Recent Case: General principles

• Jurisdiction: South Africa
• Published date: 03 September 2019
• Author: Managay Reddi
• Date: 03 September 2019
• Pages: 212-213

RECENT CASES

General Principles

MANAGAY REDDI

University of Durban

-

Westville

Causation

S v Counter

2003 (1) SACR 143 (SCA), concerned an appeal against a

conviction of murder. The appellant had been estranged from his wife, the

deceased. During an altercation on the fateful day in question the appellant

had fired several shots at the deceased. One of the bullets had struck the

deceased in her buttock and had penetrated the anal canal. Neither the

deceased nor the doctors who treated her in hospital were aware of this until

a later stage. The injury to the deceased's anal canal caused a virulent

septicemia that led to pneumonia of which she died. The appellant was

convicted of her murder.

One of the grounds raised on appeal was that the (alleged) gross

negligence of the hospital staff had allowed the septicemia to develop to a

point at which it could no longer be successfully checked by surgical

intervention, created a novus actus interveniens. In support of the contention

that the hospital had been negligent, the appellant relied heavily on the fact

that the hospital had failed to keep certain records pertaining to the treatment

of the deceased. The appeal court found that the absence of these records

did not per se establish that the hospital had been negligent. The court held

that if there is an apparent link between the condition of a patient as

established before the cessation of recorded data and her condition when

recording is resumed (albeit through the means of the post mortem report),

and provided the silence was not of an overly long duration, then the

necessary causal connection between the conduct of the appellant and the

resultant consequence has been proved. The appeal court continued by

stating that in the absence of evidence to support other possibilities the link

will stand since reasonable doubt can only exist in the presence of a factual

underpinning — without that basis there can only be speculation. The

absence of the hospital records, the court found, although creating an

opportunity for debate as to possible reasons, was insufficient on the facts of

the case to convert conjecture into reasonable doubt.

212

(2003) 16 SACJ 212

© Juta and Company (Pty) Ltd