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[2012] ZAGPPHC 52
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S v Molefe (A240/12) [2012] ZAGPPHC 52; 2012 (2) SACR 574 (GNP) (3 April 2012)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION: PRETORIA)
Case
No: A240/12
High
Court Ref no:988
Magistrate's
Serial No: special Review (Bloemhof)
Review
case no: A63/2011
DATE:03/04/2012
In
the matter between:
THE
STATE
and
DITHAHO
MOLEFE
REVIEW
JUDGEMENT
RABIE
J :
1.
The accused, an adult female, was convicted in the Magistrates' Court
of Bloemhof on a charge of contravention of section 113
(1) read with
section 113 (2) and (3) of the General Law Amendment Act 46 of 1935
in that she had unlawfully and with the intent
to conceal the fact of
the birth of a child, attempted to dispose of the body of the said
child.
2.
The accused pleaded guilty and in a statement in terms of section 112
(2) of the Criminal Procedure Act, the accused stated the
following:
1.
I am voluntarily pleading guilty to the charge to me attempt to
conceal birth, Act 46 of 1935.
2.
On or about 3-4 October 2009 at Bloemhof, district Bloemhof, I
unlawfully with intent to attempt to conceal the fact of the
birth of
a child denied to a sister at the clinic that I had given birth to a
dead child. I had not yet disposed of the dead child's
body and when
I was confronted by the police I went to show the police the body in
a bucket at my house. The child was prematurely
born and was dead at
birth.
3.
I know my actions were wrong and unlawful. I have remorse for my
actions."
3.
Before convicting the accused the Magistrate enquired from the
prosecutor whether the Director of Public Prosecutions had authorised
the prosecution in writing as required by section 113(3) of the
General Law Amendment Act, Act 46 of 1935 ("the Act").
The
matter stood down and was then postponed and on resumption the
prosecutor informed the court that no written authorisation
existed
but that the Director of Public Prosecutions had given verbal
permission for the prosecution to proceed. The prosecutor
submitted
that verbal permission constitute compliance with section 113 (3) of
the Act. The Magistrate thereupon found the accused
guilty but also
referred the matter for special review regarding the issue as to
whether the permission to prosecute can be verbal
or whether it
should be writing. The Magistrate was not convinced of the validity
of the prosecution.
2.
Senior State Advocate A.J. Fourie wrote an opinion with which Deputy
Director of Public Prosecutions, Advocate M van Vuuren,
concurred. I
am indebted to these advocates for their assistance and since I agree
with their opinion, I shall repeat much of what
is contained in the
opinion.
3.
Section 113 of the Act provides as follows: "Concealment of
birth of newly born child
(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. (my underlining)
4.
The State Advocates were of the view that given the unequivocal
requirement that the authorisation must be in writing, the mandatory
prerequisite for the prosecution was not adhered to in casu. It was
submitted that although it might be argued that failure to
obtain
written authorisation prior to a prosecution can be (or was in this
instance) ratified by the Director of Public Prosecutions,
the
conviction ought nevertheless to be set aside not only as a result of
the procedural omission but also for other reasons.
5.
Regarding the issue of written authorisation it does not appear,
even if it were to be possible, that there had, in casu, been
a
written authorisation ratifying the institution of the prosecution
prior to conviction. Consequently the accused could not have
been
prosecuted and the conviction should be set aside.
6.
Regarding the aforesaid other reasons why the conviction should be
set aside, the following may be referred to: Firstly, section
113 (1)
of the Act makes it an offence to "... dispose of the body of a
child..." with the intent to thereby conceal
the birth of a
child. According to the plea explanation quoted above, the accused,
however, only admitted that she lied to a sister
at the clinic about
the fact that she gave birth. She specifically stated that "I
had not yet disposed of the dead child's
body and when I was
confronted by the police, I went to show the police the body in a
bucket at my house."
7.
It was submitted that the essence of the offence is the "disposal"
or "attempted disposal" of the body of
a child. In casu
there was no admission by the accused that she either disposed or
attempted to dispose of the body. The Magistrate
could therefore not
have been satisfied that the accused admitted all the essential
elements of the offence. In this regard it
was submitted that the act
of "disposing" calls for some act or measure of permanence
and not just placement for all
to see. In R v Dema 1947(1) SA 599 (E)
Pittman JP found on the issue as follows:
"Now,
the provision of the law, sec. 113 of the General Law Amendment Act
46 of 1935, which defines the crime with which accused
stands
charged, uses the word 'disposes' to describe the act constituting
it. And when it speaks of 'disposing' of the body we
think it means
an act involving some measure of permanence. Merely to place a body
on the floor or on a table or bed is not in
the requisite sense to
'dispose' of it. The body to be 'disposed of must be put or placed in
some place where it is intended by
the party placing or putting it
there that it should remain. Here the evidence shows that accused put
the child's dead body in
the box; we are satisfied that she did, but
it, the evidence, does not convince us that doing so she meant the
body to remain there
for any time. The box was fully exposed to view.
