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[2010] ZAGPJHC 34
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S v Herman (A679/2009) [2010] ZAGPJHC 34; 2010 (2) SACR 263 (GSJ) (6 May 2010)
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IN
THE HIGH COURT OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE
No. A679/2009
REPORTABLE
In
the matter between:
ZAIBONISHA
HERMAN
Appellant
and
THE
STATE
Respondent
____________________________________________________________
JUDGMENT
____________________________________________________________
WILLIS
J:
[1]
This is an appeal against conviction. The appellant had been
arraigned in the Regional Court in Johannesburg on three counts of
assault with intent to commit grievous bodily harm (alternatively a
contravention of section 50 (1) (a) of Act 74 of 1983. The
fourth
count was murder, alternatively culpable homicide. The appellant, who
enjoyed the benefit of legal representation throughout
her trial, was
convicted, as charged, on the main count, on the first three counts
and on the fourth count, on the alternative
count of culpable
homicide. She was sentenced to five years’ imprisonment on each
of the first three counts and 10 years’
imprisonment on the
count of culpable homicide. The sentences on the first three counts
were ordered to run concurrently. The effective
sentence was
therefore 15 years’ imprisonment. The learned magistrate, Mr
L.J. Van der Schyff, granted the appellant leave
to appeal against
conviction only. The appellant was on bail, subject to certain fairly
standard terms and conditions, from the
time of her arrest. She was
granted bail pending the appeal, although the amount of bail was
increased from R10 000- to R20 000-.
The alleged offences were committed over the period of time from
October 2004 to 18
th
January, 2006. She was convicted on 12
th
September 2008 and sentenced on 28
th
November, 2008.
[2] This has been
a most harrowing case for all concerned. It involves the cruel and
brutal treatment of baby by her adoptive mother.
The judgments of our
courts are replete with examples of how, especially since the advent
of our new constitutional order, the
courts are there to protect and
defend the weakest and most vulnerable in our society. Who could be
more vulnerable than a baby?
This background will explain the high
emotions that have permeated this case.
[3]
The appellant was 46 years of age at the time of her conviction. She
and her husband at the time of the alleged crimes had met
during 1989
and were married on 26
th
April, 1996. Both the appellant and her husband had previously been
divorced, each having one child by their previous marriages.
These
children appear to have grown up and do not form part of the
unfolding picture.
[4]
Although the appellant and her husband had wanted to have children
together, this had not, for medical reasons, been possible.
The
reasons may have been related to her age. The appellant and her
husband then decided to adopt a child. They had specifically
had
requested a daughter. The process took about three years. On 31
st
August, 2004, they adopted a child who had been born on the 24
th
March, 2004. They had first been shown the child when she was about
three months old and received her child into their care on
7
th
July, 2004. The adoption was an “official” one recorded
by the Department of Social Welfare by the Registrar of Adoptions
in
terms of the Child Care Act, No.74 of 1983. The appellant and her
husband named this child “T”. I shall refer to
the child
as T in this judgment.
[5] Some 16
witnesses testified on behalf of the State, including medical
specialists, social workers and relatives of the family.
The
appellant testified in her defence and also called and expert, Dr
Gert Saayman, concerning the question of her guilt or otherwise.
Upon
conviction, she called Mr Jeremy Mostert, a counselling psychologist
to testify in mitigation of sentence.
[6]
The learned magistrate is to be commended for delivering a
comprehensive and impressively analytical judgment. Accordingly,
it
is un
necessary
for this court to repeat the exercise of summarising and analysing
the evidence in fine detail.
[7]
With the singular exception of Dr Wise, the expert evidence of
eminent, highly qualified, and reputable medical specialists
was not
challenged by the defence. Dr Wise noted three areas of trauma not
mentioned by any of the other witnesses but, as the
learned
magistrate correctly observed, nothing turns on this. There can be
any number of explanations for this and the failure
of others to
mention these areas of trauma does not cast doubt on the salient
aspects of the evidence. In other words, the fact
that T may have
sustained relatively minor injuries shown up in these other areas of
trauma observed by Dr Wise does not, against
the background of all
the evidence, disturb a court’s ability to place reliance on
the essential accuracy of all the medical
experts’ general
observations.
