The State vs. Ludwe Mshumpa

Case Title & Citation 

• Full name of the case: THE STATE and LUDWE MASHUMPA ACCUSEDNO1DAVIDALEXANDER BEST ACCUSED NO 2 
• Official citation: ECJ: 178; Registrar: CC27/2007 

Court Name & Bench 

• Name of the court: The High Court of South Africa (EAST LONDON LOCALCIRCUITDIVISION) 
• Name of the judges: Froneman J (sitting with two assessors) 

Date of Judgment 

• Exact date when the judgment was delivered: 11/05/2007 Parties Involved 
• Petitioner(s) / Appellant(s): The State 
• Respondent(s) / Defendant(s): 

◦ Ludwe Mashumpa (Accused No 1) 

◦ David Alexander Best (Accused No 2) 

Facts of the Case 

On the morning of February 14, 2006, Ms. Melissa Shelver, who was 38 weeks pregnant andexpecting a daughter named Jenna-May, visited a gynaecologist with the baby’s father, Mr. David Best.1 The examination confirmed that both mother and baby were healthy.2 After theirvisit, Mr. Ludwe Mashumpa entered their car, threatened them with a gun, and orderedMr. Best to drive to an isolated area near Fort Jackson, East London. 3Once there, Mr. Mashumpashot Mr. Best in the shoulder and then shot Ms. Shelver twice through the stomach. Hethenstole Mr. Best’s watch, wallet, and cellphone. Both Mr. Best and Ms. Shelver survivedtheshooting after receiving emergency medical treatment.4 However, the unborn childdidnot survive, dying in the womb from the gunshot wounds and being stillborn after a caesarean section.5 Medical experts testified that the baby was viable and experienced pain anddistressbefore death. 6The State alleged that Mr. Best orchestrated the entire event due tohis”entangled love relationships” with Ms. Shelver and another girlfriend, Ms. Tanya Jacoby. The plot, involving Mr. Andile Tukani (a state witness) and Mr. Mashumpa, was tostageashooting and robbery to kill the unborn child, with Mr. Best himself being shot intheshoulder to make the event appear genuine.7 Mr. Best was also charged with incitingthemurder of Mrs. Hester Jacoby (Tanya’s mother) and Mr. Richard Schultz (Tanya’s boyfriend), whom Mrs. Jacoby disapproved of, and Mr. Best resented. 8On February 23, 2006, Mr. Mashumpa and Mr. Tukani were arrested and cooperated with the police. Mr. Tukani met with Mr. Best, and their conversation was secretly recorded. During this conversation, Mr. Best did not protest his innocence, expressed concern about Mr. Mashumpa speakingtothepolice, urged the disposal of stolen items, and offered money and assistance for Mr. Mashumpa to leave town.9 Mr. Best also made incriminating statements to Captain Dewingand Reverend Gernetzky.10Both accused pleaded not guilty. Mr. Mashumpa admittedhisinvolvement but claimed he acted under compulsion from Mr. Tukani. Mr. Best deniedanyinvolvement, asserting that Mr. Tukani falsely implicated him due to greed and that heonly”played along” during the taped conversation because Mr. Tukani had threatened his brother’schild.11 

Issues Raised 

• Whether the intentional killing of an unborn child constitutes the crime of murder underSouth African common law, and whether the court should make a prospective declarationtoextend the definition of murder to include such killings.12 
• The admissibility of Mr. Best’s statements to Reverend Gernetzky and Captain Dewing.13
• The guilt of Mr. Mashumpa and Mr. Best on charges of murder of the unbornchild, attempted murder of Ms. Shelver and Mr. Best, robbery with aggravating circumstances, attempting to defeat or obstruct the course of justice, unlawful possession of a firearmandammunition, and statutory conspiracy/incitement.14

Arguments of the Parties 

• For the State (Mr. Marais): 

◦ Argued that the common law should be developed to declare the intentional killingof anunborn child in these circumstances to be murder, reflecting medical reality and communityconvictions.15Contended that Mr. Best’s statements to Reverend Gernetzky and CaptainDewing were admissible as evidence, having been made freely and voluntarily.16 

For the Accused (Mr. Cilliers for Mashumpa, Mr. Price for Best): 

