IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Appeal Case No.: A147/24
Lower Court Case No.: OSH164/19
In the appeal between:
CONRAD GYSMAN
Appellant
and
THE STATE
Coram: Slingers, J et Montzinger, AJ
Heard: 23 August 2024
Delivered electronically: 28 August 2024
JUDGEMENT
Montzinger AJ:
Summary Introduction
1. This is an appeal against the appellant’s murder conviction by the regional
court sitting at Oudtshoorn.
2. The appellant was convicted and sentenced to 15 years' direct imprisonment 1.
He applied in the trial court for leave to appeal against his conviction and
1 In terms of s 51(2) of the Criminal Law Amendment Act 105 of 1997
sentence, which was refused. On pe tition to this court the appellant was
granted leave to appeal, only against his conviction.
3. The circumstances that led to his conviction relate to an event that happened
on the afternoon of 7 May 2019 in Calitzdorp, Western Cape . T he appellant
fatally stabbed the 19-year-old Ms Sonia Saaiman (the “deceased”) in the neck.
While the State and the appellant disagreed on the events leading to the fatal
stabbing, it was not disputed that the appellant performed the fatal stab that
caused the deceased's death.
4. The evidence before the trial court consisted of the testimony of a single
eyewitness, Mr. Phillipus Fortuin (“Fortuin”), who testified that on the day of the
incident, he was approached by the deceased, who requested that he
accompany her to the appellant’s house to collect money. Upon arrival at the
appellant’s house, they found the deceased’s mother already there , knocking
on the door . The deceased joined her mother in trying to get the appellant ’s
attention and even went around the house to knock on the window . The
appellant eventually unlocked and opened the door, leading to a heated
argument between himself, the deceased and her mother2.
5. Fortuin further testified that while the deceased and her mother stood in front of
the door facing the appellant the argument increasingly escalated. At this point
the appellant asked the deceased mother, “are you taking me for a fool”, turned
around and when he turned back towards them had something in his hand. It
was at this moment , Fortuin further testified, that the deceased pushed her
mother and was stabbed in the neck by the appellant3.
6. The State also presented and relied on an uncontested postmortem report that
confirmed the deceased’s cause of death was ‘…a stab wound to the neck …’
that was described in the report as follows:
2 Record: p 31 ln 20
3 Record: p 33 ln 10-15
“A stab wound with an elliptical shape, 24 x 3 mm, was placed on the left
lateral neck, 55mm below and 3mm in front of the left external ear
canal…”
7. While the appellant did not d ispute that he had stabbed the deceased, his
version of events differed significantly from the State’s. The appellant claimed
he was sleeping after consuming too much alcohol and was abruptly awakened
by a noise, which he believed was caused by an intruder attempting to enter his
home through the window. Startled and fearful, he grabbed a knife and stabbed
blindly through the towel that covered the window, without realising that he had
struck a person. A few m oments later he learned that it was the deceased that
he stabbed.
8. Before the trial court it was argued on the appellant’s behalf that the State’ s
case was unreliable, as it relied on the testimony of a single witness. It was
further contended that the State had failed to prove that the appellant had the
requisite intent to kill the deceased. Despite these arguments, the trial court,
based on the t otality of the evidence 4, rejected the appellant’s version of
events, as it was so improbable that it could not be reasonably possibl y true5.
The trial court found that the State had proven beyond a reasonable doubt that
the appellant committed murder.
9. We briefly restate the approach followed by a Court of Appeal and then move
on to an evaluation of the grounds of appeal.
The approach of a Court of Appeal
10. As a general rule, an appeal is a comprehensive rehearing, conducted without
the introduction of new evidence, where both the factual and legal conclusions
of the trial court can be challenged based on the evidence presented during the
trial6. This means a Court of Appeal's power to interfere with the findings of a
4 S v Van Aswegen [2001] (2) SACR (SCA) and S v Mbuli 2003 (1) SACR 97 (SCA) par 57
5 S v Shackell 2001 (2) SACR (SCA) 194 g – I
6 Director of Public Prosecutions, Gauteng v Pistorius [2016] 1 All SA 346 (SCA); 2016 (2) SA 317
trial court is limited. As confirmed in judgments like S v Francis 7, there is a
presumption that the trial court’s evaluation of the evidence is correct and will
only be disregarded if it is clearly wrong.
