S v Tembani (116/02) [2006] ZASCA 123; [2007] 2 All SA 373 (SCA); 2007 (2) SA 291 (SCA); 2007 (1) SACR 355 (SCA) (30 November 2006)

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[2006] ZASCA 123
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S v Tembani (116/02) [2006] ZASCA 123; [2007] 2 All SA 373 (SCA); 2007 (2) SA 291 (SCA); 2007 (1) SACR 355 (SCA) (30 November 2006)

Links to summary

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case
no: 116/02
REPORTABLE
In the matter between:
Eugene Mabhuti
TEMBANI Appellant
and
The
STATE
Respondent
Before
: Cameron JA, Heher JA, Combrinck AJA, Malan AJA and
Theron AJA
Heard
: Wednesday 1
November 2006
Judgment
: Thursday 30 November 2006
Criminal law – causation – appellant inflicting wound which
without medical treatment would be fatal – later medical treatment
negligent and possibly even grossly negligent – does not exempt
assailant from responsibility for death – murder conviction
confirmed
Neutral citation: This judgment may be cited as S v Tembani [2006]
SCA 151 (RSA)
JUDGMENT
CAMERON JA:
The appellant was convicted of murder in the High Court in
Johannesburg and sentenced to 18 years’ imprisonment.
1
This is an appeal with the leave of the trial judge, against his
conviction. The appeal turns on whether an assailant who inflicts
a
wound which without treatment would be fatal, but which is readily
treatable, can escape liability for the victim’s death because
the
medical treatment in fact received is sub-standard and negligent.
The murder conviction arose from an incident late on Friday night 14
December 1996 at the Ivory Park informal settlement near Kempton
Park in which the appellant shot his 28 year old girlfriend, Ms
Thandi Lamani, at least twice. One bullet entered her chest between
the fifth and sixth ribs. It penetrated her right lung, diaphragm
and abdomen, perforating the duodenum. The other entered her
calf,
fracturing her tibia and fibula. At his trial, the appellant
pleaded not guilty, reserved his defence and chose not to testify;
but the trial court (Hellens AJ with two assessors) rightly accepted
the first-hand accounts of the deceased’s two sisters, Ms
Ntombixolo Lamani and Ms Zodwa Lamani. The former witnessed the
appellant shoot the deceased a number of times at point-blank
range
in the one-roomed shack they shared, while the latter hastened to
the scene from close by while the accused was still there,
armed and
uttering murderous imprecations against the injured woman.
She was admitted to Tembisa Hospital on the night of her shooting,
and died there fourteen days later. The evidence established
beyond
doubt that the appellant intended to kill, and the sole issue on
appeal is whether he is responsible for her death. If
he is, the
conviction of murder stands. If not, it must yield to attempted
murder, and his 18-year sentence must be reconsidered.
2
The cause of death was officially recorded, and proved at the trial,
to be septicaemia in consequence of a gunshot wound through
the
chest and abdomen. On appeal the appellant’s main submission was
that the hospital staff and doctors were grossly negligent
and that
this broke the chain of causation between his attack on 14 December
and her death on 28 December, thus exempting him from
liability for
murder.
On the night of the deceased’s admission, the medical personnel at
Tembisa cleaned the wound, inserted an intercostal drain and
put her
on antibiotic medication; but then – even though the next day she
vomited and complained of abdominal pains, sure signs
of peril –
she was left insufficiently attended in the ward until Tuesday. By
that time, four long days later, peritonitis (infection
of the
abdominal lining) had set in. Only then was a laparotomy (a
surgical incision opening the abdominal cavity) performed,
and the
gunshot wound properly tracked and sutured, though the sufficiency
of what was done even then is doubtful. Though she
was belatedly
transferred to the intensive care unit on 23 December, and a second
laparotomy performed on 24 December, it was all
too little, far too
late. In the graphic words of the district surgeon who performed
the post mortem, Dr Peters, by then ‘everything
had gone septic’
(
alles het septies geraak
), and Thandi Lamani died in what
must have been acute pain and discomfort on 28 December.
