THE State V Pamela Mashungu

### Preamble
1
HH 375-13
CRB 102/13
THE STATE
versus
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THE STATE
versus
PAMELA MASHUNGU

HIGH COURT OF ZIMBABWE
HUNGW E J & ASSESSORS
MUTARE, 25 & 26 June 2013 & 2, 3, & 5 July 2013

Criminal Trial

Ms M. Matsikidze, for the State
Ms M. Mandingwa, for the Accused

HUNGW E J: the accused faced a charge of murder as defined in s 47 (1) of the Criminal Law (Codification & Reform) Act, [Cap 9:23] in that on 24 June 2012 at Marindire village, Chief Makumbe, Buhera, she, with actual intent or realizing the real risk that death may result, forced Patience and Panashe Marindire to drink diametheate, the poisonous chemical, from which the two children died. She pleaded not guilty. Most of the facts constituting the basis of the allegations of this double murder are either common cause or not in serious dispute. I will send them out.

1. The accused is 20 years old. She married at 16.
2. She is an orphan. Her mother died when she was 8 years old; and her father, when she was 10.
3. She was raised by her maternal grand-parents.
4. Upon being married she assumed responsibility to look after two other step-children as well as her two children of her own with the husband.
5. On the day in question allegations regarding her failure to care for the step-children had been brought up for discussion by her husband's family members.


6. She did not respond to the allegations. She later on killed her two children at a nearby river or stream by administering poison to both of them. She also took some of the poison in an apparent attempt at suicide.

7. She was saved after first aid was applied to revive her from a state of unconsciousness.

The State alleges that these facts proved that she intended to kill and, indeed killed, her two children. It urged the court to return a verdict of guilty on both counts as charged.

On the other hand the defence argued that whilst the act of administering poison is not denied, that act was not accompanied by the necessary *mens rea* so as to constitute the crime of murder by reason of diminished mental capacity. The defence explained how this came about as follows.

Not only did the accused marry young, she married into an abusive family. She was subjected to both physical and verbal abuse. And one stage when she had decided to go back to the maiden home, she discovered, to her horror, that she was not welcome because of the additional burden her two children constituted to the elderly grand-parents. She went back to her marital home where she had to brace up for and endure more abuse. The last a straw came on 24 June 2012. Her husband verbally abused her over the allegations that she was not taking proper care of the two step-children. As if this was not enough his brother came home and confronted her over the same issue. To add salt to injury, Ratidzo Marindire, her sister-in-law, also came and piled up the pressure on her over the same issue. She was particularly hurt by the accusation of witchcraft against her which was brought up during this saga by Ratidzo Marindire. According to the defence, the sister-in-law claimed that the accused intended to cause the death of her step-son, Tichasangana Marindire, by unnatural means. Ratidzo threatened that should Tichasangana die, she would ensure that the accused ate the boy’s flesh raw. To her dismay and disbelief, the male relatives of the accused seemed to have adopted Ratidzo’s hurtful attitude, notwithstanding that she had previously made an effort to look after the two step-sons as well as their paternal grandmother.

The defense argued that the cumulative effect of all these events was that the accused suffered severe psychological and emotional stress which triggered a mental disorder the effect of which was to cause her to preoccupy herself with suicidal and homicidal thoughts. She acted when her mind was so affected. As such she suffered from diminished mental capacity sufficient to negative *mens rea* or the mental element of the crime charged.

This version of her married life was disputed by the State.

For her part, Ratidzo Marindire confirmed that there were issues around the accused’s attitude towards the two step-sons. When Tichasangana, the boy, stole some water melons from a relative’s field, it was believed by their family that the reason why the boy had done this was that he was not well fed by the accused. Ratidzo then decided to confront the accused over the issue. Ratidzo denied in her evidence that she had not handled this issue in a proper and sensitive manner. The accused’s husband, Kanganisai Marindire, in his evidence also confirmed that upon receiving reports about Tichasangana he had confronted the accused over whether it was true that she did not leave food for the children when they came from school. According to him, the accused confirmed this. He denied that this issue was not handled in an appropriate manner. Ilet Makwanza, the accused’s mother-in-law, testified that she was not particularly happy about the manner in which the accused took the two step-children into her custody. She explained that she had gone for a church meeting. Upon her return she found that the accused had moved the two children into her custody without seeking her permission. She however did not seek the children’s return. She expressed her unhappiness over the standard of care afforded to her grandchildren by the accused.

The evidence, in our view, demonstrates that, to a large extent, the accused’s in-laws contributed to her abuse, real or perceived. She felt that her in-laws unfairly blamed her even for those things that, objectively, she could not reasonably be blamed for. An example of this, in our view, was the theft of water melons by Tichasangana. The accused felt, rightly or wrongly, that her husband did not give her the support she needed during her trials and tribulations. She clearly felt that she was a scapegoat of too many problems faced by different family members. Whether her claims are true or not, in my view, is irrelevant in order to make the determination on whether the State has proved its case beyond a reasonable doubt. In order to put the matter into its proper perspective the identification of the issue is necessary, that is, the nature of the defence being advanced.


