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[2016] ZANCHC 21
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S v du Plessis (K/S36/2014) [2016] ZANCHC 21 (15 March 2016)
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HIGH
COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, KIMBERLEY]
Case
No: K/S 36/2014
Heard:
09/03/2016 – 14/03/2016
Delivered:
15-03-2016
In
the matter between:
THE
STATE
v
CARLOS
ANDREA DU PLESSIS
Accused
JUDGMENT
KGOMO
JP
1.
The
accused, Mr Carlos Andrea Du Plessis, is 44 years of age. He
stands accused, on the first three Counts, of Assault with
the Intent
to do Grievous Bodily Harm (GBH) and on the fourth Count of Murder
read with the provisions
s 51
of the
Criminal Law Amendment Act, 105
of 1997
.
2.
The
state alleges that in respect of Courts 2 and 3 he assaulted Petrus
Afrikaner and Franklin Hoogstander, respectively, on 23
August 2014
on his farms, Makoenskloof, Douglas, Northern Cape, with a sjambok
with the intent of causing them grievous bodily
harm. In
respect of Count 1 the accusation is that on the same date and place
he lashed out at, but missed, Willem Abrahams
with the same sjambok
and with the same intent.
3.
In
respect of Count 4, the Murder, the accused is said to have murdered
Alfred Phakedi on the same occasion, on the same farm and
using the
same or other unspecified instrument.
4.
The
accused, represented by Adv Barry Roux SC, has in terms of s 112(2)
of the Criminal Procedure Act, 51 of 1977 (the CPA) proffered
the
following written guilty plea in respect of all charges (marked
Exhibit “
A
”):
“
1.
I understand the charges in Counts 1 – 4 and plead guilty
thereto, as explained hereunder. I respectfully
request that my
pleas of guilty be read with my explanation of my plea of not guilty
on the charge of murder in regard to Count
4 in terms of Section 115
of the CPA.
2. I
plead guilty voluntarily and without any undue influence.
3. AD
COUNT 1
3.1 On 23
August 2014 and at the farm Makoenskloof, Douglas, in the district of
Herbert, within the jurisdiction
of this Honourable Court, I hit once
at Willem Abrahams with a plastic sjambok.
3.2 I hit at
Willem Abrahams when he ran past me. When I hit at Willem
Abrahams he ducked away as a result
of which I missed him.
3.3 When I hit
at Willem Abrahams with the plastic sjambok it was not with the
intent to cause grievous bodily
harm to him. I never intended
to hit so hard that the sjambok could cause a laceration to his
skin. However, I accept
that if the sjambok had made contact
with him, it could have caused a tramline abrasion to his skin, and
not a laceration.
3.4 I had no
right or excuse to hit at Willem Abrahams.
3.5 I
accordingly plead guilty to attempted assault on Willem Abrahams.
4. AD
COUNT 2
4.1 On 23
August 2014 at the farm Makoenskloof, Douglas, in the district of
Herbert, within the jurisdiction of
this Honourable Court:
4.1.1 I hit Andrè Petrus
Afrikaner once with a plastic sjambok over the head;
4.1.2 I did not aim at his head
but hit at him as he was running past me. In the process he was
hit on his head, which I accept
was wrong and indiscriminate;
4.2 When I hit
at him I did not intent to do grievous bodily harm to him as I did
not intend to hit so hard that
the sjambok could cause a laceration
of his skin;
4.3 According
to the J88 report in respect of Andrè Petrus Afrikaner the
injury was not serious.
I accept however that it could cause an
abrasion to his skin and in this instance in fact caused a tramline
abrasion to his scalp
(skin).
4.4 I had no
right or excuse for hitting him with the sjambok as explained, and
accordingly I plead guilty that
I assaulted Andrè Petrus
Afrikaner by hitting him once with a plastic sjambok over his head.
5.
AD COUNT 3
5.1 On 23
August 2014, at the farm Makoenskloof, Douglas, in the district of
Herbert, within the jurisdiction
of this Honourable Court:
5.1.1 I accept that I hit
Franklin Hoogstander twice with a plastic sjambok. I understand
and accept that the first lash made
contact with the peak of his
baseball cap as stated by him in his statement. The second lash
was on his back;
5.1.2 I did not specifically aim
at any body part but indiscriminately hit at him as he was running
past me;
5.2 When I hit
at him I did not intend to do grievous bodily harm to him as I did
not hit so hard that the sjambok
could have caused a laceration of
his skin;
5.3 I had no
right or excuse for hitting him with the sjambok.
5.4 I
accordingly plead guilty that I assaulted Franklin Hoogstander by
hitting him twice with a plastic sjambok.
6.
AD COUNT 4
6.1 On 23
August 2014, at the farm Makoenskloof, Douglas, in the district of
Herbert, within the jurisdiction
of this Honourable Court:
6.1.1 I hit the deceased,
Mosimanegape Alfred Phakedi, three or four times with a plastic
sjambok.
6.1.2 One or two lashes were on
his back, another lash was on the lower side of his abdomen and a
further lash was on his right
elbow.
6.2 When I hit
him I did not intent to do grievous bodiy harm to him as I did not
hit so hard that the sjambok
could have caused lacerations of his
skin;
6.3 I leave it
in the hands of the Honourable Court to find whether 3 to 4 lashes
with a sjambok would constitute
assault with the intent to do
grievous bodily harm, although I did not intend to cause serious
injuries.
6.4 I knew that
the lashes could cause tramline abrasions to his skin.
6.5 I had no
right or excuse to hit him with the sjambok.
6.6
I accordingly plead guilty that I assaulted the deceased,
Mosimanegape Alfred Phakedi, by hitting him three
to four times with
a plastic sjambok.”
5.
The
accused has undersigned his statement and has confirmed it before me.
6.
In
a comprehensive statement, Exhibit “
B
”,
termed “
Plea-explanation
by the Accused in terms of
s 115
of the
Criminal Procedure Act, 51 of
1977
, in regard to Count 4 [Murder]”
the accused states:
“
1.
