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2015
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[2015] ZANCHC 50
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Van der Westhuizen v S (CA&R127/2014) [2015] ZANCHC 50 (27 November 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
NO
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
CASE
NO: CA&R127/2014
DATE
HEARD:27/11/2015
DATE
DELIVERED:04/12/15
In
the matter between:
DAVID
DESMOND VAN DER
WESTHUIZEN
Appellant
and
THE
STATE
Respondent
Coram: Olivier J
et
Pakati J
JUDGMENT
Olivier
J:
[1.]
The
appellant, Mr David Desmond van der Westhuizen, was charged in the
Regional Court with murder, alternatively culpable homicide.
He
pleaded not guilty to both counts. He admitted having slapped
the deceased once, and having inflicted two blows with his
fist, but
he denied having caused the death of the deceased. He also
denied that the post mortem report which had been made
available to
him, pertained to the person that he had assaulted.
[2.]
The
prosecution presented the evidence of two eyewitnesses, Ms Maria
Coleman, the wife or life partner of the deceased, and Ms C
A Eland,
the niece of the deceased. Their evidence was basically to the
effect that an altercation had taken place between
the deceased and
Mr Deon van der Westhuizen on Sunday 24 April 2011. Ms Coleman
intervened and in the process injured Mr
Deon van der Westhuizen, who
then left. Not long thereafter the appellant arrived in a
vehicle, driven by himself and accompanied
by one Lappers. The
appellant entered the premises of the deceased and Ms Coleman,
grabbed the deceased and banged his head
against the tree. When
the deceased fell and basically lay defenceless on the ground, the
appellant trampled on his head
and chest. The appellant only
stopped when he was attacked by Ms Eland.
[3.]
During
that night the deceased started vomiting blood, but refused to be
taken to hospital. He was, however, admitted to the
Postmasburg
Hospital the next morning, in other words on 25 April 2011, and
he died there on 3 May 2011.
[4.]
Dr
Anizoba later performed an autopsy on the body of the deceased and
certified the cause of death to have been “
blunt
trauma injuries to the head and neck with lethal consequences
”.
[5.]
The
appellant did not testify. From what was put to Ms Coleman and
Ms Eland in cross-examination it appeared that his case
was that he
had gone to the house of the deceased and Ms Coleman to find out what
had happened between them and Mr Deon van der
Westhuizen.
According to him the deceased then attacked him, whereupon he slapped
the deceased once, and hit him twice with
clenched fists. The
statements were furthermore to the effect that the deceased then
walked away. It was put to the
witnesses that the appellant
denied having smashed the deceased’s head into a tree and
having trampled him.
[6.]
Just
before the close of the case for the prosecution the appellant made
further admissions in terms of section 220 of the
Criminal
Procedure Act
[1]
.
In those admissions he persisted with the version that he had only
slapped the deceased once, and hit him twice with fists.
He,
however, went on to admit the identity of the deceased, and he
admitted that the deceased had died as a result of brain haemorrhage
sustained in the appellant’s assault on him. The
appellant, in fact, admitted having negligently caused the death of
the deceased.
[7.]
The
appellant was eventually convicted on the main count, that of
murder. It was found that he had indeed banged the head
of the
deceased against a tree, and thereafter trampled on him. It was
found that his assault had caused the death of the
deceased, and that
the appellant had acted with the intention
[2]
to kill. On 30 October 2012 the Regional Magistrate found that
there were no substantial and compelling circumstances to
justify a
deviation from the prescribed sentence, that there were in fact
aggravating circumstances and that the deceased had not
provoked the
attack, and sentenced the appellant to 15 years imprisonment.
[8.]
The
present appeal is against the conviction and the sentence, leave
having been granted on petition. The grounds advanced
in
respect of the conviction concerned contradictions between Ms Coleman
and Ms Eland and it was submitted that the Regional Magistrate
should
have found the version of the appellant to have been reasonably
possible. It was furthermore submitted that the trial
court had
failed to give proper consideration to the question whether the
deceased may not have survived the attack had he been
transferred to
another hospital and that the trial court had erred in finding that
the appellant’s assault had been the direct
cause of the death
of the deceased. Lastly it was submitted that the trial court had in
any event erred in finding that the appellant
had acted intentionally
in causing the death of the deceased.
