On February 14, 2006, Melissa Shelver, 38 weeks pregnant, and David Best, the father of the fetus, visited her gynecologist. The examination revealed that the fetus was in good condition and that birth was imminent. After Ms. Shelver and Mr. Best left the gynecologist’s office and entered their car, Ludwe Mashumpa also entered the car, threatened the couple with a gun, and ordered Mr. Best to drive to an isolated area. When the car stopped, Mr. Mashumpa and Mr. Best got out of the car, and Mr. Mashumpa shot Mr. Best in the shoulder. Mr. Mashumpa then returned to the car and shot Ms. Shelver twice in her abdomen, took Mr. Best’s watch, wallet, and cell phone, but did not take any of Ms. Shelver’s items, and fled the area. Mr. Best got back into the car and drove to an emergency medical aid station where the couple were treated. However, the emergency medical aid station was unable to save the fetus, which, because of the incident, was stillborn.
It was discovered that the crime was instigated and planned by Mr. Best and Andile Tukani, and executed by Mr. Mashumpa, for personal reasons and to terminate the pregnancy. Mr. Best was shot in the shoulder so that he would appear to be a victim of the robbery. The state charged Mr. Best and Mr. Mashumpa with the murder of the fetus, attempted murder of Ms. Shelver, and other crimes related to the incident.
At issue in this case was whether the common law definition of murder, which is limited to the unlawful and intentional killing of another person, include the intentional killing of a viable fetus. The second issue the Court examined was if the common law definition of murder does not include the intentional killing of a viable fetus, then should the Court develop the law to include such conduct to be applied prospectively and/or retrospectively.
The Court noted that murder is defined as the unlawful and intentional killing of another person, and the definition has always been understood that the person killed must have been born alive. The Court briefly discussed the laws in other jurisdictions, noting that the “born alive” principle has not been discarded in England where murder remains a common law crime. The Court cited the U.S. case Keeler v. Superior Court, to note that the “born alive” principle had not been discarded by courts in jurisdictions with statutory homicide laws, unless those laws expressly include a viable fetus. According to the Court, the trend that developed instead was to criminalize the killing of a fetus by enacting the crime of “feticide,” to punish the killing of a fetus by third parties and not by a pregnant woman.
The Court concluded that the killing of the fetus in the pregnant woman’s womb, albeit viable, did not amount to the common law crime of murder. However, the Court noted that “the aggravation of the assault on the mother, in the form of harm to the fetus in her stomach, may suitably be taken into consideration at the sentencing stage.”
Citing the holding in Fanuel Sitakeni Masiya v. the Director of Public Prosecutions (Pretoria) and Minister of Justice and Constitutional Development, the Court noted that despite the Constitution’s express expectation of the courts to develop the common law in order to bring it into line with the foundational values enshrined in the Constitution and the Bill of Rights, the retrospective extension of the definition of a crime inherently contradicts the principle of “legality” found in section 35(3) of the Constitution. This section sets out fair trial rights, including a person’s right “not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted.” Therefore, even if the Court decided to develop the crime of murder to include the facts of the case at hand, it determined that it could not apply such development retrospectively to the accused.
The Court raised substantive and pragmatic concerns it had on the progressive development of the law. The Court found that in the Masiya case, the court properly prospectively developed the common law to “extend the ambit of protection from the crime [rape] to an existing class of persons in society, namely women.” As noted by both courts, rape infringes on numerous fundamental rights, including dignity, privacy, and physical integrity. This Court held that since the Constitution does not provide for the protection of any rights of a fetus, there are no rights to be developed or extended. The pragmatic concerns evolve from the difficulty in determining a precise definition of when a fetus is considered a “person,” within the meaning of the law and other procedural hurdles.
The Court therefore found that the killing of a fetus is not considered murder under the common law definition, and that it would not develop the law retrospectively or prospectively emphasizing that it would be the legislature’s role to reform the law if required. Mr. Best and Mr. Mashumpa were convicted of the attempted murder of Ms. Shelver and other counts related to the incident.