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[2008] ZASCA 169
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S v Van Aardt (179/08) [2008] ZASCA 169; 2009 (1) SACR 648 (SCA) ; [2009] 2 All SA 184 (SCA) (2 December 2008)
Links to summary
THE
SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH
AFRICA
JUDGMENT
Case number: 179/08
In
the matter between:
STEPHANUS
CORNELIUS VAN AARDT APPELLANT
v
THE
STATE RESPONDENT
Neutral
citation:
S
C van Aardt v The State
(179/2008)
[2008]
ZASCA 169
(2 December 2008)
Coram:
Mpati
P, Combrinck JA et Kgomo AJA
Heard: 5
November 2008
Delivered: 2
December 2008
Summary: Murder
– vicious and sustained assault on deceased – appellant
solely responsible for injuries causing death
– state not
required to prove which particular blow caused the death or what
weapon (or means) used – once murder proved
unnecessary to
establish effect of accused intentionally preventing deceased
obtaining medical assistance – conviction confirmed.
Sentence –
no misdirection – 12 years imprisonment on lenient side.
ORDER
On
appeal from:
the Grahamstown High Court, Eastern Cape Provincial Division
(Pickering J, with Kroon and Dambuza JJ sitting as full court from
judgment of Froneman J).
(1) The
appeal against both conviction and sentence is dismissed.
JUDGMENT
KGOMO
(MPATI P, COMBRINCK JA concurring
)
[1] The
appellant, a 49 year old farmer of Somerset East, was convicted by
Froneman J sitting at the Grahamstown High Court of the
murder of the
deceased, Elliot Magabane, a 15 year old youth and was sentenced to
12 years imprisonment. The appeal to the full
court of the Eastern
Cape Division (Pickering J, Kroon and Dambuza JJ concurring) against
both the conviction and sentence was
unsuccessful. It is with the
special leave of this court that the appeal serves before us.
[2] The
state alleged that on 28 February 2006 the appellant assaulted
the deceased on his farm, Clairvoux, in consequence
of which he died
of his injuries during the night of 1/2 March 2006. The indictment
also specifies that after the assault the appellant
unlawfully and
with the intent to kill the deceased failed to obtain medical
treatment for him which failure resulted in his death,
alternatively
accelerated his death. The state further alleged that the cumulative
effect of the assault and the deprivation of
medical treatment
constituted the crime of murder.
[3] The
appellant pleaded not guilty to murder but guilty to assault common.
In disclosing the basis of his defence in terms of
s 115
of the
Criminal Procedure Act, 51 of 1977
, he stated in his written
plea-explanation that he assaulted the deceased because he suspected
him of having stolen about R350.00
from his vehicle. He slapped him
several times in the face with an open hand and hit him several times
with a plain stick (without
a knob) on his body. All the strokes were
aimed at the deceased’s buttocks but some were deflected to
other parts of the
body as the deceased parried the blows or wiggled
about. At worst, he says, this assault caused the following injuries:
swelling
and bruising to the face, left ear, left arm, buttocks,
back, back of his legs and possibly on his sides.
[4]
The appellant accordingly denied that the deceased died as a
consequence of the assault and the resultant injuries. He further
denied that a legal duty reposed on him to seek any medical
intervention for the deceased.
[5] The
facts relating to this case are briefly as follows. The appellant
conducts a dairy business from a part of his farm. On
28 February
2006 he parked his bakkie next to his office which adjoins the milk
parlour. While performing some administrative
functions one Karel, a
milker (who did not testify) apparently saw the deceased, a visitor
to the farm, standing next to the appellant’s
bakkie from which
the money went missing. He reported what he allegedly observed to his
co-workers Kwekwe Mzizi, Tsitsikama Mbambani,
Frank Koert and
Mzwandile Yantolo all of whom were engaged in cow-milking and who all
testified.
[6] Kwekwe
testified that the appellant, waiving an empty wallet and armed with
a 1 metre long stick, 5cm in diameter, initially
demanded the missing
money from him. He protested his innocence and conveyed to the
appellant what Karel had reported to them.