[9.]
As
regards the sentence it was submitted that the court had failed to
give proper consideration to the appellant’s favourable
personal circumstances, that the seriousness of the offence had been
over-emphasised, that the court had failed to consider other
sentencing options, and the possible rehabilitation of the appellant
outside prison, and that overall the sentence was disturbingly
inappropriate.
[10.]
Mr
Nel, counsel for the appellant, correctly and responsibly conceded
that the contradictions between Ms Coleman and Ms Eland were
not
material and that the Regional Magistrate had been correct in
rejecting the version of the appellant as to the nature of the
assault. Mr Nel restricted his argument, as regards the
conviction, to the following submissions:
10.1
That the fact that the deceased had not been transferred to a
hospital where a so-called CT-scan
could be performed to establish
whether there was a brain haemorrhage and, if so, where an operation
could be performed to drain
the blood, had been a
novus
actus interveniens
and therefore the effective cause of death; and
10.2
That, in any event, it had not been proved beyond reasonable doubt
that the appellant had assaulted
the deceased with the intention to
kill him.
[11.]
The
argument that the appellant’s assault, and the injuries
sustained during that assault, had not been the direct cause of
death
is completely inconsistent with the admissions that the appellant
had, as already mentioned, made just before the close of
the case for
the prosecution. His admission that he had caused the death of
the deceased was never withdrawn. That
admission was, in fact,
made after an adjournment had subsequent to the medical evidence been
granted for the appellant and his
attorney to consult, presumably
about precisely that evidence. On this basis alone, in my view,
this argument cannot succeed.
[12.]
I
will, however, nevertheless deal with the medical evidence presented
by the prosecution. Dr M Necibi testified that he had
not been
involved in the admission of the deceased to the Postmasburg
Hospital. He only examined him on 27 April 2011, when
he found
that the deceased was confused and was having convulsions. He
concluded that the deceased was seriously injured,
and that he had
probably sustained a head injury. Dr Necibi testified that in
such a case it is essential that a scan be
performed so that, if it
shows that there is a brain haemorrhage, the blood can be drained.
The hospital in Postmasburg did
not have the facilities for this.
According to Dr Necibi the deceased was not transferred to Kimberley,
where the facilities
would have been available, because the family
declined this. Most importantly, however, Dr Necibi testified
that he could
not say that the deceased would have survived had he
been transferred to a hospital in Kimberley.
[13.]
Dr
Anizoba testified that, under normal circumstances, a scan should be
performed on a person with suspected brain haemorrhage and,
if it is
confirmed, the blood could then be drained in a surgical procedure,
which could result in the survival of such a person.
He went
on, however, to testify that the deceased had been a frail and sickly
person and that he may in any event have died, even
if he had
undergone surgery to drain the blood. Dr Anizoba was not
prepared to say that surgery would have saved the life
of the
deceased. He testified that the deceased had sustained very
serious injuries in the assault.
[14.]
The
burden of proof was on the prosecution to prove that the appellant’s
assault had been the direct cause of the death of
the deceased
[3]
.
[15.]
In
S
v Thembani
[4]
the approach which should be followed in considering whether the
consequences of an attack had been interrupted by a
novus
actus interveniens
was explained as follows:
“
[25]…The
deliberate
The
deliberate infliction of an intrinsically dangerous wound, from which
the victim is likely to die without medical intervention,
must in my
view generally lead to liability of an ensuing death, whether or not
the wound is readily treatable, and even if the
medical treatment
later given is substandard or negligent, unless the victim so
recovers that at the time of the negligent treatment
the original
injury no longer poses a danger to life…In the present case,
the trial Court rightly found that at the time
of the deficient
treatment, the original wound was still an operating and substantial
cause of death, and that it could not be
said that it merely provided
the ‘setting’ within which the negligent conduct of the
hospital staff operated.
