State v Mugabe (12 of 2024) [2024] ZWMSVHC 12 (5 March 2024)

1 HMA 13-24 HCMSCR 1622-23 THE STATE versus NGONIDZASHE MUGABE HIGH COURT OF ZIMBABWE MAWADZE J MASVINGO, 9 February, 1 & 5 March 2024 Assessors 1. Mr Mazonde 2. Mr Chikukwa Criminal Trial E. Mbavarira, for the State F. Chirairo, for the accused MAWADZE J: In this matter the back ground facts are largely common cause save for the events surrounding the now deceased’s death. In fact, the main issue which falls for determination is whether the now deceased died from natural causes or there is foul play implicating the accused. The charge the accused is facing entails contravening section 47 (1) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. The charge is that on 25 January 2023 in Guti Village, Chief Shindi, Chivi, Masvingo the accused unlawfully and intentionally caused the death of a newly born baby by squeezing her neck and inserting cotton wool in her mouth and nose. HMA 13-24 HCMSCR 1622-23 Background Facts The 45-year-old accused is a male nurse and a qualified mid-wife of 18 years’ experience. He completed his nursing course in 2005 and qualified as a midwife in 2012. He has been so practising both as a nurse and a mid-wife. The accused is married, hence a family man. The mother of the now deceased is 32-year-old. She is a mother of two children and was single. She is a qualified teacher although at the material time she was yet to be employed. As at now she works for a supermarket in Avondale, Harare. Her rural home is in Bikita but ordinarily is resident in Waterfalls, Harare. Sometime in 2018 the now deceased’s mother DIANAROSE MUDZINGWA (Dianarose) met the accused at his then workplace at rural Chikuku clinic, in Bikita Masvingo. She had visited the said clinic to have a family planning implant on her hand removed after its expiry period. The accused removed it. A love relationship developed between accused and Dianarose. The accused was not staying with his family. As a result, Dianarose would travel from Harare to the accused’s work place at Chikuku Clinic, Bikita. The accused would send her money for bus fare. The two would spend days together as they were now in an intimate or sexual relationship. The accused later transferred from Chikuku clinic to Ngundu clinic in Chivi and this love relationship and arrangement continued. While at Ngundu clinic the accused lived in one room where he lodged and there were other tenants at that house. The accused’s residence was about 1½ km from his work place Ngundu clinic which was uphill or 2-3km if one used a winding route. The now deceased’s mother Dianarose fell pregnant. She advised the accused. The love relationship and intimate relationship continued as Dianarose would occasionally travel from Harare to Ngundu to be with the accused. Dianarose did not register the pregnancy with any clinic or hospital for usual pre-natal care. She said she had no money to do so as she was unemployed and accused could not help her in that regard despite their intimate relationship. She also, for the same reasons had not bought any clothes as preparation for the newly born baby she was expecting until the pregnancy was full term and the fateful day she gave birth. As Dianarose’s pregnancy was now full term and not registered the accused invited her to proceed from Waterfalls, Harare to Ngundu so that she would deliver the baby at accused’s work HMA 13-24 HCMSCR 1622-23 place at Ngundu clinic for free. The accused said Ngundu clinic offered excellent free maternity services. On the 24th of January 2023 Dianarose travelled from Harare to Ngundu. Her pregnancy was full term. She arrived at Ngundu in the evening and accused was waiting for her. The lovebirds bought food at Ngundu and proceeded to accused’s residence to eat. After supper they retired to bed. Later that night leading to 25 January 2023 Dianarose started to have labour pains. The accused did not take her to Ngundu clinic. She delivered in the privacy of the accused’s room. The baby was a girl. This was around 0300hrs. The State case It is the State case that soon after delivery of the baby girl the accused strangled the newly born baby girl, the now deceased, by squeezing her neck and suffocating it by closing its nose and mouth with cotton wool. Thereafter it is said the accused immersed the newly born baby girly into a bucket with water headlong. The state alleges that after the newly born baby had died the accused placed it in a plastic bag and proceeded to his work place at Ngundu clinic where he threw the body of the newly born baby girl into a blair toilet or pit latrine. The accused proceeded to work at the clinic as normal doing his daily chores or duties. The now deceased’s mother Dianarose had remained sleeping at accused’s house. She had not approved of accused’s conduct hence she woke up and proceeded to ZRP Ngundu where she made a report of murder of the newly born baby girl against the accused. The accused was arrested at his work place later that day at Ngundu clinic. The accused led the police to the toilet at his work place where he had thrown the baby. The body of the now deceased was retrieved. A post mortem was later done some 10 days later on 3 February 2023 by Dr Godfrey Zimbwa. Unfortunately, the body of the newly born baby had decomposed. The cause of death could therefore not be ascertained by the doctor. The accused’s Defence and Evidence The accused said Dianarose his lover was not truthful with him as he only learnt after his arrest that she was a mother of two children. He said his love relationship with Dianarose was a casual one, purely for sex as he was married and did not intend to marry Dianarose. The accused said he never visited Dianarose at her residence in Harare and did not even know how she stayed there and with whom. HMA 13-24 HCMSCR 1622-23 It is accused’s evidence that after Dianarose fell pregnant and advised accused she revealed to the accused that she was also in a sexual relationship with another man in Harare and could not tell the author of her pregnancy. She however made it clear that this man in Harare was not a proper candidate for marriage hence she would just keep the baby. The accused told her that DNA test would been done after birth of the child to ascertain its father if she wished. Be that as it may the accused said he continued the love relationship with Dianarose. The accused said she told Dianarose to register the pregnancy at any local clinic in Harare where she stayed as this was for free but Dianarose failed to do so. The accused said as a positive gesture he had arranged with a work colleague, a vendor to order clothes for the expected baby but could not pay or take delivery of the baby clothes as accused wanted for Dianarose to come to Ngundu to choose the clothes. The accused said he indeed made arrangements for Dianarose to travel to Ngundu for purposes of giving birth at his work place at Ngundu clinic which offer free, super and excellent maternity services. The accused confirmed that Dianarose arrived at Ngundu on 24 January 2023 and that the pregnancy was full term. He said upon arrival she complained of hunger and he bought food at Ngundu business centre and they proceeded home where they retired to bed. The accused said when Dianarose started to experience labour pains he decided against taking her uphill to Ngundu clinic at night. Instead as a qualified nurse and midwife he assisted her to deliver the baby in his room. The accused explained in detail how the newly born baby, the now deceased was delivered in his room. The accused said he caused Dianarose to sit on a mat on the floor to enable accused to check on her. He said he noted that the baby’s head was already on the perineum or opening of the vagina. As per procedure he said he felt for the head of the baby and noticed the umbilical cord was tied three times around the neck of the baby. The accused however said Dianarose delivered the baby successfully and in record time. The newly born baby was ali