Authored By: Celeste Matlala
Eduvos Private University
Case Name: S v Mshumpa and Another (CC27/2007) [2007] ZAECHC 23; 2007 (1) SACR 126 (E) (11 May 2007)
High Court: EAST LONDON LOCAL CIRCUIT DIVISION
Date Delivered: 11/05/2007
Case Number: CC27/2007
Judge(s): Froneman J
Parties: The State and
LUDWE MASHUMPA ACCUSED NO.1
DAVID ALEXANDER BEST ACCUSED NO.2
Case Information: Nature of proceedings – Criminal Case
Introduction
The scope of the common law crime in murder has a leading authority after the High Court’s decision in the S v Mshumpa 2007 (1) SA 126 (CC) under section 39(2) of the Constitution of the Republic of South Africa,1996.[1]The Court had to evaluate and determine whether the premeditated killing of a foetus constitutes as murder and whether courts are obliged to protect unborn life by extending criminal liability. The facts provided were undeniable before the court, which led to the judgement being reaffirmed that legal personality begins at birth and courts may unfortunately not create new offenses under the impression of developing the common law. Fundamental constitutional principles such as separation of powers and legality were reinforced in court.
Factual Background
An altercation transpired in which a pregnant woman was shot on her stomach by the accused. The woman fortunately survived, but the unborn child who was viable at the time of the shooting, died as the result of the gunshot wound that penetrated through from the mother’s right to the left side of her stomach.
The accused was charged with attempted murder of the mother and the murder of the unborn child. However, under South African law, murder is defined as the ‘unlawful and intentional killing of another human being’,[2] which then requires the victim to be born alive at that time. The High Court held that the killing of the foetus should not be constituted as murder because the foetus does not possess legal personality, leading to an appeal to the constitutional court stating section 39(2) of the Constitution requires the courts to promote the spirit of the Bill of Rights.[3]
Legal Issues of the case
- Whether section 39(2) allows courts to redefine the definition of murder.
- Whether the killing of a viable foetus constitutes as murder under common law.
- Whether section 11 of the constitution extends to unborn children.
Argument presented
In S v Mshumpa and Another 2007 (1) SACR 126 (E) both accused pleaded not guilty to the charges presented in court. Their main defence was whether the killing of a viable foetus constituted as murder in the existing common law. The accused firstly argued that, murder requires the unlawful and intentional killing of a person and secondly that a foetus is not regarded as legal person until it is born alive, implying the killing of the unborn child should not amount to murder or be treated as such. To further back their argument, the defence contented that even if there was Dolus (intention) to kill the foetus, the law will not recognise a foetus as a separate legal person of murder which means that the required elements of murder was not legally satisfied.
The Court’s Reasoning:
Redefining murder under Section 39(2)
Section 39(2) requires all courts to be in alignment with constitutional values, however the courts emphasized that the alignment must occur in the principle of legality.[4]The principle of legality states that all criminal offenses must be clearly defined in advance,[5]providing all individuals with a fair warning of conduct that attracts criminal liability. Courts may clarify and interpret offences, but not generate new crimes. Therefore, extending the definition of murder to include foetuses may change the nature of offences, creating a new crime of foetal homicide.
Legal Personality and Murder
Legal personality begins at birth, implying that a child must be born alive in order to be regarded as a legal subject capable of being murdered according to South Africa’s common law.[6] Although South African precedent recognises the nasciturus fiction in certain cases, this doctrine has not conferred full legal personality as it has a limited scope to protect interests and not recognise subjectivity. Roman-Dutch authority and the South African law supports the birth requirement of legal personality to its entirety. Therefore, the killing of a foetus does not amount to murder.
The Right to life under Section 11
The State relied on section 11 of the Constitution, however the Court held that constitutional rights do not extend to the foetus.[7]Constitutionalising foetal personhood for purposes of murder could generate tension and interfere with the Choice on Termination of Pregnancy Act 92 of 1996, resulting in complex implications arising regarding lawful termination of pregnancy. Therefore, the Court concluded that section 11 does not recognise foetal personhood in criminal law.