[29]
In view of the allusion to it by some of the authorities, I should
add that I do not consider
that even gross negligence in the
administration of medical treatment should be sufficient to relieve
the original perpetrator
of criminal liability of an ensuing death.”
The
following remarks in
S
v Counter
[5]
at 285 are also instructive:
“
From
the authorities it is clear where there is an intentional or gross
negligent intervening cause that changed the course of events
so that
it could be said that the original act can no longer be regarded as
the cause of death then there is a novus actus interveniens.
In
my view a true novus actus interveniens can only mean an event that
drastically changed the course of events and that the result
that
followed is, in the ordinary human experience totally unexpected.”
[16.]
In
my view it is clear, on all available evidence, that the injuries
caused in the appellant’s attack still existed at the
time of
the deceased’s death, and that they had in fact become
progressively worse. They were accordingly, at the time
of
death, not merely the “
setting
”
for any possible negligence on the part of the deceased’s
family or the staff of the Postmasburg Hospital. Insofar
as it
may have been negligent not to transfer the deceased to a hospital
where a scan and an operation could be performed, such
negligence did
not “
drastically
change
”
the course of events that would on the available evidence have
followed upon the infliction of such an injury.
[17.]
This
brings me to the question whether it had correctly been found that
the appellant had acted with the required intent.
The Regional
Magistrate found that the appellant had not, at the stage when he
slammed the head of the deceased into the tree,
foreseen the death of
the deceased. It was found, however, that when the appellant
trampled the deceased “
That
must have convinced the Accused that he was killing this person
”.
[18.]
Insofar
as the Regional Magistrate may have intended to convey that the
appellant should, at that stage, have realised that he was
killing
the deceased, such a finding would of course not have been a proper
basis for a finding of
dolus
eventualis
.
In
S
v Campos
[6]
it was in paragraph [33] confirmed that “
(the)
Court should guard against proceeding too readily from ‘ought
to have foreseen’ to ‘must have foreseen’
and
thence to ‘by necessary inference in fact foresaw’ the
possible consequences of the conduct enquired into.
The several
thought processes attributed to an accused must be established beyond
any reasonable doubt, having due regard to the
particular
circumstances which attended the conduct being enquired into
.”
[19.]
In
S
v Lungile and Another
[7]
the following was held at 602h – j:
“
The
question to be considered in the present matter is whether the State
proved beyond a reasonable doubt that the appellant in
fact did
foresee that her actions could result in the Nicola’s death.
Moreover, that alone would not be enough.
It would also have to
be the only reasonable inference that she did not care (i e was
reckless as to) whether death would in fact
result and, as it is
sometimes put in the cases, reconciled herself to such a result”
.
[20.]
According
to Dr Anizoba the deceased’s injuries would not initially have
been visible externally
[8]
.
The record contains no description of the shoes which the appellant
had worn when trampling on the deceased. In my
view the
reasonable possibility of the appellant not having in fact foreseen
the death of the deceased was not excluded.
There is, however,
no doubt at all that a reasonable person in his position would have
foreseen it, as Mr Nel readily conceded,
and in my view the appellant
should therefore have been convicted of culpable homicide.
[21.]
This
would mean that this Court would be free to either remit the matter
to the Regional Magistrate for sentence on such a conviction
or to
impose sentence itself. In my view there is sufficient
information before this Court to deal with the sentence itself.
[22.]
The
appellant’s personal circumstances were favourable. He
had a stable employment history and for all practical purposes
he had
no previous convictions. He had three dependent children and a
life partner, who was also dependent upon him.
It is abundantly
clear that a custodial sentence would have a seriously negative
impact on those dependents.
[23.]
On
the other hand it is aggravating that the appellant, who had known
the deceased, had attacked a weak and sickly person to begin
with.
