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IN TH E HIGH COU R T O F SOU TH AFR ICA
GAUT ENG DIVISION, P R ET O R IA
Criminal Appeal: Case A364 /2023
(1) REPOR TAB LE:~/NO
(2) O F INTERE ST TO OTH ER JUDG ES: ~ /NO
(3) REVISED.
SIG NATURE
21/10/2025
DATE
JOHANNES MARTIN ABRAHAM BARNARD
and
THE STATE
JUDGMENT
HASSIM J and LABUSCHAGNE J
Appellant
Respondent
Page 2
[1] The appellant was convicted of murder in the Springs Regional Court and was
sentenced on 21 September 2021 to 10 years imprisonment, of which 3 years
were suspended for 5 years on various conditions.
[2] The appellant brought an application for leave to appeal and he was granted
leave to appeal against his conviction by petition in terms of section 309C of
the Criminal Procedure Act, 51 of 1977, by means of an order granted by
Potterill J and Mogale AJ dated 10 November 2023.
THE STATE’s CASE
[3] It was common cause at the commencement of the trial that the deceased’s
identity was admitted as well as the date on which he died, namely 7 March
2019.
[4] The State called three Police officers and a pathologist as their witnesses.
The first was Sergeant Sam Malao who was in a patrol vehicle together with
his colleague, Constable Ketse Ntshebo, who was the second witness. It was
around about approaching 01:00 in the morning on 7 March 2019 when
Sergeant Malao responded to a complaint regarding a suspicious person at
Struisbult. He drove to Rietbok Street and found a group of CPF members
who pointed to a man who they referred to as the suspect. He was standing
next to house number 14. There were more than 10 CPF members. Sergeant
Malao contends that he was trying to speak to the deceased (the suspicious
person) when the accused from the Flying Squad arrived in his vehicle. He
went straight to the victim and assaulted him with a fist, giving him blows to
the face, tripping him, but he hit his head as he fell. Sergeant Malao contends
Page 3
that he tried to pull Barnard away from the victim, but he merely said, “fuck
you” and continued assaulting and kicking him on his upper body while he was
lying down.
[5] When Sergeant Malao pulled him off the victim, he went to his car and
Sergeant Malao then telephoned his commander. He contends that the victim
was unconscious. Ekurhuleni Paramedics then arrived, and he was taken to
hospital. He opened an assault docket against the accused, and the accused
was arrested the next day.
[6] In his official statement, Sergeant Malao made no mention of the fact that the
accused was kicked while on the floor. In his statement he said that the victim
was pushed onto the ground and that he fell and hit his head and sustained
head injuries.
[7] Constable Ketse Ntshebo was the second State witness. She contends that
as they arrived, the CPF members drove off. There were still community
members on the scene. The accused arrived in a Flying Squad vehicle. He
went straight for the accused and assaulted him. He tripped the victim, and
he fell. He kicked the victim on his head. He also hit his body with his fists.
This witness’s recollection is not good, and she admits this (page 83, line 9 –
14). She denies the appellant’s version that there was a bag next to the victim.
[8] The evidence of this witness contradicts her statement in that she mentioned
in her statement that there was a discussion with the CPF, while she contends
that they had driven off when they arrived, in her evidence in chief.
Page 4
[9] The third witness was Jan Thabo Maake, the Commander who was
telephoned by Sergeant Malao. When he arrived on the scene he found the
victim with a cut on the side of his head. There were no CPF members on the
scene. There was an ambulance. The only contradiction in his statement is
that he contended in his statement that he had asked Sergeant Malao to call
an ambulance, while it was already there according to his evidence in chief.
[10] Dr Dladla was the State Pathologist who confirmed that the plaintiff’s face had
a 15 cm linear scratch from the left forehead to the cheek. There was a skull
fracture of the right middle cranial fossa to the temporal bone. There was also
a subdural haemorrhage over the right frontal, temporal and parietal lobes with
a midline shift to the left. Dr Dladla, in cross-examination, conceded that the
injury was consistent with the deceased having tripped and fallen onto the
pavement. The Pathologist did however not distinguish between the assault
giving rise to these events and the fall.
THE DEFENCE CASE
[11] The appellant’s evidence was that he was on duty that night when he received
a late-night call from his sister who was hysterical, telling him that there was
an intruder in his parental home. She had tried to get hold of the SAPS but
with no success.
[12] The appellant contends that he asked his partner to try to get hold of the Police
and he drove off at high speed to the scene. On his arrival he found members
of the CPF wearing their customary jackets and his family was also present.
