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S v Venter (59/95) [1996] ZASCA 40 (28 March 1996)

85 Reportability
Criminal Law
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Brief Summary

Criminal Law — Murder — Intention to kill — Appellant, a policeman, placed his girlfriend's two-year-old son in hot bath water, resulting in the child's death — Appellant convicted of murder despite his claim of unawareness of the water's temperature — Legal issue centered on whether the State proved the appellant's intention to kill — Trial court found that the appellant acted with direct intention to kill, rejecting his defense as improbable and untruthful — Appeal dismissed, confirming conviction and sentence of fifteen years imprisonment.

Comprehensive Summary

Summary of Judgment


1. Introduction


These were criminal appeal proceedings in the Supreme Court of South Africa (Appellate Division) in which the appellant challenged both his conviction for murder and the sentence imposed by the trial court.


The parties were Johannes Petrus Venter (the appellant), a 23-year-old policeman at the relevant time, and the State (the respondent). A co-accused, Miss Cindy Verrall (the child’s mother), had been tried with the appellant in the court of first instance but was acquitted.


The matter originated in the Witwatersrand Local Division, where Southwood J, sitting with assessors, convicted the appellant of murder arising from the death of a two-year-old child who sustained severe scalding injuries in a bath. The appellant was sentenced to 15 years’ imprisonment. He appealed against both conviction and sentence to the Appellate Division.


The dispute concerned the appellant’s state of mind (mens rea) at the time he placed the child into bath water that was extremely hot, and whether the State had proved an intention to kill as required for murder, or whether the proven facts supported only negligent killing (culpable homicide).


2. Material Facts


During 1992, the appellant was in a relationship with Cindy Verrall, who had a two-year-old son by another person. On the night of 28 December 1992, the appellant, the mother, and the child were together at the appellant’s home in Kempton Park.


Shortly before 19h00, the mother decided to take a bath. The appellant and the child were to shower, and the bathroom and shower area adjoined each other. The mother ran hot water into the bath and, before adding cold water, briefly left the bathroom and returned to the bedroom.


While the mother was away, the appellant and the child entered the bathroom. The appellant took hold of the child and placed him into the bath water. The child sustained severe burns, was taken to hospital, and died early the following morning as a result of the injuries.


It was undisputed that the child died from burn injuries sustained in the bath water and that the appellant placed the child into the water. It was also effectively not in dispute on appeal that the appellant ought to have ensured the bath water was not dangerously hot before placing the child into it, and that failing to do so amounted to negligence capable of grounding culpable homicide.


Certain issues were disputed, and the trial court made specific findings on them. The appellant denied knowing the water was hot and denied intending to harm the child, maintaining that he was merely “playing” with the child and was unaware of the temperature. The trial court rejected this “play” explanation. The extent to which the child’s head and face were submerged was also disputed, with the appellant denying submersion; the trial court found that the head and face were immersed for a number of seconds.


A further disputed factual question concerned whether the appellant knew the bath contained only hot water. The State relied materially on the mother’s evidence that there was steam in the bathroom, condensation on mirrors, and that she called out to warn the appellant that there was only hot water in the bath. The appellant denied these features. On appeal, the reliability of the mother’s evidence on these points became central.


3. Legal Issues


The central legal question was whether the State proved beyond reasonable doubt that, when placing and holding the child in the hot bath water, the appellant had the intention to kill, as required for a conviction of murder.


This required determining whether the appellant’s version, particularly his denial of knowledge of the water’s temperature and his denial of any intention to kill, was reasonably possibly true. The dispute therefore involved a combination of factual determinations (what occurred in the bathroom and what the appellant knew) and the application of legal standards concerning proof of mens rea by inference and the proper approach to an accused’s version in a criminal trial.


A subsidiary issue concerned the admissibility and use at trial of the appellant’s evidence given during a bail application, in which he made statements suggesting the child’s head had been under water. This raised questions of procedure and evidentiary privilege, including whether the privilege against self-incrimination applied and whether any procedural irregularity affected admissibility.


Finally, once murder was not sustainable, the court had to determine whether the proven facts supported a conviction for culpable homicide, and if so, what sentence was appropriate for negligent killing in the circumstances.