It was a prolonged attack. When the deceased lay helpless on
the ground after his head had been banged into the
tree, the
appellant went on to trample on his head and chest. There is no
indication that the appellant would have stopped
his attack had he
not been interrupted by Ms Eland.
[24.]
I
am prepared to accept that the attack had been provoked to the extent
that it had, apparently, been reported to the appellant
that the
deceased had been responsible for the injury sustained by which Mr
Deon van der Westhuizen, who presumably was a relative
of the
appellant. It can also be assumed that the appellant would not
have known that the deceased had not, in fact, inflicted
the injury
to Mr Deon van der Westhuizen. However, even if it is accepted
that such a report would have provoked the appellant,
the fact
remains that he clearly had ample time to reflect and to come to his
senses. He had, however, clearly been intent
on revenging the
injury sustained by Mr Deon van der Westhuizen and on punishing the
deceased for that.
[25.]
In
my view the only appropriate sentence would, unfortunately, still be
a custodial sentence. Mr Nel in effect conceded this,
but
suggested that it should be a sentence of imprisonment in terms of
section 276(1)(i) of the
Criminal
Procedure Act
,
which would mean that the appellant could then after having served a
relatively short portion of the sentence of imprisonment
be released
on correctional supervision. In my view, however, such a
sentence would not be appropriate, taking into account
the
seriousness of the offence.
[26.]
There
is also the problem that there is no indication of any remorse on the
part of the appellant. Despite this I am, however,
of the view
that the appellant should be afforded the opportunity of
rehabilitation outside prison for at least part of his sentence.
In my view an appropriate sentence would be one of 10 years
imprisonment, of which 3 years are conditionally suspended.
[27.]
It
appears that the appellant had served 43 days of his sentence before
being released on bail on 12 December 2012 pending the outcome
of
this appeal. His sentence will therefore be antedated by an
equal number of days, to 22 October 2015
[9]
.
[28.]
The
following orders are therefore made:
1.
THE
CONVICTION OF MURDER IS SET ASIDE AND SUBSTITUTED WITH THE CONVICTION
OF CULPABLE HOMICIDE.
2.
THE
SENTENCE OF 15 (FIFTEEN) YEARS IMPRISONMENT IS SET ASIDE AND
SUBSTITUTED WITH THE FOLLOWING SENTENCE:
“
10
(TEN) YEARS IMPRISONMENT, OF WHICH 3 (THREE) YEARS ARE SUSPENDED FOR
A PERIOD OF 5 (FIVE) YEARS ON CONDITION THAT THE ACCUSED
IS NOT
CONVICTED OF AN OFFENCE INVOLVING AN ASSAULT ON ANOTHER, IN RESPECT
OF WHICH THE ACCUSED IS SENTENCED TO UNSUSPENDED IMPRISONMENT
OF MORE
THAN 1 (ONE) YEAR WITHOUT THE OPTION OF A FINE AND WHICH OFFENCE IS
COMMITTED DURING THE PERIOD OF SUSPENSION”.
3.
THE
SENTENCE IS ANTEDATED TO 22 OCTOBER 2015.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
agree.
______________________
B
M PAKATI
JUDGE
NORTHERN
CAPE DIVISION
For the
Appellant:
ADV. I J NEL
Instructed
by:
Johan Kotzé Attorneys, Postmasburg
For the
Respondent:
ADV. C G JANSEN
Director
of Public Prosecutions, Kimberley
[1]
51 of 1977
[2]
Apparently in the form of
dolus eventualis
.
[3]
Compare
S
v Tembani
1999 (1)
(SACR) 192 (W) at 198b - c
[4]
2007 (2) SA 291
(SCA),
dismissing an appeal against the judgment in the case referred to in
footnote 3.
[5]
[2000] 2 All SA 276 (W)
[6]
2002 (1) SACR 233 (SCA)
[7]
1999 (2) SACR 597 (SCA)
[8]
When Dr Necibi examined the
deceased on 27 April he noted only an oedema of the jaw and a
laceration of the lip.
[9]
Section 280 of the
Criminal Procedure Act
.