I am the accused in this matter. I understand the charges against me.
As will be seen from
S 112
(of the CPA) statement, I plead guilty to
assaulting the deceased (Count 4) and the complaints in Counts 1 &
2 and guilty to
attempted assault in respect of Count 3. I plead not
guilty to murder in respect of Count 4. I deal herein comprehensively
with
my plea of not guilty on Count 4, in order to enable the State
to clearly identify the disputes for consideration in this matter.
AD COUNT 4- MURDER
I
am a businessman and hold a 50% shareholding in Discovery Properties
(PTY) LTD (“Discovery”). Discovery is the owner
of a farm
known as Makoenskloof. At the relevant time there were 300 sheep and
70 cattle on the farm. There was (and still is)
a pivot for
irrigation. In order to give water to the animals on the farm the
pivot must be started to supply water to the dam
to in turn supply
water to the animals.
2. Alfred
Phakedi (the deceased) was employed by Discovery and was the foreman
on the farm. Willem Abrahams
(the complainant in Count 1) (“Willem”)
and Andre Petrus Afrikaner (the complainant in Count2) (“Petrus”)
worked with the deceased on the farm. All of them lived on the farm
in two adjacent houses.
3.
On 23 August 2014 at 03:42 I received a telephone call from the
deceased, which he made from the cellular
phone given to him by me to
use for work purposes, (071 172 8913). The call was made to my
satellite phone (087 285 25280). The
deceased told me that people
from Katlani were at his place and there was fighting. I could hear
music in the background. I subsequently
discovered from the telephone
records provided by the state, that prior to phoning me, the deceased
had made a phone call to Daniel
Pitso (an employee on the mine) at
02:06 the same morning.
4.
The same morning at 07:29 I received a further call from the deceased
on my cellular phone (082 455 6604),
informing me that he had a
problem with the pivot. I asked him what the problem was and he
explained that he could not get the
pivot to work. I asked him to
check if it was an electricity problem or a water problem, although I
did not believe that it would
be a water problem, as the water was
from the river to the dam and then to the pivot.
5.
The same morning at 08:42 the deceased again phoned me and told me
that he could not get the pivot to
work. The cellphone reception at
the farm is poor and the call was lost, which I believe explains a
further call by the deceased
08:51 regarding the same problem. I
accepted that there was a problem with the electricity supply as it
did not make sense that
there could be a water problem. I told him I
was on my way to the farm.
6.
I went to the GWK (the Co-operation) to buy a circuit breaker as I
thought that the most likely problem
with electricity supply would be
a defective circuit-breaker. When I was at GWK I saw sjamboks at the
display area. I decided to
buy one as we need it on the farm when we
move the cattle into the crush for dipping and treatment purposes.
The bull on the farm
was in particular difficult to control. GWK did
not have the correct circuit breaker. I did not buy the sjambok with
the preconceived
idea to assault anyone as there was no reason for me
to want to assault the deceased or anyone else. I had always
maintained a
very good relationship with deceased, and a faulty
circuit breaker could in any event not be attributed to him.
7.
The same morning at 09:32 the deceased called me again to enquire if
I was on my way as there was no
water for the animals. I told him
that I was on my way.
8.
Upon my arrival at the farm I first went to the dam. I saw that the
tap supplying water from the dam
to the pump (suction side) was
closed. I realised that it had nothing to do with an electrical
problem. I opened the tap. I saw
that the water trough of the animals
was dry and must have been dry for a number of days. The deceased was
not at the dam and I
decided to go to his house to look for him as it
was a working day. I was annoyed and upset but had no intent to
assault the deceased.
9.
When I arrived at his house (there are two houses) I got out of my
vehicle (a bakkie) and walked towards
the house where the deceased
was sitting outside with Willem and Petrus. I did not have the
sjambok with me, which was still in
my vehicle. At that point I
became more upset as I was thinking of the animals, which had been
without water for some time and
the employees sitting at home when
they were supposed to work. I also believed they had been drinking
the previous night until
the next morning which explained the
deceased’s inability to open the tap and his staying at home.
10.
I then decided to turn back and fetch the sjambok. I did so as I had
in my upset state of mind then taken
the irrational and inexcusable
decision to fetch the sjambok to give the deceased a hiding. I had no
justification to act as aforesaid
and I had no right to give him a
hiding.
11.
The deceased smelled strongly of alcohol. The call he made to me at
about 03:00 in the morning confirmed my
view that they had been
drinking. I asked him why he had not opened the tap so that the
animals could have water, which he could
not explain. The above,
coupled with the fact that they were sitting at home (in my mind
because of drinking) when they should
be working and the fact that
animals on the farm had previously died of thirst, caused me to lose
my temper.
12. I grabbed
the deceased and hit him with the sjambok over his lower back and his
side. Although I was upset,
I did not hit him hard. I also did not
intend to hit him hard. I may have hit him in the process over his
right elbow as well.
At that time Willem and Petrus started to run
away. As they ran past me I hit at them with the sjambok. I did not
aim for any specific
place on their bodies. It was rather a matter of
taking swipes at them, which I accept was indiscriminate and without
any justification.
13.
I also took a swipe at Franklin Hoogstnder (the complainant in Count
3) (“Franklin”), who was
unknown to me and who came
running out of the house as I felt he was drinking with them the
previous night. According to
his statement I hit him twice with
the sjambok, once on his back and once over the peak of his baseball
cap. I cannot specifically
remember hitting at him twice, but I
accept it. Again I did not aim to hit him at a specific place
on his body but I swiped
at him as he was running past me.
14.
During
the process of hitting at the three complainants, the deceased ran
away. He ran through the gate down the road and
turned left
into the bushes. I chased after him. After he had turned
left into the bushes he fell. He in fact
fell twice in that
area, which is very rocky. He was cornered in the bushes I got
hold of him, held him by his wrist and
took him back to where my
vehicle was. I took him back as I wanted to take him to the dam to
show him what he had not done.