He walked over to see whether his mother and sister were okay. He spoke to
Page 5
his sister and parents. The suspect was pointed out to him (there is some lack
of clarity on whether it was his sister or a member of the CPF who pointed out
the deceased). The accused then approached the suspect and engaged him
on what his intentions were. The deceased did not answer him and merely
grinned at him and when pushed for an answer said: “Ek het kom kyk of jou
sussie lekker is”. This remark caused the appellant to slap him across the left
of his face with his right hand, and this was followed up with fists. He contends
that the appellant then turned, tripped over his own feet and fell down onto the
edge of the pavement.
[13] He bent down and grabbed the deceased’s left arm and lifted it up and pinned
him down with his knee on his deceased’s left hip, with the intention of flipping
him over onto his stomach. He contends that he was in the process of effecting
an arrest when he was pulled by Sergeant Malao. He testified that he uttered
“fuck off” in general terms and not necessarily at Sergeant Malao. He denies
having the intention of killing the deceased, who later died of blunt force
trauma to the head, according to the post-mortem report.
THE COURT A QUO
[14] The Court a quo summarised the facts. The Court then rejected the version
of the appellant and his mother outright.
[15] Part of the summary of evidence was a summary of what was put to the state
witnesses in cross-examination. Sgt Malao had not seen the appellant talking
to his family. He had also not seen the interaction where the appellant asked
Page 6
the deceased what he was doing on the scene. The rejection of the appellant’s
version in these circumstances is therefore all the more puzzling.
[16] The version of the defence was rejected for the following reasons:
16.1 In cross-examination the version put to the State witness was that the
appellant on arrival did not see the other Police officers, but as he was
cross-examined, he stated that Sergeant Malao was there and said to
him: “This is my suspect, I arrived here first.” The version that
Sergeant Malao and the appellant argued over the suspect was never
put to the State witnesses by the defence.
16.2 The accused testified that his sister phoned him about an intruder
inside the house. His mother’s evidence however established that
there was no intruder inside the house. She saw the deceased outside
the gate. Her evidence was rejected in that the Court found that she
was not an honest witness because she chose what she wanted to
remember and what she did not want to remember. The latter
comment relates to what the appellant had said about him assaulting
the deceased and what his mother knew about it. She contended that
she didn’t know anything about an assault.
[17] The Court a quo found that while there wasn’t direct evidence of an intention
to kill, the appellant was guilty of murder and that his intention was in the form
of dolus eventualis . The Court was satisfied that the accused subjectively
foresaw the possibility of his conduct causing the death of the deceased and
he was plainly reckless.
Page 7
DISCUSSION
[18] In my view, the Court a quo did not look at the facts holistically to assess the
versions based on their inherent probabilities. Such a failure was recently
deprecated by the SCA, as appears from S v Magasela 2025 JDR 1467 at
par [18]:
“In S v Chabalala 2003 (1) SACR 134 (SC) (“Chabalala”), this Court
amplified the holistic approach required by a trial court in examining the
evidence on the question of the guilt or innocence of an accused. It
stated:
“The correct approach is to weigh up all the elements which point
towards the guilt of the accused against all those which are
indicative of his innocence, taking proper account of inherent
strengths and weaknesses, probabilities and improbabilities on
both sides and, having done so, to decide whether the balance
weighs so heavily in favour of the State as to exclude any
reasonable doubt about the accused’s guilt. The result may prove
that one scrap of evidence or one defect in the case for either party
… was decisive but that can only be an ex post facto determination
and a trial court (and counsel) should avoid the temptation to latch
on to one (apparently) obvious aspect without assessing it in the
context of the full picture presented in evidence.”
[19] The Court a quo also did not distinguish between the two components of dolus
eventualis in the context of murder, namely the subjective foreseeing of death
Page 8
and secondly, conduct or evidence that establishes resignation or acceptance
or indifference to the eventuation of the risk of death.
[20] In S v Magasela 2025 JDR 0567 the SCA dealt with the approach to the type
of inferential reasoning applied by the court a quo. From para 32 the following
is stated:
“[32] The appellant was carrying a loaded, unsafe, cocked pistol, which he
removed from its holster amid a physical altercation with the
deceased. The conduct of the appellant, thus described by himself,
fell short of what is required of the reasonable man. The appellant's
conduct was accordingly negligent and his negligence w as the direct
cause of the deceased’s death. The further legal question that then
arises is whether, given these circumstances, it can be found that the
appellant was guilty of culpable homicide or dolus eventualis i.e. did
he subjectively foresee the possibility of his firearm being discharged
thus causing the deceased's death. Further, whether notwithstanding
that foresight, he proceeded to act in the manner he did. The correct
legal approach to this question was enunciated as follows in S v
Sigwahla 1967 (4) SA 566 (A) at 570B-D.