When Karel was confronted
he pointed out the deceased. The appellant, who was extremely
agitated, accosted the deceased with this
accusation. The deceased
also protested his innocence but was manhandled and slapped with open
hands by the appellant next to the
milk parlour. The deceased led the
appellant to a feeding trough and extricated a few coins from the
animal fodder. This incensed
the appellant even more. He partially
strangled the deceased by squeezing the deceased’s shirt around
his neck, threw him
to the ground, pinned him down with his knee on
the deceased’s chest and pummelled him with clenched fists in
the face and
sides.
[7] It
was common cause that the deceased was lodging with Frank Koert on
the appellant’s farm just across the road from the
milk
parlour. Kwekwe saw the appellant and deceased heading for and
entering Koert’s house. The appellant was armed with
a stick.
From the confines of Koert’s house came some thuds akin to a
person being repeatedly bumped against a wall. These
thuds were
accompanied by the deceased’s cries and the appellant swearing
at him. Because he was busy milking a cow that
was unable to move to
the milk shed Kwekwe did not notice victim and culprit emerge from
Koert’s house. Once outside, however,
he saw the appellant
holding the deceased by the shoulder and shoving him about as a
result of which the deceased fell. The appellant
launched a vicious
and sustained assault with a stick on the deceased who lay in a
foetal position. Kwekwe took fright and reported
his observations to
the other milkers in the shed. All of them were too scared to
intervene.
[8] Kwekwe
left to perform another chore in one of the paddocks. He witnessed
from that vantage point the appellant dragging the
deceased in the
vicinity of the entrance to the shed. He dumped the deceased in a
puddle there and stamped on him with booted feet
on his chest area
and head. The appellant swore at the deceased and ordered him off his
farm or he would beat him to death. The
appellant thereafter entered
the shed. The deceased crawled with difficulty for about six metres
and used baled hay as support
to heave himself to his feet.
[9] The
appellant instructed his employees not to move or accommodate the
deceased. After the milking when Kwekwe kraaled the cattle
he saw the
deceased still slumped against the bales of hay.
[10] Yantolo
corroborated Kwekwe’s account that he heard the deceased cry in
Koert’s house and the appellant demanding
that he produce the
money. He later noticed the deceased seated in the puddle and being
prodded with a stick by the appellant and
told to get up and leave
his farm. The deceased managed to get to his feet and staggered for
about three metres before slumping
to the ground. He got up again and
unsteadily staggered up to the electrical pylons where he collapsed
once more. It was common
cause or not in dispute that this is where
the appellant’s employees found the deceased after work, also
where Koert and
Mehlo later covered him with a duvet cover and from
where the appellant removed him the following day.
[11]
Tsitsikama witnessed the appellant grabbing the deceased by the
clothes and forcing him out of the shed. Due to the droning
of the
milk machines he was unable to hear what took place outside. However
when he later went to feed the calves after the milking
he saw the
appellant lashing out indiscriminately with a stick at the deceased
who was sprawled on his back. The deceased, unable
to stand up,
crawled to the haystack against which he leaned. The appellant struck
the deceased one blow to the head with a spade
which floored him. He
did not see the appellant stamp on the deceased. May I point out at
this early stage that the defence vehemently
criticized Tsitsikama’s
evidence relative to the attack with the spade on the basis that he
was the sole witness on this
aspect. There is no warrant for
excluding credible evidence on this ground only. In
S
v Sefatsa and Others
1988 (1) SA 868
(A) at 890G this court held:
‘
The
fallacy in the argument for the accused is that it presupposes that
either or both of the witnesses must be untruthful or unreliable
simply because their observations did not coincide. Such an approach
to the evidence is unsound.’
The
trial court therefore correctly rejected the argument.
[12] Mandla
Mehlo, the deceased’s friend, was staying at Koert’s
house where the deceased had visited him. He corroborates
part of
Kwekwe’s version on how the deceased was manhandled and stamped
upon at the puddle, struck with a stick and how the
deceased wobbled
and collapsed close to the electrical pylons. He accompanied Koert
when the latter covered the deceased with a
duvet cover later in the
evening.