Although I do not remember I
could have hit him one more time with the sjambok when we walked back
to my vehicle. However,
I could not have hit him more than four
times over his body in total.
15.
I accept and admit that over the period, as described by me, I hit
the deceased three or four times with the sjambok.
The injuries
caused by the sjambok. There is a tramline injury to his lower
back, a possible tramline injury to his right
mid back, another
tramline injury to his lower left side of his abdomen and a tramline
injury to his right elbow.
16.
I definitely did not hit him over the head with the sjambok or with
anything else. I did not assault him in
any other way other
than with the sjambok, but for grabbing hold of him, which could not
have caused any injury. The post-mortem
report by Dr Kanaomang
confirms that he was not hit over the head with the sjambok. This is
also confirmed by the forensic pathologist,
Dr Perumal.
17.
I had no right to assault the deceased and the other complainants and
I had no excuse at all for doing so.
However, I need to
emphasise that I did not go to the deceased’s house to assault
him. It happened at the spur of the
moment when I lost my
temper for the reasons referred to above. If I had planned to
assault the deceased I would have taken
the sjambok with me when I
first got out of the vehicle.
18.
After the deceased had climbed onto the bakkie I wanted to drive to
the dam to demonstrate to the deceased
why the pivot did not work.
However, on my way there I decided that there was no use for doing so
as I lost my trust in him.
I decided that I did not want them
(the deceased and the complainants) on the farm anymore as I could
not trust them to look after
the animals. It must be borne in
mind that I am not a farmer but involved in mining. I only
visit the farm about three
times a month. I was therefore
dependant on the trust of the employees to look after the animals on
the farm. At that
point in time, I was mindful of the fact that
about a month before the deceased had taken my vehicle on the farm to
drive somewhere
and then overturned the vehicle. This vehicle
was only used on the farm as he did not have a driver’s
licence.
He had taken the vehicle without my consent. I
did not assault the deceased at the time but reprimanded him.
19.
I turned around and went back to their houses as I wanted them to
pack their belongings and leave the farm.
At the house I
ordered the deceased and Katjie Pieterse (Katjie) to pack their
belongings. After they had done so, they put
their belongings
on the back of the bakkie. Both of them got onto the bakkie.
I first stopped at the pump station at
the river to permit water to
pump to the dam. I then took them to the main road where
they disembarked. On the way
the main road I phoned an employee on
the mine, Ephrain Mhlotswane (“Ephraim”) to come and pick
them up by the main
roadside and take them and their belongings to
Douglas, where I knew all of them came from.
20.
After they had disembarked the deceased and Katjie pleaded with me to
drop them off in Douglas. At that
time I did not see any signs
that he was or could be seriously injured nor did he complain to me
of any injuries or symptoms.
21.
In fact, I knew that I had hit him three or four times with the
sjambok, and I had no reasons to believe that
he would have suffered
serious injuries because of that. He was talking to me and he
had packed his bags. I did not
realise that he had sustained
injuries in falling down when running away. If I had any idea
that the deceased had sustained
a serious injury, I would have taken
him to the hospital.
22.
Therefore, when I received a call the next day to tell me that the
deceased had died I could not believe it,
as I did not hit the
deceased hard with the sjambok. I had no intention to kill the
deceased. In fact, I had no intention
to cause serious injuries
to the deceased.
23.
As It did not make sense to me that the deceased could have died from
the three or four sjambok lashes I requested
a second independent
post-mortem by Dr Perumal.
24. I am
advised that Dr Perumal:
24.1 will confirm that the
deceased had sustained three or possibly four lashes caused by the
sjambok;
24.2 will state that the
dceased could not have died as a result of the three or possible four
lashes;
24.3 will state that the
head injury has no relevance to the sjambok;
24.4 found various injuries
to the body of the deceased consistent with him falling down and
making contact with hard objects
consistent with stones/rocks
specific area. Dr Perumal took photos of the injuries to
demonstrate the above;
24.5 is of the view that
his falling down could have caused him to bump his head against the
stones/rocks, which could have
caused a head injury.
24.6
is of the view that the deceased did not die directly of a head
injury but that the cause death is consistent with aspiration
pneumonitis as a consequence of a seizure following blunt force
trauma to the head. The seizure caused gastic aspiration,
which
caused aspiration pneumonitis.
25.
I unreservedly apologise to the Court and the family of the deceased
and the complainants for my unacceptable,
unlawful, inexcusable and
irrational conduct.”
7.
The
upshot of the statement is that, if the state concurred, the accused
would be convicted of:
7.1
In
Count 1: The attempted Common Assault of Willem Abrahams, as
distinct to Assault to do Grievous Bodily Harm, which is agitated
for
by the state.
7.2
Counts
2 and 3: The Common Assault on Petrus Afrikaner (Count 2) and
Franklin Hoogstander (Count 3) and not the Assault GBH
they are
charged with.
7.3
Count
4: Assault Common and not Murder.
8.
The
state did not accept the attenuated plea-explantion as set out above.
However, the admissions have been recorded as formal
admissions
in terms of
s 220
of the CPA. In the result
s 113
of the CPA
has kicked in.
9.
In
light thereof that the evidence of the eye-witnesses (Ms Katjie
Pieterse, her husband Mr Willem Abrahams, and Mr Petrus Afrikaner)
coincides largely with the plea-explanation and admissions of the
accused or where there is some dichotomy such is insignificant.
It
would be superfluous to go into any detailed discussion on their
evidence. The legal dispute pivots around whether the
aforegoing facts and circumstances constitute, in respect of the
Murder charge, Common Assault or Assault GBH or Culpable Homicide.
State counsel, Mr Barnard, has conceded fairly and correctly in
my view, that the state has not proved the charge of murder
against
the accused.
10.
The
acceptable evidence of the mentioned witnesses is to the effect that
the accused arrived at their living quarters around 10h00
in the
morning. He hurled some insults, which could only have been
directed at the deceased (his foreman), Willem Abrahams
and Petrus
Afrikaner because Ms Pieterse and Hoogstander are not his employees.