4. Court’s Reasoning


The Appellate Division accepted that the trial court applied the correct general approach to the appellant’s evidence, namely whether the appellant’s version was reasonably possibly true, and that the trial court did not in substance impose an onus on the appellant. The appeal court nonetheless scrutinised whether the inference of intention to kill was the only reasonable inference on the totality of the evidence.


In assessing the appellant’s credibility, the court agreed that he had been an untruthful witness and that he fabricated extra-curial exculpatory statements soon after the incident. He initially advanced a false account blaming a supposed change in shower-water temperature when the mother turned on the cold bath tap, and he repeated the false explanation in a written statement and to a neighbour. The appeal court accepted that false exculpatory statements may, depending on context, support an inference of consciousness of guilt, and that the trial court was entitled to consider this as part of the evidential mosaic. However, the appeal court stressed that untruthfulness could not be given dominant weight, especially where it might be explained by fear of conviction on a negligence-based offence rather than murder.


On the disputed question whether the child’s head was submerged, the appeal court upheld the trial court’s finding that the head and face were immersed for several seconds. This conclusion was reached despite the State pathologist’s opinion supporting the appellant’s denial. The appeal court accepted that departing from uncontroverted expert opinion is not undertaken lightly, but found that the trial court’s rejection of the pathologist’s conclusion was warranted by the cumulative factual indicators, including photographic evidence of burns to the head and face, findings consistent with swallowing hot water, fluid in the lungs, and the undisputed fact that the child did not cry out or scream despite the immediate pain that would ordinarily be expected. This combination supported the inference that the child had no opportunity to cry out because of immersion.


The court also relied on the appellant’s bail application evidence, where he stated under cross-examination that the child’s whole head was under water for five to six seconds. The appeal court rejected the appellant’s challenge to admissibility. It was not persuaded that the privilege against self-incrimination barred the use of the bail testimony in the circumstances, and held that even if privilege were relevant, the State was entitled to test the appellant’s trial version through cross-examination using prior statements. The appeal court further rejected arguments that a trial-within-a-trial was required on admissibility and that the appellant had been improperly compelled to bring the bail application, noting the absence of evidentiary support for compulsion and distinguishing the authority relied upon by the defence.


The decisive issue for murder, however, was not merely whether the child had been submerged, but whether the appellant knew the water was dangerously hot and nonetheless acted with an intention to kill. The appeal court considered that the trial court’s finding of knowledge depended largely on the mother’s evidence about steam, condensation, and an alleged warning to the appellant that only hot water was in the bath. The appeal court held that the mother’s credibility on these features should have been treated with greater caution. It emphasised that she was a single witness and a co-accused, and identified material contradictions and omissions, including that she had lied to another person about the showering arrangements, that she materially shifted her account of whether she got into the bath, and that her earlier statement to a magistrate did not mention the alleged warning, steam, or condensation. The court regarded these matters as significant rather than peripheral details.


The appeal court also found the mother’s account improbable in context, noting the lack of clear reason why she would have warned the appellant if she had no reason to believe the child would enter the bath. It observed that the trial court’s reliance on “ordinary human experience” regarding steam was not secure in the absence of expert evidence, particularly given seasonal conditions, and that neighbours who entered shortly afterwards did not observe steam. The expert evidence that was led was described as equivocal and dependent on factual assumptions (such as closed windows) that were not proved. The appeal court noted additional uncertainties, including the lack of investigation into whether the appellant would necessarily have sensed the heat approaching the bath.


Having found the mother’s evidence insufficiently reliable on the key point of knowledge, the appeal court concluded that the State was driven to proof by inference on whether the appellant knew the bath contained dangerously hot water. While recognising the appellant’s lies as a factor, the court held that the totality of circumstances did not justify the conclusion that the inference of knowledge and intention to kill was the only reasonable inference. It pointed to features consistent with the absence of the necessary mens rea for murder, including that the appellant was acquitted on a separate assault charge (requiring the case to be approached on the basis that he was not shown to be habitually ill-disposed towards the child), evidence that he sometimes showed concern for the child’s welfare, the absence of proven motive to kill, the lack of threats or angry words, and the practical consideration that killing by scalding was likely to expose the appellant as the culprit. The court also placed weight on evidence that soon after the incident the appellant appeared upset and distraught, and that he attempted to revive the child, which the court did not accept could simply be dismissed as a charade.


