S v Babeile (CA&R35/01) [2001] ZANCHC 10 (11 May 2001)

75 Reportability

Criminal Law

Brief Summary

Criminal Law — Attempted murder — Appeal against conviction — Appellant convicted of attempted murder after stabbing complainant during a racial altercation at school — Legal issue centered on whether the State proved intent to murder or merely intent to cause grievous bodily harm — Court found that the evidence supported a finding of subjective foresight of the possibility of fatal consequences from the stabbing, leading to the conclusion that the appellant acted with dolus eventualis — Appeal dismissed.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal appeal to the High Court of South Africa (Northern Cape Provincial Division, Kimberley) against a conviction for attempted murder.

The appellant was Andrew Itumeleng Babeile, a schoolboy convicted in the Vryburg Regional Court. The respondent was the State.

In the Regional Court, the appellant was convicted of attempted murder and sentenced to five years’ imprisonment, with two years conditionally suspended for five years. The trial court refused leave to appeal. The appellant then petitioned the High Court for leave to appeal in terms of section 309C of the Criminal Procedure Act 51 of 1977, and leave was granted.

The appeal was limited to conviction only, and further narrowed to the question whether the State proved an intention to murder (in the form of dolus eventualis) as opposed to an intention to cause grievous bodily harm. The dispute arose from a racially charged altercation at Vryburg High School, during which the complainant was stabbed in the neck with a pair of scissors.

2. Material Facts

The court treated certain facts as common cause. On 17 February 1999, there was a racial altercation between groups of white and black schoolboys at Vryburg High School. In the course of events, the appellant stabbed the complainant, Christof Erasmus, in the neck with a pair of scissors. The wound was in a region of the neck close to vital organs and had a 50% potential of being fatal.

On the State’s version, the complainant was among the white schoolboys involved in a verbal confrontation with black schoolboys. One Corné de Bruyn appeared to have been a prominent figure among the white scholars. The appellant was seen to lash out at the complainant with the scissors, inflicting a penetrating laceration of approximately 2 cm to the complainant’s neck. The appellant fled but was tackled by another scholar, taken to the headmaster’s office, and later arrested. The scissors were retrieved and handed in as an exhibit.

The appellant testified and advanced a version that the magistrate rejected as not reasonably possibly true. He claimed he was encircled and shoved by the “de Bruyn group,” that offensive racial language was used, that he took out the scissors to scare the boys away, and that he accidentally stabbed the complainant after being shoved. He also alleged the complainant had slapped him, which was denied by the State’s eyewitnesses. It was, however, common cause that immediately before the stabbing the complainant smacked his fist into the palm of his other hand, producing a loud noise.

For purposes of the appeal, the parties accepted that the enquiry proceeded on the basis that the appellant’s version had been rejected and that the State’s case was accepted. The proved factual premise for determining intention was therefore described by the court as a verbal altercation without physical manhandling, followed by an intentional stabbing by the appellant to the complainant’s neck.

A key factual component of the proved case was the uncontroverted medical evidence of Dr Smit. Dr Smit described the wound as a 2 cm penetrating laceration close to vital organs, with a 50% likelihood of being fatal. The wound indicated that a reasonably severe amount of force had been used, as it penetrated to the complainant’s jaw. In the doctor’s view, a person inflicting such a wound in the neck region should anticipate potentially fatal consequences.

3. Legal Issues

The central question was whether, on the proved facts, the State established beyond reasonable doubt that the appellant had the requisite intention to kill for attempted murder, specifically dolus eventualis, rather than merely an intention to cause grievous bodily harm.

The dispute was primarily one of the application of legal principles to the facts, focused on a value-laden inferential assessment of the appellant’s subjective foresight. The court had to determine what inference about the appellant’s state of mind was the only reasonable inference on the accepted facts, while guarding against substituting objective foreseeability (what a reasonable person would have foreseen) for the required subjective foresight (what this accused in fact foresaw).

4. Court’s Reasoning

The court approached the matter on the basis that the appeal’s narrow scope required it to evaluate intention on the accepted State version and the rejection of the appellant’s testimony. The judgment noted the difficulties that follow when an accused gives an untruthful version and then seeks the benefit of arguments inconsistent with the proved facts, referencing authority that a benefit of doubt must not be grounded in speculation but in a reasonable foundation consistent with the proved facts.