[13] Vuyisile
Mabomba, the tractor driver, noticed the assault from a distance
while he was busy balancing cattle feed compound
with a mixer. The
deceased landed on the ground from the assault. The appellant helped
him to his feet and walked with him in the
direction of Koert’s
house. The following morning at around 05h00 he saw the appellant’s
bakkie at Koert’s house.
He later noticed that the deceased’s
face was swollen and he could not speak. The appellant poured water
over the deceased
which evoked a feeble lifting of the head. The next
day the appellant told Mabomba that he was in deep trouble and that
they (the
workers) must take care of the farm if something untoward
should happen to him.
[14] Frank
Koert stays a short distance from the milk parlour and hosted the
deceased through the latter’s friend Mehlo. He
was present when
the appellant reported his money stolen and when Karel pointed out
the deceased as the suspect. He paid no attention
to what transpired
thereafter as he focussed on milking the cows. When he next looked
around he realised that the appellant had
left the shed. He did not
witness the assault on the deceased but learned from his co-workers
who he accompanied after work to
the electrical pylons where they
pointed out the now immobile deceased. Those present were Karel,
Goodman, Tsitsikama, Mehlo, Kwekwe
and one Bungu. At that stage the
workers had already knocked off duty and dusk was settling in.
[15] The
deceased’s body was swollen and he was unable to speak. Koert
tried in vain to make him sit up. The workers left
the deceased lying
at that point because they were scared of defying the appellant’s
earlier injunction not to help or house
him. Later that evening,
under cover of darkness, Koert and Mehlo returned to the deceased who
was still lying at the same spot
and covered him with a duvet cover.
It is convenient at this stage to deal with the contention by the
defence that the workers
could have removed the deceased or rendered
assistance in the absence of the appellant. This argument ignores the
fact that by
virtue of the employer-employee relationship the
appellant exercised inherent authority over them. They had also just
witnessed
him mete out a severe beating on the deceased. In addition
most were mere children with their ages ranging between 15 and 18
except
Bungu and Yantolo who were 30 and 58 years, respectively.
[16] Early
in the morning following the assault the appellant called Koert away
from his milking chores to the latter’s house
where he found
the deceased lying on the back of the appellant’s bakkie. On
the appellant’s instructions he offloaded
the deceased, who at
15 years was of slight build and weighed only 46kg, and laid him down
on a bed. Koert suggested that he (Koert)
notify the deceased’s
parents concerning their child’s condition but the appellant
forbade him and told him that when
the deceased became well enough he
could walk home. When the deceased’s condition deteriorated
Koert approached the appellant
again for permission to summon the
deceased’s parents to fetch him. The appellant informed him
that he did not want an ambulance
or the police on his farm.
[17] The
deceased was barely conscious. That morning he had managed to swallow
two pills that the appellant had supplied. The deceased
also managed
to eat a small piece of bread and drank some milk fed to him by
Koert. He could not talk and was groaning continually.
Koert placed
him on the stoep to give him some air. He was unable to sit and Koert
supported him. The appellant returned that afternoon
and poured cold
water over the deceased and into his ear. The deceased shook his
head. The appellant and Koert tried to feed the
deceased with more
tablets but were unsuccessful because the deceased was unable to
swallow them, not even when desolved in water.
Notwithstanding all
this the appellant assured Koert that the deceased would recover.
Later during the evening the appellant called
at Koert’s house
with a torch which he shone into the pupils of the deceased’s
eyes.
[18] The
morning following the events described in para 17 (above) the
appellant repeated the torch-pupil experiment and exclaimed
(in
Afrikaans): “O Gods!” The deceased was dead. The
appellant left but returned after a while. He told Koert to tell
the
police when they arrived that the body of the deceased was discovered
next to the road. That is also what Koert told Inspector Mayekiso
who investigated the death. He also reported to him that the
deceased’s assailants were unknown. The inspector left with
Mehlo and promptly returned and intimated to Koert that he had
discovered the truth, whereupon Koert spilled the beans.