The medical evidence makes pitiful reading, and the conclusion is
unavoidable that the deceased received inadequate and negligent
care
at Tembisa Hospital. The trial court sympathetically observed that
the doctor in charge, Dr Jovanovic – who attempted on
the one hand
to justify his interventions and the hospital’s standard of care,
while on the other apologising for inadequate
treatment and
facilities – was ‘on a cleft stick’.
3
Despite his anguished explanations of the arduous conditions under
which medical personnel are obliged to work at Tembisa, the
judge
found that it had been prima facie established that the nursing
staff and doctors were negligent. His findings may be summarised
thus:
4
If the gunshot
wound had not been treated at all, the deceased would have died from
the injury the appellant inflicted.
The gunshot wound
was an indispensable pre-condition (a
sine qua non
) of the
death of the deceased.
Proper, timeous
and adequate medical treatment would with a high degree of
probability have been effective to render it non-fatal.
On admission to
Tembisa, the penetrating injury of the abdomen (haemothorax) was
adequately treated by an inter-costal drain.
But appropriate
care on admission should have included close observation for at
least the first 12 hours, as well as a laparotomy,
very soon after
admission, in order to trace the path of the gunshot wound and to
establish what damage it had caused. [The defence
expert, Dr du
Toit, testified that a laparotomy, promptly performed with proper
attendant treatment, would have ensured a 95% chance
of survival.]
The mere insertion
of the inter-costal drain was inadequate and was short of the normal
standard of medical care that one is entitled
to expect of a
reasonably competent hospital and of reasonably competent doctors.
The deceased was
left in an ordinary ward for four days after her admission with
nothing but basic care being given to her and without
being properly
attended on by a medical practitioner.
The first occasion
on which she was properly examined was on Tuesday 18 December, four
days after she was admitted.
By this time
significant peritonitis had set in – probably throughout the
abdomen.
The operative
procedure a reasonably proficient surgeon should have employed was
either an anastomosis (excising the damaged [necrotic]
tissue and
joining the duodenum) at a very early stage, or a gastro-jujunostomy
(bypass).
A simple repair of
the entry and exit duodenal wounds (as performed on 18 December) was
not appropriate because the tissue would
already have been necrotic,
and suturing at that stage was therefore ineffective.
A bypass procedure
on 18 December would have given the deceased a significantly higher
chance of survival.
The major fault in
the deceased’s care lay with (i) the admitting doctors in not
performing a laparotomy as soon as possible;
and (ii) the hospital
and doctors in allowing her to lie in an ordinary ward over four
days – during which peritonitis set in.
The totality of
the treatment by the hospital and medical staff was substantially
short of the standard of practice that a member
of the public is
entitled to expect from a reasonably proficient hospital and
reasonably proficient doctors.
The failure to
perform timeous and appropriate surgery was a contributing cause to
the death in that with proper care peritonitis
and septicaemia could
have been avoided.
The judge noted that the hospital was under-staffed, especially over
weekends, and that the doctor/patient and nurse/patient ratios
were
woefully inadequate. The medical records were deficient and no
proper discipline was enforced in keeping them. The standard
of
nursing care was evidently poor. Even though these shortcomings
resulted partly from budgetary constraints and lack of resources,
with consequent enforced prioritisation, the judge did not consider
he could find the standard excusably low. It was indeed –
‘
a sad experience for me to realise that many of our
citizens and members of our society critically injured or wounded
might find themselves
by dint of their financial circumstances
exposed to so woefully inadequate [a] system of medical care’.
