In a significant development for South African criminal law, the KwaZulu-Natal High Court has developed the common law definition of murder to include the unlawful and intentional killing of a viable unborn child that has reached at least seven months of gestation. The judgment marks an important shift away from the long-standing “born alive” rule, which previously recognised only a person who had been born alive as a victim of murder.
While the decision arose from tragic circumstances, its impact extends far beyond the facts of the case. It represents an important development in how South African law protects viable unborn children where their deaths result from unlawful criminal conduct.
The facts behind the judgment
The matter arose from the sentencing of a police sergeant who was convicted of murdering his partner, who was nine months pregnant with triplets and due to give birth the following day. Although the attack resulted in the deaths of the unborn children, the accused could not be convicted of their murders because, under the common law at the time, unborn children were not recognised as separate victims for purposes of the crime of murder.
Recognising this gap in the law, the High Court considered whether the common law should be developed to better reflect constitutional values and the need to protect viable unborn children.
What did the court decide?
The court held that, going forward, the common law definition of murder should include the unlawful and intentional killing of a viable unborn child of not less than seven months from conception.
Importantly, this development applies only to future cases, since South African law does not permit criminal offences to be created or expanded retrospectively.
What could this mean in practice?
Consider the following example. A driver deliberately drives a vehicle into a woman who is eight months pregnant during a domestic dispute. The woman survives the attack but her unborn baby dies as a result of the injuries sustained. Prior to this judgment, the accused could potentially have been charged with offences relating to the assault on the mother, but not with the murder of the unborn child.
Following this development of the common law, provided the State can prove the required elements of the offence, including that the unborn child was viable and at least seven months into the pregnancy, prosecutors may now be able to pursue a murder charge in respect of the unborn child in addition to any charges relating to the mother.
Similarly, if an individual intentionally attacks a pregnant woman knowing that she is in the final stages of pregnancy, and both the mother and her viable unborn child die as a result, separate murder charges may now be possible under the developed common law.
These examples illustrate how the judgment seeks to address situations involving unlawful violence against pregnant women, rather than matters relating to lawful medical procedures or reproductive healthcare.
Why this judgment matters
The judgment represents an important evolution of South African common law and demonstrates the courts’ willingness to develop legal principles where existing law no longer adequately addresses modern circumstances.
It also raises important legal questions that may be considered by higher courts in future, including how viability will be determined, how intention will be assessed in different factual circumstances, and the extent to which the new common law definition of murder will apply in future prosecutions.
As with many landmark judgments, this decision is likely to shape legal debate and may influence future developments in South African criminal law.
Looking ahead
The KwaZulu-Natal High Court’s decision is a reminder that the common law is not static. Courts have the constitutional authority to develop legal principles where necessary to promote justice and ensure that the law keeps pace with changing societal needs.
Individuals, businesses and legal practitioners should continue to monitor developments in this area, particularly if the judgment is considered by a higher court or followed in future cases.
If you require legal advice on developments in South African criminal law or the implications of recent court judgments, the team at Pagel Schulenburg is available to provide practical legal guidance tailored to your circumstances.
