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[2006] ZAFSHC 6
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Mohapi v S [2006] ZAFSHC 6 (8 May 2006)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal No. : 107/2005
In
the appeal between:
TAMANE
ISAAC MOHAPI
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
EBRAHIM
J
et
VAN DER MERWE J
_____________________________________________________
HEARD
ON:
8 MAY 2006
_____________________________________________________
JUDGMENT
BY:
VAN DER MERWE J
_____________________________________________________
DELIVERED
ON:
5 JUNE 2006
_____________________________________________________
[1] The appellant was
convicted in the regional court of murder and on 2 June 2004
sentenced to 12 (twelve) years imprisonment. The
appellant applied
for and obtained leave to appeal from the court
a quo
against
sentence only. At the hearing of the appeal, however, leave to
appeal against the conviction was applied for on behalf of
the
appellant. This was not opposed by counsel for the respondent who,
in fact, in his heads of argument dealt with the merits of
the
conviction. In the particular circumstances of this case leave to
appeal against the conviction as well, was granted. The appellantâs
application for condonation for the late filing of heads of argument
was also not opposed and was granted.
[2] It is common cause
that the appellant stabbed the deceased with a knife in the back.
The incident took place on 19 January 2003
at Marquard. The court
a
quo
accepted the evidence of the witnesses on behalf of the
respondent to the effect that the appellant did not act in
self-defence and
that the appellant stabbed the deceased in the back
whilst the deceased was running away from him. This finding was not
challenged
on appeal, correctly so in my judgment.
[3] It was, however,
argued on behalf of the appellant, that the respondent did not prove
the element of causation. It is trite that
on a charge of murder the
State has to prove beyond reasonable doubt that the act in question
caused the death of the deceased.
The test in this regard
constitutes two enquiries. First, it must be established whether
there is a factual nexus between the act
and the result, in other
words, whether the act is a
conditio sine qua non
of the death
of the deceased. This is referred to as factual causation. Only if
factual causation is established, the second enquiry
arises, namely
in respect of legal causation. The test in respect of legal
causation is a flexible one and the question in essence
is whether on
the basis of considerations of policy the act is linked sufficiently
closely or directly to the death in order to recognise
the act as the
legal cause of the death. See
S v MOKGETHI AND OTHERS
1990 (1) SA 32
(AD) at 39 D to 41 A.
[4] As a result of the
stabbing, the deceased was admitted to the Senekal Hospital on 19
January 2003, where an intercostal drain
was inserted in order to
drain air and free blood from the chest cavity. Approximately 600
millilitres of blood was so drained.
However, during the night of 19
and 20 January 2003 approximately a further 1 000 millilitres of
blood was drained. It was consequently
thought that a thoracotomy
was called for. For this purpose the deceased was transferred to the
Bethlehem Hospital where on 20 January
2003 the thoracotomy was
performed. Thereafter the deceased was treated in the intensive care
unit of Bethlehem Hospital for approximately
a week. Thereafter the
deceased was transferred to a ward in the Bethlehem Hospital. In the
ward his condition steadily deteriorated
until his death on 16
February 2003.
[5] Several medical
practitioners testified on behalf of the respondent. Dr. F. Hayden
testified in respect of the condition and
treatment of the deceased
at Senekal Hospital. Dr. K.W. van der Merwe testified about the
condition and treatment of the deceased
during the period that the
deceased was in the Bethlehem Hospital. Dr H.M. Loppstadt and Dr.
P.J. Pretorius gave evidence in respect
of the stay of the deceased
in the ward in the Bethlehem Hospital after he was transferred there
from the intensive care unit. The
court
a quo
also heard the
evidence of Dr. H.E. van Schalkwyk, the pathologist that performed an
autopsy on the body of the deceased on 19 February
2003. In some
respects these medical practitioners gave conflicting evidence and
some also revealed a rather disturbing phenomenon,
namely the
presence in intensive care units of organisms that are resistant to
all available antibiotics. However, there can in
my judgment be no
doubt that the evidence referred to below should form the basis of
the determination of the issue in question.
