Picture source: Gallo Images/Getty
As an assessor in the High Court for approximately ten years after my formal retirement in 2010, the experience of confrontation with legal issues has exposed me to prosecutions and judgments relating to the killing of foetuses and newly born children, which ostensibly do not always result in a just legal closure. One is increasingly alert to the reality of public belief and the boni mores condemning the seemingly insensitive judgments by South African courts when ruthless and callous killing of innocent children is at stake – even so when newly born babies are killed. The judiciary may not merely remain silent with an irrefutable attitude of ‘he, who alleges, must prove’ and so be it. The duty of the judiciary no doubt goes beyond the legal cliché of ‘taking an arm chair attitude’ when the community cries out for justice to be seen and done.
In April 2018 renewed protests by the media were perceived claiming that gigantic contemporary augmentation in these incidents. Some of the regions in South Africa need to be taken in hand without delay by law enforcement bodies and courts alike.
Magistrates have, since 1925, had a duty to guide litigants in a criminal court (Rex v Thane 1925 TPD 850). One of the most obtrusive reasons – in those years – was that most prosecutors in the magistrate’s courts were not legally qualified. Times have changed significantly. Today, judges are more inclined (understandably so) to uphold that litigants should be suitably qualified in law and experienced enough to deal with matters on the court rolls accurately. Regrettably, the hypothesis that litigants are efficiently skilled is not always trustworthy. The unfortunate truth is that university training in ethics pertaining to this very intricate category of offences has been abandoned with the introduction of the LLB degree in its current design.
Presiding officers and legal representatives should always be conscious of the legal consequences, when for example, an accused is charged with the offence of a contravention of s 113(1) of the General Law Amendment Act 46 of 1935 (the Act).
Concealment of birth is rather complex
The offence of concealing the birth of a newly born baby is often perpetrated instantaneously after birth. After careful appraisal of all the relevant circumstances surrounding a particular case the evidential material, which may initially appear to disclose a concealment of birth, may well culminate to constitute murder. Diverse dynamics potentially come into play when dealing with these matters, and they often impact on the judgment of the court.
These features will be discussed in this article. This article will structure diverse scenarios applicable to adjudication in matters, which may give rise to conviction on a variety of offences.
According to Andra le Roux-Kemp and Jacques Wilkinson legal status is only granted to a person in South African jurisprudence on live birth, and a foetus is only deemed to be born alive if the birth was concluded and there was total severance between mother and child (Andra le Roux-Kemp and Jacques Wilkinson ‘A novel application of the hydrostatic test in determining live (non)-birth’ 2012 (25) South African Journal of Criminal Justice 271 at 272).
The crime
Section 113 of the Act reads as follows:
‘(1) Any person who, without a lawful burial order, disposes of the body of any newly born child with 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.
(2) A person may be convicted under subsection (1) although it has not been proved that the child in question died before its body was disposed of.
(3) The institution of a prosecution under this section must be authorised in writing by the Director of Public Prosecutions having jurisdiction.’
Elements of concealment of birth
The elements of the offence of contravening s 113(1) of the Act are –
These elements can be unpacked as follows:
The law requires that the disposal must have an element of permanency. Pittman JP found that placing the dead body of a stillborn in a box in a room where others had access was not ‘disposing’ of it for the purposes of s 113(1) as the evidence did not show that the accused intended the body to remain in the box for any length of time (Rex v Dema 1947 (1) SA 599 (E)).
This age-old requirement of ‘permanent disposal’ was recently confirmed in the Gauteng Division of the High Court in Pretoria in the matter of S v Molefe 2012 (2) SACR 574 (GNP). After the accused gave birth to a stillborn child she placed the body in a bucket and left it at her residence. When confronted by the police at a later stage she showed them the bucket containing the remains. Among other reasons and relying on the dicta of the Dema case, the review court set aside the conviction of attempted concealment of birth as the placing of the dead infant’s body in a bucket and keeping it at her residence did not qualify as disposal for purposes of contravening s 113(1).
Prosecutions under s 113(3) of the Act will not be successful in circumstances where the abandoned child was found and rescued. Prosecution is not sustainable in circumstances where the victim did not die, unless there are reasonable prospects of success on a charge of attempted concealment of birth, depending on the circumstances.
In Rex v Oliphant 1950 (1) SA 48 (O) at 51, De Beer JP stated the following:
‘The meaning of the section under which the accused was charged, however, to my mind quite clearly envisages the disposal of a dead body and this is an essential element of the crime, which should have been alleged. The words “whether the child died before, during or after birth” further stress the fact that it must have been dead at the time of concealment.’
Section 239(2) of the Criminal Procedure Act 51 of 1977 (the CPA) confirms as a requirement the death of the newly born child:
‘(2) At criminal proceedings at which an accused is charged with the concealment of the birth of a child, it shall not be necessary to prove whether the child died before or at or after birth.’
