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[2015] ZANCHC 5
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Schalkwyk v S (CA&R 119/14) [2015] ZANCHC 5 (27 February 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE HIGH
COURT, KIMBERLEY)
Case No: CA&R 119/14
DATE: 27 FEBRUARY 2015
In the matter:
JACOBUS VAN
SCHALKWYK
......................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram: Tlaletsi AJP et Phatshoane J
Heard on: 11-12-2014
Delivered on: 27-02-2015
JUDGMENT ON APPEAL
Phatshoane J:
1. Mr Jacobus Van Schalkwyk, the
appellant, a farmer at Bertiesdraai Farm in Groblershoop, Northern
Cape, was tried by an Acting
Regional Court Magistrate, Mr Kganyago
in the Regional Court sitting in Upington on two counts: (1) that on
or about 14 February
2011 at or near Bertiesdraai he murdered a 45
year old Mr Jan (Lucky) Klaaste and (2) that on the same date he
attempted to defeat
or obstruct the course of justice. On 06 October
2013 he was convicted on both counts and sentenced on 11 February
2014 to 8 years’
imprisonment for murder, 2 years of which was
suspended for three years on certain condition. In respect of the
second count, twelve
months imprisonment was imposed. The sentences
were ordered to run concurrently.
2. Following a petition to this Court
on both convictions leave was granted to the appellant on 28 August
2014 on a narrow ambit
of whether the State, on the facts, proved its
case beyond a reasonable doubt that he murdered the deceased with
dolus eventualis
as the form of intention.
3. The grounds of appeal as set out in
the Notice of Appeal are as follows:
“The honourable Court a quo
misdirected itself by finding that the State proved its case beyond
reasonable doubt and could
therefore convict the appellant with
regard to the following:
1. [T]hat dolus eventualis was proved
and that the appellant did foresee that the fatal injury could have
occurred causing his death,
although the Court initially found that
he ought to have foreseen the likely outcome of his action.
2. The Court a quo erred in considering
the issue of intention to kill and the test whether the appellant
foresaw the possibility
that the act in question would have fatal
consequences and persisted regardless of the consequences.
3. In determining the above the Court a
quo erred further as follows:
3.1 The Court a quo did not properly
take into account the contradictions of the state witnesses
individually and between them.
3.2 The Court a quo did not take into
consideration the fact that the state witnesses deviated from their
affidavits and contradicted
the oral testimonies with their
statements.
3.3 The Court a quo misdirected itself
by not addressing the medical evidence of Dr Isaacs with regard to
the version of the state
witnesses contradicting the infliction of
the injury. Dr Isaacs indicated that the traction of the injury was
from a lower to a
higher point. The state witnesses indicated from
top to bottom and/or horizontal from left to right.
3.4 The Court a quo misdirected itself
with regard to certain concessions of Dr Isaacs indicating that if
exhibit 1 [the hay-bale
hook] was used in a downward movement to
strike the deceased it would have been inevitable that the left lung
would also have been
penetrated which was not the finding. He
further, amongst others, conceded that if the deceased was pulled
towards the appellant,
after he struck him with exhibit 1, which the
witness want the Court to accept, one would have expected different
or more injuries.
3.5 The Court erred further by not
adequately considering the evidence of Dr Wagner, who testified that
if one takes into consideration
the version of the State witnesses
explaining how the instrument (exhibit 1) was used by not penetrating
the left lung before the
right ventricle of the heart was
“impossible”. The wound track of how the appellant
explained it had happened corroborates
the external appearance of the
wound and therefore the evidence of Dr Wagner.
3.6 The Court a quo erred in failing to
address the on-going explanation of Dr Wagner of the human model
(doll) which was dissected
and almost the size of a normal human,
removing and physically showing the lungs and the heart, removing and
replacing them into
the model, explaining how the instrument
penetrated the body towards the right ventricle which clearly
indicated that the State
witnesses’ version of how the wound
was inflicted, was impossible.
3.7 The Court a quo erred in not
finding that the appellant, in his evidence never contradicted
himself and explained his experience
of the incident which was
corroborated by the medical evidence and therefore finding that the
appellant had intent (dolus eventualis).