‘The expression "intention to kill" does not, in law, necessarily require
that the accused should have applied his will to compassing the death
of the deceased. It is sufficient if the accused subjectively foresaw the
possibility of his act causing death and was reckless of such result.
This form of intention is known as dolus eventualis as distinct from
Page 9
dolus directus. The fact that objectively the accused ought reasonably
to have foreseen such possibility is not sufficient. The distinction must
be observed between what actually went on in the mind of the accused
and what would have gone on in the mind of a bonus paterfamilias in
the position of the accused. In other words, the distinction between
subjective foresight and objective foreseeability must not become
blurred. The factum probandum is dolus, not culpa. These two
different concepts never coincide.’
[33] The two legs of the enquiry are not considered in isolation. This approach
was refined by this Court in Humphreys v S [2013] ZASCA 20; 2013
(2) SACR 1 (SCA); 2015 (1) SA 491 (SCA) paras 12-18
(Humphreys). I quote extensively from Brand JA's judgment, as the
test set out so comprehensively by him is worth repeating. Humphreys
concerned a bus driver, who transported scholars. He was
accustomed to taking a short cut by driving over a railway line. He had
done this successfully until the day of the fatal crash when a train
collided with the bus. Ten children died and four were critically
wounded. Humphreys was found guilty of culpable homicide as
opposed to murder dolus directus or dolus eventualis. Bra nd JA's
reasoned as follows:
‘… the fact remains that a voluntary act and dolus are two discrete
requirements for a conviction of murder. It follows that the presence
of the one does not presuppose the existence of the other. Despite
the establishment of voluntary conduct, the question therefore
Page 10
remains: did the court a quo correctly find that the appellant had the
requisite intent to cause the death of ten of his passengers and
attempt to take away the life of four others …’.
For the first component of dolus eventualis it is not enough that the
appellant should (objectively) have foreseen the possibility of fatal
injuries to his passengers as a consequence of his conduct, because
the fictitious reasonable person in his position would have foreseen
those consequences. That would constitute negligence and not dolus
in any form. One should also avoid the flawed process of deductive
reasoning that, because the appellant should have foreseen the
consequences, it can be concluded that he did. That would conflate
the different tests for dolus and negligence. On the other hand, like
any other fact, subjective foresight can be proved by inference …
Adopting what essentially amounted to this line of inferential
reasoning, the court a quo concluded that in the prevailing
circumstances, the appellant subjectively foresaw the death of his
passengers as a possible consequence of his conduct. I do not believe
this conclusion can be faulted. I think it can confidently be accepted
that no person in their right mind can avoid recognition of the
possibility that a collision between a motor vehicle and an oncoming
train may have fatal consequences for the passenger of the vehicle...
To deny this foresight would in my view be comparable to a denial of
foreseeing the possibility that a stab wound in the chest may be fatal.
Since there is nothing on the evidence to suggest a subjective
Page 11
foresight on the part of the appellant so radically different from the
norm, I agree with the conclusion by the court a quo that the element
of subjective foresight had been established.
This brings me to the second element of dolus eventualis, namely that
of reconciliation with the foreseen possibility. The import of this
element was explained by Jansen JA in S v Ngubane 1985 (3) SA
677 (A) at 685A-H in the following way:
‘A man may foresee the possibility of harm and yet be negligent in
respect of that harm ensuing, e.g. by unreasonably underestimating
the degree of possibility or unreasonably failing to take steps to avoid
that possibility … The concept of conscious (advertent) negligence
(luxuria) is well known on the Continent and has in recent times often
been discussed by our writers …
Conscious negligence is not to be equated with dolus eventualis. The
distinguishing feature of dolus eventualis is the volitional component:
the agent (the perpetrator) "consents" to the consequence foreseen
as a possibility, he "reconciles himself" to it, he "takes it into the
bargain" …”
[21] There was no consideration by the court a quo that there had to be evidence
from which the acceptance of the risk of death can be inferred. This failure to
engage the issue is a misdirection. The postulate that death was foreseeable
and that the appellant therefore was reckless as to the risk of death
Page 12
demonstrates the inferential reasoning in question. It conflates the first leg of
the enquiry into dolus eventualis with the second leg.