◦ Mr. Mashumpa: Maintained that he participated in the shooting and robbery under duress, specifically threats from Mr. Tukani against his life and family.17Mr. Best: Deniedinvolvement in the plot, claiming Mr. Tukani fabricated the story for money. He assertedthat he “played along” during the taped conversation with Mr. Tukani because Tukani hadpreviously threatened to harm his brother’s child if best did not cooperate.18Opposedtheextension of the definition of murder to include the killing of an unborn child, arguingit would offend the principle of legality.19Challenged the admissibility of his statements, arguing that the conversation with Reverend Gernetzky was privileged and that the statement to Captain Dewing was coerced by Director McLaren and contained fabricated details.20 

Judgment / Final Decision 

The court did not find the accused guilty of the murder of the unborn child (Count 2), nor didit make a prospective declaration to extend the definition of murder to include such killings.21The court admitted Mr. Best’s statements to Reverend Gernetzky and Captain Dewingasevidence.22 

Verdicts: 

• Ludwe Mashumpa (Accused No 1) was found guilty of: 

◦ Attempted murder of Ms. Shelver (Count 3). 

◦ Attempted murder of Mr. Best (Count 4). 

◦ Assault (under Count 5, relating to robbery). 

◦ Attempted obstruction of justice (Count 6). 

◦ Unlawful possession of a firearm (Count 7).23 

• David Alexander Best (Accused No 2) was found guilty of: ◦ Attempted murder of Ms. Shelver (Count 3). 

◦ Assault (under Count 5, relating to robbery). 

◦ Obstruction of justice (Count 6). 

◦ Unlawful possession of a firearm and ammunition (Counts 7 and 8). ◦ Statutory incitement to murder Mrs. Jacoby and Mr. Schultz (Count 9). ◦ Statutory conspiracy in respect of the attempted murder of Mr. Best (under Count 1).24

Legal Reasoning / Ratio Decidendi 

• Killing of the Unborn Child: 

◦ The court held that the current common law definition of murder, which requires theunlawful and intentional killing of “another person,” applies only to individuals bornalive. Thus, the killing of an unborn child does not constitute murder.25The court, referencingthe Constitutional Court’s Masiya v Director of Public Prosecutions judgment (CCT54/06), emphasized that the development of common law in criminal matters must be incremental, cautious, and prospective, not retrospective.26 To retrospectively declare the killingof anunborn child as murder would violate the principle of legality, which is enshrined insection 35(3)(l) of the Constitution (right not to be convicted for an act that was not an offense whencommitted).27 The court also declined to make a prospective declaration extendingthedefinition of murder. It reasoned that the Constitution does not expressly confer fundamental rights on an unborn child, unlike the protection extended to existing classes of persons (e.g., women in rape cases). Instead, the injury or killing of an unborn child can be adequatelyaddressed within the ambit of existing crimes of assault against the pregnant mother, withtheharm to the foetus serving as an aggravating factor at the sentencing stage.28 This approachavoids the practical difficulties of formulating a precise new definition (e.g., regardingviability, distinction between third-party and mother, and interface with abortion laws) andleaves such radical reform to the Legislature, which is better suited for lawreform.29 

• Admissibility of Mr. Best’s Statements: 

◦ Statement to Reverend Gernetzky: The court found it admissible because Mr. Best hadgiven permission for the contents of the conversation to be disclosed to Ms. Shelver andhisfamily, thereby relinquishing any claim of legal privilege or confidentiality. Mr. Best’s denial of making the statement was rejected as not credible.30 

◦ Statement to Captain Dewing: The court found it admissible under Section 217of theCriminal Procedure Act, as the State proved beyond a reasonable doubt that it was madefreely and voluntarily and in the absence of undue influence.31 The court rejected Mr. Best’sclaims of coercion and fabricated details, finding his testimony to be “not credibleor coherent” and “demonstrably false.” 

be credible witnesses.33 

• Factual Findings and Rejection of Defenses:

◦ Mr. Mashumpa’s compulsion defense was rejected as a belated “afterthought.” He failedto disclose it immediately to the police upon arrest and instead cooperated, implicatingMr. Tukani. His letter to his family also did not mention compulsion but rather complainedabout Mr. Tukani receiving the reward.34Mr. Best’s denials and “playing along” explanationwerefound to be “false and not reasonably possibly true”.35 His claim of not recognizingMr. Mashumpa on the morning of the incident, despite having brought himto town earlier, wasdeemed “incredible”. His explanation for the taped conversation was “totally implausibleandimprobable” because he volunteered many details of the plot, which contradicted his claimofignorance and merely “playing along” due to threats.36 The court concluded that Mr. Best wasa “scheming, dishonest and untruthful witness”.37 