11. However, this does not mean that the presumption in favour of a trial cour t is
immune from interference. As the Supreme Court of Appeal stated in S v
Mafaladiso8, the presumption against interference serves only as a guideline
and is not a legal rule. This means that if an appeal court is satisf ied that the
trial court has made a wrong finding of fact, it must rectify it9.
12. As the appeal court, and as noted in both S v Francis and S v Horn10, we must
assess whether the evidence presented at trial was sufficient to support the
conviction and the trial court’s findings, and whether there was any misdirection
that warrants our interference.
13. At the outset, although certain grounds were no longer pursued on appeal, we
find no difficulty in endorsing the trial court’s decision to accept the evidence of
the single witness. The trial court was empowered to do so in terms of s 208 of
the Criminal Procedure Act that expressly provides that: “Conviction may follow
on evidence of single witness”.
14. In addition to the credible and consistent nature of Fortuin’s evidence, his
version gain ed further prominence whe n it was considered against the
improbable version tendered by the appellant11.
15. Since we are satisfied that the trial court was justified in rejecting the
appellant’s version and correct in accepting the evidence of Fortuin, we now
turn to evaluate the primary ground that the appellant persisted with on appeal.
(SCA); 2016 (1) SACR 431 (SCA) (“DPP v Pistorius”) – par 21
7 [1991] 2 All SA 9 (C); 1991 (1) SACR 198 (A)
8 2003 (1) SACR 583 (SCA) 595 b-d
9 S v Mkohle 1990 (1) SACR 95 (A)
10 2020 (2) SACR 280 (ECG) at para 75
11 S v Van Aardt (179/08) [2008] ZASCA 169; 2009 (1) SACR 648 (SCA); [2009] 2 All SA 184 (SCA)
par 11
Evaluation
16. During argument, Ms. Adams represented the appellant, while Ms. Van Wyk
appeared for the respondent. The focus of the appeal shifted to the narrow
issue of the appellant’s intention at the time of the fatal stabbing.
17. Ms Adams conceded that for the court to consider the appellant’s proposition
regarding intent ( dolus), the appeal must be determined based on the facts as
proven by the State. Considering th is concession we had regard thereto that
murder is defined as the unlawful and intentional killing of another person. To
secure a conviction for murder, the State must prove that the accused
committed the act that resulted in the deceased's death with the required intent
(dolus). Since it is not disputed that the appellant knew h is actions were
unlawful, the issue is whether he had the intent to kill the deceased.
18. Intention can take various forms12: dolus directus13, dolus indirectus14 and dolus
eventualis15. Mere negligence, (culpa) is insufficient to establish guilt for
murder. In evaluating the intention of a perpetrator, we heed the caution of the
Supreme Court of Appeal in S v Humphreys16 that:
“[10] By its very natur e, only the accused person can give direct
evidence as to his or her level of consciousness at the relevant time.
However, if the mere say -so of the accused person, that the act was
unconsciously committed, were to be accepted without circumspection, it
would tend to bring the criminal justice system into disrepute. After all, an
accused person who has no other defence is likely to resort to this one in
a last attempt to escape the consequences of his or her criminal
behaviour...”
12 Burchell J “Principles of Criminal Law” 5th edition 2016 (“Burchell”) – p 348 - 350
13 This form of intent is where the accused meant to perpetrate the prohibited conduct or bring about
the criminal consequence.
14 This form of intent exists where the accused foresaw the unlawful conduct or consequence as
certain, or as su bstantially certain or virtually certain, even though the unlawful conduct was not the
accused’s main aim and object.
15 See par 27 – 28 infra
16 S v Humphreys 2015 (10 SA 491 (SCA) (“Humphreys”)
19. Furthermore, we recognise that the State is seldom able to offer direct evidence
of the accused’s state of mind at the time of committing the crime and must rely
on inferences drawn from the circumstances of the assault, the nature and
duration thereof, the weapon used, and th e extent of the injuries inflicted. All
relevant facts that bear on the accused’s state of mind must be cumulatively
assessed to determine whether it can be inferred beyond a reasonable doubt
that the accused considered it a reasonable possibility that the deceased could
die from the assault but, reckless as to that possibility, persisted with the
assault17.