The appeal court observed that even if knowledge of the hot water were proved, the form of intention might have been dolus eventualis rather than dolus directus, but it regarded it as unnecessary to resolve that question because, on the evidence as a whole, a conviction for murder could not stand on either basis.


The court then considered culpable homicide. It held that the appellant’s conduct was negligent because he should have ensured the water was not too hot before placing the child into it, especially given his knowledge that the geyser produced extremely hot water. The court also accepted that the appellant ought reasonably to have foreseen that serious burns could cause death, an aspect that was addressed in cross-examination and acknowledged by the appellant. These findings supported a conviction of culpable homicide.


On sentence, the appeal court recognised the controversy surrounding punishment for negligence but accepted that in appropriate cases, including those implicating community indignation and retribution, a substantial custodial sentence could be justified. The court emphasised that righteous anger should not cloud judgment, but that the sanctity of human life and the tragic results of the negligence were important. In mitigation it took account of the appellant’s youth and that he was effectively a first offender; in aggravation it noted the marked deviation from reasonable handling of a vulnerable child, the fatal consequences, and the appellant’s lack of remorse. It concluded that an unsuspended sentence of eight years’ imprisonment was appropriate.


5. Outcome and Relief


The appeal against the conviction for murder succeeded. The conviction and sentence for murder were set aside and replaced with a conviction for culpable homicide.


The court imposed a substituted sentence of eight years’ imprisonment for culpable homicide. The order, as recorded, allowed the appeal against the murder conviction, set aside the murder conviction and 15-year sentence, and substituted a culpable homicide conviction with an eight-year custodial sentence.


Cases Cited


S v Botha and Others (2) 1995(2) SACR 605 (W)


R v Karp 1961(1) SA 231 (A)


S v Kilian 1964(1) SA 188 (T)


Legislation Cited


No legislation was cited in the judgment.


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The State did not prove beyond reasonable doubt that the appellant had the intention to kill when he placed the child into the bath water. The inference that the appellant knew the water was dangerously hot and acted with the requisite mens rea for murder was not the only reasonable inference on the evidence, particularly given the unreliability of the mother’s evidence on the crucial issue of warning and observable steam, and the limits on the probative value of the appellant’s untruthfulness.


Although a murder conviction could not be sustained, the appellant was guilty of culpable homicide because he negligently failed to ensure the bath water was not dangerously hot before placing the child into it, and he ought reasonably to have foreseen that severe burns could cause death. The murder conviction and sentence were accordingly replaced with a culpable homicide conviction and a sentence of eight years’ imprisonment.


LEGAL PRINCIPLES


The test in a criminal trial remains whether the accused’s version is reasonably possibly true, and credibility findings, while important, must not result in an improper shift of the burden to the accused. Where intent is proved by inference, the prosecution must establish that the inference relied upon is the only reasonable inference consistent with the proven facts.


False exculpatory statements and demonstrated untruthfulness may be relevant to infer consciousness of guilt, but such evidence has limited and contextual probative value and cannot by itself sustain proof of mens rea beyond reasonable doubt, particularly where alternative explanations (including fear of conviction on negligence) reasonably arise.


A court may reject even uncontroverted expert opinion where the totality of reliable factual indicators justifies doing so, but such a departure requires cogent reasons grounded in the evidential record.


Evidence given by an accused in a bail application may, in appropriate circumstances, be admitted and used to test the accused’s trial version. The privilege against self-incrimination does not necessarily render such evidence inadmissible, and the procedural context and conduct of the accused (including representation and the nature of cross-examination) may justify admission.


For culpable homicide, negligence is established where the accused fails to take reasonable steps to avoid a foreseeable risk of harm, and the reasonable foreseeability extends to the possibility that severe injuries, such as serious burns, may cause death. Sentencing for culpable homicide may in appropriate cases involve substantial direct imprisonment where the deviation from reasonable conduct is marked and the consequences are grave, while still requiring careful avoidance of punishment driven by righteous anger rather than principled assessment.