3.8 The Court a quo erred in not
finding that the appellant’s evidence is at the very least,
reasonably possibly true.
3.9 The Court a quo erred in not
finding that the respondent failed to prove beyond reasonable doubt
that the appellant intentionally
caused the death of the deceased.
3.10 The Court a quo erred in finding
that the appellant by striking the deceased with the hook on the left
side of the chest ought
to have foreseen that death may occur and is
not “merely a question of the hand not reinstating what the
mind intended to
say” and therefore could not have had any
intent including dolus eventualis to cause the death of the deceased.
3.11 The Court a quo further erred in
not taking the emotional state of the appellant into consideration
after he realized that
the deceased was fatally injured indicating
that he at no stage considered to fatally injure the deceased.”
4. The crucial issue for consideration
is how the deceased sustained the injury that led to his demise. The
State contends that
the appellant murdered the deceased intentionally
whereas the appellant argued that the deceased died following an
unfortunate
accident. The factual matrix is as follows. The deceased,
a farm worker at Bertiesdraai Farm, had neglected feeding the cattle
during the weekend of 12/13 February 2011 because he drank liquor
throughout the weekend. When he reported for duty on Monday 14
February 2011 he was in an inebriated state. From the Forensic
Chemistry Laboratory results his blood specimen obtained during
the
post-mortem examination showed that his blood alcohol level was in
the region of 0.26 grams/100 ml. He busied himself with
the hay bales
in an attempt to feed the animals he neglected during the weekend.
His co-worker, Mr Erin Kalani, was instructed
by the appellant to
load some empty crates on the trailers which were needed by other
farm workers to put the harvested grapes
in.
5. Kalani testified that he and Kiewiet
hooked two trailers on which the crates were to be loaded to the
tractor. At that stage
the deceased stood on top of one of these
trailers holding two hay hooks while the other workers were busy
loading the crates on
the trailers. The deceased was difficult that
morning and did as he pleased. The appellant instructed him to
alight from the trailer.
He refused to comply. The appellant was
angry and ‘rough’. The appellant pulled the two hay hooks
out of the deceased’s
arms. He then struck the deceased once
with one of the hooks with extreme force and pulled him towards
himself. The appellant discarded
that hook in front of the shed. The
deceased staggered and fell while he was still on top of the trailer.
He then jumped from the
trailer and ran to the other side of the
shed.
6. The appellant drove off without
rendering him any first aid. After a while he approached Kalani and
requested him to climb on
the back of the bakkie. They drove to the
place where the deceased was lying. The appellant requested Kalani to
turn the deceased
over as he was lying on his stomach. The appellant
wanted to check where the deceased was injured. He noticed a wound on
the deceased’s
chest. The deceased was still gasping for
breath. When Kalani informed the appellant that he hit the deceased
on his chest the
appellant took off his hat and said that he ‘did
not mean to kill the man’. The appellant requested him not to
reveal
that he struck the deceased with the hay hook but instead that
the deceased fell onto the hook.
7. Regrettably the hay hook identified
by Kalani, depicted on photo 4 of Exhibit “A” (the photo
album), was not properly
described when it was handed in evidence as
Exhibit 1 save to state that it was an Iron hook. The photo depicts
it as a metal hook
with elongated shaft and a handle almost
ellipse-shaped. See photo 4 of exhibit “A” below.
Photo 4 Exhibit “A”
8. The evidence of Mr Samuel Persoon,
also a fellow employee on the farm, largely corroborates that of
Kalani. He says that the
appellant in a fit of anger uttered some
unprintable epithets that he desired to axe the deceased into his
mother’s private
parts (derogatory terms used) and grabbed the
two hay hooks from him. The appellant struck the deceased on the
left side of his
chest with the other hook. Persoon says later
during this fateful day the appellant requested him to climb onto his
bakkie. They
drove on the farm and at some point the appellant
alighted from his bakkie and held his head in his hands and said:
“Here
help my ek het nie bedoel om hierdie man dood te maak
nie” and went further to tell Persoon “ek moet hom nie
probeer
dood te sweer nie by die polisie nie”.
