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[2016] ZASCA 49
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Van Schalkwyk v S (680/2015) [2016] ZASCA 49; 2016 (2) SACR 334 (SCA) (31 March 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case
No: 680/2015
In
the matter between:
JACOBUS
VAN
SCHALKWYK
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
Citation:
Van Schalkwyk v The State
(680/15)
[2016] ZASCA 49
(31 March 2016)
Coram:
Lewis, Tshiqi and Willis JJA and Plasket and Baartman AJJA
Heard:
10 March 2016
Delivered:
31 March 2016
Summary:
Criminal
Law and Procedure – mens rea – evidence – assault
with hay hook across the chest of the deceased
– piercing heart
and severing rib – conviction of murder with intention in the
form of dolus eventualis not correct.
ORDER
On
appeal from
: Northern Cape Division of the High Court, Kimberley
(Tlaletsi AJP and Phatshoane J sitting as court of appeal):
1
The appeal is upheld to the extent set out below.
2
The conviction of murder, and the sentence of eight years’
imprisonment, are set aside.
3
The order of the Northern Cape Division of the High Court is replaced
with the following:
‘
The
appellant is convicted of culpable homicide, and is sentenced to six
years’ imprisonment, dated back to 14 February 2014,
three
years of which are suspended for a period of five years on condition
that the appellant is not convicted of any crime, of
which violence
is an element, committed during the period of suspension.’
JUDGMENT
Baartman
AJA (dissenting, Willis JA concurring with her)
[1]
The sole issue before us is whether in the circumstances of this
matter the appellant was guilty of murder with intent in the
form of
dolus eventualis or of culpable homicide.
[2]
On 6 October 2013, the regional magistrate at Upington convicted the
appellant, Mr Jacobus van Schalkwyk, a farmer at Bertiesdraai
Farm in
Groblershoop, Northern Cape of murder with intent in the form of
dolus eventualis (count 1), and attempting to defeat or
obstruct the
ends of justice (count 2). On 11 February 2014, that court sentenced
the appellant to eight years’ imprisonment
on count 1 of which
two years were suspended on certain conditions, and to twelve
months’ imprisonment on count 2,
ordered to run
concurrently with the sentence imposed in respect of count 1.
The trial court refused the appellant leave to
appeal. On petition to
the Northern Cape Division of the High Court, leave to appeal was
limited as follows:
‘
Did
the respondent prove beyond reasonable doubt that the petitioner
intentionally caused the death of the deceased, i.e. intent
in the
form of
dolus eventualis
.’
On
27 February 2015, the court below confirmed the conviction of murder
with intent in the form of dolus eventualis despite finding
that the
regional magistrate had applied the wrong test.
[1]
That court refused leave to appeal against the conviction. The appeal
to this court lies with its leave.
The circumstances of the
offence
[3]
The deceased, Mr Jan Klaaste, was a farm worker employed by the
appellant at the time of his death on 14 February 2014. The
appellant
had instructed the deceased to feed the cattle over the weekend of 12
to 13 February 2014. The deceased failed to
do so. In addition,
the deceased reported for duty on Monday, 14 February 2014, with
a blood alcohol content of 0.26g/100ml
blood, and was obstructive and
unresponsive. The appellant was annoyed by the deceased’s
failure to have fed the cattle over
the weekend.
[4]
It was harvest time and the appellant’s seasonal workers were
already in the vineyard ready to harvest the grapes, but
the crates
for packing them were not in the vineyard. The appellant instructed
Mr Erin Kalanie, another farm worker, to fetch the
tractor and a
second trailer, load the crates and deliver them to the workers in
the vineyard. When Kalanie returned with the trailer,
the deceased
was standing on it holding two iron hay hooks, apparently intending
to do the work he had neglected to do over the
weekend. The
appellant, standing on the ground next to the trailer, instructed the
deceased to leave the hooks and get off the
trailer. The deceased
remained unresponsive, standing on the trailer holding the two iron
hay hooks. All this was common cause.
[5]
The State’s version, as told by Kalanie and Mr Samuel Persoon,
another farm worker, was that the appellant grabbed the
hooks from
the deceased and hit him with one of the hooks on the left side of
his chest. It was common cause that the iron hay
hook pierced
ten centimetres into his heart and in the process also severed
his fifth rib; he died pursuant to that injury.
This version was
accepted by both the trial court and the court below, sitting as
court of appeal. There were discrepancies between
Kalanie’s and
Persoon’s versions that both courts acknowledged and found
immaterial. I agree.
[6]
The appellant denied striking the deceased with the hook. Instead, he
admitted grabbing the hooks from the deceased, at which
point the
deceased moved backwards and turned his chest to the left before
immediately moving forward towards the hooks and falling
to his
knees. The appellant said that after he had seized the hook, he threw
it to the floor and reached for the other hook, which
he realised had
become hooked onto the deceased’s overalls. The appellant
allegedly unhooked it and threw it to the ground.
Following this
incident, the deceased got up, got off the trailer, and walked off.
[7]
The post-mortem findings, were as follows: ‘Stab wound of
1 x 1cm below the nipple, with abrasions around the
edges,
10 cm deep, entering the chest between ribs 4 and 5 with
transection of rib 5, passing through the front wall of the
right
ventricle of the heart. (A). Superficial abrasions of the left
eyebrow and cheek. (B)’.