The accused was apparently incensed by the
fact that the pivot was
run dry, in the sense that the pivot was operational but no water was
pumped into the dam. As a result
the cattle had no drinking
water. One account was that the accused did not utter a word
and lashed out at everyone, except
Ms Pieterse, with the plastic-cosh
(sjambok). However that may be, what is material to my
decision is really what the
accused did and not so much what he said.
11.
The
accused grabbed hold of the deceased by the shirt in the region of
his chest. As he did so Abrahams, Afrikaner and Hoogstander
used the opportunity to flee, but had to run past him. The blow
aimed at Abrahams missed. The account by Abrahams and
the
accused is that the blow which went astray (
aberratio
ictus
)
struck Afrikaner. Afrikaner, though, was adamant that the
missed blow did not find its mark on him but what struck him was
a
blow that was specifically aimed at him. This difference is of
no moment because the accused clearly did not mean to spare
any of
the men, but Ms Pieterse. From his own mouth comes the term
“
indiscriminate”
in this context.
12.
It
is undisputed from the medical evidence of Dr Tebogo Kanaomang (for
the state) who conducted the first port-mortem examination
and Dr
Perumal, a forensic pathologist, that the deceased must have been
struck four times with the sjambok (the use of which is
common
cause), having regard to the tramline bruising (as opposed to
lacerations) being located on the deceased’s back, abdomen
and
elbow. Dr Kanaomang testified that the tramline bruising is
indicative that the accused used only moderate force.
It must
be added, though, that the deceased wore a T-shirt and a long pair of
pants.
13.
The
deceased managed to escape from the clutches of the accused, ran
along the gravel road on the farm, with the accused in hot
pursuit.
To try and shake off his pursuer he diverted into a bushy-rocky area
on the farm, depicted in various photos of
Exh “H”.
What transpired there is only known to and can only be related by the
accused. As he has done in paras
14-16 of his statement highlighted
at para 6 of this judgment.
14.
The
accused, Ms Pieterse and Mr Afrikaner are agreed that the accused
evicted them from the farm forthwith. He offloaded them
next to
the road and phoned a certain Mr Ephraim Mhlotswane, another
employee, to drive them to their homes in Douglas.
15.
It
is common cause that at that stage the deceased was still steady on
his feet and showed no signs of a head injury or physical
weakness.
He disembarked by himself from the accused’s bakkie.
However, by the time that Mr Mhlotswane fetched
them the deceased
complained of a throbbing headache. In transit Ms Pieterse
supported his head with the soft clothing bags
to make him as
comfortable as possible whilst he lay down.
16.
On
arrival in Douglas the deceased’s condition had deteriorated to
the point that he had to be lifted from the vehicle and
layed under a
tree next to their house. That evening the deceased, although
he was immobile, seemed to have been fairly coherent
but had become
soft-spoken. He was carried into the house. He drank a
bit of water but declined the food. He
was discovered dead the
following morning. His death was reported telephonically to the
accused who seemed surprised by the
cruel turn of events and
terminated the call abruptly.
17.
From
this set of facts state counsel urged upon me to convict the accused
of culpable homicide on the murder charge. Counsel
argued as
follows:
“
19.
Firstly, if being assaulted by the accused who is clearly bigger in
posture, it is inevitable that the deceased
would have tried to
escape and run away.
20. If then
still being chased by the deceased, it is just inevitable that the
deceased would try even harder
to get away.
21. The
deceased at that moment would certainly have been afraid and scared
of the accused. When trying
to flee from a person who is
hitting you with a sjambok, there is certainly a realistic chance of
falling and hitting your head
against a rock or stone or hard object
especially when under the influence of alcohol. This is
especially the case when you
are on a farm.
22. A person
falling against a hard object and sustaining a head injury that
causes death is not uncommon, remote
or farfetched. Nor is it
‘a freakish combination of circumstances’. The
State therefor submits that it
is indeed foreseeable.
See:
S v Bochris
Investments (Pty) Ltd and Another
1988 (1) SA 861
(A).
23. ---.
24.
It is submitted that the reasonable man under the circumstances would
have foreseen the possibility of the
deceased falling and fatally
injuring himself and therefore would not have acted as the accused
did. It is therefore submitted
that the accused ought to have
foreseen the possibility of death as a consequence of his conduct.”
18.
State
counsel relied heavily on
R
v John
1969 (2) SA 560
(RA). In that case a fight ensued between the
accused and his wife in their hut. They were separated. The
accused
returned to the hut where he resumed the fight. Later,
when the two of them emerged from the hut the deceased bit the
accused’s
lip and fled towards the kraal head’s hut, only
to find that he was away, whereupon she ran off in another
direction.
The accused picked up a hoe and either deliberately
removed the hoe from the handle or else the hoe fell out of the
handle. He
then chased after the deceased, having uttered threats to
kill her. The deceased, who was six months pregnant, ran some
200
yards or so and either fell into or took refuge in a fairly large
deep pool of water. She got into difficulties. The accused
called for help and entered the water in order to rescue her.
He was unsuccessful. The cause of death was noted as
head
injury followed by drowning. The court of Appeal found that the
deceased sustained the head injury during the assault
on her and
ended consequently up in the pool of water and drowned.
19.
At
p 572A-C the Court came to the following conclusion
:
“
In
my judgment, the appellant in this case ought to have foreseen that
the deceased fleeing terror-stricken from him might, in her
headlong
flight, collide violently with some obstacle, fall heavily over some
obstacle or into a hole or other pitfall, or, fearing
death or
serious injury at the hands of the appellant, take any avenue of
escape which happened to present itself to her even though
such
avenue was scarcely less dangerous than the threatened assault.
Although the appellant could not
foresee in detail what might actually happen, he ought, for the
reasons stated, to have foreseen
that there was some risk of death
involved in his aggressive pursuit and the deceased's headlong flight
and it should have come
as no surprise in the circumstances when the
deceased either accidentally fell or deliberately ran into the pool.