9. The appellant denied that he hit the
deceased with a hay hook. He says that he enquired from the deceased
whether he and the
others were not supposed to be loading the crates
and what he was doing with the lucerne/hay bales. He said that the
workers wanted
to harvest the grapes and had no crates. He told the
deceased to finish off and give him the hooks. He seized the hooks
from the
deceased. He demonstrated by extending his right hand
towards the hooks. The deceased moved backwards, turned to the left
with
his upper torso, immediately moved forward and landed on his
knees. One of the hooks dropped on the base of the trailer. The
appellant
pulled the other hook and realised that it had hooked the
deceased’s pair of overalls. He unhooked it and discarded it at
the corner of the shed. The deceased stood up, alighted from the
trailer and walked away. He did not want to kill the deceased.
He
co-operated with the police and did not influence any of the
witnesses (as insinuated by Kalani and Persoon) to give any other
evidence than what he conveyed to the Court.
10. To assist in determining the
troubling question of how the deceased could have sustained the fatal
injury the State called Dr
George Albertus Isaacs whereas Dr Leon
Wagner took the stand in the case for the defence.
11. Dr Isaacs obtained the MBCHB degree
in 1983 and has been in private practice since 1986. From 2002 to
2011 he worked as a forensic
medical officer in the Department of
Health conducting, inter alia, post-mortem examinations. He conducted
the post-mortem examination
on the body of the deceased. The chief
autopsy finding he made was that the deceased had a wound of 1x1 cm
below the left nipple,
with abrasions around the edges, 10 cm deep,
entering the chest between ribs 4 and 5 with transection (fracture)
of rib 5 and passing
through the front wall of the right ventricle of
the heart. In other words the two ends of ribs 4 and 5 were separated
from each
other. There was an entrance and exit wound (two wounds of
1 cm through the front wall of the right ventricle) which were two
centimetres
apart caused through one action. He found 1000ml blood in
the left chest cavity. As a result the left lung had partly collapsed
due to blood accumulation. There was also 300ml blood in the
pericardial sac around the heart. The deceased also had superficial
abrasions of the left eyebrow and cheek. He recorded the cause of
death as a stab in the heart with hypovolemic shock (rapid or
excessive blood loss).
12. Judging from the wound and its
trajectory Dr Isaacs was of the view that the weapon which caused the
wound pierced the deceased’s
left side and moved to his right
side. He explained that it is difficult to quantify the amount of
force that may have been applied
to cause the wound. According to him
the nature of the injury goes hand in hand with the sharpness of the
weapon. The shaper the
weapon the lesser the amount of force would be
required, but if the weapon is blunt more force would be required. He
went on to
say that the rib fracture points to increased amount of
force used. His view is fortified by the presence of abrasions around
the
wound which suggested to him that the point of weapon was not
sharp.
13. Dr Leon Wagner is a qualified
forensic pathologist with many years of experience in post-mortem
examinations. He did not conduct
the post-mortem examination on the
body of the deceased but relied on the oral and documentary evidence
presented during the trial.
He testified that the wound the deceased
sustained was round-shaped and not oval. With an oval wound one would
have a direction
by which a penetrating force would have been
applied. He intimated that Dr Isaacs had not described the precise
location of the
rib fracture or how it looked like. This would have
assisted in determining from which direction force was applied.
14. Dr Wagner proceeded to say that the
round-shaped wound contradicts the suggestion that a large amount of
force had by any means
being used to inflict the injury. He added
that, considering the deceased’s small physique and weight of
about 40.5 kg, not
a large amount of force was necessary to inflict
the injury. He suggested that if extreme force was used the
direction of the
wound; more extensive abrasions on the external
dermis; fracture of the ribs, dislocation of the sternocostal
junction (where the
ribs articulate with the sternum) would have been
present which was not the case.
15. In S v Hadebe and Others
1997 (2)
SACR 641
(SCA) at 645e-f the principle central to the hearing of
appeals was re-affirmed as follows:
“. . . (T)here are
well-established principles governing the hearing of appeals against
findings of fact. In short, in the
absence of demonstrable and
material misdirection by the trial court, its findings of fact are
presumed to be correct and will
only be disregarded if the recorded
evidence shows them to be clearly wrong. The reasons why this
deference is shown by the appellate
courts to factual findings of the
trial court are so well known that restatement is unnecessary.”