The court accepted that the essential enquiry was the appellant’s subjective foresight when stabbing the complainant. Because subjective foresight is rarely susceptible of direct proof, the court held that the answer had to be reached through inferential reasoning, applied cautiously. In doing so, it emphasised the governing principle that, for intention in the form of dolus eventualis to be proved beyond reasonable doubt, the inference that the accused subjectively foresaw the possibility of death must be the only reasonable inference, and it is insufficient that the accused ought to have foreseen death or even that he probably did so if a reasonable possibility remains that he did not.

In evaluating the appellant’s counsel’s criticisms of the magistrate’s reasoning, the High Court was not persuaded that the magistrate had blurred the distinction between subjective and objective foresight. The appellant relied on factors such as the difference in build between the complainant (a hefty rugby player) and the appellant (smaller and frail), the complainant’s provocative gesture (smacking his fist into his other hand), differences in eyewitness accounts about where the parties stood, and an allegation that the complainant ducked.

The court held that these factors did not undermine the magistrate’s conclusion on intention. It considered it unsurprising that smaller persons might attack larger ones, particularly where the attacker is armed. It further accepted that in a moving and confused school scene, where the bell had rung and scholars were dispersing, eyewitness discrepancies about positions were to be expected and did not materially displace the core proved fact of an intentional neck-stab. The complainant’s provocative gesture did not justify the stabbing and, on the accepted version, there had not been physical manhandling preceding it. The court also endorsed the magistrate’s view that scissors can be as lethal as a knife when used to stab.

Central to the court’s reasoning was the medical evidence, which it treated as particularly significant. The location of the wound near vital organs, the acknowledged 50% fatal potential, and the degree of force necessary to cause the penetration supported the inference that the act carried an obvious risk of fatal consequences. The court noted that the appellant had the scissors in his hand before the attack and intentionally stabbed the complainant in the neck. Given those proved facts, it considered there to be no reasonable possibility that it “never occurred” to the appellant that death could result.

Applying the inferential test with the caution described in the cited authorities, the court concluded that the only reasonable inference was that the appellant subjectively foresaw the possibility that his act might cause death and nevertheless proceeded, reckless of that result. On that basis, the requirements for dolus eventualis were met and the conviction for attempted murder was correctly sustained.

5. Outcome and Relief

The appeal against conviction was dismissed. The High Court confirmed the appellant’s conviction for attempted murder.

The High Court also confirmed the sentence imposed by the Regional Court, namely five years’ imprisonment, of which two years were conditionally suspended for a period of five years.

No separate order as to costs was recorded in the judgment.

Cases Cited

R v Mlambo 1957(4) SA 727 (AD)

S v Sigwahla 1967(4) SA 566 (AD)

S v Phallo & others 1999(2) SACR 558 (SCA)

S v Lungile & another 1999(2) SACR 597 (SCA)

Legislation Cited

Constitution of the Republic of South Africa, 1996 (Act 108 of 1996)

Criminal Procedure Act 51 of 1977, section 309C

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that, on the accepted State version and the uncontroverted medical evidence, the only reasonable inference was that the appellant subjectively foresaw the possibility that stabbing the complainant in the neck with scissors might cause death and proceeded regardless. Accordingly, the State proved dolus eventualis and the conviction for attempted murder was upheld. The appeal was dismissed and the conviction and sentence were confirmed.

LEGAL PRINCIPLES

The judgment applied the principle that dolus eventualis requires proof that the accused subjectively foresaw the possibility of the prohibited consequence (here, death) ensuing from the conduct and nevertheless proceeded, reckless as to that outcome. Proof cannot be satisfied by showing only that the accused ought reasonably to have foreseen the consequence; subjective foresight must be established beyond reasonable doubt, typically by inference from the proved facts.

The court reaffirmed that inferential reasoning in criminal cases must satisfy the standard that the inference relied upon must be the only reasonable inference consistent with the proved facts. If there is a reasonable possibility that the accused did not subjectively foresee the relevant consequence, the inference of dolus eventualis cannot be drawn, even if objective foreseeability is strong or subjective foresight appears probable.

The judgment also applied the principle that an accused’s attempt to obtain a benefit of doubt must not rest on speculation, but on a reasonable foundation derived from evidence or from reasonable inferences consistent with and not outweighed by the proved facts. Where an accused gives false evidence irreconcilable with the proved facts, a court may in appropriate circumstances reject attempts to claim the benefit of doubt on speculative bases not supported by the proved case.