[6] Dr. H.E. van
Schalkwyk is a very experienced pathologist. He testified that the
stab wound caused by the appellant was three
centimetres in length
and situated just above the shoulder blade. It penetrated
approximately 10 centimetres into the chest cavity
and a lung. He
testified that the stab wound caused a lot of bleeding but that that
in itself was not fatal. Dr. van Schalkwyk
testified that at the
time of the death of the deceased, the stab wound had already healed
completely. He said that the cause of
the death of the deceased was
multiple organ failure brought about by infection that spread to
these organs, especially the lungs
and kidneys. He described the
stab wound as a âminor incidentâ and specifically testified that
the deceased should not have
died of the stab wound, in the following
terms:
â
You said in evidence doctor that
this type of stab wound in your experience is a relatively minor
incident because you see it regularly
every day every weekend at
Bethlehem hospital, is that correct? -- Correct.
So from what you have said the
inference can be drawn that this type of relatively minor stab wound
which you see regularly does not
usually lead to the death of the
stabbed person, is that correct? -- No, in fact, they never lead to
the death. I do all the post
mortems and I can tell you that stab
wounds to the chest that come to die are very-very few and far
between.
In other words the germs, the
infection, the septicaemia, that was the cause of death to put it in
a nutshell? -- No, the infection,
the septicaemia, was a vehicle.
This is how the infection was transported to all the vulnerable
important organs but the failure
of the organs was the eventual cause
of death, as a result of the septicaemia.â
[7] From the above it is
clear that it is of crucial importance to analyse the evidence in
respect of what the origin of the serious
infection was or could be.
Dr. van Schalkwyk said that he thought that the organism that caused
the infection was introduced into
the body of the deceased by the
knife or the stab wound. This must, however, be seen in the light of
the totality of the evidence.
In this regard it is important to note
that Dr. van Schalkwyk found severe congestion of both lungs,
multiple adhesions of the lungs
and severe right lower lobe
pneumonia. He said that an adhesion of the lung is formed when the
lung virtually becomes anchored to
the chest wall and that the
numerous adhesions of the lungs of the deceased constituted clear
evidence of previous lung infections.
As Dr. van Schalkwyk testified
that no tests were done to establish whether the deceased had an
underlying illness at the time when
the stab wound was inflicted, it
follows that there is at least a reasonable possibility that at the
time of the stabbing, the deceased
suffered from considerable lung
infection.
[8] The evidence of Dr.
van der Merwe is in the same vein. Dr. van der Merwe is a medical
practitioner with 29 years experience and
was at the time head of
clinical services at Bethlehem Hospital. He testified that in his
experience about 90% of patients with
injuries similar to the stab
wound inflicted upon the deceased, would survive and that in fact the
deceased was only the second person
with such wound that he was aware
of that died after admission in hospital. Dr. van der Merwe also
said that three days after the
admission of the deceased to the
intensive care unit, there was already evidence of quite severe
infection of the airways of the
deceased. He said that that was too
soon for the infection to have developed after admission of the
deceased in hospital and that
therefore the deceased must have had
respiratory tract or chest infection at the time of the stabbing.
[9] In my judgment, on
the evidence referred to above, there is a very real and reasonable
possibility that existing lung infection
of the deceased caused the
multiple organ failure and death of the deceased, in other words,
that the stab wound did not cause the
infection and resultant death
of the deceased nor materially contributed thereto. On this basis
there is a reasonable possibility
that the stab wound was not a
conditio sine qua non
and therefore not a factual cause of the
death of the deceased. The appellant should therefore not have been
convicted of murder
or culpable homicide and consequently the appeal
must succeed.
[10] It was conceded on
behalf of the appellant that he should have been convicted of assault
with intent to do grievous bodily harm.
This concession was properly
made. I believe that it is in the interest of justice that the
matter be finalised and not referred
to the trial court for the
purpose of sentence. In my view, a sentence of 2 (two) years
imprisonment is appropriate in all the circumstances
of this case.
[11] In the result the
conviction and sentence are set aside and replaced with a conviction
of assault with intent to do grievous
bodily harm and a sentence of 2
(two) years imprisonment which must be deemed to have been imposed on
2 June 2004.
________________________
C.H.G. VAN DER MERWE,
J
I concur.
_____________
S. EBRAHIM, J
On behalf of the
appellant: N.W. Phalatsi and Partners BLOEMFONTEIN
On behalf of the
respondent: Adv. M. Strauss
Instructed by:
Director
of Public Prosecutions
BLOEMFONTEIN
/sp