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[1996] ZASCA 40
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S v Venter (59/95) [1996] ZASCA 40 (28 March 1996)

Case No 59/95 IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION) In the matter between:
JOHANNES PETRUS VENTER
Appellant
and
THE STATE
Respondent
Coram: NESTADT, HARMS et SCHUTZ JJA Date heard: 29 February 1996 Date delivered: 28 March 1996
JUDGMENT NESTADT JA:
During 1992, the appellant, a 23 year-old policeman and
a Miss Cindy Verrall, had a relationship with each other. She had
a child (by someone else). He was a boy aged two. On the night
2
of 28 December 1992 the three of them were together at the appellant's home in Kempton Park. Shortly before 7 pm she decided to take
a bath. The appellant and the child were to shower. The bathroom and the room containing the shower adjoined each other. Verrall
("the mother") ran the hot water of the bath. Before putting in any cold water, she momentarily returned to the bedroom.
The appellant and the child entered the bathroom. The appellant took hold of the child and placed him in the hot water. The child
was badly burned. He was taken to hospital but died early on the following morning as a result of his injuries.
These events gave rise to the prosecution in the Witwatersrand Local Division of the appellant (as accused 2) and the
mother (as accused 1) on a charge of murder of the child, The State
3
case against the appellant was that he knew that the water was hot and by placing the child in it intended to kill him. Against the
mother, the case (as eventually argued) was that she was an accessory after the fact to murder. The matter came before Southwood
J sitting with assessors. The mother was acquitted. However, the appellant, despite his denial that he knew that the water was hot
or that he intended to harm the child, was convicted as charged. A sentence of fifteen years imprisonment was imposed. He appeals
now against both his conviction and sentence. (I should add that both the appellant and the mother were also charged with having,
over a period of approximately a year prior to his death, assaulted the child. But they were found not guilty on this charge.) The
issue is whether the State proved that the appellant,
4
in placing the child in the hot water, intended to kill him. Differently put, the question is whether the appellant's evidence that
in placing the child in the water he was only playing with him and that he was unaware of the temperature of the water, could reasonably
be true. If so, then plainly the appellant lacked the requisite
mens rea
to sustain a conviction of murder.
As I have indicated, the trial court rejected the appellant's defence. It found (i) that he was not seeking to amuse the child; (ii)
that he so placed and held the child in the water that not only most of his body, but also his head and face were immersed in it
for a number of seconds; and (iii) that in doing so, he was aware that the water was dangerously hot. In the light of these
findings, the court came to the following conclusion:
5
"Finally, the inference that we draw from the proved facts is that accused 2 had the intention of killing the deceased when he
put him into the water. In drawing this inference we have considered the fact that no motive for killing the deceased has been established,
and that the accused had very little time in which to form the intention to kill the accused. He heard accused 1 run the water into
the bath, he saw her go past the shower door to the bedroom, and he must have then decided to kill the deceased.
While these are important considerations, in our view they do not outweigh the other factors which have already been referred to in
this judgment. We therefore find that accused 2 had a direct intention to kill the deceased and that he is guilty of murder."
In my opinion, no fault can be found with the rejection
of the appellant's evidence that he was only playing with the child
((i) above). It is true that at the outset of his consideration of the
case against the appellant, Southwood J said:
"Can accused 2 be believed when he says that he did not have
the intention to kill the deceased? We are of the view that we should be extremely careful about accepting anything that
6
accused 2 says which is not corroborated by other reliable evidence."
Whilst perhaps unfortunately worded, it is, however, clear from the judgment as a whole that the learned judge did not place any onus
on the appellant or, in considering his guilt, apply anything but the correct test, viz whether the appellant's version was reasonably
possibly true. The appellant was obviously an untruthful witness. The rinding of the court a quo that "he told lies whenever
he perceived it to be in his interest to do so" is fully justified. As will appear, he made a number of extra-curial, exculpatory
statements advancing an admittedly false version of events. His evidence that he was having fun with the child is improbable. The
appellant was in a hurry to watch television. Why then should he, as he testified,
decide to bath (with the child) instead of showering? At the least,
7
it was an inopportune time to engage in games with the child. It involved the appellant picking him up by the right arm and leg, holding
him horizontally over the bath water and then, whilst pretending that he was a submarine ("duikbootjie"), putting him into
