3
HCC 29/25
HCCR 705/25
THE STATE
Versus
JEALOUS TOMASI
HIGH COURT OF ZIMBABWE
BACHI MZAWAZI J
CHINHOYI, 3 June 2025
Assessors: 1. Mrs Mateva
2. Dr Mashavave
Criminal Trial
P. Sonono, for the State
G.T. Dhamusi, for the accused
BACHI MZAWAZI J: The accused, Jealous Tomasi, a documented and well-known psychiatric patient, was released into the public domain after a 12-year stint in the psychiatric unit at Chikurubi. He had been committed to the psychiatric ward after a special verdict had been returned on a murder he committed in 2008 whilst mentally incapacitated.
Two years after his release, whilst showing some normalcy he committed yet two other murders which have led him to be brought before this court. He stands charged of two counts of murder in terms of s47 of the Criminal Code [Chapter 9:23].
The evidence adduced shows that the relapse was caused by lack of consistency or his total neglect to take his prescribed medication. However, it is apparent that he had to a certain extent resumed normal life and was meaningfully engaged by joining some artisanal mining syndicates in their field of illegal gold mining.
It is alleged that on the 29th of September 2022 after the accused had retired to bed in the company of his girlfriend an altercation arose from outside his make-shift cabin at the mining site. Accused awakened and was promptly and impulsively steered into action by uninvitedly joining in the fight. Somehow, he then snapped and axed one of the culprits. Another neighbour who was attracted to the scene by the commotion was also savagely axed to death.
The accused was arrested after he had fled the scene giving rise to this criminal trial. He has been held at the Chikurubi Psychiatric Unit since the 12th of July 2023, in terms of sections 27 and 28 of the Mental Health Act [Chapter 15:12]. The affidavit compiled by the psychiatric doctor, Dr. S. W. Mazorodze who evaluated the accused on the 25th of February, 2025 chronicles his mental history and his current mental disposition. A certificate prepared by the same doctor certifying him fit to stand trial and be discharged into a relative’s care and custody, embodied in the above affidavit of the 25th of February 2025, prompted the Office of the Prosecutor General to proceed with the prosecution of this case.
Against the background of the accused’s mental history and relapse, the case proceeded as a Stated Case. A statement of agreed facts was submitted. As a court we quizzed the accused when he appeared before us so as to ascertain, assess and confirm whether he appreciated what was going on and was fit to stand trial. We noted that he appeared mentally stable. This is owed to the strict supervision by the prison psychiatric staff officers who ensured and superintended adherence to the prescribed drug regime.
What is apparent is that such supervision and assistance lacked when the accused was initially certified fit for release from the mental institution the first time around. Two more lives were lost because of that negligence. There is no evidence that there are people willing to take care of him or supervise him as can be deduced from the record of proceedings. After release he mingled with artisanal miners and was freelancing as an artisanal miner.
Section 29 of the Mental Health Act [Chapter 15:12] outlines the procedure to be followed where a person charged is found mentally disordered or intellectually handicapped at the time of the commission of the offence. We agree that the conduct of the accused as portrayed in the statement of the agreed facts at the time of the commission of the double murder bordered on what the said Act refers to as a mental illness or disability of the mind. His conduct of interfering and partaking in a fight which had nothing to do with him without even ascertaining the facts is tantamount to an abnormal behaviour. Additionally, the degree of aggression he exhibited in axing both victims clearly illustrates total loss of mental control. It showed that the accused at the time was incapable of appreciating the nature of his conduct or its lawfulness.
We will proceed in terms of s29(2)(a) of the Act. It is the most appropriate in light of the mental history of the accused. Sections 29(2)(b) or (c) are not ideal in the circumstances as they recommend release or other non-committal measures.
In terms of s29 the trial court presiding over such a case is enjoined to return a special verdict to the effect that the accused person is not guilty because of insanity. See s227 of the Criminal Law Code. As such, this court has no option but to accordingly return a special verdict and find the accused not guilty and acquitted.
In the circumstances of this case, the dilemma or predicament this court finds itself in, is that there is a very recent report mentioned earlier on after the accused had undergone mental treatment and evaluation certifying his fitness to be released in the custody of one, John Madzengerwa, his nephew. On the other hand, though the accused does have some lucid moments or intervals, the commission of this offence shows that there is no guarantee that he will not once again turn into a serial killer. It will be akin to releasing a loose cannon or a time bomb waiting to explode with dire consequences. He is a danger not only to himself but to his community and the society at large. This was as opined by MAWADZE J, as he then was, in the case of S v Lameck Charidza HMA10/17, when he exclaimed that,
“As a court and on the evidence before us one cannot guarantee that accused would not relapse and that these tragic events would not recur.”
That being the case, we strongly feel that mental evaluation and certification by a single expert, though respected, is not sufficient. The accused needs to go under further management and treatment. The authorities mentioned in s29 of the Act must comply with the provisions of s29(4) to 29(7) speaking to the mandate to place the accused before a special board which will in turn place him before the Mental Health Review Tribunal. See S v Wachi HCC10/2024 and the cases cited therein.
Until such time the accused’s mental state has been reviewed by the Mental Health Review Tribunal and appropriate recommendations have been made in terms of the stipulated procedures as dictated by the Mental Health Act, the accused is not to be released.
Accused is accordingly ordered to be returned to prison for transfer to the Chikurubi Mental institution for further management as ordered above and as prescribed by Section 29 of the Mental Health Act.
National Prosecuting Authority, legal practitioners for the State
Sonono Law Chambers, accused’s legal practitioners.