See also R v Dhlumayo and Another
1948
(2) SA 677
(A); S v Francis
1991 (1) SACR 198
(A) at 204c-e; S v
Mlumbi en 'n Ander
1991 (1) SACR 235
(A) at 247g - h.
16. The conviction is primarily
challenged on the basis that the Acting Regional Court Magistrate
found that the State proved its
case beyond a reasonable doubt that
the appellant killed the deceased with intent in the form of dolus
eventualis. In an attempt
to illustrate that the Acting Regional
Court Magistrate erred in concluding as he did, the appellant
explored the inconsistencies
in the evidence presented by the State
witnesses. It was also contended on his behalf that their oral
testimony differed materially
from what was set out in the statements
they made to the police. Adv Edeling, for the appellant, inter alia,
suggested that the
following are such contradictions:
16.1 That Persoon contradicted himself
concerning where he, Kiewiet, and Kalani stood at the time of the
fatal incident;
16.2 That Persoon contradicted himself
by testifying that the incident happened immediately the tractor came
to a halt and later
said that it was when one of the trailers was
disengaged from the tractor and another trailer was hooked;
16.3 That Kalani never heard the crude
words said to have been uttered by the appellant before he hit the
deceased whereas Persoon
testified that the appellant hurled insults
at the deceased;
16.4 That Kalani said that after the
deceased was struck he staggered whereas Persoon said he jumped from
the trailer.
17. Immaterial deviations do not impact
the outcome of a case. The two witnesses are unsophisticated. Kalani
passed Std 4 while
Persoon did not attend school at all. The
Magistrate was alive to the minor contradictions that were apparent
from the evidence
of the State witnesses and correctly came to a
conclusion that these were immaterial. in S v Mafaladiso en Andere
2003 (1) SACR 583
(SCA) the headnote captures the summary of the
approach to contradictions as enunciated by the SCA at 593e - 594g as
follows:
“The juridical approach to
contradictions between two witnesses and contradictions between the
versions of the same witness
(such as, inter alia, between her or his
viva voce evidence and a previous statement) is, in principle (even
if not in degree),
identical. Indeed, in neither case is the aim to
prove which of the versions is correct, but to satisfy oneself that
the witness
could err, either because of a defective recollection or
because of dishonesty. The mere fact that it is evident that there
are
self-contradictions must be approached with caution by a court.
Firstly, it must be carefully determined what the witnesses actually
meant to say on each occasion, in order to determine whether there is
an actual contradiction and what is the precise nature thereof.
In
this regard the adjudicator of fact must keep in mind that a previous
statement is not taken down by means of cross-examination,
there may
be language and cultural differences between the witness and the
person taking down the statement which can stand in
the way of what
precisely was meant, and that the person giving the statement is
seldom, if ever, asked by the police officer to
explain their
statement in detail. Secondly, it must be kept in mind that not every
error by a witness and not every contradiction
or deviation affects
the credibility of a witness. Non-material deviations are not
necessarily relevant. Thirdly, the contradictory
versions must be
considered and evaluated on a holistic basis. The circumstances under
which the versions were made, the proven
reasons for the
contradictions, the actual effect of the contradictions with regard
to the reliability and credibility of the witness,
the question
whether the witness was given a sufficient opportunity to explain the
contradictions - and the quality of the explanations
- and the
connection between the contradictions and the rest of the witness'
evidence, amongst other factors, to be taken into
consideration and
weighed up. Lastly, there is the final task of the trial Judge,
namely to weigh up the previous statement against
the viva voce
evidence, to consider all the evidence and to decide whether it is
reliable or not and to decide whether the truth
has been told,
despite any shortcomings.”