Ratio Decidendi
The ratio decidendi (decision) of the case is that legal personality begins at birth. The intentional killing of a foetus does not constitute or fall under murder and the courts may not generate new criminal offences as it violates separation of powers and the principle of legality. Consequently, both accused were only convicted of attempted murder in respect of the mother of the unborn child.
Critical Analysis:
The Rule of law
Criminal law is coercive and must be interpreted strictly. Snyman argues that certainty in criminal law preserves constitutional supremacy and most importantly, it provides protection against prosecution.[8] The approach the court used to ensure that criminal liability remains predictable was accomplished by refusing to expand the definition of murder, reinforcing the rule of law and maintain constitutional values in the justice system.
Constitutional Coherence
The constitutional framework protects women’s bodily integrity and autonomy immensely and recognising the foetus as legible for full personhood may disrupt that balance. Woolman and Bishop emphasise that courts must maintain structural coherence of constitutional interpretation across frameworks in order to avoid conflict.[9]
Does the Judgement and ratio decidendi leave a legal gap?
An argument may arise that the absence of foetal homicide leaves a gap in the law however, the courts may consider the loss of the foetus as a factor given the accused remained liable for the attempted murder of the mother. Despite the law not recognising the foetus as a victim of murder, it is not rendered as legally insignificant. This therefore answers the question that the court’s decision prioritises constitutional structure over expansion of criminal liability, neither leaving or creating any legal gap in the constitutional framework.
Legislative Reform
The Court presented the possibility of legislative reform through this case after realising the harm and serious effect this case had on the victim and the citizens of the country at that time. Just as other comparative jurisdictions, it is most suitable to enact specific foetal homicide statutes rather than redefining the concept of murder. Addressing complex moral questions through democratic deliberation remains best suited in courts and other areas of addressing disputes. Therefore, the court’s judgement respects competence while acknowledging the need for potential reform.
Conclusion
The S v Mshumpa case represents affirmation of constitutional restraint as the Constitutional Court prioritised legality and doctrinal coherence. The judgement stated that definition of murder remains the unlawful and intentional killing of a legal subject, in which a foetus is not recognised as such, regardless of viability. While the decision may appear morally unsettling, the judiciary realised that expanding the scope of murder would constitute a fundamental shift in what legal personality is about. The shift would carry profound consequences affecting statutory frameworks such as the Choice on Termination of Pregnancy Act 92 of 1996.
The case stands as a perfect example of how courts deal with cases of moral outrage and legal definition. The judgement reflects a jurisprudential truth stating that criminal law must anchor clear legal boundaries, despite the difficult or uncomfortable outcomes. Until legislative reform is considered as the appropriate forum, the position and judgement in S v Mshumpa and Another remains authoritative under law.
Bibliography
- Cases:
S v Mshumpa and Another 2007 (5) SACR 126 (E)
Christian lawyers Association v Minister of Health 1998 (4) SA 1113 (T)
- Legislation:
Choice on Termination of Pregnancy Act 92 of 1996
Constitution of the Republic of South Africa, 1996
- Books:
Snyman CR Criminal Law (6th edn, LexisNexis 2014)
Woolman S and Bishop M Constitutional Law of South Africa (2nd edn, Juta 2013)
[1] S v Mshumpa 2007 (5) SA 126 (CC).
[2] Ibid.
[3] Constitution of the Republic of South Africa,1996 s 39(2).
[4] Constitution (n 3) s 39(2).
[5] Mshumpa (n 1).
[6] Mshumpa (n 1).
[7] Christian Lawyers Association v Minister of Health 1998 (4) SA 1113 (T).
[8] CR Snyman, Criminal Law 6th edn (LexisNexis 2014)
[9] S Woolman and M Bishop, Constitutional Law of South Africa 2nd edn (Juta 2013).
