The State v Joyce Tavarwisa

On 7 December 2013, at Gapare Village, Chief Serima in Chatsworth, the accused Joyce Tavarwisa (aged 53) was present when her daughter Sheila Tavarwisa went into labour. The accused allegedly took Sheila to their aunt's homestead rather than to a clinic. Sheila gave birth to a baby in the forest en route to the aunt's homestead. The baby allegedly made its first cry, indicating it was born alive. The State alleged that the accused purported to wrap the newborn baby but instead intentionally strangled it to death, then buried it in a hole covered with a stone and soil. A police report was made and the accused was arrested. The accused denied strangling the baby and stated that the baby may not have survived given the circumstances of birth (in the forest, on dry ground, in bad weather, with umbilical cord attached for prolonged time). A post-mortem examination was conducted by Dr Zimbwa.

• Whether there was sufficient evidence at the close of the State's case to prove the accused committed murder as defined in s 47(1) of the Criminal Code
• Whether the application for discharge at the close of the State case in terms of s 198(3) of the Criminal Procedure and Evidence Act should be granted
• What was the actual cause of death of the newborn baby
• Whether criminal liability could be attached to the accused based on the medical evidence

The accused was discharged at the close of the State case and acquitted. Verdict: Not guilty and acquitted in terms of s 198(3) of the Criminal Procedure and Evidence Act.

Where medical evidence conclusively establishes that the cause of death was not the criminal act alleged by the State (in this case strangulation), but rather a different cause (haemorrhagic shock from uncut umbilical cord), and there is no other evidence to prove the essential elements of the murder charge, the court must discharge the accused at the close of the State case under s 198(3) of the Criminal Procedure and Evidence Act. The test for discharge requires that a verdict of not guilty must be returned if there is: (a) no evidence to prove an essential element of the offence; (b) no evidence upon which a reasonable court acting carefully might properly convict; or (c) evidence that is so manifestly unreliable or discredited that no reasonable court could safely act upon it. No criminal liability attaches where death results from failure to perform an act (cutting the umbilical cord) in circumstances where there is no evidence of intent or criminal negligence sufficient to establish the charged offence.

The court made obiter observations commending the State prosecutor Mr Mathose for his professionalism in conceding the application for discharge, noting that the concession was "professional, well informed and properly made." The court also observed that "no useful purposes would be served by flogging a dead horse as it were," indicating that continuing with the prosecution would have been futile given the clear medical evidence. The court noted that the doctor's evidence was "clear and unambiguous" regarding the cause of death, and that the loose or hypermobile neck was a normal condition in newborns and "cannot possibly be the cause of death."

This case demonstrates the proper application of the discharge procedure under s 198(3) of the Criminal Procedure and Evidence Act in Zimbabwe (similar to South African criminal procedure). It illustrates the importance of medical evidence in homicide cases, particularly in establishing cause of death. The case highlights the principle that where medical evidence conclusively establishes a different cause of death than that alleged by the State, and there is no evidence to support the essential elements of the charged offence, discharge must be granted. It also exemplifies prosecutorial professionalism in conceding where the evidence does not support the charge. The case is significant in demonstrating that criminal liability for murder requires proof beyond mere suspicion or circumstantial presence, and that medical evidence establishing natural or non-criminal causes of death can be determinative in defeating a murder charge.