Compare Commissioner for Inland Revenue
v Pick 'n Pay Wholesalers (Pty) Ltd
1987 (3) SA 453
(A) at 469F –
G where the Court made the following remarks:
“Human memory is inherently and
notoriously liable to error. One knows that people are less likely to
be complete and accurate
in their accounts after a long interval than
after a short one. It is a matter of common experience that, during
the stage of retention
or storage in the memory, perceived
information may be forgotten or it may be modified, or added to, or
distorted by subsequent
information. One is aware too that there can
occur a process of unconscious reconstruction.”
18. For the most part, in his attempt
to show that he was not responsible for the deceased’s death
the appellant’s argument
centred around the medical evidence
and the demonstrations made by the two State witnesses with regard to
how the appellant struck
the deceased with the hay hook. Kalani is
recorded as having demonstrated that the appellant held the hook with
his right hand
at 90 degrees above his head with the sharp edge of
the hook facing forward and had swung the hook half in a circular way
forward
towards the deceased, whereas Persoon demonstrated an almost
half circular movement to the front and where the movement stopped
he
pulled the hook. The observation was further that the swing was more
of a lateral nature. I should mention that counsel disagreed
at
length on how Kalani had demonstrated the attack i.e. whether the
movement he made was more perpendicular (vertical) which denotes
an
angle of 90 degrees to the given line, plane or surface; in
contradiction to a horizontal line, which denotes an angle parallel
to the plane of the horizon.
19. Dr Isaacs’s testimony is that
the evidence of the State witnesses to the effect that the deceased
was struck with the
hay hook was consistent with his findings. This
is what appears on record:
“Prosecutor: Dokter ek wil aan u
stel wat die vorige staats getuie getuig het en dan will ek net vra
of sȇ of daardie
aksie dalk inpas by die bevindinges of nie. As
ons kyk na die voorwerp voor die hof (Bewysstuk 1) die getuie wie
gister getuig
het het getuig dat die beskuldigde na bewering daardie
hak gebruik het om die oorledene te kap. Hy het sy hand na die
agterkant
gebring en ‘n voorentoe swaai beweging gemaak na die
linker bors. Pas dit in met wat u daar bevind het, kon die wond
moontlik
op daardie manier veroorsaak gewees het en met daardie tipe
wapen?------Dit is nou twee in een, kom ons vat eers die wapen, die
wapen wat daarvoor is kan defenetief die wond veroorsaak wat ek
gesien het. Die teenwoordigheid van die skaafwonde rondom die wond
aan my dui dit daarop dat die wapen nie baie skerp was nie soos wat
jy met ‘n mes punt kon he nie. Die rigting van die wond
vanaf
links na regs in die oorledene sal inpas met ‘n besering
opgedoen wanner jy ‘n regshandige persoon het wat aangesig
tot
aangesig met die oorledene gestaan het en dan van links na regs die
beweging uitvoer het van die aanvaller se oogpunt.”
20. Dr Wagner stated that if the
appellant had hit the deceased with the hay hook by executing a
downward movement as one of the
witnesses had testified it would mean
that the lower side of the skin would have been compressed while at
the top the skin would
have stretched and therefore the wound would
not be round. It is pertinent to note that Dr Isaacs explained that
the wound was
not a typical bullet round wound because it had an area
of abrasions of the skin extending from front to back at the point of
entry
into the skin. He went on to say that the shape of the wound is
not necessarily in the perfect form of a weapon used.
21. Much was also made of the fact that
on the demonstration made by the witnesses the left lung ought to
have been perforated.
On this score Dr Wagner made some
demonstrations in Court using a typical scientific laboratory model
of the human torso showing
human anatomy (internal organs). He
stated that the heart is situated in the middle of the chest between
the two lungs. In the
centre of the heart there is a blood vessel
dividing the heart into a right and left side (ventricles). The left
ventricle has
a much thicker muscular structure than the right
ventricle. The right side receives blood and pumps it to the lungs
while the left
ventricle pumps oxygenated blood to the whole of the
human body. Therefore, the left ventricle performs much more work
than the
right ventricle. According to Dr Wagner, gathering from what
was said by the witnesses, the deceased had been injured by a blow
wherein the sharp point of the instrument would have come from the
left to the right. He stated that if that was the case the left
lung
and left ventricle ought to have been perforated or penetrated. That
it does not appear from the post-mortem examination and
report by Dr
Isaacs that the left lung was injured.
