The State v Mercy Madziwa

On 8 January 2016, the accused gave birth to a baby boy. She tied the baby's neck with a t-shirt, placed the baby in a plastic bag, tied the bag, and dumped the baby at a cemetery. The baby was found crying and was taken to Harare Hospital. The accused was charged with contravening section 108(1) of the Criminal Law (Codification and Reform) Act (exposing an infant), to which she pleaded guilty and was convicted. She was sentenced to 13 months imprisonment, of which 3 months were suspended on condition of future good behaviour and the remainder suspended on condition of performing community service.

• Whether the accused was charged with the appropriate offence given the facts of the case
• Whether the accused's conduct constituted mere abandonment/exposure of an infant under section 108(1) or attempted murder/infanticide under section 189(1) read with section 48(1)
• Whether the proceedings were in accordance with real and substantial justice

The court withheld its certificate of review, meaning the conviction and sentence were set aside as the proceedings were not in accordance with real and substantial justice.

Where an accused abandons an infant in circumstances that demonstrate an intention to cause the death of the infant (such as tying a cloth around the infant's neck and placing the infant in a sealed plastic bag), the conduct amounts to attempted murder or attempted infanticide under sections 189(1) and 48(1), not mere exposure of an infant under section 108(1). Section 108(2)(b) requires that where abandonment was intended to cause death, the accused must be charged with the more serious offences of murder, attempted murder or attempted infanticide. The physical acts and circumstances surrounding the abandonment must be examined to determine the accused's intention and the appropriate charge.

The court observed that the accused could have been charged with contravening section 189(1) as read with section 48(1) of the Code concurrently with contravening section 108(1), suggesting that multiple charges may be appropriate in such circumstances where the conduct satisfies elements of both offences.

This case is significant in Zimbabwean criminal law (and relevant to South African jurisprudence given similar statutory frameworks) as it clarifies the distinction between the offence of exposing an infant (section 108(1)) and attempted murder/infanticide. It establishes that where the accused's conduct demonstrates an intention to cause death (such as tying objects around the infant's neck and placing the infant in circumstances likely to cause suffocation), the appropriate charge is attempted murder or attempted infanticide, not merely exposure. The case emphasizes the importance of charging accused persons with offences that properly reflect their conduct and mens rea, and demonstrates judicial oversight through the review process to ensure justice is properly administered.