[8]
Dr Leon Wagner, a forensic pathologist, testified for the defence in
support of the appellant’s version. He concluded
that the
deceased had been of slender build and therefore did not have a
strong skeleton, meaning his rib would have fractured
with minimal
force, thereby supporting the appellant’s version of how the
deceased had sustained his injuries. Dr Wagner
did not examine the
corpse but relied on information contained in the post-mortem report.
He was reluctant to make any concession
which might adversely affect
the appellant’s version. At the hearing before us, counsel for
the appellant, Mr Katz SC, accepted
the finding that the appellant
had hit the deceased. The trial court said the following about Dr
Wagner’s evidence: ‘I
am not persuaded by the reasoning
behind Dr Wagner which excludes that the deceased could have
sustained the injuries in circumstances
described by Auron Kalanie
and Sameul Persoon’. It follows that once the appellant had
conceded that he hit the deceased,
Dr Wagner’s evidence was of
no assistance to the court and correctly found wanting.
[9]
Both the trial court and the court below rejected the appellant’s
version and accepted the State’s version that
the deceased had
been standing on a trailer, with a blood alcohol content of
0.26g/100ml blood, when the appellant, who faced him,
struck him on
the upper part of his body causing the injuries recorded in the
post-mortem.
[10]
Dr G A Isaacs, who conducted the post-mortem in his capacity as a
forensic medical officer in the Department of Health, testified
that
the position of the wound suggested that the weapon used must have
moved from the deceased’s left to his right across
his chest
penetrating his heart. Supporting the version of the State witnesses
that the appellant was in front of the deceased
when he struck him.
Dr Isaacs was familiar with a hay hook and, having seen the hook
involved in this incident, said that
it did not have a knife-like
sharp edge. He therefore concluded that force had been necessary to
pierce the deceased’s heart
ten centimetres deep and sever his
rib. The trial court and the court below accepted Dr Isaacs’
reasoning. I cannot fault
that conclusion. This court has seen a
photograph depicting the hook which the court below described as ‘.
. . a metal hook
with [an] elongated shaft and a handle almost
ellipse-shaped’. I agree with the description.
[11]
I now turn to enquire whether the appellant was correctly convicted
of murder with intent in the form of dolus eventualis.
[12]
Mr Katz and counsel for the respondent, Mr Rosenberg, referred us to
S v Sigwahla
[2]
where Holmes
JA said the following relevant to the present enquiry:
[3]
‘
1.
The expression “intention to kill” does not, in law,
necessarily require that the accused should have applied his
will to
compassing the death of the deceased. It is sufficient if the
accused subjectively foresaw the possibility of his
act causing
death and was reckless of such result. This form of intention is
known as
dolus eventualis
,
as distinct from
dolus directus
.
2.
The fact that objectively the accused ought reasonably to have
foreseen such possibility is not sufficient. The distinction
must be
observed between what actually went on in the mind of the accused and
what would have gone on in the mind of a
bonus
paterfamilias
in the position of the accused. In other
words, the distinction between subjective foresight and objective
foreseeability
must not become blurred. The
factum
probandum
is
dolus
, not
culpa
. These
two different concepts never coincide.
3.
Subjective foresight, like any other factual issue, may be proved by
inference. To constitute proof beyond reasonable doubt
the inference
must be the only one which can reasonably be drawn. It cannot be so
drawn if there is a reasonable possibility that
subjectively the
accused did not foresee, even if he ought reasonably to have done so,
and even if he probably did do so.
See
S
v Malinga and Others
,
1963 (1) SA
692
(AD) at p. 694 G–H; and
S
v Nkombani and Another
,
1963 (4)
SA 877
(AD)
at pp. 883 A–C,
890B, 895F.’
[13]
Against this background of legal principle, the facts in
Sigwahla
are
striking. Having set out the law, Holmes JA, continued to outline the
essential facts as follows:
[4]
‘…
[T]he
appellant was armed with a long knife which he held in his hand; that
he advanced upon the approaching deceased; that
as he came up to
him he jumped forward and raised his arm and stabbed him in the left
front of the chest; that the force of the
blow was sufficient to
cause penetration for four inches and to injure his heart; and that
there is nothing in the case to suggest
subjective ignorance or
stupidity or unawareness on the part of the appellant in regard to
the danger of a knife thrust in the
upper part of the body. In
my opinion the only reasonable inference from those facts is that the
appellant did subjectively
appreciate the possibility of such a stab
being fatal.
In
other words I hold that there exists no reasonable possibility that
it never occurred to him that his action might have fatal
consequences, as he was advancing on the deceased with the knife in
his hand and as he was raising his arm to strike and as he
was aiming
a firm thrust in the general direction of the upper part of his body
. . . .’
Holmes
JA concluded: ‘In the result the State proved the required
legal intention to kill (
dolus
eventualis
); and the conviction
was justified’.
[14]
Recently, this court, in
Director
of Public Prosecutions, Gauteng v Pistorius
said the following:
[5]
‘
.