5
These careful findings have rightly not been challenged on appeal
and they must form the basis of our decision. The question is
whether the pitiable record of medical neglect and malmanagement
they reveal exculpates the deceased’s assailant from guilt of
murder. The trial court held that it did not. Hellens AJ found
that it was of overriding importance that the original wound

remained an operating and substantial cause of death even though the
poor medical treatment was also an operating cause:
‘
It seems to me not practical to say that a hospital
which is overworked and understaffed and which by virtue of those
factors delivers
sub-standard medical treatment to a patient can be
held in the circumstances of this case to have been the juridical or
legal cause
of the death of the deceased. The deceased died in the
same manner and from the same wound with the same cause as she would
have
died from had she not been taken to hospital. It seems to me
not logical nor practical to say that the original wounding was
merely
the setting in which another cause operated and that the death
did not result from the wound’
6
The judge accordingly found that the hospital’s and doctors’
negligence was not in the circumstances ‘so overwhelming as
to
make the original wound merely part of the history behind the
patient’s presence in the hospital so that it could be said
that
death did not flow from the wound’. Applying a ‘flexible
approach to causation’ – one that was ‘practical’ rather
than ‘over-theoretical’ – he considered it in accord with
justice to hold that in the juridical sense the medical negligence
did not oust the causal connection between the shooting and the
deceased’s death.
7
The appellant was accordingly convicted of murder.
Causation, medical negligence and responsibility for murder
It is now well established that a two-stage process is employed in
our law to determine whether a preceding act gives rise to criminal
responsibility for a subsequent condition. The first involves
ascertaining the facts; the second imputing legal liability. First
it must be established whether the perpetrator as a matter of fact
caused the victim’s death. The inquiry here is whether, without
the act, the victim would have died (that is, whether the act was a
conditio sine qua non
of the death).
8
But the perpetrator cannot be held responsible for all consequences
of which his act is an indispensable pre-condition. So the
inquiry
must go on to determine whether the act is linked to the death
sufficiently closely for it to be right to impose legal
liability.
This is a question of law, which raises considerations of legal
policy.
9
In most cases of murder, the first stage of the causation inquiry
presents no problem. There can be no doubt that without the
appellant’s murderous attack Thandi Lamani would not have died.
Questioned by the judge, the pathologist for the defence, Dr
Du
Toit, confirmed that had there been no medical intervention at all,
the gunshot wound would have proved fatal, with ensuing
septicaemia
and peritonitis. The wound the appellant inflicted was thus
intrinsically fatal.
10
What is in issue is legal responsibility for the death in the
manner in which it in fact ensued; and in the form this case
presents,
the problem is novel in this court.
11
This court has given consideration to the broader problem whether a
subsequent intervening act or omission can exculpate an earlier
fatal attacker from liability for death. To the question whether a
later deliberate fatal wounding can exempt a previous fatal
assailant from responsibility, it has given no conclusive answer.
In
S v Mbambo
12
the court expressed the view that, where two assailants
independently inflict injuries on a victim, if it is uncertain
whether
death ensued as a result of the combined effect of both
injuries or as a result of only one or other of them (it being
uncertain
which injury in fact caused death), neither perpetrator
can be held responsible for the death, even though it is medically
established
that either injury could have caused death.
13
The court also considered that even where the first injury would
inevitably have resulted in death, a second independent injury
that
operates with decisive and fatal effect before the first injury
could result in death, operates as a
nova causa
(thus
breaking the causal chain and exempting the first assailant from
responsibility for the death).
14
On the medical evidence, however, the court in
Mbambo
found
that the first injury (a stone to the head fracturing the skull) was
not in fact a cause of death, while the second (a four-inch
stab
wound penetrating the left lung) was. The stone-thrower was
therefore not responsible for the killing, but the stabber was.
In
S v Daniëls
15
the first accused shot the deceased in the chest. Without emergency
medical treatment (which was inaccessible), the chest wounds
would
have resulted in death within half an hour; but the victim then
received a second gunshot to the head. This caused instant
death.
Since it was reasonably possible that it was not the first accused,
but the second, who inflicted the head injury, the
question was
whether the first accused bore responsibility for the death. The
court split. Nicholas AJA and Botha JA considered
that the
perpetrators acted with common purpose; since their joint conduct
caused the death the first accused was guilty of murder;
but without
the common purpose the reasoning in
Mbambo
applied, with the
result that he could not have been found guilty of murder.
