S v Hartmann

• Jurisdiction: South Africa
• Judge: Van Winsen J
• Judgment Date: 21 March 1975
• Citation: 1975 (3) SA 532 (C)
• Court: Cape Provincial Division

Van Winsen, J.:

The circumstances of this tragic case are within a narrow compass. There is no dispute between the State A and the defence as to its factual features, and, save in one minor respect, there is no contest between the parties in regard to the fact that the essential elements that go to constitute the crime charged have been established by the State. The accused tendered no evidence to controvert the evidence adduced by the State and accused's counsel did not, nor could he on this evidence, argue that the State had failed B to discharge the onus resting upon it.

Very briefly the main facts of this matter are the following.

The accused, a medical practitioner presently practising at Ceres, is the son of the deceased. The latter, an old gentleman of 87 years of age when he died, had for a number of years been suffering from a carcinoma of the prostate. This condition had C spread to other parts of his body, and secondary cancer manifested itself in his bones and more particularly in the ribs. Until 21 August 1974 the deceased had been living in Pretoria with the accused's brother and he had received X-ray treatment for the cancer growths in hospital there. The accused visited him on occasion, and during the earlier part of 1974 D found him to be bedridden and suffering great pain. He was induced to come to Cape Town by air, and form there he was transported to Ceres where he entered the Ceres Hospital as the private patient of the accused on 22 August 1974. At that stage the deceased was on symptomatic treatment, and there was no longer any question of a cure. He was on admission completely E bedridden, very emaciated, incontinent and on painkilling drugs. After being in the hospital for some days he suffered a pulmonary embolus and a laryngeal stridor. He appeared to be dying, but on receiving treatment revived for a short time. After a day or two he was put on to intravenous foods because he was unable to swallow without choking. Because of the pain involved in giving him injections these were done by means of an intravenous drip. Without elaborating thereon it is apparent F that by 11 September 1974 he was in a critical state of ill-health and suffering pain. A State witness, Dr. Harrison, Associate Professor of Anaesthetics at the University of Cape Town, stated that, having regard to the description contained in the accused's statement to the police of the deceased's condition on that day, he was moribund and that he must have G been close to death. The accused instructed Nursing Sister MacHill on duty in the hospital at Ceres on the evening of 11 September to give deceased an injection of ½ gr. of morphine, which she did with some reluctance, thinking that the dose was too large. This was administered at about 7.30 p.m. At approximately 8.30 p.m. the accused obtained from Sister MacHill a further ampule of ½ gr. of morphine, and the accused H himself placed this in the drip. The accused remained with the deceased, and at about 11 p.m. obtained 250 mgr. of pentothal from Sister MacHill. Pentothal is not an analgaesic but is used in anaesthesia and unless properly controlled will have fatal effects. He injected the pentothal into the drip and within seconds of his doing so the deceased died.

A post-mortem on the body of the deceased disclosed inter alia that the ribs were affected by an extensive metastatic tumor infiltrate. Both lungs showed hypostatic pneumonia and consolidation. Dr. Bunge, who conducted

Van Winsen J

the examination, stated that, if regard were to be had to his clinical findings alone, he would have concluded that the deceased had died because of the spread of cancer combined with general debility and pneumonia. However, blood samples which A were taken from the deceased showed that penthobarbitone was found to be present in the liver and the blood. This substance derives from pentothal. This witness testified that, in the light of this finding, taken in conjunction with the contents of the accused's statement to the police - briefly summarised in what is set out above - he was of the...