. . [A] person’s intention in the form of
dolus
eventualis
arises if the perpetrator
foresees the risk of death
occurring
,
but nevertheless continues to act appreciating that death might well
occur, therefore “gambling” as it were with the
life of
the person against whom the act is directed. It therefore consists of
two parts: (1) foresight of the possibility of death
occurring, and
(2) reconciliation with that foreseen possibility. This second
element has been expressed in various ways. For example,
it has been
said that the person must act “reckless as to the consequences”
(a phrase that has caused some confusion
as some have interpreted it
to mean with gross negligence) or must have been “reconciled”
with the foreseeable outcome.
Terminology aside, it is necessary to
stress that the wrongdoer does not have to foresee death as a
probable consequence of his
or her actions.
It
is sufficient that the possibility of death is foreseen which,
coupled with a disregard of that consequence, is sufficient to
constitute the necessary criminal intent
.’
(My emphasis.)
[15]
In this case, the State had to prove beyond a reasonable doubt that
(a) the appellant had had the subjective foresight of the
possibility
that striking the deceased on the upper part of his body with the hay
hook could have fatal consequences; and (b) the
appellant had ‘a
disregard of that consequence’; put differently, he had
reconciled himself with the foreseen possibility.
The two legs are
not considered in isolation. Brand JA in
S v Humphreys
described
the test as follows:
‘
On
the other hand, like any other fact, subjective foresight can be
proved by inference. Moreover, common sense dictates that the
process
of inferential reasoning may start out from the premise that, in
accordance with common human experience, the possibility
of
consequences that ensued would have been obvious to any person of
normal intelligence. The next logical step would then be to
ask
whether, in the light of all the facts and circumstances of this
case, there is any reason to think that the appellant would
not have
shared this foresight, derived from common human experience, with
other members of the general population.’
[6]
[16]
The appellant disarmed the deceased who was standing in front of him.
The appellant had 40 years’ experience as a farmer
and was
familiar with hay hooks. In my view, the weapon used, the appellant’s
knowledge of the weapon and the wounded part
of the body all lead to
the inescapable inference that he subjectively foresaw ‘the
risk of death occurring’. To infer
otherwise would be
comparable to a denial of foreseeing the possibility that a stab
wound in the chest may be fatal’.
[7]
It follows
that the first leg of the enquiry has been proved.
[17]
I turn to the second leg of the enquiry. It is necessary to deal with
the facts in
Humphreys
.
Humphreys, a minibus driver who operated a shuttle service for school
children, had on numerous occasions successfully crossed
the railway
line against the warning signals, red lights and booms. On those
occasions his actions were reckless, calculated and
put his life and
those of his passengers in great danger. On the day of the great
tragedy, Humphreys, the chancer (waaghals), was
hoping for the happy
ending he had previously had. Instead he collided with an oncoming
train killing some of his passengers and
injuring others. It is
important to bear in mind that
Humphreys
involved conscious negligence.
[8]
Therefore,
the second question posed by Brand JA was answered in the negative.
Humphreys’ exaggerated confidence in his ability
to continue to
successfully execute the life threatening manoeuvre distinguishes his
actions from those associated with ‘foresight,
derived from
common human experience’.
[18]
The appellant’s conduct differed materially from that of
Humphreys. As an experienced farmer of approximately 40 years,
he,
like Dr Isaacs, was no doubt familiar with a hay hook and knew the
hook would move like a pendulum.
[9]
Therefore
when the appellant hit the deceased across the chest, the appellant
foresaw that the hook would penetrate the deceased’s
upper body
and cause the injury sustained. The appellant, who had been a good
employer, had reason to be annoyed with the deceased,
although, the
appellant described his mood as no more than upset. While the
deceased was a good employee, the best driver on the
farm at the
time, there was urgency to get the crates to the seasonal workers
waiting in the vineyard. The relationship between
the offender and
the victim, however, is irrelevant to this enquiry. The appellant
testified that he had taken the hooks from the
deceased to avoid the
deceased getting off the trailer, intending for him to remain on the
trailer and pack the crates.
[19]
In those circumstances, the only reasonable inference is that the
appellant struck the deceased to vent his anger. It would
also
explain the wound inflicted, ten centimetres into the heart
severing a rib. Common sense dictates that force would have
been
necessary to inflict such an injury. After the deceased got off the
trailer (jumped or staggered) the appellant saw him collapse.
This is
evident from Kalanie’s evidence: ‘Accused came and told
me that he saw Lucky [deceased] and he fell there’.
The
appellant later drove with Kalanie to where he had earlier seen the
deceased collapse. Mr Edeling, who appeared on behalf of
the
appellant at the trial, put the following to the appellant: ‘Goed
en ons weet toe wat later gebeur het en toe u hom gesien
inmekaar sak
en val en die res is geskiedenis . . .’ The appellant agreed.
It is so that when the appellant realised that
he had in fact fatally
wounded the deceased, he showed immediate remorse. This is, however,
not to be confused with his initial
indifference to the consequences
of his actions: the appellant had driven off, only returning to where
the deceased had fallen
later on. I agree with the trial court’s
assessment of the remorse shown: ‘…[T]here is a chasm
between remorse
and regret, remorse is a gnawing pain of conscience
for the plight of another; whether the offender was sincerely
remorseful or
not simply feeling sorry for himself at having been
caught was a factual question . . .’