The
determination of the appellant's responsibility for the deceased's
death necessarily involves a value judgment. In my view,
the evidence
establishes that the unlawful conduct of the appellant which
consisted of his threat of death and aggressive pursuit,
armed with a
hoe-handle, of the deceased, was the cause of her death which he
ought to have foreseen.”
State
counsel submitted that, therefore, on applying the law to these facts
the state has established beyond reasonable doubt that
the accused is
guilty of Culpable Homicide on Count 4.
20.
State
counsel had contended earlier, during the
s 174
of the
Criminal
Procedure Act application
by the defence, seeking the acquittal of
the accused on the murder charge, that he would agitate for a
conviction on Culpable Homicide,
as he indeed subsequently did. I
requested counsel, after the close of the defence case, to address me
fully on whether the state’s
argument was not a “
harking
back”
to the outmoded and outlawed
versari
in re illicita doctrine
.
I am indebted to counsel for their helpful written submissions in
this regard.
21.
In
Rex
v Sikona
1937 SR 53 at 57 the Court held:
“
If
a person is running away under an apprehension of violence, it is not
an unreasonable consequence that the person might fall
down and if,
in the course of falling down, that person becomes injured, that is
the guilty act of the person who caused her run
away.
”
And
further:
“
It
follows that, if she died as the result of the fall, the Accused is
responsible for her death, even though the death may be a
somewhat
unlikely consequence of her running away and falling.”
That
was then.
22.
The
versari
principle
was outlawed in
S
v Bernardus
1965 (3) SA 287
(A) in which the court held that if someone
unlawfully assaults another and in so doing causes his death, but
under circumstances
in which he could not reasonably have foreseen
the death ensuing, then he is not guilty of culpable homicide.
23.
In
S
v Burger
1975 (4) SA 877
(A) at 878H – 879E Holmes JA gave this lucid
exposition on what the law requires before an accused is convicted of
culpable
homicide:
“
As
to the law, in general:
(i) Culpable homicide
is the unlawful, negligent causing of the death of a human being; see
S. v Ntuli,
1975 (1) SA 429
(AD) at p. 436A, and cases there cited.
(ii) Basically there
must be some conduct on the part of the accused involving dolus (such
as an assault), or culpa
(such as an operation by a surgeon without
due care, or the driving of a motor vehicle without keeping a proper
look-out).
(iii) Such conduct
must cause the death of the deceased.
(iv) In addition
there must be culpa in the sense that the accused ought reasonably to
have foreseen the possibility
of death resulting from such conduct;
see S. v Bernardus,
1965 (3) SA 287
(AD). This is because culpable
homicide is the unlawful, negligent causing of the death of a human
being.
(v) It follows from
the foregoing that causation of death, even as the result of an
unlawful act which is criminally
punishable, is not of itself
sufficient to constitute the crime of culpable homicide. To disregard
the additional requisite of
the reasonably foreseeable possibility of
resultant death, would be to reinstate the doctrine of versari in re
illicita, which
was outmoded by S. v Bernardus, supra.
(vi) If an accused
does foresee - as distinct from ought to have foreseen - the
possibility of such resultant death
and persists in his conduct with
indifference to fatal consequence (or if he actually intends to kill)
the crime would be that
of murder; see S. v Sigwahla,
1967 (4) SA 566
(AD) at p. 570B - E. Having regard to the requirements of foresight
and persistence, the dividing line between (a), murder with
dolus
eventualis and (b), culpable homicide, is sometimes rather thin.
(vii)
Culpa and foreseeability are tested by reference to the standard of a
diligens paterfamilias (" that notional epitome
of reasonable
prudence" - Peri-Urban Areas Health Board v Munarin,
1965 (3) SA
367
(AD) at p. 373F) in the position of the person whose conduct is
in question. One does not expect of a diligens paterfamilias any
extremes such as Solomonic wisdom, prophetic foresight, chameleonic
caution, headlong haste, nervous timidity, or the trained reflexes
of
a racing driver. In short, a diligens paterfamilias treads life's
pathway with moderation and prudent common sense.”
24.
Mr
Roux made the following points worthy of consideration:
“
2.11
Photo album Exhibit H shows various photos of the area where the
deceased was running. It is quite clear from the various
photographs that the ground surface is even with a lot of small
stones and a small number of larger stones.
2.12 The deceased was not
the only person running in the bushes on the day.
2.12.1
Willem Abrahams, the complainant in Count 1 also ran away and did not
fall;
2.12.2
Andrè Petrus Afrikaner, the complainant in Count 2 also ran
away and did not fall;
2.12.3
Franklin Hoogstander, the complainant in Count 3 also ran away and
did not fall; and
2.12.4
the Accused also ran and did not fall.
3.
Furthermore, the area where the deceased fell is close to his house,
he has been working on the
farm and staying in that house for a
considerable period of time and the probable inference must be that
he knew that area well.
4. The
State sought to introduce into the equation that that deceased was
drunk and that it was known to
the Accused that the deceased was
drunk. This, according to the State, should have caused the
Accused to foresee that the
deceased would fall in the process of
running away. Apart from the fact that the deceased had been
drinking (notwithstanding
contradictory evidence in that regard),
there is no evidence that the ability of the deceased to run was
impaired by alcohol intake.
Accordingly, with respect, any
alcohol intake remains irrelevant for purposes of determining policy
considerations as referred
to hereunder.”
On
the latter point, Mr Roux is correct because two of the state
witnesses denied that liquor was consumed that night.
25.
Defence
counsel then submitted that if state counsel’s contention is
sustained it would unwittingly amount to invoking the
versari
doctrine.
The safe approach, in my view, is to adopt what
Snyman,
Criminal Law, 5
th
Edition
,
propounds at p88 that:
“
It
is relatively easy to set out the courts’ answer to this
question: the appellate division has, especially in Mokgethi
[1990 (1) SA 32
(A) at 39-41], stated very clearly that it is
incorrect to single out one of these theories as the only correct one
and then to
apply that theory in all cases. The court held that
courts should adopt a flexible attitude, which implies that a court
should
not regard only one specific theory as the correct one.