22. Furthermore, Dr Wagner explained
that regard being had to the fact that the left lung and the heart
lie on the diaphragm, injuries
to the diaphragm and other internal
organs such as the stomach would have been present. He stated that
this fact was not described
in the post-mortem report.
23. Dr Isaacs testified that the left
lung had partly collapsed due to blood accumulation. He conceded that
if the deceased was
struck through execution of a downward movement
of the weapon into the right ventricle the left lung ought to have
been perforated.
It was put to him that it was impossible that the
deceased was hit through the execution of a downward movement but
through a lateral
blow. His response was that due to the nature of
the weapon used it was possible because unlike a knife the hay hook
has a long
shaft that can move and rotate. That even if the action
could have been through a downward movement from above the head it
could
still rotate and end in the lateral way.
24. The other avenue of escape that the
appellant places reliance on is that the State witnesses testified
that once the appellant
had hit the deceased he pulled him towards
himself. Dr Isaacs was asked during cross-examination whether pulling
the deceased towards
him with the instrument stuck in the wound would
not have resulted in extensive tissue injury than that recorded by
him. His response
was in the affirmative. However, there is nothing
in the evidence to show that the weapon was still present in the
wound when the
appellant allegedly pulled the deceased. In any event
the deceased wore an overall. Kalani intimated that the overall was
torn
when the appellant pulled the hook. He had to unzip the overall
jacket later during that day, on the appellant’s request,
to
see where the deceased was hit. The appellant testified that “die
ander hak was in my hand dié het ek getrek toe
het ek gesien
hy hak aan die overall”. This should put paid any suggestion
that the deceased ought to have sustained more
injuries.
25. I hasten to say that certain issues
articulated by Dr Wagner in his evidence bring into sharp focus the
flaws in his hypothesis.
The following extract from the record of the
proceedings is apposite:
“Prosecutor: But we will remember
that the accused said he did not pull on the object? –----Your
worship in all reality
yes the accused said he did not pull but this
whole tragedy this whole incident happened in a matter of
milliseconds I do not think
if he [the accused] cannot recall it, it
does not say it did not happened. So if in reasonability this is
something which happened
very rapidly and I do not think one can
actually recall everything that happened rapidly that is just my
opinion your worship.
(My emphasis)
Exactly doctor and it was also asked of
the accused when the deceased moved backwards whether he at least
resisted that movement
of the deceased and he said that the only,
what he actually said is that his arm was only pulled forward a bit
so it is clear that
he did not put up a lot of resistance from his
version? --– Your worship if I take the version of the accused
as the state
witness testified here just before me and I compare his
version with Dr. Isaacs post-mortem report it is very clear that very
little
force was implicated in this whole incident. That is why I
said 2/3 or 3/10 maximum is basically a small amount of force. There
is no indication there is no confirmation by means of any of the
injuries that a large amount an excessive amount of force that
been
attempted or tried or done to cause the demise of the deceased.
Doctor for that object to end up in the
heart of the deceased as it happened in this particular instance,
taking into account exactly
where deceased was hit as visible from
the photo and also the post-mortem that object in relation to the
body of the deceased must
have been at least more to the front of his
body than under his arm into the back before it entered his body?
--–That is
possible your worship.”
26. An expert called by any of the
parties to the litigation should assist the Court in arriving at a
just decision in a case. It
goes without saying that he ought to
remain dispassionate, neutral and objective. He should not be
influenced as to form or content
by the exigencies of litigation. See
Schneider No and others v AA and another
2010 (5) SA 203
(WCC) at
211J - 212B; Stock v Stock
1981 (3) SA 1280
(A) at 1296E-F; Diners
Club SA (Pty) Ltd v Singh and another
2004 (3) SA 630
(D) at 660F-H.
Jacobs and Another v Transnet Ltd t/a Metrorail and Another
2015 (1)
SA 139
(SCA) at 148 para 15.