[20]
The appellant’s behaviour subsequent to the death of the
deceased was calculated to conceal his criminal deed. Once the
appellant realised that the deceased had died, he set about
influencing the potential State witnesses in an attempt to avoid
prosecution.
He kept up that lie during the trial and presented
expert evidence, probably at great cost, to support his fabricated
version.
I am prepared to assume in the appellant’s favour that
he had remorse; however, neither remorse nor regret is an element of
this offence. In the circumstances of this matter, I cannot fault the
finding that the appellant committed murder with intent in
the form
of dolus eventualis. As Holmes JA confirmed the conviction of murder
in
Sigwahla,
I
am fortified in my view that the correct verdict in this case is one
of murder.
Conclusion
[21]
In the result I would dismiss the appeal.
_____________________________
E D Baartman
Acting
Judge of Appeal
Willis
JA ( Baartman AJA concurring):
[22]
I have read the judgments prepared by Lewis JA and Baartman AJA. I
shall deal first with that by Lewis JA. In my opinion,
it
matters not at all that there were discrepancies in the version of
the eyewitnesses. Both courts below found these discrepancies
to have
been immaterial. What matters, as a matter of objective fact, is that
the appellant stabbed the deceased in the chest with
a hay hook and
that the stab wound penetrated ten cm into the chest cavity of the
deceased, severing one of his ribs. What also
matters is that the
appellant’s version that the deceased accidentally fell on the
hay hook was abandoned by his counsel
in this court. Against the
weight of evidence, it was false. That the appellant did not give a
version that could be believed operates
against him and not in his
favour. Lewis JA says: ‘We do not know what he would have
said about the way in which he
had struck the deceased’. It is
my opinion that this operates against him.
[23]
It also matters not that a hay hook is not a weapon made to kill. An
ice-pick similarly is not. So too, is an antique marble
bust, used to
hit someone on the head. Hammers, chisels, screwdrivers, garden
rakes, bricks, stones, rocks and broken glass bottles
– none of
which is designed or made to kill – have been used as
instruments of murder. Typically, one works a hay hook
such as the
one in question by jabbing bales of hay and in doing so is able to
lift a considerable weight. It is a formidable weapon
if used as one.
[24]
I do not consider that the differences in size and weight of the
appellant and the deceased is of any relevance. In my opinion,
the
converse is true. Imagine if his victim had been a child or a woman.
Would the consequence of death really have been less foreseeable?
I
do not think so.
[25]
Lewis JA asks ‘What facts?’ The relevant facts, in my
opinion, are that a defenceless, intoxicated farm worker
was stabbed
in the chest with a hay hook, the force of which was strong enough to
penetrate ten cm into his chest cavity and sever
one of his ribs.
These facts, it seems to me, speak for themselves. This kind of
injury does not occur negligently. I have not
conflated the tests for
negligence and dolus.
[26]
I also disagree with Lewis JA’s finding in favour of the
appellant on the facts that he showed remorse, that he protested
that
he had not intended to kill the deceased and that the appellant was a
good employer with no history of abusing his workers.
As the court
below correctly noted: ‘…the ex post facto melancholic
reaction by a perpetrator can in most cases be
expected’. After
all, husbands have been known to murder their darling wives in a fit
of pique or rage. I turn now to deal
with Baartman AJA’s
judgment.
[27]
I agree with Baartman AJA. There are, however, some additional
observations which I wish to make. In
S
v Dladla en andere
,
[10]
Botha AJA examined the Dutch writers in order to help one better
understand ‘opset by moontlikheidsbewussyn’ (intention
in
regard to an awareness of possibility) and quotes Van Hattum as
saying:
‘
De
wilstheorie stelt de vraag anders, nl in deze vorm: wat zou de dader
liever hebben gewild, het verwezenlijken van het door hem
beoogde
gevolg te zamen met het niet beoogde gevolg of het achterwege laten
van zijn handeling (en dus afzien ook van het beoogde
gevolg)? Komt
men tot de conclusie dat er den dader zoveel aangelegen was het
beoogde gevolg te bereiken, dat dit hem liever
was, zelfs
tezamen met het niet beoogde gevolg, dan het afzien van zijn daad,
dan besluit men daaruit dat de dader ook het mogelijke
(eventuele)
gevolg in zijn wil heeft opgenomen. Er is dus
dolus
(eventualis)
.
. . '
[11]
This
may be translated as follows:
‘
The
reasoning concerning the question of intention puts the question
differently,
[12]
namely in
this way: what would the perpetrator rather have intended, the
realisation of that which accompanies his intended act
together with
that which had been intended or the abandonment of his act (and
therefore the setting of his face against that
which he had
intended)? If one comes to the conclusion that the perpetrator was so
focused on achieving that which he had intended
that he would rather
continue with his intended act, despite its unintended consequences,
rather than set his face against it,
then one deduces therefrom that
the perpetrator
brought
into
his intention even that emergent possibility
.
That
is then
dolus
(eventualis)
’
(My
translation and my emphasis)
.
[28]
It is this concept of ‘bringing into’ one’s
intention an emergent possibility that explains why the presence
of
dolus eventualis as an element of the crime results in a conviction.
