christopher Njanjeni He is a psychiatrist nurse practitioner in the employ of the ZPCS for the past 31 years. He holds an Msc degree in Nursing Sciences with a major in psychiatry obtained from the University of Zimbabwe in 2017. He also holds a Certificate in Psychiatry and a Diploma in Mental Health and Psychiatry both obtained from Ingutsheni Psychiatry Hospital in 1987 and 2010 respectively. He advised the court that he had, in the course of his duties, examined and assessed the accused at Chikurubi Psychiatric Unit. He compiled a report to that effect which was tendered as exhibit D1. In the report he detailed that the accused suffered from mental illness which started in 2017. During such episodes of illness she would experience auditory and visual hallucinations which were so frightening to her that she would imagine that there were people who wanted to attack and harm her. These in medical terms are called paranoid delusions. He added that the accused had previously been treated for a condition called