In the case of Mshumpa, Mr Best was sentenced to 21 years imprisonment. This included 20 years for attempted murder and six months for assault.14 On the other hand, Mr Mshumpa was sentenced to fifteen years imprisonment, including fifteen years for the attempted murder of Ms Shelver and six months for assault on Ms Shelver.15 Considering the gravity of the harm caused to Ms Shelver and the unborn, is the sentence of assault, assault with intent to do grievous bodily harm or attempted murder sufficient punishment? Are the mentioned years sufficient punishment in cases where not only “another person” (as contained in the definition of murder)16 is involved, but also another entity (unborn) not recognised in South African law as having the right to life?17 In the common-law definition of murder, the phrase “another person” only refers to a living person.
“who has been born alive and who is still alive when fatal conduct occurs”.19 This is important because if the killing occurs before birth, it is referred to as abortion. If the killing occurs after birth, it is referred to as murder.20 The argument goes that South African law does not consider the unborn as an entity worthy of protection and cases such as Mshumpa will only amount to a crime against the mother. The unborn will only be indirectly protected by South African law through the protection it grants to the pregnant woman. The question is: is this enough? To determine whether sentences for crimes such as assault, assault with intent to do grievous bodily harm or attempted murder are sufficient punishment for cases such as Mshumpa, it is necessary to investigate these crimes and the severity of their sentences. Common assault is the unlawful and intentional application of force to the person of another or inspiring belief in that other of an application of force to his person.21 The main consideration in common assault and assault with the intent to do grievous bodily harm is the physical integrity of a person.22 In other words, every person’s body is inviolable. It derives from the law’s concern to maintain law and order (prohibiting further violence and public disorder). The laws of assault aim to maintain public peace.23 Punishment for assault depends on the type of assault and the circumstances. All circumstances must be “properly and judicially considered”.24 With regards to assault with intent to do grievous bodily harm, the accused does not have to cause the grievous bodily harm – the intent to cause such harm is sufficient. Such intent includes more than a want to inflict the casual and superficial injuries of common assault.25 In cases such as Mshumpa, the death of the unborn has already been considered as aggravating circumstances and forms part of the circumstances taken into account when determining the punishment of the accused. However, for several reasons stated below, this article argues that the crimes of assault, assault with intent to do grievous bodily harm and attempted murder of the pregnant woman are not sufficient to protect and maintain public order where the mother and the unborn are injured or killed. It involves more than mere infringement on the bodily integrity or life of the mother. In the case of feticide, indirect protection would mean that the unborn would only be protected “indirectly” to protect the woman carrying the child. The fact that the woman was pregnant will only serve as aggravating circumstances in the penalty imposed in cases of assault. This article argues that cases such as Mshumpa should lead to multiple charges – one being assault, assault with intent to do grievous bodily harm or attempted murder (directly protecting the mother) and the second being feticide (directly protecting the unborn)