[8]
I shall deal with the most serious count - that of culpable homicide
- first. T was brought to the Garden City Clinic on the
evening of
18
th
January, 2006 by the appellant and her husband and attended to, upon
arrival, by Dr Moosa (also referred to as “Dr Moosajee”).
He observed that the T was very ill indeed: she was extremely pale,
anaemic, had a poor pulse, was cold to the touch, dehydrated,
had a
dry tongue and had difficulty breathing. She had bruises on various
parts of her body.
[9]
Desperate attempts by the doctors and staff of the Garden City Clinic
to save the life of T failed. She died in the hospital
on 21st
January, 2006. Dr Kevin Fourie, a forensic pathologist, performed
the autopsy on T on 23
rd
January, 2006. He found the following injuries:
An
old elbow fracture;
Bruising
of the scalp on the left parietal region on the left upper part of
the head;
Bruising
of the brain corresponding with the bruised scalp and these were
fresh injuries;
Several
old and fresher fractures of several ribs on both sides of the
chest;
A
large sub-capsular haematoma of liver.
[10]
Dr
Fourie attributed the cause of death to “a blunt force injury
of liver with hypo volaemic shock”. In his opinion,
severe
force must have been visited upon T. Formal admissions were made by
the appellant that there could have been no intervening
cause,
including medical negligence, of the death of T from the time she was
admitted to the hospital until the time she died.
There was, in other
words, no
novus
actus interveniens
.
The suspicions aroused by the autopsy, together with the observations
of other medical experts who had seen T, led to further
investigations and the charges which the appellant faced in the court
a
quo
.
[11]
Dr Fourie conceded that the injury to the liver could, theoretically,
have been up to 24 hours old at the time when the child
was presented
at hospital on 18
th
January, 2006. Dr Fourie was of the opinion that none of the
injuries, apparent from the autopsy could have been sustained
accidentally.
[12]
In the trial and in the appeal the case with regard to the fourth
count turns on one issue: whether the inference may be drawn,
beyond
reasonable doubt, that the appellant was the only person who could
have delivered the injuries which resulted in the death
of T?
[13]
By
the end of the trial, the appellant’s version of events was
that the injuries which the child sustained and resulted in
her being
admitted to hospital on 18
th
January, 2006 (and from which injuries she died) could have resulted
from a fall in the shower by the child while her husband was
absent,
taking exercise. No one else was in the home at the critical time.
The evidence of Dr Fourie is that the injury of the
liver which
resulted in T’s death could, quite, simply not have been caused
by a child of this age falling in a shower. Although
the focus on the
alleged fall in the shower seemed to shift with the passage of time,
by the end of the trial, her version seemed
to be: one simply does
not know how the child sustained the fatal injuries to the liver (as
well as other visible, non-fatal injuries
such as bruises on her
back, both eyelids and nose as well as superficial lacerations on her
lip) on the 18
th
January, 2006. Put differently, her case was this: they could have
been attributable to anyone or any other accidental cause.
[14]
Although
Dr Fourie conceded that the injury to the liver could have been
caused several hours before the time of the alleged shower
or even a
day before, he was adamant that the child would have manifested
obvious symptoms of severe distress beforehand. Similar
evidence was
given by Dr Banieghbal, a paediatric surgeon, also a called by the
State. Dr Banieghbal was explicit that T would
have been in severe
pain which should have been obvious. These symptoms, the appellant,
on her own version, did not see.
[15]
Professor Gert Saayman, head of Forensic Medicine at the University
of Pretoria, testified in the defence of the appellant.