[19] Dr
George William Groves, a general medical practitioner for over 30
years, conducted the medico-legal post-mortem examination
on the body
of the deceased on 7 March 2006 and compiled a report. He also
testified for the state. His recorded findings, which
are not in
dispute, are as follows. The deceased sustained fractures of the left
2
nd
,
3
rd
,
4
th
and 6
th
ribs and of the right 5
th
and 6
th
ribs and the hemithorax appeared sunken. He suffered pulmonary
congestion bases of both lungs; contusion of the angle of the right
mandible; subaponeurotic and subperiostical haematoma; contusion of
the right occipital lobe with intracerebral haematoma; contusion
over
the left cerebellum; contusion over an eye; contusion of apex of the
heart; contusion of the mesentery and contusion of the
liver. The
cause of death is recorded as: ‘Cerebral injury secondary to
multiple blunt trauma’.
[20] Dr
Groves, elaborating on his post-mortem findings, testified that the
fracture of the deceased’s ribs could not have
been caused by a
single clench-fist blow or a single kick and that he thought ‘die
waarskynlikste, meer waarskynlike meganisme
sou wees as daar ‘n
swaar gewig op daardie borskas geplaas is’ and that ‘[h]y
was vir my baie swaar beseer’.
[21] Dr
Groves explained that to cause the brain injury sustained by the
deceased the latter was subjected to a great amount of
force (‘’n
kwaai mate van geweld’). In particular regard being had to the
injury to the cerebellum he would have
expected the deceased to have
lost consciousness instantly and it would have been surprising and
very exceptional had the deceased
been able to walk (the measured
distance of 73 metres) after the infliction of that injury.
[22] The
appellant’s version of the event is that when he discovered
that his money was stolen from his bakkie he suspected
Kwekwe, who he
had sent to the bakkie earlier to fetch the keys, but Karel blamed
the deceased. The deceased disclaimed any knowledge
of the money. He
grabbed him by the scruff of the neck and slapped him a few times.
The deceased screamed and produced R7 in coins
from a feeding trough.
The deceased was unco-operative, so he struck him with a stick as
alluded to in his plea- explanation. The
deceased took him to Koert’s
house to point out the money but led him on a wild goose chase. He
denied any suggestion that
he may have banged the deceased’s
head against the wall of Koert’s house.
[23] The
appellant says he pushed the deceased through the gate which caused
the deceased to fall into a puddle. He ordered the
deceased off his
farm. The deceased got up and trotted off limping, due to the effects
of the lashing he gave him with a stick
on his buttocks, back and
legs. At that stage the workers were through with the milking and
were cleaning up. The appellant busied
himself at the dairy for about
15 minutes and got into his bakkie and drove towards his residence.
When he was opposite Koert’s
house he saw the deceased in the
company of two people (he is unsure whether they were men or women).
He again screamed at the
deceased to leave his farm.
[24] The
appellant says the following morning when he was on his way to
inspect the irrigation pivots on his land he noticed the
deceased
lying next to the electrical pylons already referred to. There was a
duvet cover next to him. His body was swollen and
he appeared to be
unconscious. He reckoned that the deceased must have been attacked by
some unknown assailants after he (the appellant)
had chased him away
from his farm. He took the deceased to Koert’s home because he
had established that he had put him up.
He surmised that they were
related. As he was not the cause of the deceased’s condition he
was not prepared to assume responsibility
for his care or
transportation to a hospital or become involved with the police,
because he had chastised the deceased the previous
day.
[25] From
this point the appellant’s version corresponds substantially
with Koert’s account and bears no repetition.
He says when he
saw the deceased for the third time that day he appeared to be
unconscious. He enquired from his doctor-friend
in Bethulie how he
could determine whether the deceased was not shamming. He applied the
proposed methods and elicited the responses
testified to by Koert. On
discovering the next day that the deceased had died he telephoned an
acquaintance, detective Botha, and
reported that the deceased ‘het
pak gekry’ and was dead. On Botha’s advice he telephoned
the aforesaid Inspector
Mayekiso.
