[7] Dr Yury Vasin, a forensic medical officer at Oshakati State Hospital mortuary was the only State witness. He testified at the
hand of the post mortem examination report completed by him in respect of his findings of the body of the accused’s deceased baby. He found clear strangulation
marks resembling the neckerchief that was found tightly bound around the baby’s neck and knotted in front. This caused asphyxia
and he also found haemorrhage marks in the lungs of the baby, which confirmed his conclusion of the strangulation. What is further
important is that by floating the lungs of the baby in water, he could establish that the baby was alive after birth. This is not
in dispute. What is in dispute, is whether the baby died of a natural cause, namely as result of its umbilical cord wrapped around
its neck or as a result of strangulation. The doctor conceded that the former situation is not unusual and can possibly cause asphyxia.
This was the defence of the accused on this count and several questions were put to the doctor in this regard. In particular, it
was put to the doctor by Ms Natanael that he could not determine that similar strangulation marks would be found whether death occurred
before or after. In certain respects the doctor conceded that certain of the questions put to him by the defence might possibly occur,
but he remained adamant that they are unlikely or not probable. In this regard he said that the strangulation marks that he found
are unlikely to be caused by the umbilical cord wrapped tightly around the infant’s neck and that it is more probable that
the asphyxia was caused by strangulation, because the neckerchief was tied so tight around the baby’s neck.
[9] The accused testified that she was impregnated by her brother and in the night had to leave the hut in which she was staying,
because she had stomach pains and wanted to relieve herself. In the veld she gave birth to the baby after being labour from 05h00
until 12h00, namely approximately 7 hours. She was tired, in pain and could not think properly or clearly. From the time that the
baby was born she had to wait for another hour for the placenta to come out. She knew the baby was alive had the umbilical cord around
its neck, but said she was too tired to loosen it so that the baby could breath. She said the baby coughed, cried and moved. When
the placenta came out she observed the baby was dead. Then she took the scarf from her head and tied it around the baby’s whole
body, except is head. She removed the umbilical cord around the baby’s neck. She found a plastic bag and put the baby in the
scarf into it and into a hole that she dugged with a stick. The baby was apparently still attached to the placenta with the umbilical
cord and this was also put into the plastic bag and buried it.
[10] During cross-examination the accused admitted that this baby was her second child, the oldest one being 11 now and 7 at the time.
That child was born in the hospital. She was severely cross-examined about her failure to loosen the umbilical cord around the neck
of the baby and after only providing the excuse that she was in pain and tired and could not think straight for the whole period
of an hour before the placenta came out, it was put to the accused that she lied about the umbilical cord being around the baby’s
neck and that she in fact intended to kill it. The accused was also confronted with the doctor’s findings and his opinion,
but remained adamant that the baby died not because of the tied handkerchief, but because of the umbilical cord around its neck.
[11] I do not believe the accused’s version at all and it is rejected. If the umbilical cord was around was around the baby’s
neck, which I do not accept, the baby was alive. The baby was crying, coughing and kicking after birth, despite her version the umbilical
cord was around its neck. This is not the usual case where child is stillborn because the umbilical cord is turned around its neck
and asphyxia is so caused. Even if the umbilical cord was around the baby’s neck, the accused could loosen it during the period
of an hour, while the baby was lying next to her, still attached to the placenta. The accused is not a first time mother. She had
already experienced childbirth. She observed her baby and that it was alive and kicking and crying. I cannot believe that any mother
would leave it if she sees the umbilical cord around her baby’s neck, no matter how tired she is or how much pain she experiences.
She will not leave it to die, unless she does not want it to live. The accused made a freudian slip when she answered a question
of the Court, namely whether she wanted her baby. She said no, she did not want it and provided reasons for that, namely because
of the shame and that it is unacceptable in her culture. This attitude proves that she did not want the baby to live and is the reason
why she buried it to conceal the baby’s body and the birth. She later attempted to obliterate this slip by testifying the opposite
by saying she did want the baby and she would have told the elders about it. The question is why did not she do so when she became
pregnant with her brother’s child. If the elders would have understand this now, I am certain that they would have then and
could then have assisted her and she would have been relieved of the stress and would probably have received proper medical assistance.
[12] The final nail in the coffin of the accused’s version, so speak, came when Ms Jacobs confronted her with what she said
in her warning statement to the police and to the magistrate. In her warning statement she did not make any mention at all of what
her defence now seems to be, namely that the umbilical cord was tied around the baby’s neck and caused its death. The accused’s
lame attempt to explain this obvious omission is not only unimpressive, but it is clearly a lie. Although she made the statement
the same day, she was informed that she is not obliged answer any question and only if she makes any statement it will be taken down.
The accused said in the statement she did not want legal representative and that it is her choice to make a statement. Only then
did the accused make the statement, leaving out the defence that the accused now relies on, namely that the umbilical cord was around
the baby’s neck and caused its death. Even more damaging to her defence is what she said to the magistrate during the s 119
proceedings. The accused indicated that she pleads guilty to the charge put to her, which was murder with the concealment of birth
as an alternative at the time. From her answers to the questions put to her by the magistrate it is clear that she knew that she
was accused of the murder of her newborn baby. Ms Natanael emphasized the fact that the charge differed at that stage from what it
is now. That argument does not hold water. This is not an appeal in which the procedural aspect of the charges is in issue. The only
issue in respect of s119 proceedings is what her answers, as an innocent person, are to the questions put by the magistrate. There
is no indication that she did not understand the questions or that she was influenced at all by other people telling her that she
killed her baby. Her answers to the magistrate’s questions were clear and unambiguous and she had the opportunity in the first
instance to plead not guilty or to state her defence. The questions and answers speak for themselves:
“Q:
Why do you plead guilty to the charge?
A:
Because I have done wrong.
Q:
What is wrong that you do?
A:
I have killed.
Q:
Whom did you kill?
A:
A newborn baby.
Q:
When did you kill the new baby newborn baby?
A:
On 19 April 2003.
Q:
Was it at Onandjo village in the district
of Outapi?
A:
Correct.
Q:
How did you kill the newborn baby tell the
court?
A:
I buried the child while it was alive. Then I left the child there and went to hospital and
the nurse called the police.
Q:
Why did you bring the newborn baby?
A:
the pregnancy belonged to my brother and he said I must not mention him. I have birth behind
the yard and I decided to bury it.
Q:
Did you realised you were committing an offence?
A:
I was confused.
Q:
Which language do you prefer to speak at your
trial?
A:
Oshiwambo
Q:
Will you need a lawyer or legal aid or conduct
own defence?
A:
I will conduct my own defence.
Q:
Will you call witness?
A:
No.”
[13] It is not necessary to analyse the accused’s answers which are in contradiction with her evidence before me. The accused’s
answers speak for itself. The accused admitted the s119 proceedings and said she had no issue with it. The accused’s admission,
together with the untruthfulness of her version in this Court make its clear beyond any reasonable doubt that she intended to kill
her baby and strangled it by tying the handkerchief so tight around its neck that it could not breathe and died of asphyxia. She
then buried it, probably still alive. In the circumstances I find that the State has proved that the accused committed the offence
of murder on the basis of dolus directus and the accused is convicted on count 1.
[14] The accused had already been convicted on count 2.
___________
ON BEHALF OF THE STATE:
MS H. JACOBS
INSTRUCTED BY:
OFFICE
OF THE PROSECUTOR-GENERAL
ON BEHALF OF THE DEFENCE:
MS R.NATANAEL
INSTRUCTED BY:
DIRECTORATE OF LEGAL AID
SAFLII:
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