He was forced
to concede that no matter how many hours beforehand the fatal injury
had been inflicted, symptoms would have been
manifest at the critical
time, i.e. when the appellant was with T when she came home on 18
th
January, 2008. He attempted, however, to minimise the extent to
which they would have been apparent to a lay person such as the
appellant. Although the appellant’s version at another stage
was that her child was not well when she (the appellant) came
home on
the fateful day, she says the child ate supper from her own plate and
the appellant’s plate as well. Although Dr
Banieghbal conceded
that symptoms such as lethargy and nausea (described by the
appellant) could be consistent with liver injury,
his firm opinion
was that the child, having the kind of liver injury in question,
would not have been able to eat. Moreover, as
mentioned earlier, the
child would have been in severe pain which should have been obvious.
When asked to describe how her child
appeared when she came home on
18
th
January, the appellant said she was “sulky”, had a runny
nose and was “just very slow that day”. The appellant
made no mention of any injuries to the child’s eyes or lip.
Furthermore, as the learned magistrate observed, there are
contradictions
and discrepancies in her evidence relating to her
encounters with Drs Bhutt and Moosajee.
[16]
To
my mind, as far as the count of culpable homicide is concerned, the
proven facts exclude every reasonable inference other than
that the
appellant inflicted the injuries from which T died. The cardinal
rules of logic in
R
v Blom
1
have been satisfied.
The
“totality approach” of Nugent J, as he then was, in
S
v Van der Meyden
2
where he emphasises the importance of looking at the totality of the
evidence, very much commends itself in a case such as this.
That
judgment of Nugent J has received the unanimous approval of five
judges in the Supreme Court of Appeal. (See
S
v Van Aswegen
3
.)
(See
also
R
v Hlongwane
4
;
S
v Hlapezula & Others
;
5
S
v Khumalo & Others
6
.)
Lest there be any suspicions about whether the appellant’s
husband was the culprit in inflicting the injuries, not only
does a
technical analysis of the evidence exclude the possibility but also
there was reliable evidence, both direct and circumstantial,
from
various sources that he had a particularly close and “bonded
relationship” with T. The “totality”
approach
furthermore makes it
irrelevant that the appellant’s husband was not called by the
State. It should also be recorded that it is common cause that
the
State made the appellant’s husband available to be called by
the defence. I also wish to emphasis that the appellant
has not been
found guilty because she lied, although, obviously, her lies have not
helped her. The totality of evidence points
to her as the culprit.
Her “explanations” failed to disturb the conclusions to
be drawn.
[17]
Insofar
as the first count of assault with intent to commit grievous bodily
harm is concerned, this relates to a fractured elbow
which occurred
in October 2004, when the child was six to seven months old. It is
common cause that the child did indeed suffer
from such a fractured
elbow at the time, that the appellant was then maternity leave and
that T was her constant care. The expert
evidence was that such an
injury would have been excruciatingly painful for the child. The
appellant’s version is that she
did not notice anything wrong
with the child at the time. This cannot be believed. I am unimpressed
with Dr Saayman’s evidence
that any injury to the elbow is
“almost like taking your pet to the vet because they cannot
verbalise”. As he was forced
to concede, this injury would have
been very painful. When a child so young was in the appellant’s
daily care at the time,
the appellant would have had to have been
aware of the child’s considerable discomfort. Here again, the
totality of the evidence
points irresistibly to the appellant’s
guilt.
[18]
The
second count of assault with intent to commit grievous bodily harm
related to fractured ribs which, it is common cause, the
child
experienced between December 2005 and January 2006. From the evidence
of Rafika Hussein, the appellant’s niece, the
incident relating
to these fractured ribs must have occurred on 11 January when the
family were celebrating Eid. Rafika noticed
that suddenly and
inexplicably the child was experiencing pain on her left side. This
evidence as to the date correlates exactly
with the expert opinion of
Dr Saayman. Rafika Hussein reported the incident to the appellant. It
seems that the only caregivers
for the child on that day were the
appellant and Rafika Hussein. If Rafika Hussein did not cause the
injury, one’s suspicions
lie with the appellant. Nevertheless,
there was evidence that the child had fallen from a wall that day
while playing. It is true
that Rafika Hussein noticed T’s
discomfort
before
her
fall from the wall but it does not follow that the discomfort
necessarily related to the fractured ribs, although, of course,
it is
probable. Therefore, while the fall from the wall does not appear to
have caused the fractured ribs, I do not think this
can be excluded.
