S v Bochris Investments (Pty) Ltd and Another

• Jurisdiction: South Africa
• Judge: Corbett JA, Botha JA, Smalberger JA, Vivier JA and Nicholas AJA
• Judgment Date: 27 November 1987
• Citation: 1988 (1) SA 861 (A)
• Hearing Date: 23 November 1987
• Court: Appellate Division

Nicholas AJA:

Wilderness Pleasure Resort, at Muldersdrift near Krugersdorp, has a large swimming pool in a setting of lawns and trees, and other facilities such as a trampoline, swings and cable slides. A B popular family resort, it attracts a daily average of 500 visitors at weekends, and upon occasion as many as 3 000 in a day.

On Saturday 28 October 1984 Mr Edward Robert Andresen was picnicking at the resort with his two children - his daughter, and his nine-year-old son, Ryan Edward Andresen. The three of them were bathing C in the pool when, at about 2 pm, the daughter got out of the water, followed by her father. Andresen called to Ryan to come out and join them. Ryan, who was a good swimmer, called back, 'Hang on a sec, I want to show you how I can touch the bottom'. He dived under the water. When he had not surfaced after about 10 seconds, Andresen dived in. He found D Ryan jammed in an outlet pipe near a corner of the pool at the deep end. His body was doubled up, and only his hands and feet were visible at the entrance to the pipe. Andresen made several vain attempts to pull Ryan out, and it was only later that the boy was extracted from the pipe. He had drowned.

Arising out of the death, three persons were charged in the regional E court, sitting at Krugersdorp, with culpable homicide, alternatively with contravening certain statutory regulations: namely Bochris Investments (Pty) Ltd ('Bochris'), the owner of Wilderness Pleasure Resort; Cornelius Jacobus Joubert ('Joubert'), a director and the majority shareholder of Bochris, and the manager of the resort; and his wife, Christel Dorothea Joubert, also a shareholder and director of F Bochris, who was employed at the resort. All three accused pleaded not guilty. Bochris and Joubert were convicted of culpable homicide, but Mrs Joubert was acquitted. Bochris was fined R300 and Joubert was sentenced to a fine of R300 or six months' imprisonment, the whole of which was conditionally suspended. An appeal to the Transvaal Provincial Division G was unsuccessful, but leave was granted to appeal to this Court.

The State called three witnesses: Detective Sergeant Streicher of the South African Police, Andresen and Lieutenant R J B Norman, also of the South African Police, who gave expert evidence. Joubert was the only defence witness.

H Streicher put in a plan of the swimming pool and photographs of the pool and its surroundings and of the opening of the outlet pipe. This is located in the wall of what appears from the photographs to be a shallow sump in the floor of the pool near to a corner. The underside of the pipe is somewhat below the bottom of the sump. Streicher gave the I measurements of the swimming pool: it is some 48 metres long and some 24 metres wide and its depth varies between 1,02 metres at the shallow end and 1,85 metres at the deep end.

Andresen gave the evidence of the occurrence which is summarised in the second paragraph of this judgment. He was asked in cross-examination by the defence whether Ryan had said that he was going to sit on the J bottom of the pool, and he agreed that this was so.

Nicholas AJA

A Norman is registered as an engineer-in-training with the South African Council of Professional Engineers. He holds the degree of BSc in mechanical engineering of the University of the Witwatersrand, and he has experience in the installation of water pumps.

He went to the resort on 29 October 1984 in order to investigate the B occurrence. He examined the outlet pipe. It was a 25 cm pipe, the opening to which had been cut at an angle, so that it presented the appearance of an ellipse, with a long axis of 30 cm. Water was pumped through it to a filtration plant and then back to the pool.

In summary, Norman's explanation of how Ryan's body came to be jammed C in the outlet pipe was this. Ryan sat down against the opening of the outlet pipe, so that his buttocks effectively closed it. The pump no longer exerted any significant suction, because there was then no water for it to act on. A vacuum was created which would have exerted 'a very small suction'. But the water in the pool above him exerted on the boy a force of some 600 kg, pressing his buttocks, followed by his jack-knifed D body, into the pipe.

According to Norman, the pressure exerted by the...