[22] The Court a quo further erred in rejecting the appellant’s version outright. The
deficits in the evidence of the state witnesses have been pointed out.
[23] The appellant’s version ought to have been assessed with reference to its
internal coherence and probabilities. The deceased’s comment provoking the
assault “Ek het kom kyk of jou sussie lekker is” reveals the following: That the
deceased observed an interaction between the appellant and his family when
the appellant arrived, from which he gleaned that one of the onlookers was his
sister and that she lived at the house where he was apprehended. The
appellant’s evidence on the deceased’s comment is not contradicted by Sgt
Malao. This indicates that the version of the appellant had internal cohesion
or inherent credibility. This is at variance with the sequence of events attested
to by the state witnesses. The court a quo ought to have been assessed
whether the appellant’s version in this regard was reasonably possibly true. I
am of the view that the appellant’s version was reasonably possibly true. That
is why the appellant snapped and first slapped and then assaulted the
deceased with his fists, causing him to trip and fall. He was incensed to start
with but was provoked into an assault by the slur on his sister.
[24] This attack on the deceased, who was not defending himself, constitutes at
least assault with the intention to do grievous bodily harm. Once the deceased
had tripped and struck his head on the pavement, leaving a 15 cm laceration
on the side of his head, the appellant pounced on him such that it caused a
Page 13
fellow police officer to intervene to pull him off. He cursed, because he was
still engaged with the deceased and did not want to be interrupted.
[25] There is however no evidence that the appellant saw the injury which the
deceased sustained in hitting the kerb with his head, understood its
seriousness and was indifferent to whether the deceased died or not. He says
he was trying to first pin the deceased down in order to flip him onto his
stomach to effect an arrest. He was probably still assaulting the deceased but
testified that he was doing this in trying to effect an arrest. The test is not
whether the Court believes his version but whether it is re asonably possibly
true. In my view his version does pass muster in this regard.
[26] The evidence required to establish the reckless acceptance of the risk of death
is not present on the version of the accused. The State witnesses testified
about the appellant continuing to kick the deceased in the head as he lay on
the floor, and this, if accepted, could point to such reckless acceptance.
However, that evidence comes from state witnesses who have deviated on
these material respects from their written statements. The appellant should
have received the benefit of the doubt, as his version is reasonably possibly
true.
[27] The conviction on the charge of murder can therefore not stand. However, on
his own version the appellant is guilty of assault with the intent to do grievous
bodily harm. However, the question is whether the appellant is not guilty of
culpable homicide.
Page 14
[28] The foreseeability of death when an enraged policeman repeatedly assaults
another is self -evident. When the assault continues once the deceased has
fallen, he has failed to take reasonable steps to avoid further harm. The nature
of the head injury is such that death was inevitable once his head had struck
the kerb stone. It cannot be seen as a novus actus interveniens as the fall was
the direct result of the assault. The fact that the assault continued once the
deceased was down appeared to the state witnes ses as intent to kill. The
appellant did not see it that way and was in my view clearly negligent in his
assessment of the risk of death. This appears to be an instance of conscious
negligence (luxuria) which dispels murderous intent.
[29] In these circumstances culpable homicide has been established. The facts
justify a suspended custodial sentence. The offence is serious even though
the assault on the deceased was a response to the appellant’s family being
the target of the deceased’s home invasion, The appellant should have
exercised restraint, particularly in the presence of the CPF, onlookers and
other police officers. As the offence was aggravated by provocation, this
points to a risk of it being repeated in future if provoked under sim ilar
circumstances.
[30] In the circumstances, an appropriate sentence would be six years
imprisonment, wholly suspended for three years, on condition that the
appellant is not convicted of an offence involving violence during the period of
suspension.
Page 15
[31] In the result I propose the following order:
1. The appeal against the conviction of murder is upheld.
2. The order of the court a quo is set aside and replaced with the following:
“1. The accused is guilty of culpable homicide.
2. The appellant is sentenced to six years imprisonment wholly
suspended for three years, on condition that the accused is not
convicted of an offence involving violence during the period of
suspension.
3. The sentence is antedated to 21 September 2021.
LABUSCHAGNE J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I AGREE AND IT IS SO ORDERED
SK HASSIM J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Page 16
APPEARANCES
COUNSEL FOR APPELLANT:
ADV TSHOLE
COUNSEL FOR RESPONDENT :
ADV MORE