S v Mshumpa and Another

• Jurisdiction: South Africa
• Judge: Froneman J
• Judgment Date: 11 May 2007
• Citation: 2008 (1) SACR 126 (E)
• Docket Number: CC27/2007
• Hearing Date: 11 May 2007
• Counsel: G Cilliers for the first accused. T Price for the second accused. M Marais for the State.
• Court: Eastern Cape Division

Froneman J:

B [1] On the morning of 14 February 2006 Melissa Shelver, a young pregnant mother, and the baby's father, Mr David Best, consulted the gynaecologist monitoring Ms Shelver and the baby's progress at a medical facility in Southernwood, East London. They had been doing so regularly during the pregnancy. The examination revealed that things C were going well with both mother and baby. The would-be parents had been following the progress of the baby in Ms Shelver's womb by way of modern technology and they knew it would be a daughter. They had decided to name her Jenna-May. The baby was in the 38th week of pregnancy and her birth was imminent. There were no complications D during the pregnancy and an uneventful birth was anticipated.

[2] They returned to and entered their car after visiting the gynaecologist. Having done so, Mr Ludwe Mshumpa also got into the back of the car. He threatened them with a gun and ordered Mr Best to drive to an isolated area near Fort Jackson outside East London. There he and E Mr Best got out of the car. Mr Best was then shot in the shoulder by Mr Mshumpa. Mr Mshumpa returned to the driver's side of the vehicle and shot Ms Shelver twice through the stomach from her right side to her left. He then made off with certain goods of Mr Best, namely, his watch, wallet and cellphone, without taking anything from Ms Shelver. Mr Best F got back into the car and with some difficulty managed to drive to an emergency medical-aid station. Both he and Ms Shelver were taken from there to hospital. They were fortunate. Both of them survived. The shot to Mr Best's shoulder missed his lungs by a couple of millimetres. Ms Shelver would have died had she not received medical treatment.

[3] The unborn child in Ms Shelver's womb was not so fortunate. G Despite apparently excellent immediate emergency treatment by two teams of doctors, treating both mother and child, the baby did not survive. A Caesarean section was performed in theatre, but despite valiant efforts at resuscitation the baby's life could not be saved. She was stillborn, a result of the two gunshots fired into Ms Shelver's stomach H shattering parts of her cervical spine. Poignancy was added to this tragedy by the fact that Ms Shelver held the baby after birth, thinking that she was alive, only to be told later that she had indeed been stillborn.

[4] The kind of attack perpetrated on 14 February 2006 is unfortunately I not so uncommon to South Africans, but the shooting of a baby in the mother's stomach as part of the exercise is nevertheless quite unusual and shocking. 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. So, even on the undisputed facts thus far J

Froneman J

A described, the case would have been out of the ordinary. The prosecution of Mr Mshumpa alone would have required the consideration of unusual factual and legal issues. It is no surprise that he is indeed an accused in the matter - accused 1. But, in true Alice in Wonderland terms, things only get curiouser and curiouser. Mr Best, himself a victim B of the shooting, is also an accused - accused 2. This is but the beginning of a very strange tale.

[5] The indictment is a good place to start the tale. Both Mr Mshumpa and Mr Best are charged with the murder of the unborn child in the womb of its mother (count 2), the attempted murders of Ms Shelver and Mr Best (counts 3 and 4), attempting to defeat or obstruct the course of justice C (count 6) and the unlawful possession of a firearm and ammunition (counts 7 and 8). Mr Best alone faces two further charges of statutory conspiracy, incitement, instigation or procurement of other persons to commit, firstly (as count 1), the offences just set out - that is, counts 2 to 8 - and, secondly, unrelated to the incident that took place on 14 February D 2006, to kill Mrs Hester Jacoby and Mr Richard Schultz (count 9).

[6] Briefly stated, it is the State's case that as a result of personal reasons resulting from Mr Best's entangled love relationships with Ms Shelver and another girlfriend, Ms Tanya Jacoby, he approached a State witness, Mr Andile Tukani, for assistance in getting rid of the unborn child. E Mr Tukani in turn involved Mr Mshumpa, accused 1, in the plot. The eventual plan entailed obtaining a gun that was then to be used in a staged shooting and robbery. To make things convincing to the outside world Mr Best would himself be shot in the shoulder during the so-called robbery. Care also had to be taken to shoot Ms Shelver through the stomach so that the unborn child should be killed and not Ms Shelver F herself. No valuables were to be taken from her either. Effect was given to the plan when Mr Tukani, in the company and with the knowledge of the two accused, procured a gun and ammunition in the township. Mr Mshumpa then completed the execution of the agreed plan by the shooting and robbery on 14 February 2006, in the manner already G described.