Furthermore the child was in the company of many different people on
that festive day and seemingly very active.
One simply cannot be
sufficiently certain precisely how or when the incident causing the
fracture of the ribs occurred. The appellant
must receive the benefit
of the doubt.
[19]
In
so far as the third count of assault with intent to commit grievous
bodily harm is concerned, this relates to the other injuries
sustained by the child on the 18
th
January 2006 and not the fatal injury to the liver. The learned
magistrate held, accordingly, that there was no unfair duplication
of
charges. In my opinion, the learned magistrate erred in this regard.
The issue is one not free from intellectual difficulties.
A decision
in this regard has to be based not only on sound reasoning but also a
court’s perception of fairness.
7
It should be borne in mind that, after all, in my experience, when a
person at almost the same time, intentionally inflicts multiple
injuries to another but the cause of death is attributable to one
single blow, that person is normally charged with murder only
and not
both murder and assault. It is clear that the appellant, in a
single
fit of rage, depression, frustration or whatever assault severely
assaulted T while her husband was out jogging. There was therefore
a
single criminal act.
[20]
In all the circumstances, the conviction on the third count therefore
cannot stand. I accept that, technically, the count
relating to
assault entails the element of intention and that culpable homicide
normally entails negligence. Nevertheless, this
is not always
necessarily the case. In other words, when it comes to what lawyers
commonly refer to as
mens
rea
,
intention is not always sufficient to justify a verdict of murder.
Conversely, culpable homicide does not always entail the absence
of
intention. Although, ordinarily, the distinction between murder and
culpable homicide is most commonly found in the difference
between
“intention” and “negligence” respectively,
there are largely “hidden” or “obscure”
elements that, from time to time, can render this distinction too
simplistic. I attempted to deal with this issue in
S
v Dougherty
.
8
In an important respect, the learned magistrate was aware of this
subtlety. It influenced his finding of culpable homicide, rather
than
murder, on the fourth count. He found that it had not been proven,
beyond reasonable doubt, that the appellant, when she had
fatally
injured T, had reconciled herself to the possibility of her death.
The appellant may consider herself to have been fortunate
to have
been convicted of culpable homicide rather than murder in all the
circumstances. As lawyers well know, the line between
culpa
and
dolus
eventualis
is
a fine one indeed. I think, however, that the learned magistrate
returned the correct verdict in regard to the fourth count.
Nevertheless, the conviction on the third count cannot stand. In
regard to the verdict of culpable homicide, my line of reasoning
would, however, have been ever-so-slightly different from that of the
learned magistrate: there is so much that is uncertain about
the
appellant’s actual state of mind at the time that one could not
safely make a finding that she acted
dolo
malo
.
[21]
As recorded above, leave to appeal against sentence was not granted.
Furthermore, the learned magistrate acted carefully in
the matter and
one cannot criticise him. As the sentences on counts two and three
were ordered to run concurrently with the sentence
on count one, one
is tempted to conclude that this court’s interference with the
convictions on counts two and three should
make no difference to the
result on sentence. On the other hand, the learned magistrate seems,
very sensibly, to have taken a view
not only as to the cumulative
effect of sentence but also the aggregate thereof in regard to the
totality of convictions. For
example, he could just as well have
ordered the sentence on count three to run concurrently with that on
count four and, in view
of the concurrency of those counts, there
would be a certain “logic” in doing so. On the other
hand, one can quite
understand why he ordered the sentence on count
three to run concurrently with the sentence on count one in view of
their similarity.