[26] The
appellant denied striking the deceased with a blunt object or a spade
on the head as testified and pointed out to the police
by Tsitsikama.
He also denied that he refused permission to Koert to notify the
deceased’s parents of his serious condition.
He states that the
death of the deceased was the furthest thing on his mind and did not
foresee it.
[27] Dr
Keely, a neurosurgeon for over 36 years, testified as a defence
witness. His opinion is based on the post-mortem report
compiled by
Dr Groves and the photos of the body of the deceased, more
particularly those of the brain used by Dr Groves. Part
of Dr Keely’s
evidence-in-chief went as follows:
‘
Now
can you give the Court an indication of the seriousness of these
injuries to the brain? --- These injuries would eventually
have
become fatal.
And
can you give the Court an indication of the mechanism whereby such
injuries could have been caused? You have noticed that there
are no
skull fractures. --- I have noticed that M’Lord.
And
you have noticed that at the post-mortem the doctor described
bleeding, extra cranial under the skin. --- Yes M’Lord,
the
mechanism of this injury would have been first of all a contact type
of force applied to the back of the head. It would have
been of
extreme magnitude, the inter cerebellum haematoma is not described,
the injuries are very extensive in that it involves
the occipital
lobes, the cerebellum which would be, which is the point of impact,
there is contusion of the right frontal lobe
which is a contra [coup]
lesion, there, with such obvious very severe macroscopic injury there
would have been as well defuse less
obvious microscopic injury
involving mainly the fibre tracts of the brain causing a defuse
axonal injury. Unusual in this type
of injury is the contusion of the
cerebellum, the cerebellum lies deep in the skull at the back of the
head protected by a thick
layer of muscle at the back of the neck,
and it is an unusual injury, seen more often at autopsy than in
clinical practice.
Doctor
after having received these injuries what would the effect of that
have been on the individual who received these injuries,
his level of
consciousness, that sort of thing? --- He would have been rendered
immediately unconscious and would have remained
so.
Doctor
is there any possibility that the individual with this sort of
injuries to his brain would have been able after having been
injured
to walk any distance? --- No M’Lord.
Can
you be quite certain about that? --- I am M’Lord’
[28] Dr
Keely was adamant that after having sustained these injuries the
deceased would not have been able to get to his feet under
his own
steam and walk any distance, least of all 73 metres. He opined that
the brain injuries were fatal but if there had been
immediate medical
intervention the most optimistic diagnoses would have been that the
deceased would have survived in a permanent
vegetative state. Dr
Keely’s dogmatic insistence that the deceased’s brain
injury must have caused him to fall immediately
into unconciousness
upon receiving the heavy blow and that he would not have been able to
swallow tablets is inconsistent with
the objective facts. The
deceased unquestionably walked a distance of at least 73 metres after
receiving the blow; he swallowed
two tablets; ate a piece of bread
and drank some milk the following morning. This calls into serious
question the reliability of
his opinion. The more acceptable
explanation is that of Dr Groves that for the deceased to have done
these things was surprising
and exceptional.
[29] Pickering
J gives an accurate summary of the approach adopted by the trial
court in these terms:
‘
In
his judgment Froneman J found that the State had failed to prove
beyond reasonable doubt that the appellant had had the intent
to kill
deceased at the time of his assault upon him. He found further,
however, that the State had proved beyond reasonable doubt
that the
appellant had caused all the injuries to the deceased referred to in
the post-mortem report and that, despite the appellant
having
appreciated the risk that the deceased could die in consequence of
those injuries, had deliberately chosen not to obtain
medical
assistance for him because he feared that the matter would be
reported to the police, notwithstanding that there was, in
the
circumstances, a legal duty on him to secure such medical assistance.
The appellant therefore had the requisite intent in the
form of
dolus
eventualis
to kill the deceased. He was accordingly convicted of murder.’