27. The manner in which the appellant
described how the deceased sustained his injury is difficult to
comprehend. His version that
the deceased sustained a 10 cm deep
wound by turning onto a hook he (appellant) held in his hand is
simply contrived and cannot
reasonably possibly be true. According to
him the deceased died through an accident in which he fatally injured
himself. This does
not explain why he went out of his way to persuade
the State witnesses to protect him by suppressing the evidence. The
evidence
of Kalani, on this aspect, appears on the reconstructed
record as follows:
“When I told the accused that he
hit him on his chest, the accused only took off his hat and said he
did not want to kill
the man. When I saw his mouth opening and
closing I told the accused that I think Luckie is busy dying. Then Mr
Van Schalkwyk told
me that if there is anyone who can assist him is
me. Mr Van Schalkwyk told me that I must not say he struck Luckie. I
must say
Luckie fell into the hook. I said yes I am going to say he
fell into the hook”
Mr Edeling was constrained to concede
that in the light of the above damning piece of evidence he could not
say that the appellant
had not stuck the deceased with the hay hook.
Persoon is recorded saying:
“Toe het Meneer Van Schalkwyk aan
sy kop gevat en gesê “Here help my ek het nie bedoel om
hierdie man dood te
maak nie….toe het Meneer Van Schalwyk
(onhoorbaar) vir my dood sweer by die polisie….Hy het vir my
gesȇ ek moet
hom nie probeer dood te sweer nie.”
28. The appellant was convicted of an
attempt to defeat or obstruct the course of justice on the strength
of the evidence mentioned
in the preceding paragraph. The appeal
before us does not lie against that conviction because he did not
succeed in obtaining leave
to appeal against it. Therefore it cannot
avail him to argue that the witnesses were untruthful that he urged
them to subvert the
truth. In any event, the evidence of the two
State witnesses remained unshaken that the appellant was angry when
he hit the deceased
with the hay-bale hook. As more fully appearing
on the quoted excerpts in para 27 above these witnesses also gave
evidence favourable
to the appellant on certain aspects. Out of
exasperation over the deceased’s misconduct during the weekend
of 12/13 February
and the morning of 14 February 2011 the appellant
struck him with the hay hook. The Acting Regional Court Magistrate’s
rejection
of the accidental death is justifiable on the facts.
29. What remains is whether the
deceased’s death was caused with the intent in the form of
dolus eventualis or through negligence.
It was argued on the
appellant’s behalf that if it be found that he hit the deceased
with the hay hook, at worst for him,
he should be convicted of
culpable homicide. This was so, it was contended, because following
the deceased’s death, the witnesses
testified that the
appellant broke into tears lamenting that he did not mean to kill
him. In my view, the ex post facto melancholic
reaction by a
perpetrator can in most of the cases be expected.
30. Where, on a murder charge, the
intention element is in dispute the trier of fact is required to have
regard to all the evidential
material which, in the light of
available knowledge of how the human faculty of volition functions,
is relevant to the determination
of the state of mind of an accused
person. Provocation or anger, as in this case, may be of a degree
that affects a person's mind
that the requisite intention to kill is
absent. Under certain circumstances the provocation may, far from
negating an intention
to kill, actually cause it. In that event the
crime would be murder and not culpable homicide. See S v Mokonto
1971
(2) SA 319
(A) at 326A-D.
31. In S v Mtshiza
1970 (3) SA 747
(A)
at 752D-E culpable homicide is defined as the unlawful, negligent
causing of the death of a human being. A person acts with
intention
in the form of dolus eventualis if the commission of the unlawful act
or causing of the unlawful result is not his main
aim but (a)
subjectively foresee the possibility that, in striving towards his
main aim, the unlawful act may be committed or the
unlawful result
may be caused and (b) he reconciles himself with that possibility.
See CR Snyman, Criminal Law, fifth edition,
at 184. As was observed
in S v Burger
1975 (4) SA 877
(A) having regard to the requirements
of foresight and persistence the dividing line between murder with
culpability being in the
form of dolus eventualis and culpable
homicide, is sometimes rather thin. The elements of culpable homicide
were outlined as follows
at 878H-879E in that case:
“(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.”
