, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
TABLE OF CONTENT
A) Historical Research Approach Page 3
B) Comparative Research Approach Page 15
, A Historical Analysis of the Legal Status of the Unborn Child in South African Criminal Law:
From Roman-Dutch Origins to S v Mshumpa (2008) and Beyond
1. Introduction
The question of whether an unborn child should be recognised as a person with a corresponding right
to life under South African law has generated significant legal, philosophical, and theological debate.
This research proposal outlines a post-graduate study that will investigate the historical development
of the legal status of the unborn child in South African criminal law, with specific focus on the
definitional elements of murder and the legality principle governing criminal liability. The study is
prompted by a faith‑based association's submission to a human rights organisation, which challenges
the stance taken by the court in S v Mshumpa and Another and demands that the common law be
developed to reflect the legal convictions of the community by criminalising the killing of a foetus.¹
The central legal issue to be investigated concerns whether the common law definition of murder,
which requires the unlawful and intentional killing of a 'human being' or 'person', can be extended to
include the unborn child.² In S v Mshumpa, the Eastern Cape High Court held that the common law
crime of murder does not include the unborn, and it was the responsibility of the legislature, not the
courts, to develop the common law in this regard.³ This decision has been met with considerable
criticism from certain quarters, particularly from faith‑based organisations that argue that the
constitutional right to life in section 11 of the Constitution of the Republic of South Africa, 1996,
which states that '[e]veryone has the right to life', should extend to unborn children.⁴
This research proposal adopts the historical research approach, as set out in the prescribed research
topic. This entails examining the historical development of the law concerning the unborn child's
legal status from the Roman‑Dutch legal tradition to the present day, with a specific focus on
developments within South Africa.⁵ The study will review relevant case law, legislation, Law
Reform Commission reports, and scholarly writings that have contributed to the law as it stands
today. By tracing the legal history of the unborn child in South African law, this research aims to
provide a comprehensive analysis of the current legal position, critically evaluate the reasoning in S
v Mshumpa, and assess the arguments for and against the development of the common law to
criminalise feticide.
The research will consider constitutional provisions, particularly sections 11 and 12 of the
Constitution; relevant legislation, including the Choice on Termination of Pregnancy Act 92 of 1996;
and case law, including Christian Lawyers Association v Minister of Health, Pinchin v Santam
Insurance Co Ltd, and Road Accident Fund v Mtati.⁶ The nasciturus fiction, which operates to
protect the potential interests of a foetus who is subsequently born alive, will also be examined as a
crucial component of the historical development of this area of law.⁷
¹ S v Mshumpa and Another 2008 (1) SACR 126 (E).
² Burchell J Principles of Criminal Law 5 ed (2016) 346.
³ S v Mshumpa and Another 2008 (1) SACR 126 (E) para 25.
⁴ Constitution of the Republic of South Africa, 1996 s 11.
⁵ Prescribed Research Topic (2026) 8.
⁶ Christian Lawyers Association v Minister of Health 1998 (4) SA 113 (T); Pinchin v Santam Insurance Co Ltd 1963 (2) SA 254 (W); Road
Accident Fund v Mtati 2005 (6) SA 215 (SCA).
⁷ Pinchin v Santam Insurance Co Ltd 1963 (2) SA 254 (W) 258.
TABLE OF CONTENT
A) Historical Research Approach Page 3
B) Comparative Research Approach Page 15
, A Historical Analysis of the Legal Status of the Unborn Child in South African Criminal Law:
From Roman-Dutch Origins to S v Mshumpa (2008) and Beyond
1. Introduction
The question of whether an unborn child should be recognised as a person with a corresponding right
to life under South African law has generated significant legal, philosophical, and theological debate.
This research proposal outlines a post-graduate study that will investigate the historical development
of the legal status of the unborn child in South African criminal law, with specific focus on the
definitional elements of murder and the legality principle governing criminal liability. The study is
prompted by a faith‑based association's submission to a human rights organisation, which challenges
the stance taken by the court in S v Mshumpa and Another and demands that the common law be
developed to reflect the legal convictions of the community by criminalising the killing of a foetus.¹
The central legal issue to be investigated concerns whether the common law definition of murder,
which requires the unlawful and intentional killing of a 'human being' or 'person', can be extended to
include the unborn child.² In S v Mshumpa, the Eastern Cape High Court held that the common law
crime of murder does not include the unborn, and it was the responsibility of the legislature, not the
courts, to develop the common law in this regard.³ This decision has been met with considerable
criticism from certain quarters, particularly from faith‑based organisations that argue that the
constitutional right to life in section 11 of the Constitution of the Republic of South Africa, 1996,
which states that '[e]veryone has the right to life', should extend to unborn children.⁴
This research proposal adopts the historical research approach, as set out in the prescribed research
topic. This entails examining the historical development of the law concerning the unborn child's
legal status from the Roman‑Dutch legal tradition to the present day, with a specific focus on
developments within South Africa.⁵ The study will review relevant case law, legislation, Law
Reform Commission reports, and scholarly writings that have contributed to the law as it stands
today. By tracing the legal history of the unborn child in South African law, this research aims to
provide a comprehensive analysis of the current legal position, critically evaluate the reasoning in S
v Mshumpa, and assess the arguments for and against the development of the common law to
criminalise feticide.
The research will consider constitutional provisions, particularly sections 11 and 12 of the
Constitution; relevant legislation, including the Choice on Termination of Pregnancy Act 92 of 1996;
and case law, including Christian Lawyers Association v Minister of Health, Pinchin v Santam
Insurance Co Ltd, and Road Accident Fund v Mtati.⁶ The nasciturus fiction, which operates to
protect the potential interests of a foetus who is subsequently born alive, will also be examined as a
crucial component of the historical development of this area of law.⁷
¹ S v Mshumpa and Another 2008 (1) SACR 126 (E).
² Burchell J Principles of Criminal Law 5 ed (2016) 346.
³ S v Mshumpa and Another 2008 (1) SACR 126 (E) para 25.
⁴ Constitution of the Republic of South Africa, 1996 s 11.
⁵ Prescribed Research Topic (2026) 8.
⁶ Christian Lawyers Association v Minister of Health 1998 (4) SA 113 (T); Pinchin v Santam Insurance Co Ltd 1963 (2) SA 254 (W); Road
Accident Fund v Mtati 2005 (6) SA 215 (SCA).
⁷ Pinchin v Santam Insurance Co Ltd 1963 (2) SA 254 (W) 258.
