S v Zidyengi (303 of 2024) [2024] ZWHHC 303 (17 July 2024)

6 HH 303-24 CRB MRWR 75/23 Reportable THE STATE versus MTINDI ZIDYENGI HIGH COURT OF ZIMBABWE MUNANGATI-MANONGWA J HARARE, 7 June 2023 & 17 July 2024 Review Judgment MUNANGATI-MANONGWA J: This matter was dealt with on 7 June 2023 and the accused was released on a warrant of liberation on the 23 June 2023 on the basis of a review minute that I prepared. However given the facts of the matter I felt compelled to write this judgment despite the passage of time. The notion that persons with mental conditions cannot enjoy sex in their own right needs to be dispelled where there is no evidence that they are mentally incompetent to consent and appreciate the nature of the act. Whilst the law seeks to protect mentally challenged persons, great caution should be exercised not to dismiss their sexuality without adequate medical evidence as such people also need to explore their sexuality without being taken advantage of. Sexual and reproductive health rights are not a preserve of those without challenges. Such issues constitute an important component of the right to enjoyment of quality of life for each individual. The complainant in this case is a good example of how a certain degree of protectionism can suffocate and impede the enjoyment of life by those that suffer from mental health challenges. In casu the accused person was charged and convicted of contravening s 65(1) (rape) as read with s 64(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The later section reads as follows: “(3) A person who engages in sexual intercourse, anal sexual intercourse or other sexual conduct with a mentally incompetent adult person shall be charged with rape, aggravated indecent assault or indecent assault, as the case may be, unless there is evidence that the mentally incompetent person⎯ (a) was capable of giving consent to the sexual intercourse, anal sexual intercourse or other sexual conduct, and; (b) gave his or her consent thereto.” The accused an unrepresented 39-year-old man pleaded guilty to the charge and was duly convicted. Thereafter, the matter was referred to the High Court for review in terms of s 57 of the Magistrate Court Act [Chapter 7:10]. The facts of the matter as follows: The accused person entered into a relationship with complainant a 33 year old woman who has a mental health problem and takes medication for the condition. On one instance the complainant’s mother saw accused having sexual intercourse with the complainant and kept quiet. She further witnessed another encounter of the two engaging in sex and got concerned but did nothing. Apparently, the complainant started refusing to take her medication and upon being quizzed as to why she was reluctant to take her medication she stated that it was because she was pregnant and thus did not want to endanger her child. The complainant even took the drastic step of going to the police to report her mother was forcing her to take medication likely to harm the baby. The police summoned the mother and that is when she indicated that the accused had been having sexual intercourse with the complainant a mentally challenged individual. The accused was arrested and arraigned before the court. The court found that the accused “took advantage of the complainant who is mentally challenged and engaged sexually with her.” I raised issue with the trial magistrate particularly inquiring whether the conviction is proper given that: “1. There is no expert evidence that the complainant was incapable of giving her consent. The doctor’s report states that she has a history of hallucinations, but she is well oriented, she has average abstract thinking, her judgment is good, her intelligence is rated as good with a conclusion that the complainant could follow court proceedings.The evidence shows that she has lucid moments, she refused to take tablets as she said she was pregnant; she went to the police to report that her mother was forcing her to take tablets when she was pregnant.The state outline even indicates that she was consenting to the act and was accused’s girlfriend.” I further queried the propriety of the conviction when no expert evidence was called and the court did not even assess the complainant for it to give its value judgment. The accused person could not have been able to appreciate the technical aspects of the offence when he pleaded guilty to the charge. The initial response gotten from the trial magistrate was as follows: “When I read the psychiatric report and noted that the victim was said to be suffering from psychosis I was made to believe that she could not give informed consent. I was made to believe so since psychosis is a severe mental disorder, sometimes with physical damage to brain. She was given some medication to show that she was mentally unstable. Basing on that I decided to convict the accused person as charged.” I followed up these responses by inquiring how the trial magistrate’s belief came to be in the absence of expert evidence. I further asked whether it was not prudent to call the psychiatric nurse to clarify issues rather than formulate opinions or beliefs where a medical condition was concerned, and the magistrate had no medical background. This was against the findings of the psychiatric nurse’s report which indicated that the complainant was well oriented and had average thinking and further that she had good judgment and good intelligence among other things. The trial magistrate ultimately conceded that she should have called the psychiatric nurse for clarification of issues. It is trite that it is the duty of the State to present evidence and prove its case beyond reasonable doubt. In casu the State had to present evidence that the complainant is a person who is incapable of giving consent as she is mentally incompetent. This the State