S v Molefe (A240/12) [2012] ZAGPPHC 52; 2012 (2) SACR 574 (GNP) (3 April 2012)

S v Molefe (A240/12) [2012] ZAGPPHC 52; 2012 (2) SACR 574 (GNP) (3 April 2012)

The court found that the prosecution was not validly authorised as required by section 113(3) of the General Law Amendment Act, since only verbal permission was obtained and no written authorisation existed. Furthermore, the accused did not admit to disposing or attempting to dispose of the body, which is an essential element of the offence. The evidence did not establish that the fetus was a viable child capable of being born alive, as required by law. In the absence of written authorisation, admissions of all essential elements, and proof of viability, the conviction and sentence could not be sustained and were set aside.

Citation
[2012] ZAGPPHC 52
Parties
Applicant: The State; Respondent: Dithaho Molefe
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 April 2012
Case Number
A240/12
Procedural Posture
Criminal Review / Special Review of Conviction and Sentence
Outcome
Conviction and sentence set aside.
Judges
C.P. Rabie, E. Jordaan
Legal Topics
Concealment of Birth, Authorisation to Prosecute, Viability of Fetus, Plea Admissions, Essential Elements of Offence
Criminal Law Concealment of Birth Authorisation to Prosecute Viability of Fetus Plea Admissions Essential Elements of Offence

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

The State

Applicant

Dithaho Molefe

Respondent

Procedural Posture

Criminal Review / Special Review of Conviction and Sentence

Legal Issues

  1. 1 Whether written authorisation by the Director of Public Prosecutions is a mandatory prerequisite for prosecution under section 113(3) of the General Law Amendment Act 46 of 1935.
  2. 2 Whether the accused's admissions constituted all essential elements of the offence of concealment of birth.
  3. 3 Whether the fetus was a viable child for purposes of section 113(1) of the Act.

Ratio Decidendi

The court found that the prosecution was not validly authorised as required by section 113(3) of the General Law Amendment Act, since only verbal permission was obtained and no written authorisation existed. Furthermore, the accused did not admit to disposing or attempting to dispose of the body, which is an essential element of the offence. The evidence did not establish that the fetus was a viable child capable of being born alive, as required by law. In the absence of written authorisation, admissions of all essential elements, and proof of viability, the conviction and sentence could not be sustained and were set aside.

Court Disposition

Conviction and sentence set aside.

Orders

  • The conviction of the accused is set aside.