S v R.S and Another (SS27/2021) [2023] ZAGPJHC 1200 (20 October 2023)

80 Reportability

Criminal Law

Brief Summary

Criminal Law — Murder — Accused charged with murder of 12-year-old daughter — Accused admitted to assaulting the child leading to her death — Legal issue of culpability and intent in relation to the actions of the accused — Court found both accused guilty of murder, emphasizing that sympathy for their emotional state does not negate their responsibility for the fatal assault.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter was a criminal trial in the High Court of South Africa, Gauteng Local Division, Johannesburg, in which the State prosecuted two accused on a charge of murder. The charge was framed with reference to section 51(2) of the Criminal Law Amendment Act 105 of 1997.

The parties were the State as prosecuting authority and R[…] S[…] (Accused 1) together with M[…] N[…] B[…] (Accused 2). The deceased was N[…], the 12-year-old daughter of Accused 2, who lived in the same household as both accused; Accused 1 was in a de facto relationship with Accused 2 and had been residing with them since the child was four years old.

Both accused pleaded not guilty. Each provided a plea explanation containing formal admissions. The evidence for the State consisted of two witnesses: the pathologist who conducted the autopsy, and the deceased’s elder brother. Both accused testified in their own defence. The court recorded that the facts were largely common cause, and that the principal dispute concerned the appropriate legal outcome on those facts, particularly the proper characterisation of each accused’s fault element in relation to the deceased’s death.

The general subject-matter of the dispute concerned the criminal liability arising from a prolonged physical assault inflicted on a minor child in the context of parental discipline, culminating in her death shortly after the assault.

2. Material Facts

It was common cause that the deceased died on 7 December 2020 following an assault administered by the two accused after the child was brought back to the home following conflict linked to her dating behaviour. The deceased had been experiencing ongoing conflict with her caregivers regarding her dating, and there had been prior episodes of physical discipline in the household.

On the night in question, after the deceased was located and returned, Accused 2 first assaulted the deceased with a stick/branch, striking her while the deceased was standing and moving to avoid blows. The stick broke during the assault. Thereafter Accused 1 assaulted the deceased with the broken portion of the stick for a short period while Accused 2 was away in a bedroom.

Accused 2 then returned with a sjambok and continued assaulting the deceased with it. The evidence accepted by the court was that the assault involved repeated blows to various parts of the body. The evidence of both accused was that the assault was not necessarily continuous, in the sense that there were pauses with reprimands and questioning, followed by further blows. The deceased repeatedly apologised and did not provide the answers Accused 2 demanded, which, on Accused 2’s own evidence, increased her anger and resulted in continued beating.

The deceased’s elder brother testified that he heard the assault and later saw both accused carrying the deceased because she was unable to walk. He observed fluid and a white substance coming from her mouth. Subsequently, after the assault, Accused 2 prepared a bath and instructed the deceased to bathe. The deceased was later found in the bathtub, gasping and vomiting. Both accused then attempted to assist her and transported her to hospital, where she died.

The pathologist, Dr Lebohang Banyane, confirmed the autopsy findings. The deceased had extensive marks consistent with being beaten with a sjambok, including injuries to the head and face. The cause of death was a brain injury, described as blunt force injury to the head complicated by crush injury. The pathologist described extensive bodily injury and inferred that the assault had likely occurred over some time. The court accepted that the assault caused the death.

The court treated as the central contested aspects not the occurrence of the assault or causation, but rather the degree of foresight and intention attributable to each accused. Accused 1 maintained that he did not objectively foresee that the deceased could die as a result of the assault. Accused 2 stated she did not intend to kill the child and asserted that she was acting out of anger and frustration to discipline and extract information.

3. Legal Issues

The central legal questions were whether, on the largely common-cause facts, the State had proved murder beyond reasonable doubt in respect of each accused, or whether the appropriate verdict(s) lay in competent alternatives, particularly culpable homicide (and, in Accused 1’s case, also assault with intent to cause grievous bodily harm, which was formally admitted).

In relation to Accused 1, the court had to determine whether the evidence established the intention to kill, or at least the required state of mind for murder, and if not, whether the evidence established negligent causation of death sufficient for culpable homicide given his participation and facilitation of the ongoing assault.