cannot do without a report from a medical expert. The issue of mental incapacitation deals inter alia with the person’s ability to consciously make a decision fully appreciating the consequences incumbent thereupon. The court had the benefit of a report by a psychiatrist nurse who had examined the complainant. The report presented to court was to the effect that the applicant has her lucid moments although she is on medication for HIV induced psychosis. She could understand court proceedings and she was or is of average intelligence and her judgment and intelligence were rated as good. These comments by themselves pointed to an individual who was not always incapacitated by her condition but had lucid moments, is of average intelligence and her judgment rated as good. This report despite the complainant’s illness should have alerted the court that there was a possibility of the complainant having been conscious of her decision, more so given the fact that she had sought to protect her unborn baby from being exposed to the effects of the medication she was taking. The facts in the State outline reveal that the complainant was the accused’s girlfriend and she had consented to the sexual act. Could it then be said that the accused took advantage of the complainant where there is no evidence of total incompetence to make a conscious decision? The answer certainly is in the negative. From the interaction with the trial magistrate it is clear that she founded her conviction on speculation which lacked evidential support. This is a cardinal sin which any court should not commit. Where an issue pertaining to a specialized area arises particularly in the medical field expert evidence is required and a court cannot proceed on speculation. Equally where a medical report has been provided the court needs to thoroughly and carefully read and consciously consider the contents thereof before proceeding to make conclusions. Equally, there should be no hesitance to call upon the author of the report to clarify issues viva voce. This is particularly important to give the court an insight into the findings of the medical expert. Such a course enables the court to make fully informed decisions hence doing justice to the case. Given the aforegoing, it cannot therefore be ruled that the State was able to prove its case beyond reasonable doubt more particularly where s 64(3) of the Act clearly provides that it shall be a full defence to the charge where there is evidence that the mentally incompetent person was capable of giving her consent and did so. In this case the medical affidavit produced by the State in evidence supported the finding that the complainant was capable of giving her consent and it is not in dispute that she consented to the act. It’s baffling how the court a quo arrived at a decision not supported by evidence. Equally the accused did not seem to appreciate the essence and nature of the offence just believing that since the parties were in a relationship and he had sexual intercourse with her with her consent he had committed an offence. The court has an inherent duty to be fair to parties appearing before it more particularly so, when an accused is not represented. The nature of the offence, especially where it is statutory, needs to be explained adequately to the accused so as to avoid a scenario as happened in this instance. Given the criminal sanction that accompanies a conviction on this charge, any tardiness in handling such a matter can lead to great prejudice to an accused person when incarcerated. Suffice to state in conclusion that s 51 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 provides that every person has inherent dignity in their private and public life and the right to have that dignity respected. Hence those who suffer from mental challenges should enjoy that right during their lucid moments as the complainant in casu. Equally s 56(3) and (4) of the said Constitution are insightful as regards the right to equality and non-discrimination and they provide as follows: “Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their ……….disability or economic or social status……. (4) A person is treated in a discriminatory manner for the purpose of subsection (3) if— (a) they are subjected directly or indirectly to a condition, restriction or disability to which other people are not subjected;” It is imperative to note that the rights to dignity, privacy and not to be discriminated upon are incorporated in the Convention on the Rights of Persons with Disabilities to which Zimbabwe is a signatory. The convention provides and emphasizes that persons with disabilities have the right to make their own decisions, including in matters related to their personal lives and healthcare. This resonates with what the complainant in casu did, being able to make a decision that she was not going to be forced to take medication whilst pregnant. Thus, the unwarranted restriction to enjoyment of sex, enter into a relationship with a person of the other sex may border on infringement of rights of the mentally challenged persons given their right not to be discriminated upon on the basis of disability. It may be necessary to exercise care, caution and restraint in seeking to strike a balance between protecting the wellbeing of the mentally challenged and preserving their rights to enjoy amenities of life especially where adults are concerned. The considerations applying to minors should certainly differ. I find that the conviction is not safe, the proceedings were not in accordance with real and substantial justice, accordingly the conviction is set aside and substituted with the following: “The accused is found Not Guilty and is hereby acquitted.” As a corollary, a warrant of liberation was instantly issued. HON MUNANGATI-MANONGWA J:……………………….………… HON MUSITHU J, Agrees:…..