The starting point should be Part 111 of Chapter XIV of the *Criminal Law (Codification and Reform) Act, [Cap 9:23]*, (“the Criminal Law Code”) which deals with **“Defences and Mitigating Factors Relating to the Mental Status.”** Section 217 defines partial mental disorder or defect as follows:

**217 Interpretation in Part III of Chapter XIV**

In this Part:

“partial mental disorder or defect” means a mental disorder or defect as defined in section two hundred and twenty-six, the effect of which is not such as to entirely deprive the person suffering from it of the capacity to appreciate the nature or lawfulness of his or her conduct or to act in accordance with such an appreciation.”

Section 226 of the Criminal Law Code defines mental disorder thus:

**226 Interpretation in Part V of Chapter XIV**

In this Part:

“mental disorder or defect” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of the mind.”

Generally diminished responsibility, in our law, does not operate as a complete defence but only serves to mitigate sentence or reduce the crime from one serious one to a less serious one. This common law position is confirmed in s 218 of the Criminal Law Code. It provides:

**“218 Diminished responsibility to operate in mitigation not as defence**

(1) If at the time when a crime is committed the capacity of the person committing it--

(a) to appreciate the nature of his or her conduct or that his or her conduct was unlawful; or

(b) to act in accordance with an appreciation of the kind referred to in paragraph (a); is diminished on account of acute mental or emotional stress, or a partial mental disorder or defect, such diminished responsibility shall not be a defence to the crime, but a court convicting such person shall take it into account when imposing sentence upon him or her for the crime.


(2) If the acute mental or emotional stress, or partial mental disorder or defect, is brought about through the person’s own fault, a court may regard such person’s responsibility as not having been diminished.

(3) Where the capacity of a person to appreciate the nature or lawfulness of his or her conduct or to act in accordance with such an appreciation is affected by intoxication or provocation, Part IV or IX, as the case may be, shall apply to such person.

(4) For the avoidance of doubt it is declared that where a mental disorder or defect is such as to negate rather than diminish the capacity of the person suffering from it to appreciate the nature or lawfulness of his or her conduct or to act in accordance with such an appreciation, the person shall be entitled to a complete defence in terms of section two hundred and twenty-seven.

Section 227 of the Criminal Law Code deals with mental disorder at the time of commission of the offence. It provides that the fact that a person charged with a crime was suffering from mental disorder or defect when the person did or omitted to do anything which is an essential element of the crime charged shall be a complete defence to the charge if the mental disorder or defect made him or her (a) incapable of appreciating the nature of his or her conduct, or that his or her conduct was unlawful, or both: or (b) incapable, notwithstanding that he or she appreciated the nature of his or her conduct, or that his or her conduct was unlawful or both, of acting in accordance with such an appreciation. (s 227(1)).

In s 227 the Criminal Law Code specifically provides that for the purposes of subs (1) above, the cause or duration of the mental disorder or defect shall be immaterial.

In light of these clear provisions of the criminal code the first question for investigation is: has the accused shown, on a balance of probabilities, that when she poisoned her children she was suffering from mental disorder or defect?

The defence called Gibson Jiyangwa. He is the Psychiatric Nurse-In-Charge of the Sakubva Provincial Hospital, Mutare. He conducted interviews, tests and observations on the accused. He concluded that the accused suffers from a mental illness which is called bipolar disorder. This is a condition which is reflected by severe mood swings between manic and depressive moods. According to him, when one is in manic phase, one would not be aware of his or her mental state or behavior and may take high risk action that may endanger himself or herself or those around him or her without appreciating the effect of that action. Bipolar mood disorder can be inherited. It can also be the result of underdeveloped ego which leads to loss of self esteem later in life due to, possibly, the lack of consistent feedback from the mother or father. The condition may manifest itself in different ways such as a feeling of hopelessness, worthlessness and helplessness. The niece testified that the patient may present with psychotic features such as hallucinations, delusions of gustatory religiosity presenting paranoia jealousy. The subject may indulge in self-injurious behaviour as a result of pre-occupation with thoughts of death (thanatos). The nurse explained that there are 90% chances of a subject inheriting the disorder from a parent there is a history of mental illness in the family. In this respect, the nurse noted that the accused's late mother was a known psychiatric patient. In his assessment of the accused, the condition which she suffered from is of non-pathological origin and, therefore, curable without the necessity of institutionalization.

The defence relies on s 227 of the Criminal Law Code. That section reinforces the subjective test for mens rea in specific intent crimes. A plea of diminished criminal capacity amounts to, where the evidence shows it, a statement that due to overwhelming severe psychological and emotional stress which worked to deprive the accused of the capacity to appreciate the wrongfulness of her conduct, she could not, in that state, form the necessary capacity to act in accordance with the appreciation of the wrongfulness of her conduct.