16
Van Winsen AJA and Jansen JA disagreed. They treated the views
expressed in
Mbambo
as obiter,
17
but in any event dissented from them: they considered that, as a
matter of policy, a perpetrator who inflicts a wound that will
in
the circumstances cause death should not escape liability for the
death merely because a subsequently inflicted mortal wound
hastens
death.
18
Trengove JA however agreed with Nicholas AJA that the first wound
could not be considered a cause of death because of the supervention
of the second; but finding no common purpose he held that a
conviction only of attempted murder was competent.
19
Because of the findings on the medical evidence in
Mbambo
,
the views expressed on the criminal liability of the first attacker
were in my view indeed not necessary for that decision; nor,
in the
light of the finding of Nicholas AJA and Botha JA in
Daniëls
that the perpetrators in that case acted with a common purpose, was
it pivotal to their decision whether the first or the second
wound
was the cause of death: the views of those judges on the binding
status of
Mbambo
were accordingly not indispensable to their
decision.
20
As a result, the question whether an assailant who inflicts a fatal
wound is exempted from liability for death where a second wound
thereafter causes immediate death remains undecided. This leaves
open also the broader question, which this case presents, whether
any culpable later intervention (or omission) can be held to
exculpate the earlier actor from liability, and, if so, on what
basis.
21
In
S v Mokgethi
22
it was held that the negligent and unreasonable conduct of the
victim himself interrupted the chain of causation. A gunshot
rendered
the deceased a paraplegic confined to a wheelchair.
Despite the injury he recovered well, and received instruction on
the dangers
of pressure sores and their prevention. But he
unreasonably failed to apply proper self-care, and pressure sores
developed that
led to septicaemia from which he died six months
later. The court held that the assailants could not be held
responsible for
his death. Though initially the wound was
mortally dangerous in that without medical intervention the deceased
would probably
have died because of it, the threat to his life was
eliminated by the proper medical care and instruction he received.
The eventually
fatal septicaemia was caused not by the original
wound, but by the deceased’s own unreasonable failure to follow
instructions.
Even though the gunshot wound was an indispensable
pre-condition of the death, the trial court’s conviction of murder
was changed
to attempted murder.
23
The outcome may be contrasted with the case where the perpetrator’s
own actions impel the victim to take self-injuring action:
the
perpetrator remains liable.
24
Mokgethi
concerned the victim’s own unreasonable and
negligent failure to take self-care, after he had recovered from the
fatal attack,
which could therefore not be considered the immediate
cause of death.
25
Although the factual setting differs,
Mokgethi’s
approach
to the determination of legal liability applies, since the court
adopted what Van Heerden JA called a ‘supple’ or
‘elastic
yardstick’ for determining whether policy considerations require
that legal responsibility should be imputed. The
ultimate question
is whether there is a sufficiently close link between the act and
the consequence.
26
Among South African writers there have long been divergent views as
to whether negligent medical care can be regarded as a supervening
cause exempting the original assailant from liability. JRL Milton,
adopting the approach of PMA Hunt, suggests that in general
an event
(including a natural event and voluntary human conduct on the part
of the victim himself or a third person) is likely
to be held to
interrupt causation if it is abnormal – that is, ‘unlikely, in
the light of human experience, to follow an act
such as that
committed by [the perpetrator]’.
27
Regarding medical treatment, he starts from the express premise that
‘in modern times medical proficiency is normal and that
negligent,
improper procedures are abnormal’. On this basis he proposes that
the rule should be that –
‘
medical treatment which is carried out bona fide is a
novus actus only if: (i) it is negligent [in a footnote the author
adds ‘or
perhaps “grossly negligent”’]; and (ii) but for that
medical negligence (and supposing proper, careful treatment) [the
victim]
would not have died when he did’.