Murder is an intentional act. So too, the concept of ‘afzien’
(setting one’s face against something, abandoning it) is
important. It is the failure to do so, once one has foreseen the
possibility of the consequence ensuing, that is critical. This,
in my opinion, is what is meant by the requirement of nevertheless
proceeding ‘recklessly’, which has been recognised in
this court as being part of our law since at least
R
v Valachia.
[13]
[29]
In
S
v Swanepoel
[14]
this court referred, with approval, to Snyman’s
Strafreg
in
which it was said that, in addition to the requirement of subjective
foresight, the perpetrator must ‘versoen hom met hierdie
moontlikheid’.
[15]
Snyman, however, subtly reinterpreted a negative obligation –
to refrain or abstain from doing something into a positive
requirement that the perpetrator must ‘versoen’ himself
with the possibility of it occurring.
[30]
Apparently influenced by
Swanepoel
,
in
S
v Ngubane
[16]
this court began using terminology like ‘taking a conscious
risk’, ‘consenting', ‘reconciling’, ‘taking
into the bargain’ in addition to ‘nevertheless persisting
in his conduct’ in order to describe this so-called
‘volitional
element’ in dolus eventualis.
[17]
In his article ‘Dolus eventualis reconsidered’
[18]
Professor Andrew Paizes gives a useful outline of the conceptual
evolution of this volitional element.
[19]
[31]
Ordinarily, ‘versoen’ translates into English as ‘be
reconciled with’. Something is, however, lost
in translation in
the process. ‘To be reconciled’ has connotations of
mature and considered intellectual and
moral reflection, an
introspection and self-examination, often over a period of time. This
is not what is required before a conviction
based on dolus eventualis
can ensue. Nuances of translation may explain some of the
difficulties that appear to have been associated
with the term ‘be
reconciled with’ in regard to this volitional element.
‘Versoen’ derives from the root
word ‘soen’
- a kiss.
[32]
The ordinary, everyday idiomatic expressions in the English language
such as ‘do not flirt with death’, ‘do
not court
death’, ‘do not play with death’ and ‘do not
dance with death’ capture better, in my opinion,
what the law
demands, rather than an abstract conceptualisation as to what it
means to be ‘reconciled with’ the possibility
of death
occurring.
[33]
As was noted in
S
v Dougherty
[20]
the law requires that the prohibited act must have been
committed
dolo
malo
,
that is with a bad, evil or wicked intention. A value judgment has to
be made concerning this volitional element – as to
whether or
not the accused should ‘afzien’ at the critical moment.
[34]
It is helpful to refer to another article by Paizes, ‘
Dolus
eventualis
revisited:
S
v Humphreys
2013 (2) SACR 1 (SCA)’
[21]
– a sequel to his earlier one on the topic – in
which he refers to an article by Professor Roger Whiting
[22]
to underscore the point that the type of activity involved may be
critical in determining whether dolus eventualis was present
and
that, for example, even though the foresight of the possibility of
death and a person’s being reconciled thereto may
be present in
everyday activities such as driving or mining, deaths that result
from such activities ordinarily do not result in
a conviction of
murder. Dolus eventualis is a tainted intention. As Paizes said in
his earlier article on the subject, ‘when
all is said and
done’, a moral judgment has to be formed to determine whether
dolus eventualis is present. In his later article
Paizes argues that
factors such as callousness and the purpose of exposing the victim to
the risk of death all weigh in the equation
to determine whether
dolus eventualis was present.
[35]
S
v Humphreys
[23]
makes it clear that ordinarily a denial of foreseeing that a stab
wound in the chest may be fatal is not credible.
[24]
The inference is irresistible that when the accused was about to
strike the deceased with a hay hook, he foresaw the possibility
that
death might ensue even though that may not have been what he wanted
to happen. He should have stopped himself there and then.
He did not
do so. He flirted with death. He did not ‘afzien’ from
his intended act. Having gone ahead, despite having
foreseen such a
well-known risk and of which he, as a farmer, must have been acutely
conscious, the accused is confronted with
a moral judgment of the
community that is one of deep opprobrium. He is therefore guilty of
murder.
______________________
N P Willis
Judge
of Appeal
Lewis
JA (Tshiqi JA and Plasket AJA concurring)
[36]
I have read the judgments of my colleagues Baartman AJA and Willis
JA. I do not agree with their conclusion, and thus write
separately.
[37]
Neither judgment deals with the fact that the State’s case was
far from clear. The State witnesses’ accounts of
how the
appellant struck the deceased with the hay hook were different, and
the appellant’s version, which he no longer advances,
was also
different. The only thing that is clear from the record is that the
appellant struck the deceased with the hay hook using
some force. The
experts to whom Baartman AJA refers differed in regard to the degree
of force used, but nothing turns on that.
The appellant in this court
accepted that he was causally responsible for the death of the
deceased, and that he should have foreseen
that striking the deceased
with the hay hook might have the consequence that the deceased would
die. He was, his counsel argued,
guilty of culpable homicide.
[38]
The first question to be asked is whether the State proved, beyond
reasonable doubt, that the appellant had actual foresight
of the
possibility of his conduct causing the death of the deceased.