The plan to kill Mrs Jacoby and Mr Schultz never really got off the ground beyond discussion between Mr Best and Mr Tukani of some bizarre, even farcical, schemes of how to give effect thereto.

[7] Both accused pleaded not guilty to the respective charges against H them. During the trial it emerged that Mr Mshumpa did not dispute his participation in the events of 14 February 2006, but his defence was that he did so under compulsion and threats from Mr Tukani. His evidence confirmed the existence of a plan involving himself, Mr Best and Mr Tukani, but differed in some details from the scheme already described.

[8] Mr Best denied any involvement in the offences he was charged with. I He claims that Mr Tukani falsely implicated him in a plot probably hatched by Tukani, with the connivance of Mr Mshumpa. He attributed the need for Mr Tukani to do so to the latter's desperate greed for money and the necessity of him having to settle some underworld debt.

[9] The main factual issues that we need to determine thus relate mainly J to the respective involvement, if any, of the three main protagonists

Froneman J

(Mshumpa, Best and Tukani) in the events leading up to what happened A on 14 February 2006. What happened on that fateful day after Mshumpa got into the car is largely common cause. It is what happened before then that will determine the guilt or otherwise of the two accused before court.

[10] Whatever the outcome of that factual enquiry, Mr Marais, who B appears for the State, also argued that our law has reached the state of development where the intentional killing of an unborn child in the womb of the mother constitutes murder, a contention strenuously opposed by Mr Cilliers and Mr Price, counsel who appeared for, respectively, Mr Mshumpa and Mr Best. In addition, they also raised certain other points of law relating to the various charges brought against C the accused. During the course of the trial we also made certain rulings on the admissibility of statements made to a clergyman and a senior policeman by Mr Best after trials-within-a-trial on those issues, and I also made a ruling about the propriety of attempting to obtain a ruling on the admissibility of the statement to the police officer before a decision D was made by the defence on whether to call Mr Best as a witness in that particular trial-within-a-trial. We indicated that reasons for these rulings would be given in this judgment.

[11] What I intend to do is to deal first with the reasons for the two rulings on the trials-within-a-trial, which will include reasons for the E procedural ruling that the defence had to decide whether to call Mr Best as a witness in the second trial-within-a-trial before the admissibility of the statement could be determined.

We will then deal with the factual issues that arose in the main trial itself.

Once we have set out our factual findings I will then deal with the legal F issues raised during argument and the effect of this on the final findings relating to the guilt or otherwise of the two accused.

The admissibility of Mr Best's statement to Reverend Gernetzky

[12] The state called Director McLaren, Inspector Coetzee and Reverend Gernetzky as witnesses in this trial-within-a-trial. Mr Best elected G not to give evidence. His failure to testify and challenge the factual correctness of what the State witnesses testified to meant that there was no material basis to reject the factual correctness of their testimony. McLaren and Coetzee testified that Best freely and voluntarily agreed to see Reverend Pate. Why it was necessary for Reverend Gernetzky to H accompany Reverend Pate in seeing Best is not on the evidence entirely clear to us, but it matters little because it was conceded in cross-examination of Reverend Gernetzky by Mr Price that he sought permission from and was given it by Best to attend the meeting. Perhaps because of his unfamiliarity with court procedure Reverend Gernetzky did not appear altogether convincing to us in some of his responses to I questions posed in cross-examination by Mr Price, but in the end his evidence that Best asked him to convey the contents of the conversation to Ms Shelver and his own family remained uncontested in the trial- within-a-trial (we will deal with Mr Best's evidence in the main trial about this later in this judgment). Whether this permission justified J

Froneman J

A Reverend Gernetzky to tell his whole congregation about the conversation from the pulpit the following Sunday is irrelevant to the legal enquiry whether the reverend was obliged by law to divulge to this court the contents of that conversation. Undisputed in the trial-within-a-trial was the fact that Best asked for the contents of...