The recognized psychological characteristics of criminal capacity were discussed in S v Laubscher 1988 (1) SA 163 (A) @ p166D-167A in the following terms;

“To be criminally liable, the perpetrator must at the time of the commission of the alleged offence have criminal capacity. Criminal capacity is a prerequisite for criminal liability. The principle of criminal capacity is an independent subdivision of the doctrine of mens rea…. To be criminally accountable, the perpetrator’s mental faculties must be such that he is legally to blame for his conduct. The recognized the psychological characteristics of criminal capacity are: (1) the ability to distinguish between the wrongfulness or otherwise of his conduct. In other words he has the capacity to appreciate that his conduct is unlawful. (2) the capacity to act in accordance with the above appreciation in that he has the power to refrain from acting unlawfully; in other words, that he had the ability to exercise for free choice as to whether to act lawfully or unlawfully. If either of these psychological characteristics is lacking, the perpetrator lacks criminal capacity, (for example) where he does not have the insight to appreciate the wrongfulness of his act. By the same token, the perpetrator lacks criminal capacity when his mental powers was are such that he does not have the capacity for self control.”


In *Laubscher* (*supra*) a distinction was drawn between statutory criminal incapacity and non-pathological criminal incapacity of a temporary nature. The latter can be a result of a non-pathological condition that is not attributable to mental illness or mental defect in the form of a pathological disturbance of the conscious mind. The question as to whether emotional stress could constitute a complete defence was considered in *S v Smith* 1990 (1) SACR 130 (A) and *S v Wiid* 1990 (1) SACR 561 (A). In *S v Smith* (*supra*) the learned judge expressed himself thus:

> “I assume that for the present purposes what was described as an ‘emotional storm’ or ‘emotional flooding of the mind’ can result in loss of criminal capacity, that such an emotional disturbance could result in a person being, in the words of s 78, incapable of appreciating the wrongfulness of her act or acting in accordance with the position of such,” (@ p134J – 135A).

A substitution of s 227 of the Criminal Law Code for s 78 of the South African Criminal Procedure Act, 1955, makes clear that the reasoning in Smith's case (*supra*) applies with equal force to the present matter. I therefore consider it good law that severe emotional and psychological stress may, in cases, deprives an individual of the capacity to appreciate the wrongfulness of his or her conduct or to act in accordance with such an appreciation and, for this reason, it will be sufficient to constitute a complete defence to criminal liability as contemplated in s 227. I am fortified in this view by the remarks made by MUBAKO J in *S v Gambanga* 1997 (2) ZLR 1 (HC) @ p7 where he says:

> “In a proper case, therefore, a state of diminished responsibility may result in total incapacity and may prevent or reduce the person's legal as well as moral liability.”

Criminal capacity is a prerequisite for fault, be it negligence or intent and without the necessary criminal capacity a person cannot be guilty of an offense. Further, it needs no restatement that criminal capacity can be defined in terms of two legs which are inquired into after it is determined whether the accused, at the time of the commission of the offence, suffered from any biological condition that could impact on his criminal capacity or if there was any other circumstances that could have had such an effect. The two legs, which must be present and proven in order for a person to be held criminally capacitated, are set out in s 218(1)(a) and (1)
 (b) of the Criminal Law Code. First, is the cognitive ability or the ability to understand and appreciate the wrongfulness of the act; and second the conative ability or the ability to act in accordance with this understanding.

The evidence led on behalf of the accused demonstrates that, in all probability, the crime was committed as the result of non-pathological criminal incapacity of a temporary nature. In our view of the facts before us, the accused’s troubled upbringing has a lot to do with her temperamental make-up. The bizarre nature of the crime in which the mother kills her own innocent young children by poisoning can only be explained in terms of some form of mental aberration. The psychiatric nurse’s testimony indicates, in our view, that the pre-occupation with death may have led her to embark on such an action without the full appreciation of the social consequences of such an act. We were unable to rationalize the sheer callousness and viciousness exhibited by the young mother who embarks upon such a fatal course of action against her own two children. The effect of the evidence of the psychiatric nurse was to lay a firm foundation for a finding that the State has not proved beyond a reasonable doubt that the accused had carried out the act with the necessary criminal capacity required to constitute the crime charged. In our view, in the particular circumstances of this case, we are not satisfied that it has been shown, beyond a reasonable doubt, that the accused had exhibited both the cognitive and conative ability at the time she committed the unlawful act. In the event therefore, it cannot be held that the State has proved its case beyond a reasonable doubt. In the circumstances she cannot be legally held liable for the unlawful act. She must therefore be found not guilty and acquitted on both counts of murder.

Attorney-General’s Office, for the State
Legal Resources Foundation, for the accused
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