[39]
As the regional magistrate said, ‘by striking the deceased with
the hook on the left side of the chest the accused ought
to have
foreseen that death may occur. The accused reconciled himself with
the eventuality’. The test, as noted by the full
bench, was
incorrectly stated by the magistrate. But it appeared not to worry
the full bench since it found on the facts that the
appellant had had
actual foresight of the death of the deceased. No such finding was
made by the magistrate, however, and it is
far from clear to me how
the full bench reached that conclusion.
[40]
Baartman AJA has set out the factual background. What she does not
do, however, is consider the inconsistent versions of the
two
eyewitnesses, Persoon and Kalanie. Kalanie’s evidence is
somewhat difficult to follow because the transcript of the evidence
was for some unexplained reason not available. It was reconstructed
from the magistrate’s notes, and those of the prosecutor
and
the appellant’s attorney.
[41]
It is not disputed that the deceased was intoxicated the morning that
he was killed – the post-mortem report revealed
that. It is
also not disputed that the appellant had confronted the deceased
about his failure to tend to the cattle on the farm
over the weekend,
and that he had instructed the farm workers, including Kalanie and
Persoon, to load crates onto two trailers
that were hooked to a
tractor.
[42]
Kalanie said that before the incident, the deceased had stood on top
of one of the trailers hooked to the tractor. He was holding
a hay
hook in each hand. The appellant told him to get off the trailer but
the deceased ignored him. The appellant had been angry,
and had
pulled the hooks out of the deceased’s hands. He then struck
him with one of the hooks, held in the appellant’s
right hand,
on the left side of the deceased’s chest. He hit him only once,
and then pulled the deceased towards him with
the hook.
[43]
He said that the deceased had staggered to the other side of the
trailer and then fallen off. He got up and ran to the other
side of
the storeroom. The appellant had then driven away. He later told
Kalanie that the deceased had fallen behind the storeroom.
They drove
to the spot together and the appellant asked Kalanie to turn him over
and look to see where he had been struck. Kalanie
had opened the
deceased’s overall jacket and saw that he had been struck in
the chest. He was still alive at that stage,
but stopped breathing as
they stood there. The appellant had then taken off his hat and said
he had not meant to kill the deceased.
He also told Kalanie that he
must not tell anyone that he had hit the deceased, but must say that
he fell on the hook.
[44]
The appellant’s counsel asked Kalanie to demonstrate how the
hay hook had been used to strike the deceased. The court
observed,
after the demonstration, that: ‘he hold hook with right hand 90
degree above head with the sharp edge of the hook
facing forward and
swing it 180 degrees half a circle wide forward towards the target in
front of his arm in extend to his back
with 90 degree bent in the
elbow and from there hooks was above head’. Kalanie then said
that the appellant had hit with
great force forward.
[45]
Persoon’s account was somewhat different, which the full bench
acknowledged. When Persoon’s version was put to
Kalanie, he
said that it was not correct, notably that people were in different
locations, and that the deceased had not moved
forward before the
appellant struck him. He also said that he did not hear the appellant
swearing at the deceased. Persoon, on
the other hand, heard the
appellant using vulgar and abusive language.
[46]
Persoon’s demonstration of how the appellant had struck the
deceased was different. The hay hooks, he said, were held
with the
curved end upwards and the handles downwards, which was quite
different from Kalanie’s demonstration.
[47]
Given that the appellant has abandoned the version he maintained at
the trial (that the deceased fell on the one hay hook),
we do not
know what he would have said about the way in which he had struck the
deceased. And so the facts that would give rise
to an inference (the
only reasonable inference to be drawn) that the appellant had actual
foresight that the blow that he struck
might kill the deceased, are
far from clear. They do not emerge from the evidence of the State
witnesses. And they do not emerge
from the evidence of the doctors.
That evidence related purely to the nature of the wound inflicted and
the degree of force used
by the appellant. The evidence of Dr
Isaacs as to how the blow was probably struck does not accord with
either of the demonstrations
of Kalanie or Persoon.
[48]
The onus is on the State to prove that the appellant had actual
foresight of the possibility of death. The evidence it adduced
is
such that no reasonable inference of actual foresight, let alone of
accepting the consequences of his conduct, can be drawn.
On the
contrary, the appellant’s reaction immediately after the
deceased died was that he had not meant to kill the man.
This was not
just an expression of remorse: it was a clear indication that he had
not actually foreseen death as a possibility.
[49]
This is not a case where an accused, armed with a weapon used to
injure, like a knife or a dagger, stabs another, having intended
to
injure and having foreseen the possibility of death, but carries on
regardless. A hay hook is not a weapon: it is an implement
used to
move bales of hay. Although it tapers to a point, is is not a
particularly sharp one. The appellant seized the hay hooks
from the
deceased because he wanted the deceased to get off the trailer and
start taking crates to the seasonal workers on the
farm. He was
either angry or frustrated and struck out at the deceased. But that
does not justify the finding of the full bench
that:
‘
Regard
being had to the nature of the weapon used the possibility of the
consequences that ensued would have been apparent to any
person of
normal intelligence.
On
the facts
,
the only reasonable and inexorable inference to be drawn is that when
he gave vent to his ire it was immaterial to the appellant
whether
the consequences would flow from his action; put differently, he
proceeded nevertheless or persisted with his conduct indifferent
to
the fatal consequence of his action.’ (My emphasis.)