Having
examined the evidence in some detail Pickering J stated that Froneman
J was correct in his finding that the appellant caused
the injuries
to the deceased in consequence of which he died and that ‘having
regard to the deceased’s obviously severely
injured state and
his unsatisfactory physical responses to the stimuli applied by the
appellant, I am of the view that the appellant
must have foreseen,
and by necessary implication did in fact foresee that there was a
reasonable possibility that the deceased
might die if not medically
treated’.
[30] The
immediate question that falls for determination is: who caused the
fatal injury to the deceased’s brain? The defence
suggested
that the deceased could have been attacked by strangers or by the
appellant’s employees during the hiatus that
the appellant saw
the deceased with two people and the employees converging after work
at the electrical pylons where the mortally
wounded deceased was
lying. Unfortunately no time-lapse is discernable from the evidence
for this period. However, having regard
to the evidence of the
eyewitnesses and that of the appellant himself the time-span could
not have been inordinate. It must have
been a matter of minutes
rather than hours.
[31] The
appellant’s counsel placed the state-witnesses’ evidence
under a microscope and, as Pickering J for the full
court stated, he
subjected it ‘to trenchant criticism’. The trial court,
Froneman J, was alive to the contradictions
and conflicts in the
state-witnesses’ evidence and dealt fully with them and
accepted their evidence as credible. In respect
of the evidence of
Kwekwe and Tsitsikama the learned judge’s main reservation was
that they exaggerated their evidence. I
find it unnecessary to rehash
the incongruous points in the respective witnesses’ evidence
because I am, in the first place,
not persuaded that Froneman J erred
in his credibility findings. Secondly, it is not sufficiently
appreciated by the defence that
the witnesses were not always in each
others presence as the events unfolded and they therefore occupied
different vantage points.
For example the tractor driver was mixing
the animal feed elsewhere; one of the milkers milked one of the cows
that could not walk
outside the shed, others were milking the cows in
the shed; another heard the commotion in Koert’s house when he
went to
fetch a pair of pliers at the appellant’s residence;
another watched a different stage of the assault when he went to feed
the calves and yet another when he kraaled the cattle.
[32] It
follows that the witnesses could not necessarily corroborate each
other on all points. They merely recounted what they observed
at a
particular stage. What is essential is that there is no suggestion
that they were not present on the farm and observed some
assault. In
fact the evidence emanating from the appellant as well suggests that
he interacted with his workers in the ordinary
course of them
performing their duties. A factor that also counts in favour of the
veracity of the witnesses’ evidence is
that the appellant
admits a measure of assault on the deceased albeit that he has
minimized his assault to a mere whipping.
[33] The
appellant’s testimony that he saw the deceased with two
strangers is fanciful. These imaginary people were fabricated
to
create the impression that the deceased was not fatally wounded when
he was evicted from the farm and that those strangers could
have
harmed him. The problem with this piece of evidence is that whereas
the strangers’ existence is broached in the plea-explanation
none of the witnesses was confronted with it under cross-examination.
(
President
of RSA v SA Rugby Football Union
2000 (1) SA 1(CC)
at 36J-38A, paras 61-65). A further reason why the
appellant could not have seen the deceased with two strangers is that
several
witnesses testified that they saw the deceased stagger away
from the appellant and collapse at the electrical pylons. This
evidence,
which the trial court correctly accepted, leads to the
irresistible conclusion that when the deceased collapsed at the
electrical
pylons the fatal brain injury had already been inflicted.
This eliminates the probability of any strangers assaulting the
deceased
or causing his death. The trial judge’s rejection of
the appellant’s evidence on this aspect cannot be faulted.
[34] The
conduct of the appellant after the assault speaks volumes. He ordered
his workers not to house the deceased. It could not
have escaped him
that the deceased was seriously injured because he says the deceased
seemed unconscious and yet he was indifferent
to his plight. The
appellant’s early morning trip to the electrical pylons had as
its objective, I suggest, to check whether
the deceased was gone or
had been removed. It was an act of heartlessness not to transport the
deceased, badly hurt as he was,
to a nearby hospital but to Koert’s
home. This was done to keep the assault a secret. Koert’s two
pleas to send for
the deceased’s parents were rebuffed. If the
appellant had merely chastised the deceased he would not have played
doctor
and would have summoned an ambulance or the police at the
latest on the morning that he took the deceased to Koert’s
home.
