- A former police sergeant has been sentenced to life imprisonment for murdering his pregnant girlfriend.
- The victim was nine months pregnant with triplets and was due to give birth the next day.
- The High Court has expanded the common law to include the unlawful killing of viable unborn children as murder.
A High Court judge used the tragic murder of a pregnant woman carrying triplets to develop South Africa's common law, declaring that the unlawful killing of a viable unborn child should be considered murder.
The ruling came during the sentencing of Mbuyiseni Christopher Gema, a 50-year-old former SAPS sergeant, who was convicted of murdering his girlfriend by strangling her. The deceased was nine months pregnant with triplets and was due to give birth the following day.
Judge S Mngadi sentenced Gema to life imprisonment, finding no substantial or compelling reasons to justify a lesser sentence.
Woman killed a day before giving birth
The court found that Gema and the deceased had been in a relationship for about five years and were expecting children together. He took her from her home to a secluded location where he strangled her to death.
The judge described the killing as a brutal act committed against a vulnerable victim who trusted the father of her unborn children. "The deceased, due to her relationship with the accused, the fact that he was a police officer, and she was pregnant with his children, must have felt safe in the presence of the accused," the judgment states.
Evidence before the court showed that the deceased was heavily pregnant and scheduled to go to the hospital the following day to give birth. The court found no evidence that she had provoked the attack.
Family lost a daughter and three unborn grandchildren
The deceased's mother told a probation officer that she had lost not only her daughter but also her unborn grandchildren. The deceased was her only daughter and an important source of support for the family.
She also left behind an 11-year-old son who continues to struggle emotionally with the loss of his mother. According to the court, the accused showed no remorse and did not accept full responsibility for the crime.
"Regrettably, he shows no regret and no reflection," Judge Mngadi said. "It appears that the death of the deceased and his unborn children has had no impact on him."
Unborn triplets at the centre of legal debate
Although the court imposed life imprisonment for the murder of the deceased, the case raised a broader legal question about the status of unborn children in South African criminal law.
The evidence showed that the triplets had reached a viable stage of development and would have been capable of surviving outside the womb. However, the State could not charge Gema with their murders because South African law currently recognises murder only where a legally recognised person has been killed.
Under the existing legal position, a person becomes legally recognised only after being born alive. The judge noted that there is currently no statutory offence for the murder of an unborn child and no provision that increases punishment where a heavily pregnant woman is murdered.
Common law development declared
Judge Mngadi found that the protection of viable unborn children is both necessary and overdue. "The protection of unborn children at advanced stages of pregnancy is necessary, and it is long overdue," the judgment states. "It cannot be put off in the hope that the legislature shall attend to it in due course."
The court rejected arguments that the so-called "born alive" rule should continue to prevent criminal liability for the killing of viable unborn children.
"There are no cogent reasons for not extending the common law definition of the crime of murder to include the killing of unborn children of not less than seven months old from conception," the judge said.
Judge Mngadi then declared: "I accordingly hereby declare that the common law is developed by extending from the date of this judgment the definition of the crime of murder to include unlawful intentional killing of a viable unborn child of not less than seven months old from the date of conception."
Life sentence confirmed
The court found that the aggravating features of the crime far outweighed the mitigating factors. While Gema was a first offender, the court held that he had abused a position of trust and protection.
"The deceased and her unborn children were in a most vulnerable position," the judge said. "The accused, as the boyfriend of the deceased and as the father of the unborn children, had, apart from a legal duty, a moral duty not to harm the deceased and the unborn children."
After considering all the circumstances, the court concluded that life imprisonment was the only appropriate sentence.
"Even if there was no prescribed minimum sentence of life imprisonment, it is found that the sentence of life imprisonment is the proportionate, appropriate, fair and just sentence in the circumstances."
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