S v Mshumpa
Encyclopedia
S v Mshumpa and Another is an important case in South Africa
n jurisprudence, with especial significance for the law of persons
and succession
.
Melissa Shelver, a young pregnant woman, was shot in the abdomen with intent, successful, to kill her unborn child. The shooter and first accused, Ludwe Mshumpa, had entered into a conspiracy with the baby's father and second accused, David Best, who had paid him to commit the crime. In order to make the attack appear genuine, and thus to clear himself of suspicion, Best had arranged for Mshumpa to shoot him as well. Both he and Shelver barely survived.
The court was tasked first with determining whether or not Mshumpa should be convicted of the attempted murder of the mother. It found that the risk of death to the mother was eminently foreseeable in the act of shooting — the fact was established, indeed, that she would have died had not she received medical treatment — and that dolus eventualis could not be excluded on the basis that the direct intention was only to kill the foetus. Mshumpa was duly found guilty of the attempted murder of Shelver.
The court's next consideration was whether to convict Mshumpa of the attempted murder of Best. As neither suicide nor attempted suicide is a crime in South Africa, Best could not be found guilty as co-perpetrator of his own attempted murder. Mshumpa, however, was convicted, on grounds similar to those of his conviction for the attempted murder of Shelver, as he must have foreseen the risk of death in his shooting of Best. (This risk was very nearly realised, in fact, as the shot to Best's shoulder missed his lungs by only a few millimetres.) The fact that Best had consented to be shot did not render such shooting lawful.
The court had also to determine whether Mshumpa's intentional killing of Shelver's unborn child amounted to the crime of murder. Because this would entail extending the definition of "murder," and because such extension would offend the constitutional principle of legality, the court declined to do, reasoning that the legislature was better suited to broaden "murder" to include the killing of an unborn child.
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
n jurisprudence, with especial significance for the law of persons
Law of persons in South Africa
The law of persons in South Africa is generally defined as regulating "the coming into being, private-law status and the coming to an end of a natural person." It determines the requirements and qualifications for legal personhood or subjectivity in South Africa, and the rights and responsibilities...
and succession
Law of succession
Laws of succession govern the order of succession to various monarchies. Some laws of succession include:-United Kingdom:*British succession**Act of Settlement 1701-France:*Kings of France**Salic law* Legitimist claimants to the throne of France...
.
Melissa Shelver, a young pregnant woman, was shot in the abdomen with intent, successful, to kill her unborn child. The shooter and first accused, Ludwe Mshumpa, had entered into a conspiracy with the baby's father and second accused, David Best, who had paid him to commit the crime. In order to make the attack appear genuine, and thus to clear himself of suspicion, Best had arranged for Mshumpa to shoot him as well. Both he and Shelver barely survived.
The court was tasked first with determining whether or not Mshumpa should be convicted of the attempted murder of the mother. It found that the risk of death to the mother was eminently foreseeable in the act of shooting — the fact was established, indeed, that she would have died had not she received medical treatment — and that dolus eventualis could not be excluded on the basis that the direct intention was only to kill the foetus. Mshumpa was duly found guilty of the attempted murder of Shelver.
The court's next consideration was whether to convict Mshumpa of the attempted murder of Best. As neither suicide nor attempted suicide is a crime in South Africa, Best could not be found guilty as co-perpetrator of his own attempted murder. Mshumpa, however, was convicted, on grounds similar to those of his conviction for the attempted murder of Shelver, as he must have foreseen the risk of death in his shooting of Best. (This risk was very nearly realised, in fact, as the shot to Best's shoulder missed his lungs by only a few millimetres.) The fact that Best had consented to be shot did not render such shooting lawful.
The court had also to determine whether Mshumpa's intentional killing of Shelver's unborn child amounted to the crime of murder. Because this would entail extending the definition of "murder," and because such extension would offend the constitutional principle of legality, the court declined to do, reasoning that the legislature was better suited to broaden "murder" to include the killing of an unborn child.