One criterion may produce the fairest result in one set of facts,
while another set of facts may be served by applying another
criterion. According to the appellate division, the overriding
consideration in deciding upon legal causation is that a court should
be guided by policy considerations. This means that
a court
should strive towards a conclusion which would not exceed the limits
of what is reasonable, fair and just. The particular
theories
of legal causation --- such as ‘proximate cause’,
adequate causation and the absence of a novus actus, are
aids that
may be applied in order to reach a just conclusion.”
26.
To
convict the accused of culpable homicide would be to cast the net to
wide. The authorities adverted to hereinbefore have
established
a sound basis on what approach a court ought to adopt. The
terrain depicted on the photos appears to be relatively
uneven and
somewhat stony but not rugged. It is not hilly or strewn with
big boulders. It cannot be said that the accused
should have
anticipated that the deceased would fall, and perhaps fall a second
time. It also does not follow that everyone
who falls on that
terrain will bash his or her head on the sparsely strewn stones.
A further dimension to have to be foreseen
by an accused would be
that the fall will result in a serious head injury that would result
in the death of a deceased. I
do not want to say that the death
of the deceased was “
freakish
”,
but on the facts before me it was certainly unfortunate.
27.
In
the result I am satisfied that the accused did not unlawfully and
negligently cause the death of the deceased. He is accordingly
acquitted on the competent of murder, namely culpable homicide.
28.
This
does not end the matter, though. The final hurdle that the
accused has to overcome is whether, on the facts and the law,
he is
merely guilty of Common Assault, as pleaded, or of Assault GBH.
In his plea the accused, fairly, is alive to the possibility
of being
convicted of Assault GBH, if that would be the appropriate verdict.
He says,
inter
alia
:
“
6.3
I leave it in the hands of the Honourable Court to find whether 3 to
4 lashes with a sjambok would constitute assault
with the intent to
do grievous bodily harm, although I did not intend to cause
serious injuries.”
29.
The
assault on the deceased is different from that meted out to the
complainants, as already described. In the case of the
deceased
he was grabbed and thrashed several times. He broke loose and
was relentlessly pursued. When the accused caught
up with him,
after he had already fallen twice, the accused once again lashed him
with the sjambok. The agreed dimensions of the
sjambok are:
29.1
Length:
97cm;
29.2
Diameter
at the point (whiplash): 900mm – 1cm;
29.3
Diameter
in the middle ± 5cm; and
29.4
Diameter
at the handle: 2cm.
30.
The
sjambok itself is not, in my view, a dangerous weapon and is on the
light side. The weight was not sought nor established.
31.
In
the circumstances, on a conspectus of the evidence, the circumstances
and law, I am satisfied that the accused is guilty of Assault
GBH on
Count 4 and is acquitted on the charge of Murder.
32.
The
accused is in the premises convicted as follows:
1.
Count
1: Guilty of attempted assault.
2.
Count
2: Guilty of Common Assault.
3.
Count
3: Guilty of Common Assault.
4.
Count
4: Guilty of assault with the intent to do Grievous Bodily
Harm.
SENTENCE
: 16/03/2016
KGOMO
JP
33.
In
view of the fact that the evidence of this case is still fresh in our
memories I do not wish to rehash it here. The accused
is a 44
year old man who is married and has one child who is under three
years old.
34.
The
first three offences that he is convicted of: Attempted assault
and two counts of Assault Common are not serious offences.
The
fourth conviction, assault with intent to do grievous bodily harm is
of a serious nature but the injuries themselves, four
weals with a
plastic-cosh, are not severe.
35.
The
accused’s previous convictions, which I list hereinafter, are
not serious transgressions of the law and display
lengthy
periods between them during which the accused had no brushes with the
law:
35.1
In
February 1997 he paid an admission of guilt fine of R80-00 for
crimen
injuria
;
35.2
More
than two years later in August 1999 he was convicted of driving
a motor vehicle whilst he was under the influence of
intoxicating
liquor and was sentenced to pay a fine of R1800 or in default of
payment to undergo nine (9) months imprisonment and
a further nine
(9) months imprisonment suspended for five (5) years on certain
conditions.
35.3
About
two years down the line, during May 2001, the accused paid R100-00
admission of guilt fine for assault, which is relevant
to the present
four convictions.
35.4
In
October 2005 he was convicted of driving a motor vehicle under the
influence of intoxicating liquor, and was sentenced to pay
a fine of
R3000-00 in default of which to serve 9 (nine) months imprisonment
half of which was suspended for 3 (three) years on
certain
conditions.
35.5
During
September 2007 he was convicted of the contravention of the Value
Added Tax Act (VAT Act) and paid an Admission of Guilt
fine of
R2000-00.
36.
The
accused’s career has been set out as follows:
“
18.
He is involved in diamond mining.
18.1 He is the person in
the business who is skilled in and involved in controlling the
operational side of the diamond mining.
18.2 He is responsible for
the employment of 14 employees in the business.
18.3 His present financial
position is poor by virtue of the termination of a joint venture
between Rockwell Diamonds and
Gump Mining. The joint venture
was under the name of Gumrock and Rockwell Diamonds and Gump Mining
held equal shares.
As a consequence of the termination of the
joint venture Gump Mining must pay over R5 million to Rockwell
Mining, which he is unable
to pay at present. The accused, as a
50% shareholder in Gump Mining, is exposed to 50% of such debt.
18.4 He
has commenced with a new business under the name of Aventuri Mining
Contractors, which is also involved in diamond
mining. The
business is not yet at a point where it generates sufficient income
to yield profits but the expected income
will allow the operations to
continue and to allow the business to pay the salaries of the 14
employees.”
37.
What
emanates from the accused’s previous convictions is that he
does not have a violent disposition. His last transgression
of
this nature occurred almost 15 years ago, which was considered minor
and for which an admission of guilt was determined and
paid. It
is not worth being considered.
38.