[50]
The question that springs to mind is ‘What facts?’ since
there is so much uncertainty as to how the wound was inflicted
and
what the state of mind of the appellant was. In
S v Humphreys
[2013] ZASCA 20
;
2013 (2) SACR 1
(SCA) Brand JA said (para 13):
‘
For
the first component of dolus eventualis it is not enough that the
appellant should (objectively) have foreseen the possibility
of fatal
injuries to his passengers as a consequence of his conduct, because
the fictitious reasonable person in his position would
have foreseen
those consequences. That would constitute negligence and not dolus in
any form. One should also avoid the flawed
process of deductive
reasoning that, because the appellant should have foreseen the
consequences, it can be concluded that he did.
That would conflate
the different tests for dolus and negligence.’
[51]
In my view, that is precisely what the full bench did and my
colleagues would do now. They have inferred from the fact that
a hay
hook has a relatively sharp end, that the reasonable person would
have foreseen that the impulsive striking out at a person
in the
position of the deceased might result in the death of the deceased,
and that the appellant thus did foresee the possibility
of death
ensuing. That is to conflate the tests for negligence and dolus.
[52]
The hay hook in question, a picture of which appears below, is
not like a long knife with a sharp end that would inevitably
inflict
a serious or fatal wound. It was a farm implement used for a
different purpose, not inflicting harm on a person. And there
is
nothing to suggest that the only inference to be drawn from the fact
that the appellant struck the deceased with it is that
he actually
foresaw the possibility of death ensuing.
PLEASE
CONSULT THE PDF VERSION FOR THE IMAGE
[53]
There is even less to suggest that he continued regardless,
reconciling himself to that possibility. While Baartman AJA concludes
that, as a farmer with experience in using hay hooks for moving bales
of hay, the appellant would have known what the consequences
of
hitting a person with one would be, it can hardly be said that the
common experience of farmers hitting people with hay hooks
is that
they will be seriously, even fatally, wounded. Hay hooks are designed
for moving bales of hay. They are not weapons used
to inflict harm on
a person. And there is absolutely no evidence that the appellant had
any experience of hitting a person with
a hay hook himself, or seeing
anyone else do it.
[54]
Given the circumstances, and the nature of the implement used to
strike at the deceased, the case is to be distinguished from
that
described by Holmes JA in
S v Sigwahla
1967 (4) SA 566
(A) at
570F-H (referred to by Baartman AJA, but worth repeating to
demonstrate the differences in circumstances):
‘
In
the present case the salient facts are that the appellant was armed
with a long knife which he held in his hand; that he advanced
upon
the approaching deceased; that as he came up to him he jumped forward
and raised his arm and stabbed him in the left front
of the chest;
that the force of the blow was sufficient to cause penetration for
four inches and to injure his heart; and that
there is nothing in the
case to suggest subjective ignorance or stupidity or unawareness on
the part of the appellant in regard
to the danger of a knife thrust
in the upper part of the body. In my opinion the only reasonable
inference from those facts is
that the appellant did subjectively
appreciate the possibility of such a stab being fatal. In other words
I hold that there exists
no reasonable possibility that it never
occurred to him that his action might have fatal consequences, as he
was advancing on the
deceased with the knife in his hand and as he
was raising his arm to strike and as he was aiming a firm thrust in
the general direction
of the upper part of his body.’
[55]
Baartman AJA states that ‘the only reasonable inference is that
the appellant struck the deceased to vent his anger’.
That may
be so. But it does not give rise to the next necessary inference,
which is that he actually foresaw that the deceased
might be killed
by his conduct. As Leach JA said in
Director of Public
Prosecutions, Gauteng v Pistorius
[2015] ZASCA 204
;
[2016] 1 All
SA 346
(SCA) para 34:
‘
As
this court has pointed out, while the subjective state of mind of an
accused person in a case such as this is an issue of fact
that can
often only be inferred from the circumstances surrounding the
infliction of the fatal injury, the inference to be properly
drawn
must be consistent with all the proved facts.’
[56]
The only proven facts in this matter are that the appellant struck
the deceased with a hay hook, which penetrated his heart
and
fractured a rib. The deceased was slight and thin, the appellant was
much bigger and heavier, and the reasonable man would
have foreseen
that the hook might penetrate the body if he hit a person with it.
Given that we do not know how the hook penetrated
the body, and what
degree of force was used, we cannot infer that the appellant actually
foresaw the death of the appellant and
struck him regardless of the
consequences. There is also no dispute that, immediately after
discovering the death of the deceased,
he said in the presence of his
employees that he had not intended to kill him. The inference to be
drawn from that is that he did
not foresee that death would result
from his hitting the deceased with the hay hook. At the very least
this is one reasonable inference
that may be drawn from the facts,
assuming that there may be others.
[57]
The full bench thus erred in finding that the appellant actually
foresaw the possibility of death. There is accordingly no
need to
consider whether he had reconciled himself to the possibility of
death occurring. In the circumstances, I conclude that
the appellant
is not guilty of murder, but is guilty of culpable homicide.
