CHEDA J: This
is a trial for murder. The accused a woman
of 22 years of age at the time of the commission of the offence was charged
with murder to which charge she pleaded not guilty to.
The genesis and
background of this case is that, on the 7th of January 2007 accused
carried the deceased on her back and took him to Ngezi river. Upon arrival she threw the baby into the
flooded river which act resulted in the baby drowning and died as a result
thereof.
She pleaded not
guilty to the charge. In her defence she
stated that she was impregnated by one Gift Moyo who was a haulage truck
driver. At the time of conceiving she
was employed as a maid at Mbalabala and her employer terminated her services
after she had given birth.
She went to her
rural home. On arrival her father and
step-mother chased her away as they stated that they did not want her home with
a fatherless child. She left and went
back to Mbalabala to try to make a living under destitute conditions. Accused, together with the deceased who had
been ill from birth having been diagnosed with the HIV, had been hospitalized
in various health institutions for a period of 5 months.
According to the
evidence submitted to the court, which was uncontradicted, the deceased had
experienced scrutiating pain as a result of gaping wounds and open sores all
over the body. As such, she was always
crying uncontrollably due to this endless pain.
This, therefore, resulted in both mental and physical stress and
hopelessness on the accused.
In view of this
torment, accused braved her previous expulsion from her home by her father and
again proceeded to the rural home. On
arrival her father again chased her away.
It is at this
stage that she felt alone, unloved, uncherished and discarded. Faced with this dilemma she thought it best
to throw the child into the river in the belief that this would ease the child's
suffering.
The facts in this
matter are largely common cause and a verdict of guilty of murder with actual
intent was returned.
In determining the
existence or otherwise of extenuating circumstances the following factors were
considered:-
(1) accused
was 22 years at the time of the offence,
(2) she only went up to the lower level of
primary education due to her mental inability to grasp basic learning concepts
at that lower level,
(3) was brought up by her step-mother who
did not look after her well as a result of
this, she went to
work at an early age,
(4) she formed a sexual relationship with a
roving truck driver of no fixed abode which resulted in the birth of the
deceased who was HIV positive and she also tested HIV positive,
(5) the
father of the child could not be located.
(6) her father and step-mother expelled her
from home on two occasions which resulted in her being a destitute,
(7) she had been hospitalized for a total of
5 months in various hospitals,
(8) Medical personnel had told her that
there was no help they could offer the child and as such the child was facing imminent
death.
The
circumstances surrounding the commission of this offence taken cumulatively
amount to extenuating circumstances.
Therefore, I find that extenuating circumstances exist in this case.
While
our law does not distinguish between murder and mercy killing, I adopt the view
expressed in S v Hartman 1975(3) SA
532, that the concept of mercy killing can not escape the attention of the
court in certain circumstances and as such will play a determining factor in sentencing.
It
is agreed by both the state and defence counsel that while murder per se
is reprehensible, this particular case calls for mercy and therefore accused's
moral blameworthiness is lower. This is
a very difficult decision to make bearing in mind the loss of a life which
these courts view with abhorrence.
Accused
had been suffering with the deceased, there was no medical relief in sight, as
medical personnel had advised her that there was nothing they could do to help
the child live. Her parents expelled her
from home with a sick child. She,
therefore, felt condemned to die together with the child.
This brings me to
the question of social responsibility.
While it is common that we are all responsible for our actions, in my
view, sight should not be lost that society has a duty to accommodate and
counsel wrongdoers thereby preventing the resultant fatal consequences which
may flow from those who are mentally and physical distressed.
In
my view such persons should receive the court's sympathy rather than receive further
condemnation by the courts which end up imposing very harsh sentences which in
some cases can capital punishment. In casu, no doubt accused felt that
the world had collapsed around her. The
element of mercy exercised in S v Hartman
1975(3) SA 532 and S v Mayer 1985(4)
322 is very persuasive and compelling in the present matter.
Further in S v V 1972(3) SA 611(A) the court stated:-
“punishment should fit the criminal as well as
the crime, be fair to the accused and to society and be blended with a measure
of mercy.”
This
case is one deserving a blending of punishment with mercy. The following therefore, is the sentence:-
Accused
will be detained until the rise of this court.
Attorney General's
Office, applicant's legal practitioners
Dzimba Jaravaza and
Associates, accused's legal practitioners