The
accused’s employees, who were assaulted and testified during
the trial against him, said the accused was a good man and
treated
them well. His behaviour on the morning of the incident
surprised them as it went against his nature.
39.
The
accused has pleaded guilty to the lesser offence in Counts 1-3. As
far as Count 4, the Murder Charge is concerned, he pleased
as
follows:
“
I
leave it in the hands of the Honourable Court to find whether 3 to 4
lashed with a sjambok would constitute assault with the intent
to do
grievous bodily harm.”
Notwithstanding
the fact that the state did not accept the factual matrix advanced by
the accused, in the end the state in essence
added substantially very
little by adducing evidence to proof the charges preferred against
him. The state did the right
thing, though, in light of the
interest shown in the case by members of the community.
40.
The
accused, in my view, has shown genuine remorse. This is
demonstrated by the following deeds:
40.1
He
pleaded guilty and made a comprehensive (full) and frank disclosure
of what he has done wrong.
40.2
He
paid for the funeral costs of the deceased, Mr Alfred Phakedi, to the
tune of R10 000-00. (Ten thousand rand).
40.3
Shortly
after the funeral he gave an amount of R2500-00 to Mrs Elizabeth
Phakedi, the deceased grandmother. His parents are
both
deceased.
41.
Mr
Roux has made the following further written submissions which may be
watered down if paraphrased:
“
48.
Although the Accused is in a financially difficult position
consequent upon the termination of the joint venture
--- he seeks to
bring about some restoration, even though he is not accountable for
the death of the deceased. He feels morally
responsible to take
care of the grandmother of the deceased, who was dependant on the
deceased. It is also important to note
that he does not do so
from a position of wealth, but rather in a situation where he is
experiencing financial difficulty.
49
Already in February 2015 he requested his attorney to make contact
with the State to enquire if he could
make contact with the
deceased’s family in order to take financially restorative
action. He did this not because he
believed he caused his death
but he blamed himself for the death on a moral basis.
50. The Accused
offers to pay R3 000,00 per month to Mrs Phakedi for the rest of
her life in lieu of the salary
paid to the deceased. The salary
of the deceased was R3 000,00 per month. He offers to
increase this amount annually
in accordance with the official
inflation rate of 7%. It must be borne in mind that the
contribution by the deceased to Mrs
Phakedi would have been in a
substantially lesser amount, as his total income of R3 000,00
per month and he only used a portion
of it to make contributions to
Mrs Phakedi.
51. The Accused
offers to pay retrospective the amount of R 3000,00 from the first
month following the death of the
deceased i.e 1 September 2014.
The 7% annual increments will take place from 1 April 2016.
52. The Accused also
voluntarily attended therapeutic sessions by a psychologist, Miranda
Pretorius, to address anger
management. This he has done to
avoid any possible repetition of the incident. He also consults
a psychologist, Löre
Hartzenberg on a number of occasions in an
effort to improve himself.
53. He also offers to
compensate the complainants in Count 1 to 3 on the terms directed by
this Honourable Court.
The complainant in Count 2 sought
re-employment from the Accused about 3 days after the incident.
The Accused did not re-employ
him, because he was concerned that it
might have been interpreted as an interference with the criminal
justice system. He
offers to re-employ the complainants in
Counts 1 and 2, should they so want.
54. If regard is had
to the above, it is, with respect, clear that the Accused has
embraced the values encapsulated
in the concept of restorative
justice, which is an essential ingredient of ubunthu.
55. In “Ubuntu
and the Law, African Ideals and Post-Apartheid Jurisprudence,”
by Cornell and Muvangua, Justice
Yvonne Makgoro, in an instructive
article entitled “Ubuntu and the Law of South Africa”
(p317-323) inter alia
states “Without a doubt, some aspects of
the values of Ubuntu are universally inherent to South African
cultures. It
would be anomalous if dignity, humaneness,
conformity, and respect were foreign to any of South Africa’s
cultural systems.”
And Further
“
I
believe we should incorporate Ubuntu into mainstream jurisprudence by
harnessing it carefully, consciously, creatively, strategically,
and
with ingenuity so that age-old African social innovations and
historical cultural experiences are aligned with present day
legal
notions and techniques if the intention is to create a legitimate
system of law for all South Africans. Including Ubuntu
will
enhance the legitimacy of a jurisprudence, which is required to
manage the challenges that Constitutionalism with entrenched
human
rights pose for us.”
42.
Mr
Roux urged that the accused be kept out of jail as a custodial
sentence may not serve any useful purpose: His business
would
collapse, his 14 employees would lose their jobs, the payments to the
grandmother of the deceased on a monthly basis would
not be sustained
and he has a young family to care for.
43.
In
aggravating of sentence Mr Barnard, for the state, pointed to the
accused’s previous convictions. He attempted to
introduce
a racial element or connotation but such intimation is
ill-conceived. There is not the slightest suggestion during
the
entire trial that the assaults were motivated by racial prejudice.
The converse is in fact true.
44.
The
impact report on the deceased family was compiled on 15 May 2015 by
Social worker Ms Lesego S Mosinki and undersigned by her
supervisor
Ms Mogomotsi Keameditse. As it predates the trial and verdict
it was produced on the basis that the accused was
the direct cause of
the deceased’s death. The report must therefore be
approached in that context. It is nevertheless
helpful in that
it shows that:
44.1
The
deceased was unmarred and had no children;
44.2
He
maintained his grandmother, who is now 82 years old, and also
contributed towards the maintenance and schooling of certain members
of his extended family.
44.3
That
the death of the deceased has, understandably, saddened them.
45.
The
approach in sentencing has been stated as follows in
S
v Thonga
1993(1) SACR 371 (V) at 370b-I whereat Etienne du Toit AJ
stated seminally :
“
A
judicial officer should not approach punishment in a spirit of anger
because, being human, that will make it difficult for
him to
achieve that delicate balance between the crime, the criminal and the
interests of society which his task and the objects
of punishment
demand of him. Nor should he strive after severity; nor, on the other
hand, surrender to misplaced pity. While not
flinching from firmness,
where firmness is called for, he should approach his task with a
humane and compassionate understanding
of human frailties and the
pressures of society which contribute to criminality. It is in
the context of this attitude of
mind that I see mercy as an element
in the determination of the appropriate punishment in the light of
all the circumstances of
the particular case.'