While it is a prerequisite of the crime that a dead body be disposed of, s 113(2) of the Act relieves the prosecution of the burden to prove that the child was dead at the time of the disposal. This requirement must nevertheless be alleged in the charge (the Oliphant case). Where, however, there is proof that the child was alive at the time of disposal the accused cannot be convicted of the crime of concealment of birth as contemplated in
s 113(1) of the Act (S v Maleka 1965 (2) SA 774 (T)).
It is questionable whether s 113(2) will survive a constitutional challenge as it relieves the state of proving one of the essential elements of the crime and infringes an accused’s right to a fair trial.
For purposes of s 113(1) of the Act the disposal must be that of the body of the newly born child. The corollary is that where a mother buries her two-year-old child after the child has died she will not be contravening the provisions of this section.
Proving that the accused disposed of the body of the dead newly born child is not sufficient to secure a conviction on a charge of contravening s 113(1) of the Act. The state is required to prove that in concealing the body the accused had the intention of concealing the fact of the birth. This requirement is proved by way of inference drawn from the proven facts.
Normally this offence will not be committed in circumstances where the accused births a stillborn baby in the presence of another person and then buries the body, as that person would know of the fact of birth, unless that person is in cahoots with the mother of the stillborn baby and they both dispose of the body with the intent to conceal the fact of birth. In such event they both contravene the provisions of s 113(1) of the Act.
In the event of that mother of the child tells people that she buried the body immediately after she has done so, she will not be guilty of the crime of concealment. Such behaviour would prove that she did not have the intention to conceal the fact of birth.
Every matter must be assessed on its own merits to determine whether or not the accused had the intention to conceal the fact of birth. Where the body of the stillborn is buried in circumstances where no one was aware that the mother was pregnant, and she only reports the birth a year later, it may well be possible to prove that at the time she buried the body she had the intention of concealing the fact of birth.
Why not murder?
Murder is the unlawful and intentional killing of another living human being/person (Rex v Ndhlovu 1945 AD 369 at 373; S v Mshumpa and Another 2008 (1) SACR 126 (E) at 149; CR Snyman Criminal Law 5ed (Durban: LexisNexis 2008) at 309; Jonathan Burchell Principles of Criminal Law 3ed (Cape Town: Juta 2005 at 159).
Feticide (the killing of an unborn foetus) refers to the act that causes the death of a foetus (see CJ Davel and RA Jordaan Law of Persons 4ed (Cape Town: Juta 2006) at 12) and, therefore, cannot be murder because a ‘person’ or ‘human being’ for purposes of the definition of murder must have been born alive (see Mshumpa (op cit) at para 53).
In cases involving infanticide it is often complicated to prove that the child lived at the time when the perpetrator killed the child. In South African law, the appropriate manner in which to determine if a foetus was born alive is to determine whether the foetus breathed. To this end the legislator has enacted
s 239(1) of the CPA:
‘At criminal proceedings at which an accused is charged with the killing of a newly-born child, such child shall be deemed to have been born alive if the child is proved to have breathed, whether or not the child had an independent circulation, and it shall not be necessary to prove that such child was, at the time of its death, entirely separated from the body of its mother.’
The test
Breathing as a requirement of a live birth is not always easy to establish. The most common forensic tool used to determine whether or not a child had breathed is the hydrostatic test (E du Toit, FJ de Jager, A Paizes, A St Q Skeen and SE van der Merwe (general eds) Commentary on the Criminal Procedure Act (Cape Town: Juta 1987) at 24 to 114; and Le Roux-Kemp and Wilkinson (op cit) at 272). It involves placing pieces of the lungs of the deceased into water. If the tissue floats it is accepted that air was inhaled into the lungs showing the deceased breathed before death. The lung tissue of a stillborn child who has not breathed will sink in water (Le Roux-Kemp and Wilkinson (op cit) at 274).
Although this test has been criticised, it is still regarded as the most appropriate medico legal test to determine live birth. Ideally reliance should not be placed on this test alone. Additional verification should be placed before court to prove that the deceased breathed before death, for example other medico legal tests, such as liver flotation, macroscopic and microscopic analysis or other circumstantial evidence, to corroborate that the child was alive and breathing before being killed should be done (Du Toit et al (op cit) at 24 to 114A). For a detailed discussion see Le Roux-Kemp and Wilkinson (op cit).
Murder, culpable homicide or concealment of birth?
If the state establishes that the newly born infant was breathing at the juncture when the accused abandoned or concealed him or her and later died as a result of the desertion there will generally be an excellent projection of accomplishment on a charge of murder. In this instance the state will have to provide evidence that the accused was acquainted with the fact that the child was living at the time when the toddler was deserted. Circumstantial evidence in this regard will solicit the court with the desired legal inference. The accused can undoubtedly raise the defence of being ignorant of the possibility that the infant was alive at the time of concealment or abandonment.