32. In S v Ndlanzi
2014 (2) SACR 256
(SCA) at 265 paras 31-33 the Court reaffirmed the requirements for
mens rea in the form of dolus eventualis as follows:
“[31]……Recently
this approach was refined by this court in S v Humphreys
2013 (2)
SACR 1
(SCA) by Brand JA at 8a – b as follows:
'In accordance with trite principles,
the test for dolus eventualis is twofold:
(a) Did the appellant subjectively
foresee the possibility of the death…. ensuing from his
conduct; and
(b) did he reconcile himself with that
possibility (see eg S v De Oliveira
1993 (2) SACR 59
(A) at 65i –
j)?
Sometimes the element in (b) is
described as "recklessness" as to whether or not the
subjectively foreseen possibility
ensues (see eg S v Sigwahla
1967
(4) SA 566
(A) at 570).'
[32] It is clear that the requisite
subjective foresight may be proved by inferential reasoning based on
the premise that 'in accordance
with common human experience, the
possibility of the consequences that ensued would have been obvious
to any person of normal intelligence'.
(See Humphreys supra at 8e.)
[33] Thereafter, 'the next logical step
would then be to ask whether, in the light of all the facts and
circumstances of this case,
there is any reason to think that the
appellant would not have shared this foresight, derived from common
human experience, with
other members of the general population'. (See
Humphreys supra at 8f.)”
33. The appellant testified that he was
agitated as opposed to being angry, due to inter alia, the deceased’s
conduct in having
failed to load the crates and feed the animals.
However, what can be discerned from the evidence is that he was
enraged. There
is nothing in the evidence to suggest that his anger
beclouded his judgment or that he failed to appreciate unlawfulness
of his
action. Subjectively viewed, he possessed the actual intention
(animus) to kill. As already alluded to, disappointingly, the hay
hook was not described on record but on inspection of photo 4,
appearing in para 7 of this judgment, there can be no doubt that
it
is a dangerous weapon the hook of which penetrated 10 cm into the
body of the deceased. In my view, by striking the deceased
with this
weapon, targeting the left side of his chest, the appellant foresaw
the possibility of the resultant death.
34. The Court expatiated on the second
leg of the test for dolus eventualis as follows in S v Humphreys
2013
(2) SACR 1
(SCA) at 9i-j para 17:
“[17]…The true enquiry
under this rubric is whether the appellant took the consequences that
he foresaw into the bargain;
whether it can be inferred that it was
immaterial to him whether these consequences would flow from his
actions. Conversely stated,
the principle is that if it can
reasonably be inferred that the appellant may have thought that the
possible collision he subjectively
foresaw would not actually occur,
the second element of dolus eventualis would not have been
established.”
35. Regard being had to the nature of
the weapon used the possibility of the consequences that ensued would
have been apparent to
any person of normal intelligence. On the
facts, the only reasonable and inexorable inference to be drawn is
that when he gave
vent to his ire it was immaterial to the appellant
whether the consequences would flow from his action; put differently,
he proceeded
nevertheless or persisted with his conduct indifferent
to the fatal consequence of his action.
36. Regrettably for the Acting Regional
Court Magistrate, he concluded as follows:
“By striking the deceased with
the hook on the left side of the chest the accused ought to have
foreseen that death may occur.
The accused reconciled himself with
the eventuality”
In my view, having lengthily analysed
the facts, the Magistrate correctly found that the murder was
perpetrated intentionally. It
is clear that he made a mistake insofar
as he states that the “accused ought to have foreseen that
death may occur”
because this is not the correct test. Be that
as it may, on the conclusion I have reached the Magistrate’s
mistake is inconsequential.
I am therefore satisfied that no
demonstrable or material misdirection exist in his reasons that the
murder was perpetrated with
the intention in the form of dolus
eventualis. It follows that this appeal should fail.
Order:
1. The appeal is dismissed.
PHATSHOANE J
I concur:
TLALETSI AJP
On behalf of the Appellant Adv WJ
Edeling
Instructed by Elliott, Maris,
Wilmans & Hay
On behalf of the State/Respondent
Adv JJD Rosenburg
Instructed by Director of Public
Prosecutions