S v Mshumpa : a time for law reform

Abstract

S v Mshumpa dealt with the very controversial issue of third party foetal violence that terminates prenatal life. The decision of the Eastern Cape Division emphasised that, until live birth, a foetus is not a legal subject with constitutional rights. As a result of its position in the law, a foetus cannot be the victim of criminal conduct. The court refused to develop the common law crime of murder to include a foetus and referred this issue to the legislature to address. Concerns raised by the research task relate to the most effective method of law reform and the implications of law reform for well established legal principles concerning legal subjectivity, vestment of constitutional rights and female reproductive rights. In order to avoid these concerns, the introduction of a statutory crime is determined as the preferred method for law reform. The aim of the study is to develop a suitably defined statutory crime, with definitional elements that conform to the Constitution and criminal law principles. Before embarking on the mission of exploring possible grounds that justify law reform, the research first examines the extent of inability of the law to impose criminal liability in cases of third party violence that terminates prenatal life. Aspects that are specifically investigated include the common law crime of murder, contravention of the Choice on Termination of Pregnancy Act, attempting the impossible and the common law crime of abortion. A further purpose of this examination is to determine the reasons why foetal interests are not taken into account. Appreciating the lack of criminal remedy, private law principles are considered in order to determine whether there are any principles available to supplement the deficiencies in criminal law. This research found that the value of dignity established by the founding principles of the Constitution and applied in the Choice on Termination of Pregnancy Act demonstrates that the state has an interest in prenatal life. The value of dignity serves as the foundation for law reform. Having established the existence of a sound legal basis which justifies law reform, the research requires an investigation into foreign jurisdictions where the crime of third party foetal violence exists as a result of a state interest in foetal life. The purpose of the investigation is to determine whether the crime is effectively implemented. The United States of America is the selected country to study because third party foetal violence receives attention at both state and federal level. The research found that the implementation of foetal homicide laws in the United States infringes on female reproductive rights and to a certain extent, the foetal homicide laws also grants a foetus legal subjectivity. The United States fails to effectively implement the crime of third party foetal violence in line with its own established legal principles. The research benefits from the study conducted on the United States in that the United States demonstrates the definitional elements the proposed crime should contain in order for the statutory crime to be harmonious with established constitutional and criminal law principles. The study concludes with the recommendation that a statutory crime be developed in the context of female reproductive rights rather than considering the foetus as the victim of crime. The statutory crime is a response to unauthorised third party violence that terminates a woman’s pregnancy. The definitional elements include foetal viability for purposes of causation and will only be applicable to intentional conduct. The value of dignity in relation to prenatal life serves as a support structure for the driving force of female reproductive rights.