High Court slams Bulawayo Magistrate

The High Court has strongly criticised the conduct of a Bulawayo magistrate in a criminal insult case involving a mentally ill accused person, ruling that although the final outcome was legally correct, the proceedings were marred by serious procedural and legal missteps.

In a detailed criminal review judgment, Justice Munamato Mutevedzi withheld his certificate of confirmation after finding that the magistrate fundamentally misunderstood the law governing mental disorder defences and special verdicts, despite ultimately acquitting the accused on the basis of insanity.

"The verdict that the accused was not guilty because of insanity cannot be debated," Justice Mutevedzi said. "It is how it was arrived at that caused my strife."

The case involved Tamisayi Brian Mapako, who was charged with criminal insult under section 95(1)(a) of the Criminal Law (Codification and Reform) Act. He was accused of persistently harassing a woman at Fidelity House in Bulawayo between May and June 2024.

Evidence showed that Mapako repeatedly accosted the complainant, wrote letters demanding sexual relations, proposed what he termed "a threesome romp," and later sent threatening correspondence referring to an impending "holocaust" and "sacrifices."

"It was at that point that the complainant really panicked and decided to report the matter to the police," the court heard.

At Mapako's initial appearance, the magistrate ordered a mental examination under the Mental Health Act after concerns were raised about his mental condition. Two medical practitioners subsequently certified that he was mentally disordered and unfit to stand trial, leading to his committal to Mlondolozi Psychiatric Unit in July 2024.

After 15 months of treatment, doctors later declared Mapako fit to stand trial, and the Prosecutor-General authorised the resumption of proceedings. During trial, Mapako admitted writing the letters but claimed he was "love-stricken" and did not appreciate the wrongfulness of his actions.

Justice Mutevedzi found that this explanation clearly pointed to a defence of mental disorder at the time of the offence, not ignorance of the law, as the magistrate had concluded.

"Far from being mistake or ignorance of the law, the accused was simply pleading that he was mentally disordered or intellectually handicapped at the time that he committed the crime," the judge said.

Instead, the magistrate mischaracterised the defence and inconsistently ruled that Mapako had committed the offence but lacked criminal intent due to mental illness.

"This court is convinced beyond reasonable doubt that the accused committed the offence," the magistrate had ruled, before concluding that he lacked the requisite mens rea.

Justice Mutevedzi said this demonstrated a serious misunderstanding of the distinction between an outright acquittal and a special verdict of not guilty by reason of insanity.

"Needless to emphasize, the special verdict of not guilty by reason of insanity means exactly that. The accused is found not guilty," he said. "He or she cannot be sentenced to any punishment."

Despite this, the magistrate proceeded to conduct a pre-sentencing inquiry and allowed a victim impact statement — steps the High Court said only make sense following a conviction.

"I am forced to think that the trial court indeed thought that it had convicted the accused," Justice Mutevedzi observed.

The judge also criticised the prosecution, noting that the State appeared to accept that Mapako was mentally disordered at the time of the offence. He said the matter should have proceeded on the basis of agreed facts.

Medical evidence showed that Mapako has a long history of chronic schizophrenia, having been treated at Ingutsheni Central Hospital on at least 12 occasions since 1999. A psychiatrist, Dr Elena Poskotchinova, reported that Mapako was psychotic, delusional and "dangerous to society," though fit to stand trial at the time of prosecution.

"There is a reasonable possibility that at the time of the alleged crime the accused was suffering from mental disorder Chronic Schizophrenia," the psychiatrist stated, adding that he should not be held legally responsible for his actions.

Justice Mutevedzi concluded that although the proceedings were fundamentally flawed, setting aside the verdict would serve no practical purpose since the same outcome would likely be reached again.

"In the end I cannot do anything other than to withhold my certificate as I hereby do," he ruled.

The judgment serves as a stern warning to lower courts on the proper application of mental health laws and the correct handling of accused persons suffering from serious mental illness.