28
If this were accepted, the appellant must be acquitted of murder,
since it is plain that the medical treatment the deceased received
at Tembisa was negligent (and perhaps ‘grossly negligent’). The
trial judge however expressly rejected Milton’s approach
as ‘too
broad and sweeping’, holding that factually the premise that
medical proficiency in South Africa is normal, and negligent
improper procedures abnormal, was wrong.
29
CR Snyman approves the trial court’s reasoning and decision.
Where the injuries were serious and the victim’s life could have
been saved by correct medical treatment, but the treatment was in
fact negligent or improper, he considers that the perpetrator’s
liability for the ensuing death depends on ‘whether, at this time,
and in this country, one can expect medical treatment always
to be
proper and proficient’. Since the answer must be No, he considers
the trial court’s decision to be correct and realistic.
Quite
apart from the possibility of future additional strains on the
country’s health care infrastructure,
‘
it seems unjust to allow X, who has intentionally
inflicted a lethal or at least very serious injury to Y, to argue
afterwards that
the subsequent improper medical care should redound
to his benefit and absolve him from full responsibility for his
deed’.
30
Snyman suggests however that the outcome might be different if the
medical treatment is not merely negligent, but grossly negligent.
In his thesis, writing before the decisions of this court that
established the two-stage process for the determination of legal
liability, FFW van Oosten presciently drew attention to the
distinction between the purely factual aspect of determining
causation
and the question of responsibility, of which the decisions
on medical negligence did not always take account.
31
Hart and Honoré observe that ‘some doubt surrounds the
effect of improper medical treatment on the responsibility of the
accused person’.
32
They note that ‘improper medical treatment is unfortunately too
frequent in human experience for it to be considered abnormal
in the
sense of extraordinary’.
33
After surveying mainly the United States and English cases, they
summarise thus:
‘
Where, as in England, the distinction between mortal
wounds and others is not insisted on, subsequent negligent treatment
if lacking
in “common knowledge or skill” may relieve accused of
further liability even if it is not of a character sufficient without
the
wound to cause death and a fortiori if it is. Where the
distinction is drawn, if the original wound is mortal no subsequent
negligence
relieves accused of responsibility for homicide. If it is
not mortal, though “dangerous” some authorities allow subsequent
negligence
to relieve only if it is of a character sufficient to have
killed the victim independently of the wound.’
The authors refer with apparent approval to the decision of the
English military appeal court in
R v Smith
,
34
which Hellens AJ applied in deciding the present case,
35
and which bears out their proposition that ‘if the original wound
is mortal no subsequent negligence relieves accused of
responsibility
for homicide’. In
Smith
, the accused stabbed
the victim in the lung. The medical treatment administered was
inappropriate and harmful; if he had received
immediate and
different treatment, he might not have died; and with a blood
transfusion (which was unavailable) his chances of
recovery might
have been 75%. Despite this, the court of appeal held the assailant
responsible for the death. Lord Parker CJ
rejected the argument
that if something happened that impeded the chance of the deceased
recovering then the death did not result
from the original wound:
‘
It seems to the court that, if at the time of death
the original wound is still an operating and substantial cause, then
the death
can properly be said to be the result of the wound, albeit
that some other cause of death is also operating. Only if it can be
said
that the original wounding is merely the setting in which
another cause operates can it be said that the death does not result
from
the wound. Putting it another way, only if the second cause is
so overwhelming as to make the original wound merely part of the
history can it be said that the death does not flow from the wound.’
36
In a broader context, Hart and Honoré comment that ‘it is
clear that the idea that one who deliberately wounds another
takes
on himself the risk of death from that wound, whatever the reason
for the failure to treat it properly, has an attraction
which may be
only partly penal in origin’:
‘
It seems to draw, in addition, on the primitive idea
that an omission to treat or to cure, like the failure to turn off a
tap, cannot
be called a cause of death or flooding in the same sense
as the infliction of the wound or the original turning on of the
tap.’