As mentioned earlier, the learned magistrate seems
to have taken the view that, having regard to the aggregate of the
four convictions,
it was appropriate to impose a sentence of 15
years’ imprisonment. On what the learned magistrate had before
him at the time
(in terms not only of the actual convictions, but
also the overall facts and circumstances and the evidence in
mitigation) there
would be no basis to interfere with the sentence
which he imposed. On the other hand, counts two and three are hardly
trivial counts.
If they fall away, if they are set aside, it would
seem somewhat artificial to conclude that this should have no impact
on sentence.
Nevertheless, in view of the fact that one is unable to
fault the magistrate’s reasoning on sentence, it would seem
unfair
to him for this court to interfere with it and impose another
sentence. Fairness to the learned magistrate, the appellant and the
State suggest that the court
a
quo
should have the opportunity to consider sentence afresh in the light
of the outcome of the appeal. On the question of sentence,
this is an
exceptionally difficult case. It seems to me that one should proceed
with the utmost carefulness in a difficult case
such as this.. The
question arises: can the court remit the matter back to the court
a
quo
for
a reconsideration of sentence in such circumstances?
[2
2]
Section 304
(2) (v) of the
Criminal Procedure Act, No 51 of 1977
, as
amended (“the Act”) gives the court on review the power
to remit a case back to the magistrate’s court “with
instructions to deal with any matter in such a manner as the
provincial or local division may think fit”. Nevertheless, this
power only arises if the matter has come for review in the ordinary
course in terms of section 302 of the Act or if the High Court
acts
in terms of section 304 (4) of the Act, in circumstances where the
proceedings were “not in accordance with justice”.
Section 304 (4) of the Act is routinely invoked in this division
where a court hearing an appeal considers that it is appropriate
to
intervene on some or other aspect which has not pertinently come
before it directly in the appeal. The “classic”
example
is where there was more than one accused in a trail before the court
a
quo.
The appeal of one shows that one or more of the co-accused who has
not yet appealed should have been acquitted. The court will
then
intervene, even though the appeal of the co-accused has not,
technically, been before it. One could perhaps reason that, as
certain of the convictions are set aside that the proceedings are
“not in accordance with justice”. Nevertheless, it
is the
question of sentence that one is considering remitting for a
reconsideration and, as has been recorded above, one can hardly
criticise the learned magistrate in this regard. Therefore, one can
hardly find that his sentence was “not in accordance
with
justice”. This court is thus faced with a knotty legal
conundrum.
[23]
In my opinion, the answer is to be found in the inherent jurisdiction
of the High Court to exercise a review power. In
Union
Government v West
9
Solomon
JA, with four judges of the Appellate Division concurring, proclaimed
the inherent jurisdiction of the “Courts of
Justice” to
review other decisions of other tribunals in order not to “stultify
ourselves” by taking an overly
“technical”
approach. In
Ex
parte Millsite Investment Co (Pty) Ltd
10
Vieyra
J referred to the
Union
Government v West
case
and said:
The
inherent power claimed is not merely one derived from the need to
make the Court’s order effective, and to control its
own
procedure, but also to hold the scales of justice where no specific
law provides directly for a given situation.
[24]
In a helpful review of the common law and various other cases,
Findlay AJ, in
S
v Shezi
,
11
referred
to what was said by Vieyra J in the extract quoted immediately above
with approval. In
S
v April
12
Findlay AJ sitting in another division, with Steenkamp J (as he then
was) concurring, referred to the
Shezi
case and recorded that in the Northern Cape the practice was to adopt
a similar approach in the inherent jurisdiction of the courts.
13
The idea of the inherent jurisdiction of the High Court being invoked
in order to find practical solutions to ensure that justice
is done
has a respectable pedigree.
