Thursday 2024-05-30




By ANDILE NSIBANDE | 2020-09-29

A respected judicial officer could soon be out on the road to make noise to convince the country to allow abortion rights for women.

High  Court Judge Qinisile Mabuza indicated yesterday that she was considering starting a crusade to promote the legalisation of abortion in the country.

Judge Mabuza made the unprecedented step of strongly endorsing the legalisation of abortion during the hearing of a matter, where a 26-year-old woman, identified as Xolile Simelane of Emasini was accused of causing the death of her four-year-old son, by drowning him in a river.

This was apparently after the father of the child had denied paternity, leaving her to shoulder the task of raising the boy all by herself. The circumstances which drove the woman into taking the drastic decision somehow touched the learned judge, who felt something had to be done by the country to guard against women taking such decisions.


The judge expressed her views after she had enquired from the prosecution if there were any steps taken by the country in terms of the law to assist women who found themselves in the accused person’s situation.

In fact, the judged first thought long and hard about the availing of the option of abortion to women before posing the question to the prosecutor.

In her subsequent remarks, she hinted that she viewed the current situation as shackling women’s autonomy, making an undertaking to tackle the current ban on abortion before she retires from the bench.

In fact, the learned judge believes it would be reasonable to allow women to make a decision on whether to perform an abortion, especially during a pregnancy.

She said now that some of the rights of women had been addressed through the enactment of the Sexual Offences and Domestic Violence Act 15 of 2018, it was high time that society explored the possibility of legalising abortion as well.

Currently, abortion is out of reach for local women and it is still considered an offence punishable by law, regardless of the circumstances under which it had been performed. The accused person had already been convicted of the lessor crime of culpable homicide, after her legal representative had argued successfully, and the judge was expected to hand down the sentence when she started exploring the issue of the legalisation of abortion.

While the judge clarified that she valued life, her approach was that it was better for a pregnant woman to let the foetus go than to get rid of a grown-up child, who would have already forged attachments with family members.

She said such an approach would particularly help in situations where the paternity of the baby was denied. According to the judge, in such situations the mother would be able to make a choice on whether to bear or not to bear the baby while she was still pregnant.

She said the decision whether or not to bear a child was central to a woman’s life, to her well-being and dignity.

However, the judge’s views on abortion did not translate into her condoning reckless behaviour by young couples.

Prior to articulating her views, the judge had sternly warned the accused person to consider taking family planning seriously. 

“I’m still confused about how you allowed yourself to conceive in the first place without discussing the issue with your boyfriend or even your friends. Nowadays young girls talk about these things and I just wonder why this did not become part of your conversations as a young woman.

“Because you have already started, I would like to advice you to make a first stop at a relevant organisation to advice you on using contraceptives immediately after your release from jail,” she said.

Before she was convicted, the accused person had given a chronology of events leading to the eventual decision to get rid of her child. She stated that she was staying with her grandmother at the time, alongside her four other children.

She had just secured employment with a certain company around Nkonyeni. A problem she encountered was that she had nobody to take care of the children, while she was away at work. When she approached her grandmother, she flatly refused to assist. A suggestion of taking the minor child, aged four, to a day care centre was considered, but a setback was that the day care people felt he was too old for them.

With nowhere to take the child, after the father had denied paternity, the woman decided to get rid of him albeit in a cruel manner.

Coming back from the day care centre, the woman decided to take a detour to a river, where she stripped the child of his clothes, before she bundled him into a bag. She then tossed the bag inside the running murky water, before fleeing the place. The young boy reportedly cried as he struggled with the drowning in broad daylight. He eventually lost the battle, and his dead body was later discovered by young boys who were fishing in the river.

The matter was reported to Kaphunga Police, who subsequently launched an investigation.

The probe that ensued later led to Simelane, who was aged 23 at the time. She was sold out by a cellphone she had left behind in the river as she carried out the horrendous crime. It was discovered by the detectives as they combed the area for clues. The child’s death would later be scribed by members of the public as tragic and yet unbelievable at the same time.

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