State v Betty Tagu

### Preamble
1
HB 94/24
HCBCR 2277/24
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STATE

Versus

BETTY TAGU

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 23 JULY 2024

Criminal Review

DUBE-BANDA J:

[1] This matter was brought on review at the instance of the scrutinizing regional magistrate. The offender was arraigned before the magistrates’ court sitting at Zvishavane charged with the crime of contravening infanticide as defined in s 48(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].  It being alleged that on 9 January 2024 the offender gave birth to a baby girl and intentionally dug a pit and buried the baby alive which conduct caused the death of the baby at time when the balance of her mind was disturbed as a result of giving birth. The offender pleaded guilty and was duly convicted and sentenced to ten months imprisonment of which five months were suspended on condition of good behaviour and the remaining five months suspended on condition she completed 175 hours of community service.

[2] The record of proceedings was forwarded to the regional magistrate for scrutiny. The regional magistrate raised an issue in respect to the propriety of the conviction. The regional magistrate then referred the record to this court for review. The pertinent part of the referral letter says:

“My query is on the issue that there is no post-mortem report speaking to the cause of death. There is no proof as to whether it was the action of the accused which caused the death of the baby. The accused person being unrepresented might not have appreciated this.”

[3] According to the Outline of State case on 9 January 2024 at around 1200 hours the accused person gave birth to a baby girl. Soon after delivery she wrapped the baby in a towel and proceeded to the nearby river where she dug a pit on the river bed and buried the baby alive which resulted in the death of the baby. The offence came to light when the accused’s husband realised that she was no longer pregnant and questioned her. The police found the body of the baby lying in a pit about one hundred meters from her homestead.

[4] There is no evidence that the post-mortem examination was conducted on the remains of the deceased baby. No post mortem report was produced. The sole issue for determination by this court is whether it was competent for the trial court to convict the offender of infanticide without a post mortem report speaking to the cause of death. The facts show that the baby was put in a pit alive and the police found her dead but not much beyond that.

[5] The accused pleaded guilty to the charge. The essential elements of the charge were put to the accused and she answered in the affirmative. The following are the essential elements and her answers:

Q. Correct on 9 January 2024 you were at Village Mugaya, Chief Mazuhwa?

A. Yes.

Q. Correct you gave birth to a baby girl?

A. Yes.

Q. Correct the baby was alive?

A. Yes.

Q. Correct you dug a pit and buried the child alive?

A. Yes.

Q. Why?

A. The pregnancy was from another man. My husband used to beat me.

Q. Correct by your conduct you at least realised that the child would die.

Yes.

Q. Any lawful right?

A. None.

Q. Any defence?

A. None.

Q. Is your plea a genuine admission of the facts and the essential elements put to you.

A. Yes.

[6] It is clear that the plea was an unequivocal admission of guilt. She admitted all the essential elements of the charge. She admitted every material fact alleged in the charge. Her plea of guilty relieved the State of the necessity of proving the admitted allegations. She admitted that the baby was born alive and she dug a pit and buried her alive. She further admitted that she realised that by burying the baby in the pit she would die. She buried the baby alive, and it was found at exhumation dead. The accused also gave a reason why she buried the baby alive; it was because she was impregnated by another man, not her husband. The totality of the admitted facts show that it is the accused who buried the baby alive, and that it was her conduct in burying the baby alive that caused its death. Therefore, there is conclusive proof that the accused caused the death of the baby.

[7] A post mortem report is the best evidence in such cases, however, to require the production of a post mortem report in all cases would be unreasonable and unrealistic and, in certain cases, it would lead to absurdities. To my mind it would lead to a gross injustice particularly in a case like this where the accused unequivocally admits that she gave birth to a live baby and then buried it in a pit. In turn when the baby was exhumed from the pit it was dead. It is not hard to think what the state of affairs would be like if the legal position were to be that, whenever infanticide is committed and there is no post mortem report, the accused is then entitled to an acquittal, despite a plea of guilty. No system of law could countenance such an injustice.

[8] The case of Mapfoche v The State SC 84/21 shows that even in the absence of a body it is proper for a court to convict an accused of murder on circumstantial evidence provided it has the necessary probative force to warrant a conviction. Particularly where death can be inferred from circumstances that leave no ground for a reasonable doubt even if the body of the deceased had not been found. See S v Nkuna 2012(1) SACR 167 (B); S v Sikosana 1960(4) SA 723 (A). Therefore, by parity of reasoning it is permissible to convict an accused of infanticide even if there is no post mortem report provided that there is evidence to warrant a conviction. The State v Mutsure HH 458/18 the court said:

“The court has already dealt with the issue of the absence of the post mortem report. The issues in the case were not that the deceased could have met her death through other causes. The issue was whether the accused is the one who poured paraffin on the deceased and set her ablaze resulting in injuries from which the deceased died. In such a case, a post mortem would simply be there to give credence to the admitted fact and its absence is not therefore fatal to the state case.”

[9] The Mutsure (supra) case applies with equal force in this matter.  The post mortem report would simply corroborate the admitted facts and its absence is inconsequential.

[10] I am satisfied that the offender was properly convicted. In the circumstances the proceedings are in accordance with real and substantial justice and are confirmed.

DUBE-BANDA J: ………………………………………………….