37
‘Primitive’, in the sense the word shares with ‘prime’ or
‘primal’, merely denotes ‘the earliest times in history
or
stages in evolution or development’,
38
and I do not understand the authors to disclaim the idea they
describe. On the contrary, it seems to me to illuminate well the
basis for imputing liability both in
Smith
and in present
case. 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 for an ensuing death, whether or not the wound is
readily treatable, and even if the
medical treatment later given is
sub-standard 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 latter event, as was found in
Smith
,
the original wounding merely provides a setting in which a further
cause takes substantial effect. 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.
In my view, the justification for this approach may be found in two
interconnecting considerations of policy. The first relates
to the
culpability of the assailant; the second to the context in which he
harms his victim. First, an assailant who deliberately
inflicts an
intrinsically fatal wound embraces, through his conscious conduct,
the risk that death may ensue.
39
The fact that others may fail to intervene to save the injured
person does not, while the wound remains mortal, diminish the moral
culpability of the perpetrator, and should not in my view diminish
his legal culpability. That is so even where those others fail
culpably in breach of a duty they independently owe to the victim.
It would offend justice to allow such an assailant to escape
the
consequences of his conduct because of the subsequent failings of
others, who owe no duty to him, whose interventions he has
no right
to demand, and on whose proficiency he has no entitlement to rely.
Their failings in relation to the victim cannot diminish
the burden
of moral and legal guilt he must bear.
The second consideration reinforces the first. In a country where
medical resources are not only sparse but grievously maldistributed,
it seems to me quite wrong to impute legal liability on the
supposition that efficient and reliable medical attention will be

accessible to a victim, or to hold that its absence should exculpate
a fatal assailant from responsibility for death. Such an approach
would misrepresent reality, for it presumes levels of service and
access to facilities that do not reflect the living conditions
of a
considerable part, perhaps the majority, of the country’s
population. To assume the uniform availability of sound medical
intervention would impute legal liability in its absence on the
basis of a fiction and this cannot serve the creation of a sound
system of criminal liability.
I therefore endorse the views of those writers
40
who regard improper medical treatment as neither abnormal nor
extraordinary and hold that the supervention of negligent treatment
does not constitute an intervening cause that exculpates an
assailant while the wound is still intrinsically fatal.
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 for an ensuing
death.
The trial judge in the present case did not make a finding that the
hospital was ‘grossly’ negligent: indeed he pointed
out that
neither the hospital nor the medical personnel were on trial or
represented by counsel who could defend them.
41
He did however find, with full justification, that the total
treatment the deceased received was ‘substantially’ short of
the
standard of practice that a member of the public is entitled to
expect from a reasonably proficient hospital and reasonably
proficient doctors.
42
It is not necessary to determine whether ‘substantial’ absence
of reasonable proficiency connotes the presence of gross negligence,
since I am prepared to assume in favour of the appellant that a
finding of gross negligence may be warranted. Even so, while the
wound remains intrinsically fatal, even gross negligence should not
permit escape from legal liability for its consequences.
43
In this regard, for purposes of causation, I would adopt subject to
one change the statement in
R v Mabole
,
44
that an assailant ‘must have regard to the social environment as
well as the physical, and the reasonably predictable consequences
of
any act of his in the former field’:
‘
In this case the reasonably predictable consequences
of the accused’s attack on the deceased were that he would require
medical
attention; and in the state of present knowledge mistakes in
diagnosis and treatment are a commonplace. Provided, then, that
medical
attention is given with goodwill and reasonable efficiency,
in my view the accused cannot complain of mistakes in diagnosis and
treatment.’
I would erase ‘and reasonable efficiency’. In my view an
assailant is entitled always to expect that medical attention will
be
given in good faith, and to hope that it will be given also with
reasonable efficiency; but where the latter is lacking and death
ensues it does not entitle him to exculpation. I would apply this
standard also in the case of ‘gross negligence’, so long as
‘gross’ is not taken to imply absence of good faith.