[58]
The appellant and the State agree that this court is in as good a
position as the trial court would be to determine the appropriate
sentence to be imposed for culpable homicide. There has already been
considerable delay in the finalization of this matter, which
is not
in the interests of justice. The appellant has been in prison since
the conviction by the trial court on 11 February 2014.
[59]
The evidence of both Persoon and Kalanie was that he was a good
employer, who had no history of abusing his workers. On the
morning
of the incident, he was provoked by the deceased who had not fed the
animals on the farm and was drunk on a Monday morning.
He lashed out
impulsively. That does not mean that he should not be punished. He
has caused the death of another person and must
suffer the
consequences. Society should not tolerate crimes of violence and
especially those against employees on farms.
[60]
The appellant’s incarceration has led to many people being
deprived of employment. His family is dependent on him. He
is at this
stage a man in his sixties. The trial court had before it the
evidence of a probation officer and a social worker for
the
appellant. They reported that the appellant had serious health
problems.
[61]
I consider that a sentence of six years’ imprisonment, three of
which should be suspended on the usual conditions, is
appropriate.
[62]
It is accordingly ordered that:
1
The appeal is upheld to the extent set out below.
2
The conviction of murder, and the sentence of eight years’
imprisonment, are set aside.
3
The order of the Northern Cape Division of the High Court is replaced
with the following:
‘
The
appellant is convicted of culpable homicide, and is sentenced to six
years’ imprisonment, dated back to 14 February 2014,
three
years of which are suspended for a period of five years on condition
that the appellant is not convicted of any crime, of
which violence
is an element, committed during the period of suspension.’
______________________
C H Lewis
Judge
of Appeal
For
Appellant:
A Katz SC
L Stansfield
Instructed by:
Liddell Weeber & Van der Merwe
Inc, Cape Town
Du Plooy Attorneys,
Bloemfontein
For
Respondent:
J Rosenberg
Instructed by:
The Director of
Public Prosecutions, Kimberley
The Director of
Public Prosecutions, Bloemfontein
[1]
Regrettably
for the acting regional court magistrate, he concluded as follows:
‘
By
striking the deceased with the hook on the left side of the chest
[the] accused ought to have foreseen that death may occur.
[The]
[a]ccused reconciled himself with the eventuality.’
[2]
S v
Sigwahla
1967
(4) SA 566 (A).
[3]
At 570B-E.
[4]
At 570G-H.
[5]
Director
of Public Prosecutions, Gauteng v Pistorius
(96/2015)
[2015] ZASCA 204
;
[2016] 1 All SA 346
(SCA) para 26.
[6]
S v
Humphreys
(424/2012)
[2013] ZASCA 20
;
2013 (2) SACR 1
(SCA);
2015 (1) SA 491
(SCA) para
13.
[7]
Humphreys
para 15
where the court stated: ‘To deny this foresight would in my
view be comparable to a denial of foreseeing the possibility
that a
stab wound in the chest may be fatal’.
[8]
F Lareau
‘The Difference Between Negligent Homicide and Reckless
Homicide when Both of them Involve Consciousness of the
Risk’
(1987) vol 1
Criminal
Law Forum.
[9]
Dr Isaacs
said: ‘Ek kan miskien byvoeg en ek het op ‘n plaas groot
geword en ek het baie gesien hoe die wapen gebruik
word of die
instrument gebruik word. Wat gewoonlik was om lusern bale te beweeg
te skuif. En die klasieke aksie was altyd om
beide te hê in
beide hande heen en dan in te kap. Dit begin wel bo maar dit kap dan
lateraal in om die baal dan in te kap
en dan op te lig. So iemand
wat gewoond was om die tipe instrument te gebruik het ‘n
natuurlike aksie ontwikkel en hy kon
baie vinnig met die werk in
daardie spesifieke beweging om bale te verskuif.’
[10]
S v
Dladla en andere
1980 (1) SA
1 (A).
[11]
At 4E.
[12]
From culpa.
[13]
R v
Valachia
&
another
1945
AD 826
at 831.
[14]
S v
Swanepoel
1983
(1) SA 434
(A)
.
[15]
At 456H.
[16]
S v
Ngubane
1985
(3) SA 677 (A).
[17]
At
685D-686A.
[18]
A Paizes
‘
Dolus
eventualis reconsidered’
(1988) 105
SALJ
636.
See also P Smith
‘
Recklessness
in
Dolus
E
ventualis
’
(1979) 96
SALJ
81.
[19]
See
also
S
v Humphreys
(424/2012)
[2013] ZASCA 20
;
2013 (2) SACR 1
(SCA) para 17 and
Director
of Public Prosecutions, Gauteng v Pistorius
(961/2015)
[2015] ZASCA 204
;
[2016] 1 All SA 346
(SCA) paras 26 and
51.
[20]
S v
Dougherty
2003
(4) SA 229 (W).
[21]
Paizes
‘
Dolus
eventualis
revisited:
S
v Humphreys
2013 (2) SACR 1
(SCA)’
(2013) 1
Criminal
Justice Review
.
[22]
R Whiting
‘
Thoughts
on dolus eventualis’ (1988) 3
SACJ
440.
[23]
S v
Humphreys
footnote
6.
[24]
Paragraph
14.