The appellant also influenced Koert to lie to the police and to
say the deceased’s body was found next to the road. This is
the
conduct of a person who knew that he had committed a serious crime
and had to account for his deeds.
[35] The
following are the proved facts. When the appellant accosted the
deceased for the first time the deceased seemed to have
been in good
health. He was certainly unscathed. There is direct testimony from
eyewitnesses that the appellant in full view of
these witnesses
slapped the deceased, pummelled him with clenched fists, attempted to
strangle him, assaulted him with a stick,
kicked and trampled him
with booted feet. The deceased was constantly in the presence of the
appellant from the time that he first
grabbed him until he ordered
him from the farm. The deceased was not assaulted by anyone else but
the appellant until he collapsed,
mortally wounded, at the electrical
pylons. There can be no doubt that the appellant inflicted all the
injuries described hereinbefore
and consequently caused the
deceased’s death.
[36] What
remains is to determine whether the appellant is guilty of culpable
homicide or murder with the direct form of intent
or
dolus
eventualis
.
The appellant’s counsel urged us to find that the appellant was
guilty of assault alternatively culpable homicide if he
was the one
who caused the deceased’s death. The thrust of his argument is
that no evidence was produced to show which specific
blow was fatal
or what instrument was used to that end. This argument has no merit.
[37] The
principle to determine what form of intent to murder an accused
should be convicted of or whether only culpable homicide
has been
proved was expressed in these terms by Holmes JA in
S v Sigwahla
1967 (4) SA 566(A)
at 570B-E:
‘
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 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.’
[38] The
medical evidence does not redound to the benefit of the appellant
but, on the contrary, is against him. Both Drs Groves
and Keely were
of the view that the deceased was struck a colossal blow to the head
which led to the deceased’s death. Tsitsikama
testified that
the appellant struck the deceased one blow on the head with a spade.
Dr Keely conceded that the brain injury was
consistent with it having
been inflicted with the face of a spade. In saying so I must add that
the trial court was fully justified
in preferring the evidence of Dr
Groves above that of Dr Keely. Dr Keely conceded that the photographs
relating to the post-mortem
report were unhelpful to him because they
did not depict the brain injury adequately or at all and he had to
rely on the post-mortem
report and the notes of Dr Groves.
[39] I
am in respectful agreement with the following statement by the
Namibian Supreme Court in
S
v Van Wyk
1992 (1) SACR 147
(Nm) at 161e-h:
‘
The
State is, from the nature of things, seldom able to offer direct
evidence of the accused’s state of mind at the time of
assaulting the deceased and must therefore rely on inferences to be
drawn from the circumstances of the assault (including its
nature and
duration), the nature of any weapons used and the nature, position
and extent of the injuries inflicted. These must
in turn be weighed
up against any other circumstances (such as the consumption of drugs
or alcohol) which may indicate that the
accused did not foresee the
consequences of his actions. This does not involve any piecemeal
assessment or process of reasoning.
All the relevant facts which bear
on the accused’s state of mind and intention must be
cumulatively assessed and a conclusion
reached as to whether an
inference beyond reasonable doubt can be drawn from these facts that
the accused actually considered it
a reasonable possibility that the
deceased could die from the assault but, reckless as to such fatal
possibility, embarked on or
persisted with the assault.
On
the medical evidence the injuries which caused death were the blows
to the head.
It
is not possible to link up particular fist blows or kicks with
particular injuries, nor is the trier of fact required to do so.
Once
it is established that accused No 1 killed the deceased, and it has
rightly been so found by the Court
a
quo
,
the trier of fact can look at the assault as a whole in order to
determine what accused No 1’s intention was.
In
a case such as the present the trier of fact is not required to
enquire into the subjective state of mind of the accused as he
inflicted each injury. Neither principle nor common sense requires
this.
