THE HIGH COURT OF SWAZILAND
Case No. 253/93
the matter between:
THE CROWN Miss Nderi
THE ACCUSED Mr. Cele
this indictment Makhosi Titus Mthethwa is charged with murdering a
young woman named Gugu Lukhele at Mafutseni on 20th April, 1993.
Crown's evidence has established clearly, and it is not in fact in
dispute, that the accused killed the deceased by stabbing her several
times in the upper body. He also inflicted other knife wounds on her
arms and her head.
only question of fact that I have to is whether, at the time when he
did so, he was insane.
defence called Dr. A. Uzaanzki, who was at the time of trial a
consultant in psychiatry for the World Health Organisation and its
regional adviser for central Africa. He had 31 years experience in
medicine. It was his opinion that the accused was at the time
suffering from paranoia and was not capable of understanding the
nature of his actions.
Crown itself does not dispute that the accused was insane at the time
of the killing. I am satisfied on the balance of probabilities that
that was the case.
I return a special verdict under section 165 of the Criminal
Procedure and Evidence Act 1938 that the accused did commit the acts
alleged in the indictment but that he was insane, within the meaning
of the section, when he did so.
question then arises, on the submission of Mr. Cele for the defence,
as the appropriate course in consequence of the verdict. At the close
of the Crown case, having elected not to call the accused to give
evidence, Mr. Cele then led the evidence of Dr. Izaanski. In the
course of his evidence, it became apparent that the accused was in
fact then incapable of continuing his defence at trial. I accordingly
postponed the continuation of the trial under section 163 (2) of the
Act, and under sub-section (4) of that section remanded him in
custody and reported the case to the Attorney General for the
information of His Majesty The King.
case came back before me this year under section 166, the defence and
the Crown both agreeing on the basis of a further psychiatric report
which has been admitted by consent that the accused is now -and for
the time being - capable of making his defence. I was satisfied of
that and the trial proceeded to its conclusion.
Cele submits that because the accused is for the time being capable
of making a defence, and understanding the nature of his actions, the
consequences that section 165 prescribes in respect of a special
verdict under that section do not apply to him.
it another way, and perhaps more comprehensively, what Mr. Cele is
saying is that as he is for the time being no longer insane, these
consequences are not applicable.
authority has been cited in support of the submission and, with
respect, I do not consider that it is correct. The issue, by the end
of the trial, was whether or not the accused was insane at the time
when he committed the acts charged. It is common ground and I have
found that he was insane, within the meaning of section 165(1) at
that time, I have returned a special verdict under the section
(2) of that section stipulates mandatory consequences upon such a
verdict. It requires the court to report to the Attorney General for
the information of His Majesty and in the meantime to order the
accused to be kept in custody as (using the expression in the
section) a "criminal lunatic" (although in today's world I
think everyone would understand that as meaning a mentally ill person
who has committed a criminal act) in such place and in such manner as
the court directs.
His Majesty may under subsection (3) order the accused to be confined
during His pleasure in a place of safe custody.
statutory requirements are mandatory but I think I should also add
that there is an obvious reason for them. In this case, the deceased
woman was killed in a most brutal manner. The accused was without
doubt a very dangerous if unbalanced man. As a matter of common
sense, there is obviously a difference between the evaluation of a
person's mental state for the purpose of deciding whether he is
capable of defending himself at trial and for the purpose of deciding
whether he was criminally liable for the acts charged. The fact that,
by the time of trial, he may be able to make his defence is a
separate issue from that of his criminal responsibility for the acts
charged. Section 165 recognises that a person who has committed a
criminal act should not be punished as a criminal if he was insane at
the time when he did so, but that does not mean that he is entitled
to be discharged from custody or control as if he had been acquitted
in the usual way. Ordinarily, especially on a charge of homicide,
there will of course be a need in the public interest and no doubt
for his own good to control him, but as a person who is mentally ill
and not as a criminal. Section 165 provides such a regime. The
accused becomes subject to His Majesty's pleasure, to be dealt with
and treated as The King may think appropriate in such cases.
shall report accordingly to the Attorney General. In the meantime,
under section 165, I order that the accused to be kept in secure
custody as a criminal lunatic at the National Psychiatric Centre in