the water. But under cross-examination the appellant conceded that the concept of a submarine "'n redelike ingewikkelde begrip
vir 'n
kind van twee jaar oud (is)
Ek glo nie hy het eintlik verstaan dat
ek verwys na 'n duikbootjie nie." I find it difficult to conceive of the child enjoying this type of tomfoolery or of the appellant
thinking that he would. The child had an aversion to, if not a fear of, being bathed. The appellant knew this. He admitted that whilst
in the shower room, he discovered that the child had wet himself. One is
driven to the conclusion that this irritated the appellant who, knowing
8
that there was water in the bath, decided to punish the child by ducking him in the bath water. The appellant denied that he was annoyed
but there can be no other explanation for what happened. Particularly is this so if the appellant submerged the child's head in the
water. To this matter I now turn.
The appellant's evidence was that he did not put the child's head under the water; in his words "sy kop (was) glad nie
onder die water nie
Ek glo nie dat ek sou 'n kind se kop van
daardie ouderdom onder die water gedruk net nie". The question is whether the trial court's finding to the contrary ((ii) above)
was justified. In favour of a negative answer is the fact that the State pathologist who performed the post-mortem examination on
the body
of the child supported the appellant's denial. His opinion was that
9
the child's head was not submerged in the water. The trial court, however, refused to accept that this was so. This was a bold approach.
One does not lightly depart from the uncontroverted views of an impartial, well-qualified and experienced expert. But I am persuaded
that in the present matter it was warranted. The reasons given by Southwood J for rejecting the doctor's evidence are weighty. Consider
the following. The photographs clearly show that the child sustained bum injuries to his head and face; the condition of the inner
lining of the windpipe was consistent with the swallowing of hot water; the lungs contained fluid; and there is the singular, undisputed
feature that despite the injuries having been immediately painful (intensely so, I would have thought), the child
did not cry out or scream, The cumulative effect of what has been
10
referred to supports the trial court's finding that the appellant
"plunged (the child) into the water and that his head was immersed
for a number of seconds" and that there was therefore no chance for
the child to cry out.
Confirmation that the child's head was submerged in the
water comes from the appellant himself. In his evidence in support
of a bail application (made to a magistrate soon after his arrest in
August 1993), he, under cross-examination by the State, said:
"Hoe lank het u die kind onder die water gehou? -- Vyf/ses
sekondes.
Waiter gedeeltes van sy liggaam het u onder die water gehou?
- Ek dink dit is die regterkant of die linkerkant wat ek onder
die water gehou het.
Ja, maar wat? 'n Voet, 'n vinger of 'n toon? - Die helfte van
sy lyf was onder die water.
Wat alles? Se vir die hof wat alles het u onder die water
gehou?
—
Sy kop die een kant; die een kant van sy bors.
Sy hele kop? -- Ja.
11
Vyf tot ses sekondes. Het u horn deur die water gesleep of net daar ondergehou?
—
Nee, ek het hom deur die water gesleep. Hoekom is sy kop onder die water gedruk?
—
Sy kop het vanself ondergegaan.
Ekskuus. -- Sy koppie het vanself onder die water ingegaan. Vanself onder die water ingegaan?
—
Soos ek hom laat sak het, het sy kop ondergegaan."
The State tendered this evidence at the trial. Despite objection, it
was held admissible and taken into account against him. Southwood
J reasoned that the appellant (who was represented in the application)
must be taken to have waived his right against self-incrimination.
The learned judge furthermore rejected an argument that a trial within
the trial should have been held to determine the admissibility of the
evidence. And an attempt by the appellant in his evidence before
the trial court to explain why in the bail application he had given
what he alleged was false evidence, also failed. Before us, it was
12
submitted on behalf of the appellant that the evidence was wrongly admitted. I disagree. I am not sure that the privilege against
self-incrimination applied to the situation at all. But even if it did, the evidence was correcty admitted. The appellant had in
his evidence-in-chief given his version of what happened in the bathroom. The State was entitled to test it by cross-examination.
Before us, a further argument was raised, viz that the appellant had been improperly compelled by the State to bring the application
for bail. But in the court a quo there was no evidence in support of this. S
vs Botha and Others
(2) 1995(2) SACK 605(W) is distinguishable. The facts of our matter are different. It is true (as appears from the record of the
argument before the judge a
quo
) that during the course of the bail application when cross-examination of the appellant was
13
objected to, the magistrate expressed the view that what the appellant was being asked could not be used against him in the subsequent
trial. But this cannot avail the appellant. At the time the appellant's attorney disagreed with what the magistrate said. So nobody
was misled. And the point has not been relied on now.