’
(Emphasis
added)
[40] The
deceased was defenceless and never retaliated. On the other hand the
appellant was a 49 year old man who was much larger
than the deceased
and weighed 100 kg. The assault on the deceased was sustained and
vicious resulting in the injuries already described.
The evidence
does not establish that the appellant had the direct intent to cause
the death of the deceased, and the state did
not contend otherwise.
However I am satisfied that the appellant subjectively foresaw the
possibility of his conduct causing the
death of the deceased and was
plainly reckless as to such result ensuing. He is accordingly guilty
of murder with
dolus
eventualis
as the form of intent.
[41] Froneman
J convicted the appellant of murder,
dolus
eventualis
,
on the following basis:
‘
Afgesien
van enige argument oor onregmatigheid dink ek daar bestaan min twyfel
dat hy dan sonder om twee keer te dink die oorledene
mediese
behandeling sou laat verkry het, met ander woorde hy sou die risiko
van dood voorsien het en hom glad nie met daardie moontlike
gevolg
versoen het nie. Die rede waarom hy dit nie in hierdie geval gedoen
het nie, was omdat hy aanmelding van die voorval by
die polisie
gevrees het, en nie omdat hy gedink het daar was geen gevaar dat die
oorledene sou sterf as hy nie mediese behandeling
ontvang het nie. Hy
het gehoop dat die oorledene nie sou sterf nie, maar hy het geweet
daar was ‘n risiko dat dit wel kon
gebeur. Nieteenstaande die
risiko besef het hy doelbewus verkies om nie mediese hulp te verkry
nie. In regs terme kom dit neer
op subjektiewe versoening met
voorsiene gevolge. Die gevolgtrekking is dus onvermydelik dat die
Staat bo redelike twyfel bewys
het dat ten aansien van die
beskuldigde se versuimshandelinge hy die nodige opset in die vorm van
dolus eventualis of te wel opset
met moontlikheidsbewussyn gehad het
om die oorledene te dood.’
[42] The
full court agreed with the cited reasoning and confirmed the
conviction on that basis. This reasoning was evidently inspired
by
the Rhodesian Appellate Division decision in
S
v Chimbamba
1977 (4) SA 803
(RAD) at 808H-809B where MacDonald CJ (Lewis JP and
Davies JA concurring):
‘
Applying
general principles, there can be no doubt at all that the crime of
murder is committed if a person in need of assistance
is
intentionally prevented from obtaining it and in the result dies or
dies earlier than he or she would otherwise have done. This,
however,
is a quite separate and distinct basis of liability from that relied
upon in the indictment and no amendment of the indictment
was applied
for at any stage in the proceedings. It is unthinkable that an
accused person should be found guilty of murder
on
a basis which has never been raised. Liability on this additional
basis is in no way dependent upon complicity in the original
assault
giving rise to the need for assistance and cannot be regarded as
being no more than an extension of it or as being embraced
within
it.’
[43] The
Chimbamba
dictum
explains why the state framed the indictment to satisfy the
ingredients missing in that judgment. However, for purposes of this
judgment and in view of the finding set out in para 40 (above) it is
unnecessary to make a finding on whether the basis on which
the trial
court convicted the appellant, which was subsequently upheld by the
full court, was correct.
[44] On
sentence: it suffices to state that having regard to the
defencelessness of the deceased, his tiny frame, the sustained
and
viciousness of the assault by a much heavier man than the deceased,
the appellant’s denial of medical attention to the
deceased and
prevention that Koert summon the deceased’s parents to fetch
him, his influence that Koert mislead the police
and his lack of
remorse, I am of the view that a sentence of 12 years imprisonment is
on the lenient side.
The
appeal against both conviction and sentence is dismissed.
________________
F
D KGOMO
ACTING
JUDGE OF APPEAL
APPEARANCES:
FOR
APPELLANT: T N Price
ATTORNEYS: Nettelton’s
Attorneys
Grahamstown
Symington
& De Kok
Bloemfontein
FOR
RESPONDENT: C R de Klerk SC
ATTORNEYS: Director
Public Prosecutions
Grahamstown
Director
of Public Prosecutions
Bloemfontein