…………………………………………. 6 HH 303-24 CRB MRWR 75/23 Reportable 6 HH 303-24 CRB MRWR 75/23 Reportable THE STATE versus MTINDI ZIDYENGI HIGH COURT OF ZIMBABWE MUNANGATI-MANONGWA J HARARE, 7 June 2023 & 17 July 2024 Review Judgment MUNANGATI-MANONGWA J: This matter was dealt with on 7 June 2023 and the accused was released on a warrant of liberation on the 23 June 2023 on the basis of a review minute that I prepared. However given the facts of the matter I felt compelled to write this judgment despite the passage of time. The notion that persons with mental conditions cannot enjoy sex in their own right needs to be dispelled where there is no evidence that they are mentally incompetent to consent and appreciate the nature of the act. Whilst the law seeks to protect mentally challenged persons, great caution should be exercised not to dismiss their sexuality without adequate medical evidence as such people also need to explore their sexuality without being taken advantage of. Sexual and reproductive health rights are not a preserve of those without challenges. Such issues constitute an important component of the right to enjoyment of quality of life for each individual. The complainant in this case is a good example of how a certain degree of protectionism can suffocate and impede the enjoyment of life by those that suffer from mental health challenges. In casu the accused person was charged and convicted of contravening s 65(1) (rape) as read with s 64(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The later section reads as follows: “(3) A person who engages in sexual intercourse, anal sexual intercourse or other sexual conduct with a mentally incompetent adult person shall be charged with rape, aggravated indecent assault or indecent assault, as the case may be, unless there is evidence that the mentally incompetent person⎯ (a) was capable of giving consent to the sexual intercourse, anal sexual intercourse or other sexual conduct, and; (b) gave his or her consent thereto.” The accused an unrepresented 39-year-old man pleaded guilty to the charge and was duly convicted. Thereafter, the matter was referred to the High Court for review in terms of s 57 of the Magistrate Court Act [Chapter 7:10]. The facts of the matter as follows: The accused person entered into a relationship with complainant a 33 year old woman who has a mental health problem and takes medication for the condition. On one instance the complainant’s mother saw accused having sexual intercourse with the complainant and kept quiet. She further witnessed another encounter of the two engaging in sex and got concerned but did nothing. Apparently, the complainant started refusing to take her medication and upon being quizzed as to why she was reluctant to take her medication she stated that it was because she was pregnant and thus did not want to endanger her child. The complainant even took the drastic step of going to the police to report her mother was forcing her to take medication likely to harm the baby. The police summoned the mother and that is when she indicated that the accused had been having sexual intercourse with the complainant a mentally challenged individual. The accused was arrested and arraigned before the court. The court found that the accused “took advantage of the complainant who is mentally challenged and engaged sexually with her.” I raised issue with the trial magistrate particularly inquiring whether the conviction is proper given that: “1. There is no expert evidence that the complainant was incapable of giving her consent. The doctor’s report states that she has a history of hallucinations, but she is well oriented, she has average abstract thinking, her judgment is good, her intelligence is rated as good with a conclusion that the complainant could follow court proceedings. The evidence shows that she has lucid moments, she refused to take tablets as she said she was pregnant; she went to the police to report that her mother was forcing her to take tablets when she was pregnant. The state outline even indicates that she was consenting to the act and was accused’s girlfriend.” I further queried the propriety of the conviction when no expert evidence was called and the court did not even assess the complainant for it to give its value judgment. The accused person could not have been able to appreciate the technical aspects of the offence when he pleaded guilty to the charge. The initial response gotten from the trial magistrate was as follows: “When I read the psychiatric report and noted that the victim was said to be suffering from psychosis I was made to believe that she could not give informed consent. I was made to believe so since psychosis is a severe mental disorder, sometimes with physical damage to brain. She was given some medication to show that she was mentally unstable. Basing on that I decided to convict the accused person as charged.” I followed up these responses by inquiring how the trial magistrate’s belief came to be in the absence of expert evidence. I further asked whether it was not prudent to call the psychiatric nurse to clarify issues rather than formulate opinions or beliefs where a medical condition was concerned, and the magistrate had no medical background. This was against the findings of the psychiatric nurse’s report which indicated that the complainant was well oriented and had average thinking and further that she had good judgment and good intelligence among other things. The trial magistrate ultimately conceded that she should have called the psychiatric nurse for clarification of issues. It is trite that it is the duty of the State to present evidence and prove its case beyond reasonable doubt. In casu the State had to present evidence that the complainant is a person who is incapable of giving consent as she is mentally incompetent. This the State cannot do