During the sentencing phase the
trial court is then called upon to exercise its penal discretion
judicially and only after a careful
and objectively balanced
consideration of all relevant material.
Certain guidelines may be laid
down in this regard. In my view the punishment must firstly be
reasonable, ie it should reflect the
degree of moral blameworthiness
attaching to the offender, as well as the degree of reprehensibleness
or seriousness of the offence.
Punishment therefore should ideally be
in keeping with the particular offence and the specific offender.
It is necessary,
secondly, for the punishment to clearly reflect the
balanced process of careful and objective consideration of all
relevant facts,
mitigating and aggravating. The sentence should,
thirdly, reflect consistency, as far as is humanly possible, with
previous sentences
imposed on similar offenders committing similar
offences, lest society should believe that justice was not seen to be
done. Lastly,
the penal discretion is to be exercised afresh in each
case, taking the facts of each case and the personality of each
offender
into account.
To
all this would add that the trial Court does not impose sentence in
vacuo. It, to the contrary, certainly does so within a certain
time
frame and at a certain stage in the development of the people(s) of a
district, or a province, or a country, or even a continent.
The
criminal court is also an instrument in the hands of society,
applying its laws, reflecting its values and its moral
indignation at unlawful conduct, as well as the negative or harmful
effect thereof on third parties or society itself. But in a
civilised
society punishment reflects also the interests of the offender
himself. The trial court, in a criminal matter then, functions
not in
a technical laboratory, but as a living instrument, a vital component
of the fabric of society, serving the interests of
society and all of
its law-abiding members.
The criminal
court primarily seeks to establish and maintain peaceful
co-existence among the members of society within a territory,
offering protection to life, limb and property by dispensing criminal
justice. Furthermore, during the imposition of punishment,
the trial
court jealously guards the fine line between raw revenge or emotional
punishment and the judicial, reasonable and objectively
balanced
(effective) exercise of its penal discretion. Judicial aloofness, not
amounting to judicial remoteness, is called
for. Seeking to
prevent the need (or desire) for self-help from arising, courts of
law simultaneously refuse to take emotional
revenge on behalf of
indignant society and its members. In this regard, the comments of M
T Steyn J (as he then was) in S v J
1975 (3) SA 146
(O) at 159F-G are
clearly apposite, as are the recent remarks of Harms AJA in S v
Mafu
1992
(2) SACR 494
(A)
at
496-7.
”
46.
Counsel
are agreed that the complainants ought to be compensated based on
their salaries and/or pain and suffering they endured.
Account
is also taken of the fact that the accused’s employees were
summarily evicted from the farm without any “notice
pay”.
It should be noted that the blow aimed at Willem Abrahams
missed him and that Franklin Hoogstander was not in
the accused’s
employment. The sentences and compensatory fines and orders are
set out below.
(S 300
of the
Criminal Procedure Act, 51 of 1977
).
47.
In
the result the accused is sentenced and ordered as follows:
1.
Count
1
:
R1000.00 (One thousand rand) or two(2) months imprisonment which is
wholly suspended for three years on condition that the accused
is not
convicted of an offence involving violence to the person of another
which is committed during the period of suspension and,
in addition,
pay an amount of R3000-00 (three thousand rand) to Willem Abrahams
through the trust account of Herman van Heerden
Inc:
Standard Bank
[0....].
2.
Count
2
:
R1500.00 (One thousand five hundred rand) or three (3) months
imprisonment which is wholly suspended for three years on condition
that the accused is not convicted of an offence involving violence to
the person of another which is committed during the period
of
suspension and, in addition, pay an amount of R4000-00 (four thousand
rand) to Pertus Afrikaner through the trust account of
Herman van
Heerden Inc:
Standard
Bank [0....].
3.
Count
3
:
R1500.00 (One thousand five hundred rand) or three (3) months
imprisonment which is wholly suspended for three years on condition
that the accused is not convicted of an offence involving violence to
the person of another which is committed during the period
of
suspension and, in addition, pay an amount of R3000-00 (three
thousand rand) to Franklin Hoogstander through the trust account
of
Herman van Heerden Inc:
Standard
Bank [0....].
4.
Count
4
:
Eighteen (18) months imprisonment or R8000.00 (eight thousand rand)
which is wholly suspended for five (5) years on the
following
condition:
a)
That
the accused is not convicted of an offence involving violence to the
person of another which is committed during the period
of suspension.
b)
That
an amount of R57 000-00 be paid to Mrs E Phakedi, the grandmother of
the deceased, which amount represents retrospective payments
of R
3000-00 per month calculated from 1 September 2014 to 31 March 2016.
c)
That
the said amount of R57 000-00 be paid into the trust account of
Herman Van Heerden Inc: Standard Bank [0....], on or
before 30
April 2016.
d)
That
the probation officer/social worker at theTaung offices in
co-operation with Mr Herman van Heerden be authorised to make such
payments in their discretion in such amounts from the said R 57
000-00 to Mrs E Phakedi, as will be in the interests of Mrs Phakedi
and as requested by Mrs Phakedi.
e)
That
a further amount of R3000-00 per month, with a 7% annual escalation
from 1 April 2017 be paid into a nominated bank account
of Mrs E
Phakedi, with effect from 1 May 2016, until the death of Mrs Phakedi
or the death of the Accused, whichever event occurs
first.
__________________
F DIALE KGOMO
JUDGE PRESIDENT
Northern
Cape High Court, Kimberley
Counsel:
For
the State:
Adv T Barnard
Assisted
by:
Adv J Mabaso
Instructed
by:
Director Public Prosecutions
For
the Respondents:
Adv B. Roux SC
Instructed
by:
Engelsman Magabane