This brings me to the correctness of the finding that the appellant was aware of the high temperature of the water ((iii) above).
This is a crucial issue. If, as he says, the appellant did not know that only hot water was in the bath, the substratum of the conviction
for murder must obviously fall away. It was never the State case that the appellant was intent on drowning the child. The finding
in question rests primarily on the evidence of the mother (given in her defence). It was that there was steam in the bathroom;
14
that there was condensation on the two mirrors there (from the steam); and that as she left the bathroom she called out to the appellant
(in the shower room) that there was only hot water in the bath. All of this the appellant denied. But the trial court accepted this
evidence. And it formed an important part of its reasons for finding that the appellant knew that the water was hot.
It seems to me, however, that her credibility should have been regarded as suspect. She was a single witness and, of course, a co-accused.
Moreover, the trial court acknowledged that she was an unsatisfactory witness on the assault charge. But it considered that her evidence
about the events of 28 December 1992 was "coherent, consistent and fairly comprehensive" and that "she did not contradict
herself on any material respect". I am unable to agree.
15
She told a Ms Purcell, that she, the appellant and the child had been showering. This was a lie. Initially she was adamant (and repeatedly
insisted) that on her return to the bathroom and having supplemented the hot water with cold, she climbed into the bath. But under
cross-examination a different picture emerges. At first she watered down her evidence to a "I can't remember (whether I got
into the bath)". Eventually she conceded that she never got into the bath at all. This was a material contradiction.
There are other weaknesses in the evidence under consideration. The mother conceded that the appellant might not have heard what she
said. In her statement to a magistrate made shortly after the night in question, she did not mention having told the appellant that
there was only hot water in the bath. And there
16
was no reference to the steam or the condensation. The learned judge seems to have regarded these omissions as matters of detail.
This may be so, but they were important detail. Nor is her evidence probable. She had no reason to think that the hot water posed
a danger to the child. He would not himself have got into it. He was not to bath. Why then warn the appellant (especially if there
was steam and condensation)? It is said in the judgment that the presence of steam is "consistent with ordinary human experience".
Perhaps this is so in winter but I am not sure that what amounts to some judicial noticing is warranted when the weather is warm
(as in December). Two of the appellant's neighbours, Ms Campbell and Mr Hall, entered the bathroom soon afterwards. Neither saw,
or could recall seeing, any steam there. In the circumstances, expert
17
evidence was needed. What was produced, ie that of Lt. Westraat was equivocal. It depended on the bathroom windows being closed at
the time. This was not proved. Nor, I should add, was the question of whether a person in the position of the appellant would necessarily
have felt the heat of the water as he approached it, investigated.
A factor against the appellant is, of course, his untruthfulness. This involves not only his performance in the witness-box but also
his lying extra-judicial explanations of what occurred. Immediately afterwards he quickly took the child back into the shower. He
then pretended to the mother that the child had been burned there when, on her return to the bathroom, she put the cold water tap
of the bath on thus (according to the appellant)
18
causing a sudden increase in the temperature of the shower water. In other words, he led her to believe that he was blameless. The
following day he repeated the lie in a detailed written statement to the child protection unit of the police and later to a neighbour.
Southwood J, in his careful consideration of the matter, rightly took these false explanations into account in determining whether
the appellant had the necessary intent. There is ample authority in support of this approach. On the appellant's version (as subsequently
advanced) what happened was an accident. There was therefore no need to fear the "truth". It was a simple story to tell.
Why then fabricate a complicated one? The fact that he did points to a realisation of guilt (on a charge of murder). Certainly it
was not the reaction of one who is blameless or innocent.
19
I am not convinced that, even if the appellant knew of the temperature of the water, he was correctly convicted of murder on the basis
of
dolus directus
. It may be that despite holding the child under the water for five to six seconds, there was only
dolus eventualis
. It is, however, unnecessary to pursue the point. This is because I have, after anxious consideration, come to the conclusion that
on neither basis can a conviction of murder stand. As I have said, the mother's evidence was (even making allowance for her low intelligence)
not of the quality that justified reliance on it. It follows that on the vital aspect of whether the appellant knew that the water
was hot, the State was compelled to rely on inference. Too much weight cannot be given to the appellant's untruthfulness. It could