• Guilt on Other Counts: 

◦ Attempted Murder of Ms. Shelver (Count 3): Both accused were found guiltybecauseshooting a pregnant woman in the stomach carried a foreseeable risk of death, demonstratingdolus eventualis (indirect intention) towards the mother.38 

◦ Attempted Murder of Mr. Best (Count 4): Mr. Best was not found guilty of attemptedmurder on himself, as suicide or attempted suicide is not a crime.39 Mr. Mashumpa, however, was found guilty of attempted murder, as he foresaw the risk of death fromshooting Mr. Best, and Mr. Best’s consent did not legalize Mashumpa’s conduct.40 

◦ Robbery (Count 5): While the accused lacked the intention to deprive Mr. Best of hisvaluables permanently, Mr. Mashumpa’s threat of rape against Ms. Shelver (part of makingthe event appear genuine) constituted assault, for which both accused were held guilty.41 

◦ Attempting to Defeat or Obstruct Justice (Count 6): Both accused were foundguilty, as the staged kidnapping and robbery were intended to mislead police and prevent thedetection of the true crimes.42 

◦ Unlawful Possession of Firearm and Ammunition (Counts 7 and 8): Mr. Best wasguilty of both. Mr. Mashumpa was guilty of unlawful possession of a firearm(Count 7), but his claim of ignorance regarding the need for an ammunition license was considered tohavea”reasonable possibility of being true”.43 

◦ Statutory Conspiracy/Incitement (Counts 1 and 9): Mr. Best was found guiltyofinciting Mr. Tukani to kill Mrs. Jacoby and Mr. Schultz (Count 9), as the impracticalityorlack of agreement from the incited party does not negate the crime of incitement.44 Hewasalso found guilty of statutory incitement related to the attempted murder of himself (Count 4)under Count 1, to avoid duplication of convictions for other substantive offenses.45 

Conclusion. 

The case underscored the legal distinction between a born individual and an unbornchild, emphasizing that under existing South African law, the killing of an unborn child, evenaviable one, does not constitute murder. While acknowledging the “unusual and shocking”nature of the act and the medical reality of the unborn child’s life and death, the court assertedthe judiciary’s limited role in creating new crimes or retrospectively expanding existingdefinitions due to the principle of legality. Instead, it highlighted that severe harmtoanunborn child can be treated as an aggravating factor during the sentencing phase of relatedcrimes against the pregnant mother, and that significant law reform in this area is a matter forthe Legislature. The judgment also provided a detailed analysis of witness credibility, particularly regarding accomplices and contradictory defense claims. 

Reference(S):

1 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [1]

2 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [1]

3 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [2]

4 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [2]

5 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [3]

6S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [48]- [49] 

7 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [6]

8 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [5]- [6], [43] 

9 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [25]

10 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [12], [13], [17] 

11 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [17]

12 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [pg1], [48], [10], [37]-[38] 

13 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [10]

14 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [5], [10], [36] 

15 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [10], [39] 

16S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [12], [13] 

17 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [17], [7] 

18 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [8], [9], [29] 

19 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [10]

20 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [17], [10], [12], [20]-[21], [23], [24], [33], [35]

21S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), pg1

22 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [37]- [38], [19] 

23 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [57]

24 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [57]

25 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [53]

26 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [59]

27 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [59], [61] 

28 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [57]

29 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [58], [63], [64] 

30 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [37]- [38], [12] 

31 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [19],

32 Directors McLaren and Captain Dewing were foundto

32 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [17], [33], [18], [30] 

33 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [19]

34 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [27]

35 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [30], [27] 

36 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [29], [31] 

37 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [34]

38 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [51]

39 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [53]

40 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [53]

41 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [54]

42 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [55]

43 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [55]

44 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [71]

45 S v Mashumpa and Another (CC27/2007) [2007] ZAECHC 23; 2008 (1) SACR 126 (E) (11 May 2007), [71]