In relation to Accused 2, the court had to determine whether her admitted conduct (including admissions consistent with culpable homicide) nevertheless supported a finding that she acted with indirect intention to cause death, as opposed to mere negligence. The dispute thus primarily concerned the application of legal standards of fault (intention versus negligence) to largely undisputed facts, and the evaluative inferential assessment of state of mind from conduct and circumstances.

4. Court’s Reasoning

The court approached the matter on the basis that the factual matrix was substantially common cause and that the decisive enquiry was the proper legal characterisation of each accused’s fault element. The court accepted the medical evidence that the deceased’s death resulted from a blunt force head injury and that her body bore extensive injuries consistent with repeated sjambok blows. It also accepted that the assault, as described, was prolonged enough and forceful enough to cause serious bodily harm, and that the deceased’s death was causally linked to the assault.

In considering Accused 1’s liability for murder, the court emphasised the absence of proof that he intended to cause the child’s death. It also considered his level of direct physical involvement, noting the forensic indication that the more severe injuries appeared to be linked to the sjambok, and that Accused 1’s direct assault with the stick was of comparatively limited duration. On that basis, the court was not satisfied that the evidence established that Accused 1 had the requisite intention for murder, and it accordingly acquitted him of murder.

The court then considered the competent verdict of culpable homicide in relation to Accused 1. It reasoned that Accused 1’s role extended beyond his short direct assault: he permitted and facilitated the continuation of the beating, including by continuing to assault the child while Accused 2 went to obtain the sjambok and by remaining involved during the ongoing punishment. The court regarded it as clearly foreseeable that an extended and forceful beating of this nature could have serious consequences for a child’s body, including death. On this reasoning, Accused 1’s conduct supported a finding of negligent causation of death, and the court convicted him of culpable homicide.

In addressing Accused 2’s liability, the court noted that she had admitted the elements of culpable homicide and that the key question was whether the facts demonstrated an objective intention, even if indirect, to cause death. The court relied on Accused 2’s own evidence that her focus was not on the child’s physical condition but on anger, punishment, and extracting information, and on the fact that the assault continued in stages—talking followed by further beating—which, in the court’s assessment, demonstrated a settled persistence in assaulting the child “regardless of the effects” on her. From that persistence and the nature of the assault, the court drew the inference that the conduct went beyond mere negligence or disregard of possible effects and that indirect intention had been proved. On that basis, Accused 2 was convicted of murder as charged.

5. Outcome and Relief

The court found Accused 1 not guilty of murder. It held that competent verdicts were available and ultimately convicted Accused 1 of culpable homicide on the basis of foreseeability and negligent participation in, and facilitation of, the assault that caused death.

The court found Accused 2 guilty of murder as charged, concluding that indirect intention had been established on the facts.

The judgment, as provided, did not address sentence or make any costs order (costs being inapplicable in the ordinary course of criminal conviction proceedings in the manner applicable to civil litigation).

Cases Cited

No reported cases were cited in the judgment.

Legislation Cited

Criminal Law Amendment Act 105 of 1997, section 51(2).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the State did not prove beyond reasonable doubt that Accused 1 possessed the requisite intention for murder, and he was therefore acquitted of murder, but his conduct in participating in and facilitating a sustained assault made death foreseeable and justified a conviction for culpable homicide.

The court further held that Accused 2 acted with indirect intention to cause death, inferred from the nature, duration, and persistence of the assault despite its effects, and she was therefore convicted of murder.

LEGAL PRINCIPLES

The judgment applied the distinction between murder, requiring proof of a form of intention (including indirect intention), and culpable homicide, requiring proof that death was caused negligently, assessed with reference to objective foreseeability and the accused’s failure to act in accordance with what was reasonably required in the circumstances.

In assessing intention and negligence, the court treated inferences from conduct as central, including the character of the assault, the extent and distribution of injuries, the persistence of the assault over time, and each accused’s role in continuing, enabling, or perpetrating the violence.

The judgment further reflected that where multiple participants contribute to a fatal assault, liability may be grounded not only in direct infliction of injuries but also in facilitation and continued participation in a sustained beating, where the harmful outcome is objectively foreseeable and not reasonably guarded against.