Assessing the interpretation of the elements of "dispose" and "child" for purposes of establishing the offence of concealment of birth : S v Molefe 2012 (2) SACR 574 (GNP)

Abstract

"The woman went to Tembisa Hospital on Tuesday as she was bleeding ... a nurse questioned her about whether she had an illegal abortion, but she claimed that she did not ... police searched her house and found the foetus wrapped up in a jersey in the bath ... the woman was arrested and detained in Tembisa cells" (News24 of 2008-09-03 http://www.news24.com (accessed 2012-02-14). The abovementioned passage sets the stage for the decision under discussion dealing with the crime of concealment of birth. The crime of concealment of birth was unknown in our common law but has, however, been an offence since 1845 when it was criminalized in terms of section 1 of Ordinance 10 of 1845 (Snyman Strafreg (2012) 458; Snyman Criminal Law (2008) 439; and see also Hoctor and Carnelley "The Purpose and Ambit of the Offence of Concealment of Birth - S v Molefe 2012 (2) SACR 574 (GNP)" 2012 33(3) Obiter 732-744). Currently the offence of concealment of births is regulated in terms of section 113 of the General Law Amendment Act 46 of 1935 (the "Act") which provides that "(1) Any person who, without a lawful burial order, disposes of the body of any newly born child with the intent to conceal the fact of its birth, whether the child died before, during or after birth, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding three years" (see also s 1 of the Judicial Matters Amendment Act 66 of 2008 that amended s 113 to the extent of removing the onus placed on an accused to prove lack of intention to conceal the child's birth; and Hoctor and Carnelley 2012 33(3) Obiter 734). In order to incur criminal liability in terms of this offence, it is essential for the prosecution to prove all the elements of the offence which are that the accused had the intention to "dispose" of the dead body of the newly born "child" with the intention of concealing the fact of its birth.