have been due to a fear that the truth would have resulted in his guilt
20
on the basis of negligence (which was in fact his explanation). The trial judge was alive to this. Thus it was held that "(t)he
fact that accused 2 is a witness who had lied in the past about the incident and in the witness-box, should not play a dominant role
in the reasoning of the court and is simply another piece of evidence to be considered with all the other evidence before the court".
This serves to emphasise the limited application of the factor under consideration. There are, moreover, aspects which signify an
absence of the necessary
mens rea
. To begin with, the appellant having been acquitted on the assault charge, the matter must be approached on the basis that he was
not ill-disposed towards the child. Indeed, there was evidence that, if not fond of the child, he was (at least at times) concerned
for his welfare. He gave him toys and he complained to
21
the mother that the grandparents were maltreating him. Whilst there was a desire to punish, no motive to kill the child was, as the
trial court observed, established. Naturally, this was not necessary. But where, as here, an accused's state of mind is sought to
be determined by inference, the absence of motive is a significant feature. There was no evidence of any threat by the appellant
against the child or of any angry words. Had there been, the mother, so she conceded, would have heard. Obviously, the intent to
kill, if it existed, arose suddenly. This is possible but, in the ordinary course, one would have envisaged a more forceful spur
to its formation than the child wetting himself. Scalding the child to death was likely to have exposed the appellant as the culprit;
he would, therefore, hardly have knowingly attempted to do so. The manner in which he (says he)
22
held the child is perhaps indicative of a realisation on his part that the water was hot. On the other hand, if his intent was to
kill, why not entirely submerge the child in the water and let it drown? Finally, the appellant's subsequent conduct and emotional
state must be borne in mind. The court a quo seems to have held it against the appellant that at the hospital and later at the funeral
service, the appellant was seemingly callous. I would rather look to his behaviour soon after the incident. Contrary to what was
found, two State witnesses who arrived at the scene within minutes described the appellant as "very upset" and "distraught".
According to the mother, the appellant tried to revive the child. Perhaps these actions were a charade but it cannot be accepted
that they were.
The matter is not an easy one. However, on a
23
conspectus of what has been stated, I have come to the conclusion that the inference that the appellant realised the water was hot
and that he therefore intended to kill the child, is not the only reasonable one. He should, accordingly, not have been convicted
of murder.
It was not in dispute that the appellant should, before placing the child in the water, have ensured that it was not too hot and that
in failing to do this, he was negligent. He knew that the geyser in his house produced water having an extremely high temperature.
Plainly, he was not entitled to assume that the water was, so to speak, safe (either because the mother had run only cold water or
because the hot water had cooled done). Also, he ought reasonably to have foreseen that the injuries which would be sustained by
the child could cause his death. This aspect was dealt
24
with in cross-examination of the appellant. The evidence reads: "Ernstige graad brandwonde kan dood veroorsaak, u is bewus daarvan?
—
Dit is korrek." The appellant is guilty of culpable homicide
Sentence must be imposed afresh. The punishment of negligence has given rise to controversy (Hunt: South African Criminal Law and
Procedure, vol II revised 2nd ed by Milton, 423-424). Nevertheless, it is accepted that in appropriate cases, having regard to the
interests of the community (including its indignation) and the need for retribution
(R vs Karp
1961(1) SA 231(A) at 236A), a lengthy term of imprisonment, though not usual, may be a proper sentence for culpable homicide. Of
course, as Schreiner JA said in
Karg's case (at 236C) righteous anger should not becloud judgment.
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But the need to emphasise the sanctity of human life may require a severe punishment. In a given case, the results of an accused person's
negligence should not be ignored
(S vs Kilian
1964(1) SA 188(T) at 191C). Ours is such a case. In favour of the appellant is his comparative youth and that he is, in effect, a
first offender. On the other hand, his handling of the child deviated markedly from what was reasonably to be expected. The results
of his negligence were tragic. He showed no remorse. An unsuspended sentence of eight years imprisonment is called for.
The following order is made:
(1)
The appeal against the conviction of murder (count 2) is allowed.
(2)
The conviction and sentence are set aside. The following is
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substituted:
"(a) The accused is found guilty of culpable homicide. (b) A sentence of eight years imprisonment is imposed".
H H Nestadt Judge of Appeal
Harms, JA )
) Concur Schutz, JA )

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