Anyone entering the room would see it, as the witness Nokampi did,
and seeing
it would in the circumstances be led to open it. The act
relied upon as a disposition of the body is not in our view a
disposition
in the sense intended by the legislature. In the case
relied upon by the Crown of Rex v Smith {1918 CPD 260) the facts went
far
more strongly to establish a disposition of the body. Here we are
not satisfied that there was a disposition on accused's part and
we
find her not guilty."
8.
It was submitted by the State Advocates that the admission by the
accused that she had lied to the sister at the clinic does
not allow
for the inference that she thereby attempted to dispose of the body.
Reference was made to S v D 1967(2) SA 537 (W) wherein
it was
remarked that it is notorious that many mothers of newly born
children are under considerable physical and mental stress
and are
unable to act with the calm and balanced judgement which the
circumstances require.
9.
I agree with all of the aforesaid but it goes further. The evidence
before the court, which only consisted of the admissions
by the
accused, does not prove a disposal of the body nor of an attempt to
do so. The accused may have formed an intention to dispose
of the
body of the child but her actions to that point do not constitute a
disposal or an attempt to do so. The lie which she told
to the sister
at the clinic does not, by itself, constitute a disposal of the body
or an attempt to do so.
10.
The second reason why the State Advocates do not support the
conviction is based on the fact that in order for a conviction
to
follow, there must be evidence, which includes admissions in terms of
section 112 (2) of the Criminal Procedure Act, that the
child (fetus)
have the potential of being born alive, in other words, being a
viable child. See S v Jasi 1994(1) SACR 568 (ZH).
That matter related
to an intra-uterine stillbirth fetus. In a well-researched judgement
Adam J came to the conclusion that A 'child'
for the purposes of
section 2 of the Concealment of Birth Act [Chapter 57] which applied
in that case, and which is similar to
its South African counterpart,
is one that has reached a stage of development, irrespective of the
duration of the pregnancy, which
makes the child capable of being
born alive, i.e., after separation from its mother the child is able
to breathe independently,
either naturally or with the aid of a
ventilator. As such the court could not find that a fetus younger
than 28 weeks was a viable
child for purposes of the section.
11.
In S v MANNGO
1980 (3) SA 1041
(V) van Rhyn CJ was concerned with an
offence of concealment of birth in contravention of s 113 of Act 46
of 1935. The accused
testified that she had been three months
pregnant when she "gave birth to the child". Van Rhyn CJ
agreed with the statement
in Milton and Fuller South African Criminal
Law and Procedure vol 111 at 271, and the authorities cited by the
learned authors,
that the offence cannot be committed unless the
child had arrived at that stage of maturity at the time of birth that
it might
have been born a living child. He found that in that
instance it was clear that the foetus could not have been considered
a child
in terms of the provisions of the Act and consequently set
aside the conviction and sentence.
12.
In S v MADOMBWE
1977 (3) SA 1008
(R) Whitaker J with whom Goldin J
concurred, found that for the purpose of an offence under the
Concealment of Birth Act, Chapter
57 (R), a child must be regarded as
one whose birth is required to be registered in terms of the Births
and Deaths Registration
Act, Chapter 30 (R). It was further found
that a foetus of less than 28 weeks should not be regarded as a child
within the provisions
of the Concealment of Birth Act.
13.
It was submitted by the State Advocates that in casu there was no
evidence, nor was it admitted, that the fetus found by the
police was
indeed older than 28 weeks and thus a viable child. Consequently, so
it was submitted, the conviction can for this reason
also not be
sustained.
14.
I agree with this submission. The Act refers to the disposal of the
body of a newly born "child". Consequently, in
order to
sustain a conviction, there has to be evidence before the court that
the fetus had arrived at that stage of maturity at
the time of birth
that it might have been born a living child. In casu there was no
evidence regarding the duration of the pregnancy
nor of the viability
of the fetus/child. All that is known is that the "child"
was in fact born prematurely and was dead
at birth. For this reason
alone it could not be found that the accused disposed of the body of
a child and consequently the conviction
and sentence should be set
aside.
15.
In the result the following order is made:
1.
The conviction of the accused is set aside.
C.P.RABIE
JUDGE
OF THE HIGH COURT
I
agree
E.
JORDAAN
JUDGE
OF THE HIGH COURT