Existing first-instance authority preponderantly,
45
though not universally,
46
tends to support the imposition of liability in the present case, as
does the decision of this court in
S v Counter
.
47
The appeal is dismissed.
E CAMERON
JUDGE OF
APPEAL
CONCUR:
HEHER JA
COMBRINCK AJA
MALAN AJA
THERON AJA
1
1999 (1) SACR 192
(W).
2
The delay in the appeal (which we condoned at the
hearing) was due, we were informed from the Bar, to the change-over
from the old
pro deo system to the new system administered by the
Legal Aid Board.
3
1999 (1) SACR 192
(W) 202d.
4
1999 (1) SACR 192 (W) 200-201.
5
1999 (1) SACR 192
(W) 202g-h.
6
1999 (1) SACR 192
(W) 203a-b.
7
1999 (1) SACR 192
(W) 203c-e.
8
Sv Daniëls
1983 (3) SA 275
(A) 331B
(statement in minority judgment of Jansen JA, adopted in
S v
Mokgethi
1990 (1) SA 32
(A) 39G-H).
9
Minister of Police v Skosana
1977 (1) SA
31
(A) 34G-H per Corbett JA (
‘This is basically a juridical
problem, in which considerations of legal policy may play a part’).
10
The wound was in other words ‘mortal per se’
in the sense identified by Beadle J in
R v Mubila
1956 (1) SA
31
(SR) 33E-F (‘an intrinsically dangerous wound from which the
injured person is likely to die if he receives no medical
attention’).
HLA Hart and Tony Honoré
Causation
in the Law
(2 ed, 1985) pp 241-242 and 353 identify three other
senses of ‘mortal wound’: (i) sufficient to cause the death of a
person
of average constitution under normal circumstances; (ii)
highly likely to cause the death of a particular victim, given his
constitution
and the likelihood of medical assistance; (iii) in fact
causing death even though not mortal in senses (i) and (ii) (eg a
scratch
the victim neglected).
11
In
S v Mini
1963 (1) SA 188
(A) 189D-G the appellant stabbed
the deceased who died of a pulmonary embolism ten days later, after
receiving medical treatment.
It was argued that the deceased would
have had a better chance of recovery had he been treated earlier,
but the court dismissed
the argument on the basis that the evidence
showed not that the medical treatment caused the death, but merely
that other treatment
might have prevented the death.
12
1965 (2) SA 845
(A).
13
at 855B-C, per Wessels JA, Steyn CJ concurring.
14
at 857E-F, Rumpff JA at 846H expressing no apparent disagreement on
these issues.
15
1983 (3) SA 275
(A).
16
a
t
303-304.
17
at 313-314, per van Winsen AJA; 333B-H, per Jansen JA.
18
at 314B-C. Van Winsen AJA said:
‘I find it, with
respect, difficult to reconcile myself with a proposition the effect
of which is such that where one person deliberately
inflicts wounds
on another which inevitably would cause the death of such person
[the former] can only be found guilty of assault
or attempted murder
because someone other than that person thereafter also inflicts a
fatal wound which must then be considered
a
nova causa
interveniens
.’
Jansen JA endorsed this
approach at 330H-331A and 332H-333A (‘In the specific
circumstances of this case it seems to me that no
policy reasons
exist to exempt the first appellant from responsibility for the
consequence, which did ensue in accordance with
his intention, but
that it would be just and desirable to hold him responsible and find
him guilty of murder’). (My translations.)
19
at 324-326.
20
This accords with
the analysis of
Daniëls
by JM Burchell in
South African Criminal Law and Procedure
vol
1
General Principles of the Criminal Law
(3 ed, 1997)
pp 60-61.
21
CR Snyman
Criminal Law
(4 ed, 2002) pp
88-90 treats the problem in
Daniëls
(subsequent
deliberate conduct) and in the present case (later negligent
conduct) as raising in principle similar issues for the
prior
actor’s criminal responsibility, whereas other writers deal with
‘medical negligence’ as a separate head.
