State v Ferenando (425 of 2025) [2025] ZWHHC 425 (16 July 2025)

2 HH 425 - 25 HCHCR 495/25 THE STATE versus ANNIE FERENANDO HIGH COURT OF ZIMBABWE FOROMA J HARARE; 18 March & 16 July 2025 Review Judgment FOROMA J: The accused a 41-year-old woman gave birth to a male child on the 23rd of November 2024. On delivery she left the child unwrapped with the result that the child died from exposure to the weather conditions. When the child died accused threw the dead body into a Blair toilet pit. The child’s dead body was retrieved from the Blair toilet after some days and the post-mortem indicated that the cause of death was indeterminate. The Accused person was then charged with contravening Section 48 of the Criminal Laws (Codification And Reform) Act [Chapter 9:23] to which she pleaded guilty and was duly convicted. During the canvassing of the essential elements of the offence, accused was asked the following questions among others. Q. What did you do with the child? A. I left him unwrapped and the he got cold. Q. You admit death would result by unwrapping him? A. Yes Q. What then happened? A. The child died. Q. Any right? A. No Q. Any defence to offer? A. No The Court then found her guilty as pleaded. After going through the pre - sentencing inquiry, the Court in its sentencing judgment sentenced accused to 12months imprisonment, 4months of which were suspended on condition of good behaviour with the remainder of 8months imprisonment being wholly suspended on condition accused completed 280hours of community service at Sunge Police Station. The record of accused’s trial was submitted to the Regional Magistrate for scrutiny in terms of section 58 (1) of the Magistrates Court Act [Chapter 7:10]. The Regional Magistrate took issue with the inconsistence between the charge sheet and the outline of the state case in that the charge sheet (Summary Jurisdiction) averred that after giving birth to the male child accused unwrapped the child while paragraph 3 of State Outline indicated that after giving birth to the male child accused “did wrap the child and the child caught cold and died.” He also noted that the post-mortem finding on the cause of death was that it was indeterminate which to him was an indication that there was no proof that the child had been born alive. The Regional Magistrate proceeded to the Trial Magistrate to explain the reason why the Court considered that the child had been born alive as in the summary jurisdiction the child was left unwrapped and died yet according to the State Outline the child was wrapped and yet still died. It must have been the scrutinising Magistrate’s view seemed to be that if the child had been wrapped at birth it would not have died from exposure to weather conditions. Unfortunately for the Regional Magistrate the post-mortem report could not assist resolve the apparent contradiction. On account of the apparent contradiction the scrutinising Magistrate considered that the appropriate charge ought to have been concealment of birth and not infanticide. Faced with this situation the scrutinising Magistrate referred the record to the High Court for review under cover of his correspondence with the trial court. A proper appreciation of the record will show that there was indeed an error made in the State Outline. The error is clearly this – instead of the author using the word unwrapped as in the charge sheet, he opted to use the phrase did not wrap and in the process omitted the word not between the words did and wrap with the result that instead of the sentence reading “She did not wrap the child and the child caught cold and died” the sentence ended up reading “She did wrap the child and the child caught cold and died. This omission of the word not was unfortunately not eloquently explained by the Trial Magistrate in his response to the scrutinising Regional Magistrate’s query resulting in a confusion which led to the record being referred to the Registrar of the High Court for review in terms of Section 58 (3)(b) of the Magistrates Court Act [Chapter 7:10]. In his referral the Regional Magistrate makes clear the real basis of his confusion when he says – “I am of the view that it is not clear if she gave birth to a live baby and hence should have been charged with concealment.” This position seems to have emanated from the view he held namely that there was no proper basis for the court a quo holding that this was a case of infanticide as he also noted, “And also the interaction between the magistrate and the accused during the canvassing of the essential elements does not refer in any way to the balance of accused’s mind at the time the child was born.” While it is correct that the mental make up of the accused in terms Section 48(3) was not adverted to during the canvassing of the essential elements of the offence it was however addressed in the pre-sentencing enquiry where the following exchange took place between the Magistrate and the accused – “Q. Are you married? A. No Q. How many children do you have? A. I have 2 other children one is 18years and disabled. Q. What do you do for a living? A. Unemployed Q. How much do you realise per day, per-week or month? A. N/A Q. Do you have anything else to tell the Court that you know relevant towards sentencing? A. May the Court be lenient when passing sentence. The father of the child abandoned me and l did not know what to do as l am unemployed. It was the denial that fell unto me.” This exchange satisfies the requirements of Section 48 (3)(b) or (c) of the code. It is clear that the proceedings under review were conducted in a manner that resulted in real and substantial justice being achieved. The trial Magistrate was indeed correct when in his response to the scrutinising Magistrate she said, “I was convinced during the plea recording that she gave birth to the child alive and left it unwrapped to an extent of death.” - this despite misrepresenting the accused’s position in the same letter when she said “However during recording of the plea the accused confirmed she gave birth to a male child, wrapped the child and the child died as a result of such conduct which prompted her to throw the child into a Blair toilet.” – misrepresented because the accused did not say that she wrapped the child after giving birth. Had the scrutinising Magistrate on being confronted by a contradiction between the charge sheet and the outline of the State case read in between the lines the reason for the contradiction (on account of the omission of the word not) would have become apparent. In the circumstances I confirm that the proceedings were conducted in a manner that ensured the achievement of real and substantial justice. Foroma J: …………………………………………. 