20. In this case, the appellant, who alone was aware of his state of mind, presented
a fictitious and improbable version of the events to justify his conduct. Although
he testified, he persisted with his version and provided no insight into his state
of mind when he stabbed at the two women in front of him.
21. Having justifiably rejected the appellant’s version, the only inference that c ould
be drawn from the cumulative circumstances —such as the duration of the
assault, the use of a knife, the position of the deceased and her mother in front
of the appellant, and the location of the wound in the deceased’s neck —is that
the appellant considered it a reasonable possibility that the deceased or her
mother could die from the assault but, reckless as to that possibility, continued
with it.
22. The trial court was thus correct in finding that the appellant had dolus
directus as he acted with the aim of bringing about an unlawful consequence,
even if that decision was made in the heat of the moment 18. Dolus
directus does not require planning or premeditation 19. Similar to the sentiments
expressed in Raath, we find that deliberate, goal -directed conduct does not
17 See Van Aardt – par 39
18 Similar views were expressed in Raath v S 2009 (2) SACR 46 (C) ( “Raath”) para 16, although
within the context of planned and premeditated conduct in terms of the minimum sentencing
legislation.
19 Burchell J, Principles of Criminal Law, sixth edition used the finding in the Raath judgement to come
to this conclusion when discussing dolus directus as a form of intend. We align ourselves with his
view.
necessarily have to be planned . This case is an example of such conduct,
where the evidence shows that the appellant acted in the spur of the moment
but with the clear intent to kill. Whether his target was the deceased, or her
mother is of little consequence in determining his intent to murder.
23. We are thus satisfied that the evidence conclusively proved the appellant's
intent to murder and fully concur with the trial court’s findings. There is nothing
in the record to suggest otherwise or to cast doubt on the appellant’s intent.
24. The appeal must also fail because, even if the trial court misdirected itself on
whether the appellant had dolus directus to kill the deceased, the evidence still
overwhelmingly supports a conviction on the basis of dolus eventualis . In the
context of murder, dolus eventualis is present where the accused subjectively
foresaw the possibility of his conduct causing the deceased’s death and was
reckless as to that outcome20.
25. In this case, the appellant’s actions —stabbing the deceased in the neck, a
vulnerable area of the body —demonstrate a clear foresight of the potential for
causing fatal harm. The fact that he proceeded to stab, despite this f oreseeable
outcome, satisfies the requirements for dolus eventualis as well21.
26. Consequently, even if the trial court had misdirected itself in assessing the
appellant’s direct intent, which we do not find, the conviction for murder remains
sustainable and justified as intend can also be proven in the form of dolus
eventualis. Ironically, even on the appellant’s improbable version of the events
that led to the deceased’s death, he would have had the necessary intent to
commit murder under any of the legally recognised forms of intent.
20 S v Luke and Others (SS16/10) [2012] ZAWCHC 9 (16 February 2012) at par 49 and Van Aardt
2009 (1) SACR 648 (SCA) 570 B - E
21 S v Humphreys supra p 497 par A – B; S v De Oliveira 1993 (2) SACR 59 (A) at 65 i – j. For a more
recent exposition on dolus see Director of Public Prosecutions, Gauteng v Pistorius [2016] 1 All SA
346 (SCA); 2016 (2) SA 317 (SCA); 2016 (1) SACR 431 (SCA) (“DPP v Pistorius”)
Conclusion
27. We are therefore satisfied that the trial court's findings cannot be vitiated on the
basis of a material misdirection, nor does the record show that its findings of
fact or law were wrong. We therefore have no basis to interfere with the
reasoning and conclusions of the trial court.
28. Therefore, I would make the following order:
The appeal against the appellant’s conviction is dismissed.
____________________________
A MONTZINGER
Acting Judge of the High Court
I agree. It is so ordered
____________________________
H SLINGERS
Judge of the High Court
Appearances:
Appellant’s counsel: Ms L Adams (Legal-Aid)
Respondent’s counsel: Ms E Van Wyk (State Advocate)