22
1990 (1) SA 32
(A).
23
at 47C-I.
24
See HLA Hart and Tony Honoré
Causation in the Law
(2
ed, 1985) pp 144-145;
Royall v The Queen
[1991] HCA 27
;
(1991) 172 CLR 378
(HC) (an act by a person in the interests of self-preservation, in
the face of violence or threats of violence by another, which
results in his/her death, does not negative a causal connection
between the violence or threats of violence and the death: where
the
perpetrator induces in the victim a well-founded apprehension of
physical harm so as to make it a natural consequence (or reasonable)
that the victim would take measures to escape, and is then injured
in the course of escaping, that injury is caused by the accused’s
conduct – see the judgment of Mason CJ at 389-390).
25
See
1990 (1) SA 32
(A) 41B-C.
26
at 40-41 and 45G-H, approved in
International Shipping Co (Pty)
Ltd v Bentley
1990 (1) SA 680
(A) 701, and applied in
S v
Counter
2003 (1) SACR 143
(SCA) para 29.
27
South African Criminal Law and Procedure
vol II
Common-law
Crimes
(3 ed, 1996) (for whose first edition PMA Hunt was
responsible) p 331, following Hart & Honoré
Causation
in the Law
(2 ed, 1985) pp 240 and following.
28
Work cited above
p 345.
29
1999 (1) SACR 192
(W) 199g-i.
30
Criminal Law
(4 ed, 2002) p 89.
31
Oorsaaklikheid by Moord en Strafbare Manslag
(LLD thesis, University of Pretoria, 1981) p 459-460.
32
Causation in the Law
(2 ed, 1985) p 354.
33
Work cited above pp 355-356.
34
[1959] 2 All ER 193
(Courts-Martial Appeal
Court).
35
1999 (1) SACR 192
(W) 198d-f.
36
[1959] 2 All ER 193
at 198D-F.
37
Causation in the Law
(2 ed, 1985) p 362.
38
Concise Oxford Dictionary
.
39
See the views of Hart and Honoré set out
in para 24* above.
40
See the views of Snyman set out in para 21*, and
those of Hart & Honoré in para 22* above.
41
1999 (1) SACR 192
(W) 200a-c.
42
1999 (1) SACR 192
(W) 201h.
43
It follows that I do not endorse the criticism of
the approach of Hellens AJ expressed by Jordaan AJ in
S v Counter
2000 (2) SACR 241
(T) [affirmed by this court without comment on
this point:
2003 (1) SACR 143
(SCA)] at 249-250; and in
S v
Ramosunya
2000 (2) SACR 257
(T) 264-265 (Bertelsmann J
concurring).
44
1968 (4) SA 811
(R) 816D-E, per Young J.
45
R v Mouton
1944 CPD 399
;
R v Loubser
1953 (2) PH H190;
R v Mubila
1956 (1) SA 31
(SR);
R v du Plessis
1960
(2) SA 642
(T);
S v Norman
1961 (2) PH H262 (GW);
R v
Formani
1962 PH H252 (SR);
S v Mabole
1968 (4) SA 811
(R);
S v Dawood
1972 (3) SA 825
(N); . The decisions then
available were surveyed by FFW van Oosten,
Oorsaaklikheid
by Moord en Strafbare Manslag
(LLD thesis, University of
Pretoria, 1981) pp 448 and following. In
S v Ramosunya
2000
(2) SACR 257
(T) the victim of a stabbing died the day after her
discharge from hospital, of sepsis of the lungs, but there was no
proof that
the original stab wounds (near the left collar bone) had
caused the death: on appeal the accused was acquitted of murder, but
convicted
of attempted murder instead.
46
The odd one out is the decision in
S v Motomane
1961 (4) SA
569
(W) (medical practitioner taking prudent, but not necessary,
decision in treating stab wound held to have broken causal chain).
47
2003 (1) SACR 143
(SCA).