[25]
It seems to me that, in order “to hold the scales of justice”
in this case, the matter should be remitted to the
court
a
quo
to reconsider sentence. Although Mr
Classen
,
who appeared for the appellant would have preferred that this court
interfere with sentence and Mr
Mohamed
,
who appeared for the State, that the court should not remit the
matter for a reconsideration of sentence, both Mr
Classen
and Mr
Mohamed
had no difficulty with the principle of so doing. Both these
gentlemen conceded that, alternatively to their main submissions
succeeding, it would be fair to do so. It seems to me that all of
society would benefit from such a course. In a dreadful case
such as
this, the advantages of a full enquiry are obvious. There can be no
doubt that crimes such as these fill society with revulsion
at the
core of its being. We battle to understand why crimes that appear so
profoundly to be “against nature” occur.
We need to know
how we can ensure the early detection of the risks and dangers of
their occurrence in order that we can prevent
them. We need to know
how we can help when such appalling patterns of behaviour begin to
occur. In this case, there is evidence
that the appellant suffered
from a bipolar disorder and depression, that she had serious
emotional problems, that she was troubled
by rumours that the child
was that of her husband’s by another woman. Justice must be
done but this entails much more than
that our anger at such crimes
should require a “slow tread of years” by the appellant
in prison.
14
The learned magistrate needs to be guided by expert opinion and
advice, given in public, in open court. To this end, I would implore
the legal representatives of both the State and the appellant to
prepare thoroughly and to co-operate with each other.
[26]
The following order is made:
The
appeal against conviction in respect of counts 1 and 4 is dismissed;
The
appeal against conviction on counts 2 and 3 is upheld;
The
convictions on counts 2 and 3 are set aside;
The
sentences on counts 1 and 4 are set aside;
The
question of sentence on counts 1 and 4 is remitted to the court
a
quo
for
a reconsideration;
Both
t
he
appellant and the State may lead additional evidence before the
court
a
quo
in
regard to an appropriate sentence;
In
considering an appropriate sentence the learned magistrate is
consider all previous evidence placed before the court and any
additional evidence that may be led;
The
court
a
quo
is
to impose an appropriate sentence in the light of the aforegoing;
The
appellant is to report to Court 20, at the Johannesburg Regional
Court, on 20
th
May, 2010 in order for a date for the further hearing on sentence to
be set;
Pending
any further order by any court, the appellant’s bail is
extended on the same terms and conditions as applied pending
the
hearing of this appeal.
DATED
AT JOHANNESBURG THIS 6
th
DAY OF MAY, 2010
N.P.
WILLIS
JUDGE
OF THE HIGH COURT
I
agree.
M.
RANDERA
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the Appellant:
E.S.
Classen (Attorney certified in terms of section 4(2) of Act 62 of
1995)
Attorneys
for the Appellant: David Botha, Du Plessis & Kruger Inc.
Counsel
for the State: F. Mohamed
Date
of hearing: 5
th
May, 2010
Date
of judgment: 6
th
May, 2010
1
1939
AD 188
at 202-3.
2
1999 (2) SA 79
(W);
1999 (1) SACR 447
(W).
3
2001 (2) SACR 97
(HHA)
at 101a-f.
4
1959 (3) SA 337
(A) at
340H-341B.
5
1965 (4) SA 439
(A) at
442F.
6
[1991] ZASCA 70
;
1991
(4) SA 310
(A) at 327H-I.
7
See,
for example,
R
v Kuzwayo
1960 (1) SA 340
(A) at 344B;
S v Whitehead & Others
2008 (1) SACR 431
(SCA) at paragraph [35];
S
v Mabaso
1989
(4) SA 800
(T) at 804G-H;
S
v Davids
1998
(2) SACR 313
(C) at 316d;
S
v De Vries & Others
2009
(1) SACR 613
(C) at paragraph [391].
8
2003 (2) SACR 36
(W) at paragraphs [31] to [37].
9
1918
AD 556
at 572-3.
10
1965
(2) SA 582
(T) at 585H.
11
1984
(2) SA 577
(N) at 579A to 580D, especially at 580A.
12
1985
(1) SA 339
(NC) at 645I
13
See,
at p646E.
14
See
the judgment of Holmes JA in
S v V
1972 (3) SA 611
(A) at 614H.