2 HH 425 - 25 HCHCR 495/25 2 HH 425 - 25 HCHCR 495/25 THE STATE versus ANNIE FERENANDO HIGH COURT OF ZIMBABWE FOROMA J HARARE; 18 March & 16 July 2025 Review Judgment FOROMA J: The accused a 41-year-old woman gave birth to a male child on the 23rd of November 2024. On delivery she left the child unwrapped with the result that the child died from exposure to the weather conditions. When the child died accused threw the dead body into a Blair toilet pit. The child’s dead body was retrieved from the Blair toilet after some days and the post-mortem indicated that the cause of death was indeterminate. The Accused person was then charged with contravening Section 48 of the Criminal Laws (Codification And Reform) Act [Chapter 9:23] to which she pleaded guilty and was duly convicted. During the canvassing of the essential elements of the offence, accused was asked the following questions among others. Q. What did you do with the child? A. I left him unwrapped and the he got cold. Q. You admit death would result by unwrapping him? A. Yes Q. What then happened? A. The child died. Q. Any right? A. No Q. Any defence to offer? A. No The Court then found her guilty as pleaded. After going through the pre - sentencing inquiry, the Court in its sentencing judgment sentenced accused to 12months imprisonment, 4months of which were suspended on condition of good behaviour with the remainder of 8months imprisonment being wholly suspended on condition accused completed 280hours of community service at Sunge Police Station. The record of accused’s trial was submitted to the Regional Magistrate for scrutiny in terms of section 58 (1) of the Magistrates Court Act [Chapter 7:10]. The Regional Magistrate took issue with the inconsistence between the charge sheet and the outline of the state case in that the charge sheet (Summary Jurisdiction) averred that after giving birth to the male child accused unwrapped the child while paragraph 3 of State Outline indicated that after giving birth to the male child accused “did wrap the child and the child caught cold and died.” He also noted that the post-mortem finding on the cause of death was that it was indeterminate which to him was an indication that there was no proof that the child had been born alive. The Regional Magistrate proceeded to the Trial Magistrate to explain the reason why the Court considered that the child had been born alive as in the summary jurisdiction the child was left unwrapped and died yet according to the State Outline the child was wrapped and yet still died. It must have been the scrutinising Magistrate’s view seemed to be that if the child had been wrapped at birth it would not have died from exposure to weather conditions. Unfortunately for the Regional Magistrate the post-mortem report could not assist resolve the apparent contradiction. On account of the apparent contradiction the scrutinising Magistrate considered that the appropriate charge ought to have been concealment of birth and not infanticide. Faced with this situation the scrutinising Magistrate referred the record to the High Court for review under cover of his correspondence with the trial court. A proper appreciation of the record will show that there was indeed an error made in the State Outline. The error is clearly this – instead of the author using the word unwrapped as in the charge sheet, he opted to use the phrase did not wrap and in the process omitted the word not between the words did and wrap with the result that instead of the sentence reading “She did not wrap the child and the child caught cold and died” the sentence ended up reading “She did wrap the child and the child caught cold and died. This omission of the word not was unfortunately not eloquently explained by the Trial Magistrate in his response to the scrutinising Regional Magistrate’s query resulting in a confusion which led to the record being referred to the Registrar of the High Court for review in terms of Section 58 (3)(b) of the Magistrates Court Act [Chapter 7:10]. In his referral the Regional Magistrate makes clear the real basis of his confusion when he says – “I am of the view that it is not clear if she gave birth to a live baby and hence should have been charged with concealment.” This position seems to have emanated from the view he held namely that there was no proper basis for the court a quo holding that this was a case of infanticide as he also noted, “And also the interaction between the magistrate and the accused during the canvassing of the essential elements does not refer in any way to the balance of accused’s mind at the time the child was born.” While it is correct that the mental make up of the accused in terms Section 48(3) was not adverted to during the canvassing of the essential elements of the offence it was however addressed in the pre-sentencing enquiry where the following exchange took place between the Magistrate and the accused – “Q. Are you married? A. No Q. How many children do you have? A. I have 2 other children one is 18years and disabled. Q. What do you do for a living? A. Unemployed Q. How much do you realise per day, per-week or month? A. N/A Q. Do you have anything else to tell the Court that you know relevant towards sentencing? A. May the Court be lenient when passing sentence. The father of the child abandoned me and l did not know what to do as l am unemployed. It was the denial that fell unto me.” This exchange satisfies the requirements of Section 48 (3)(b) or (c) of the code. It is clear that the proceedings under review were conducted in a manner that resulted in real and substantial justice being achieved. The trial Magistrate was indeed correct when in his response to the scrutinising Magistrate she said, “I was convinced during the plea recording that she gave birth to the child alive and left it unwrapped to an extent of death.” - this despite misrepresenting the accused’s position in the same letter when she said “However during recording of the plea the accused confirmed she gave birth to a male child, wrapped the child and the child died as a result of such conduct which prompted her to throw the child into a Blair toilet.” – misrepresented because the accused did not say that she wrapped the child after giving birth. Had the scrutinising Magistrate on being confronted by a contradiction between the charge sheet and the outline of the State case read in between the lines the reason for the contradiction (on account of the omission of the word not) would have become apparent. In the circumstances I confirm that the proceedings were conducted in a manner that ensured the achievement of real and substantial justice. Foroma J: ………………………………………….