The following paradigm may serve as an illustration. Presume that immediately subsequent to the birth of her child its mother (knowingly) leaves the live infant in a concealed area like a forest, veld, bush or an outside pit toilet. Later on a passer-by finds the child alive; takes it to a hospital where the child eventually dies as a result of being neglected by the mother. The intention to kill manifested in the form of dolus directus since the mother knew that the child would die as result of the neglect. At the very least the intention to kill should be in the form of dolus eventualis. Should the state, however, fail to prove the required mens rea, an acquittal of murder should be eminent.
A charge of culpable homicide is a competent verdict to murder in terms of s 258 of the CPA and the accused can be convicted of this offence should the evidence prove that the death of the child was caused by the negligence of the accused.
Should the presented evidence fall short of proving either murder or culpable homicide, but proves a contravention of s 113(1), the accused may be convicted of the latter transgression as it is a competent verdict to murder (s 258(d) of the CPA) and on a charge of culpable homicide (s 259(c) of the CPA).
Attempted murder
In a similar vein, the accused should face a charge of attempted murder where the hospital succeeds in saving the child’s life.
Additional requirements
Legislative requisites have, in the past, been developed and amplified by our courts to the degree that a conviction is subject to certain supplementary requirements. One such requirement is that the state has to prove that the foetus was older than 28 weeks at the time of the prohibited act (see the Molefe case; S v Jasi 1994 (1) SACR 568 (ZH); and S v Madombwe 1977 (3) SA 1008 (R)).
A further expansion is that it must be proved that the foetus had the potential of being born alive – it must have been a viable child (see the Molefe and Jasi cases and S v Manngo 1980 (3) SA 1041 (V)).
Other possible offences
In terms of s 14(1)(a) of the Births and Deaths Registration Act 51 of 1992 there is a profound obligation on an individual who was present at the demise of a person who died of natural causes to notify the Director-General of the Department of Home Affairs or their delegate of such death.
This Act will no doubt also apply to the death of a newly born child. One must be sensitive to the fact that the death of a person is referred to. Consequently, it will be necessary to prove that the baby was born alive.
It is a transgression to dispose of the body of a stillborn baby unless a notice of the death was given to the Home Affairs and a burial order was issued (s 20 of the Births and Deaths Registration Act).
It is required of a person present at a stillbirth to make a declaration that in regard to the incumbent Director-General if no medical practitioner was at hand at the time of birth or if a medical practitioner did not examine the stillborn after birth (s 18(2) of the Births and Deaths Registration Act).
Section 305(3) of the Children’s Act 38 of 2005 also provides for the mother or father of the child to be found guilty of an offence in the event of a parent abusing or deliberately neglecting or abandoning such child.
Section 256 of the CPA provides for a conviction of an attempt of a specified offence while s 257 of the same legislation in a similar vein provides for conviction as accessory after the fact. These portions of legislation are accordingly worth being mulled over in circumstances where proof of the outright charge of concealment may be distrustful.
Prospects of future development of the law
In S v Mentoor (WCC) (unreported case no A300/2012, 27-2-2013) (Louw J and Nyman AJ) the accused was charged with murder. The assault on the pregnant mother resulted in the premature birth of the child and its death a few hours later. The court a quo acquitted the accused, holding that the foetus was not a ‘person’. On appeal the court remarked obiter that the trial court erred as the murder was a consequential crime and the assault on the mother caused the premature birth, which resultantly caused the fatality.
It is apposite to acknowledge that although the court in the Mshumpa case (op cit) refused to extend the common law definition of murder to include the killing of an unborn child, it was not against the development of the law to criminalise feticide. Froneman J remarked as follows in the Mshumpa case (op cit) at para 64:
‘I am not saying that there is no merit in making the killing of an unborn child a crime, either as part of the crime of murder or as a separate offence, only that in my view the legislature is, as the major engine for law reform (Masiya, para 33, referring to [Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC))], better suited to effect that radical kind of reform than the courts’.
This notion by the judge must be supported as there is clearly a lacuna in our law to be addressed. The boni mores no doubt demands that an act of feticide be criminalised as has been the case in many countries across the world. I submit that South Africa is ready for such a development and that the legislator should be prompted to introduce appropriate legislation.
Conclusion
The purpose of forwarding a concealment of birth docket to the Director of Public Prosecution’s (DPP’s) office under s 113 of the Act is to obtain authority to prosecute as contemplated in s 113(3) of the Act. Typically, such matters are not sent for the DPP’s decision on whether or not to prosecute. Only once all the requirements are met and it is clear that there are reasonable prospects of success on a charge of contravening s 113(1) of the Act must the matter be forwarded to the DPP. It must be fully investigated.
Louis Radyn BIuris (Unisa) is a retired Senior Magistrate and a High Court Assessor at the KwaZulu-Natal Division of the High Court in Pietermaritzburg.
This article was first published in De Rebus in 2019 (April) DR 19.
