Feticide: Creating a Statutory Crime in South African law

• Jurisdiction: South Africa
• Author: Georgia Alida du Plessis
• Pages: 73-92
• Date: 16 August 2019
• Published date: 16 August 2019

73

FETICIDE: CREATING A STATUTORY CRIME IN

SOUTH AFRICAN LAW

Georgia Alida du Plessis

LLB LLM

University of the Free State*

1 Introduction

In the South Afr ican case S v Mshumpa1 (“Mshumpa”) the East Lond on

High Court considere d a set of facts both unique and controversial. A pregna nt

mother, Ms Shelver, and the father, Mr Best, consulted a gynaecologist.

Ms Shelver was i n her 38th week of gestation and the unborn wa s healthy.

On their retu rn from the gy naecologist, Mr Mshumpa shot Mr Best i n the

shoulder and Ms Shelver in the stomach. They both sur vived but the unborn

died.2 Mr Mshumpa later admitted that the pri mary pur pose of shooting

Ms Shelver was to kil l the unborn, hence t he shots through her stoma ch.3

Further more, the father was involved in planni ng the shooting to cause the

death of the unborn.4

The court stat ed:

“The shooting of an unborn child in the mother’s womb raises the vexing legal question of whether

such a killing constitutes a separate crime of murder, besides the offence aimed at the mother carrying

the unborn child.”5

The High Court held that t he accused could not be convicted of murde r

since (i) murder does not include the unbor n;6 (ii) development in th is regard

would offend the principle of legality as contained i n section 35(3)(l)7 of the

Constitution of the Republic of South Afr ica, 1996 (“the Constitution”);8

(iii) the “born alive ru le”9 is still applicable in count ries where murder is a

common-law crime, nor have cour ts interpre ted statutor y homicide laws to

* The author would l ike to than k Prof Shaun de Freitas from the Un iversity of the Free St ate for his

assistance

1 2008 1 SACR 126 (E)

2 133

3 141

4 127

5 133

6 149

7 S 35(3)(1) states:

“Every accus ed person has a rig ht to a fair trial, wh ich includes the rig ht–

(l) not to be convict ed for an act or omi ssion that was not a n offence under ei ther nationa l or

internat ional law at the time it wa s committed or om itted…”

8 S v Mshumpa 2008 1 SACR 126 (E ) 149 Fronema n J stated that he was not s aying that “the re is no merit

in making t he killing of an unbor n child a crime” (152)…only that in his vie w “the legislature i s, as the

major engine for law r eform, better su ited to effect thi s radical kind of refor m than the cour ts” (152)

9 The “born a live rule” will her eafter also be refe rred to as the “r ule” Within the contex t of this article the

“born alive r ule” means an unbor n first has to be bor n alive after the inju ry or harm has been i nflicted

and subseque ntly die to prosecu te a third par ty for a crime co mmitted aga inst the unbo rn when the mothe r

was still preg nant with him or he r

(2013) 24 Stell LR 73

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do away with the “rule”;10 (iv) the Constitution does not provide the unbor n

with any funda mental rights;11 and (v) an extended denition of murder

presents certai n dif culties: whet her viabil ity is relevant, whether it should be

restricted to t hird parties and exclude the mother, and how it might t in with

the crimin al offence and sanction for illegal abor tion.12 Subsequently, neither

of the accused was convicted of murder.

Based on Mshumpa, this ar ticle will deal with the following issues: Firstly,

as the death of an unbor n caused by a third par ty is alread y punishable as a

crime against t he mother (status quo), an in-depth discussion is neces sary

to determi ne whether or not this status quo is su fcient. Secondly, the

ndings i n part one will be substantiat ed in an elabor ative discussion of the

abovementioned issues in Mshumpa. Finally, the status quo is arg ued as being

insufcient (i n part 2) and the possibility of the statutory crime of feticide13

is developed.

2 Is a crime of feticide nec essary or is the status quo

sufficient?

In the case of Mshumpa, Mr Best was se ntenced to 21 yea rs imprisonment.

This included 20 years for atte mpted murder and six months for assault.14 On

the othe r hand, M r Mshumpa was se nte nced to f teen years imprisonment,

including fteen years for the attempted murder of Ms Shelver and six months

for assault on Ms Shelver.15 Considering the g ravity of the har m caused to

Ms Shelver and the unborn, is the sentence of assault, a ssault with intent to

do grievous b odily har m or attempted murder sufcient pu nishment? A re

the mentioned years sufcient pu nishment in cases where not only “another

person” (as contained in the denition of murder)16 is i nvolved, but also

another entity (unborn) not recogn ised in South Afr ican law as having the

right to life?17

In the common-law de nition of murder, the phrase “another per son” on ly

refers to a living person.18 Burchell a nd Milton state that the te rm “person”

refers to “a living human bei ng” and that “a living human b eing” is a person

10 S v Mshumpa 200 8 1 SACR 126 (E) 150

11 130

12 130

13 According to Ba llentine and And erson feticide mean s:

“The kill ing of a foetus or unborn chi ld; a criminal abor tion” JA Ballen tine & WS Anderson (eds)

Ballentine’s Law Dictionary (1969) 483

For purposes of t his article, the kil ling of the unborn by a th ird party is refer red to as feticide Feticide

only includes t he killing of the u nborn by a thir d party other t han the mother It exclu des lawful abor tions

as determ ined by the South Af rican Choice on Termin ation of Pregnancy Ac t 92 of 1996

14 S v Mshumpa 20 08 1 SACR 126 (E) 156

15 156

16 Murder is def ined as the unlawful a nd intentional killin g of another pers on JM Bu rchell & J Milton

Principles o f Criminal Law 3 ed (2005) 6 67; CR Snyman Criminal La w (2006) 423

17 This is the p osition of the unborn in b oth the definition of mu rder as well as women’s right to abor tion

Women’s right to abortion i s regulated by t he Choice on Termin ation of Pregna ncy Act The court

stated in Chr istian Lawyers As sociation of SA v Minister of H ealth 1998 4 SA 1113 (T) t hat s 11 of the

Constitut ion (“[e]veryone has the rig ht to life”) does not i nclude the unbor n (1121) Thu s, the unborn do es

not have the right t o life

18 J Milton Sou th African Crimin al Law and Procedu re II: Common-law Cri mes 3 ed (1996 ) 357-358

74 STELL LR 2013 1

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