without a report from a medical expert. The issue of mental incapacitation deals inter alia with the person’s ability to consciously make a decision fully appreciating the consequences incumbent thereupon. The court had the benefit of a report by a psychiatrist nurse who had examined the complainant. The report presented to court was to the effect that the applicant has her lucid moments although she is on medication for HIV induced psychosis. She could understand court proceedings and she was or is of average intelligence and her judgment and intelligence were rated as good. These comments by themselves pointed to an individual who was not always incapacitated by her condition but had lucid moments, is of average intelligence and her judgment rated as good. This report despite the complainant’s illness should have alerted the court that there was a possibility of the complainant having been conscious of her decision, more so given the fact that she had sought to protect her unborn baby from being exposed to the effects of the medication she was taking. The facts in the State outline reveal that the complainant was the accused’s girlfriend and she had consented to the sexual act. Could it then be said that the accused took advantage of the complainant where there is no evidence of total incompetence to make a conscious decision? The answer certainly is in the negative. From the interaction with the trial magistrate it is clear that she founded her conviction on speculation which lacked evidential support. This is a cardinal sin which any court should not commit. Where an issue pertaining to a specialized area arises particularly in the medical field expert evidence is required and a court cannot proceed on speculation. Equally where a medical report has been provided the court needs to thoroughly and carefully read and consciously consider the contents thereof before proceeding to make conclusions. Equally, there should be no hesitance to call upon the author of the report to clarify issues viva voce. This is particularly important to give the court an insight into the findings of the medical expert. Such a course enables the court to make fully informed decisions hence doing justice to the case. Given the aforegoing, it cannot therefore be ruled that the State was able to prove its case beyond reasonable doubt more particularly where s 64(3) of the Act clearly provides that it shall be a full defence to the charge where there is evidence that the mentally incompetent person was capable of giving her consent and did so. In this case the medical affidavit produced by the State in evidence supported the finding that the complainant was capable of giving her consent and it is not in dispute that she consented to the act. It’s baffling how the court a quo arrived at a decision not supported by evidence. Equally the accused did not seem to appreciate the essence and nature of the offence just believing that since the parties were in a relationship and he had sexual intercourse with her with her consent he had committed an offence. The court has an inherent duty to be fair to parties appearing before it more particularly so, when an accused is not represented. The nature of the offence, especially where it is statutory, needs to be explained adequately to the accused so as to avoid a scenario as happened in this instance. Given the criminal sanction that accompanies a conviction on this charge, any tardiness in handling such a matter can lead to great prejudice to an accused person when incarcerated. Suffice to state in conclusion that s 51 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 provides that every person has inherent dignity in their private and public life and the right to have that dignity respected. Hence those who suffer from mental challenges should enjoy that right during their lucid moments as the complainant in casu. Equally s 56(3) and (4) of the said Constitution are insightful as regards the right to equality and non-discrimination and they provide as follows: “Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their ……….disability or economic or social status……. (4) A person is treated in a discriminatory manner for the purpose of subsection (3) if— (a) they are subjected directly or indirectly to a condition, restriction or disability to which other people are not subjected;” It is imperative to note that the rights to dignity, privacy and not to be discriminated upon are incorporated in the Convention on the Rights of Persons with Disabilities to which Zimbabwe is a signatory. The convention provides and emphasizes that persons with disabilities have the right to make their own decisions, including in matters related to their personal lives and healthcare. This resonates with what the complainant in casu did, being able to make a decision that she was not going to be forced to take medication whilst pregnant. Thus, the unwarranted restriction to enjoyment of sex, enter into a relationship with a person of the other sex may border on infringement of rights of the mentally challenged persons given their right not to be discriminated upon on the basis of disability. It may be necessary to exercise care, caution and restraint in seeking to strike a balance between protecting the wellbeing of the mentally challenged and preserving their rights to enjoy amenities of life especially where adults are concerned. The considerations applying to minors should certainly differ. I find that the conviction is not safe, the proceedings were not in accordance with real and substantial justice, accordingly the conviction is set aside and substituted with the following: “The accused is found Not Guilty and is hereby acquitted.” As a corollary, a warrant of liberation was instantly issued. HON MUNANGATI-MANONGWA J:……………………….………… HON MUSITHU J, Agrees:…..………………………………………….