S v Mini

• Jurisdiction: South Africa
• Judge: Steyn CJ, Hoexter JA, Holmes JA, Williamson JA and Wessels JA
• Judgment Date: 28 March 1963
• Citation: 1963 (3) SA 188 (A)
• Hearing Date: 01 March 1963
• Court: Appellate Division

Hoexter, J.A.:

The appellant was convicted of murder and sentenced to death in the Circuit Court at Vereeniging. The trial Court found that B the appellant stabbed the deceased with a knife on the 4th August, 1962, that the death of the deceased on the 14th August was caused by this stab wound, and that the appellant harboured the required intention to kill. The appellant was given leave to appeal, and the only finding of the trial Court which is challenged on appeal is that it was his act C in stabbing the deceased which caused the death of the deceased.

It need hardly be said that the onus is on the State to prove beyond a reasonable doubt that it was the act of the appellant which caused the death of the deceased. Counsel for the appellant argued that the medical evidence disclosed a reasonable possibility that it was negligent D medical treatment which caused the death of the deceased. The medical evidence is so important that I propose to quote in full the evidence of the three medical witnesses.

[The learned Judge then set out this evidence and proceeded.]

Counsel for the appellant relied mainly on those passages in the E evidence which showed that the deceased would have had a better chance of recovery if he had been treated on the 5th August as he was in fact treated on the 8th August. But those passages do not prove that it was the medical treatment of the deceased which caused his death; they prove merely that other treatment might have prevented his death. As I F understand the medical evidence, a pulmonary embolism may occur as a result of the lying in bed of a patient who has either been operated upon or has received an injury such as a stab wound. Indeed Dr. Voigts said specifically that in the present case it was very unlikely that the deceased would have got the pulmonary embolism if he had not been stabbed. In my opinion the medical evidence as a whole proves that the G death was due to a pulmonary embolism which was caused in turn by the fact that the deceased was compelled to lie up in bed as a result of the stab wound. I can find no support in the evidence for the proposition that the embolism was due to the medical treatment of the appellant.

In my judgment the appeal should be dismissed.

H After the above judgment had been written, notice was given to counsel on both sides that the Court required argument on the question whether the evidence proved the intention to kill on the part of the appellant, a question which was not raised at the hearing of the appeal. Written arguments have now been filed by counsel and considered by the Court. In my opinion the appellant did harbour the required intention to kill. He used what the trial Judge described as a murderous weapon; he knew that a stab with that weapon in the upper part of

Holmes JA

the body might cause death; and he was quite reckless whether death would ensue or not. It is true that only the narrower portion of the A blade penetrated the body of the deceased, but the appellant obviously could not have believed that he could so control the stabbing that it would not cause death. The proposition is well established in our law that a person has the necessary intention to kill if he appreciates that the injury which he intends to inflict on another may cause death and nevertheless inflicts that injury, reckless whether death will ensue or not. (See R v Vallachia, 1945 AD 826; R v Thibani, 1949 (4) SA 720 (AD) B ; R v Huebsch, 1953 (2) SA 561 (AD); and R v Horn, 1958 (3) SA 457 (AD)).

I may be permitted to point out that Leyser Spec. 603 med. 4, in a passage quoted with approval by Fütmann Elemente Juris Criminalis, 1.18 C para. 280, lays down that any person who wounds another with a lethal weapon certainly foresees, if he is endowed with right reason, that death may ensue as a result of that wound. It is not difficult to think of examples which would show that Leyser has stated his proposition too widely, but it may appropriately be relied upon to support the view expressed in this judgment.

D In the present case the appellant used a murderous weapon and must certainly have realised that death might ensue as a result of the wound which he intentionally inflicted on the deceased, and he was quite reckless whether death would or would not ensue.

I ought to add that the appellant gave no evidence with could tend to E rebut the inference arising from his conduct. His defence was a denial that he had stabbed the deceased.

I therefore adhere to my previous conclusion that the appeal should be dismissed.

Judgment

Holmes, J.A.:

With respect, I agree with the judgment of my Brother HOEXTER and disagree with that of my Brother WILLIAMSON.

F On the question whether the appellant intended to cause death, the law to be applied is settled and clear. If a person foresees the possibility of death resulting from his deed and nevertheless does it, reckless whether death ensues or not, he has in law the intention to cause death. G R v Huebsch, 1953 (2) SA 561 at p. 567 H; S v Malinga and Others, 1963 (1) SA 692 (AD) at p. 694. It is not necessary that he should have a desire to cause death.

In the present case the appellant gave no evidence. His defence was an alibi, according to his statement to the Police which was put in. Hence H there is no direct testimony as to his subjective state of mind at the time of the stabbing. The question is therefore whether an inference can be drawn, from the proved facts, that he foresaw the possibility of death resulting from stabbing the deceased, and was reckless of the result. In this connection regard must be had in the main to factors indicating what was in his mind before he struck the blow, and to some extent to what was in his mind as he was striking. On this branch of the enquiry the fact that the wound turned out to be fatal is irrelevant. One must also guard against deducing ex post facto, from the mere fact that the wound was not deep, that the foresight and

Holmes JA

recklessness in question were absent. One must look at all the facts. The depth or nature of the wound may throw some light on the degree of force used as the blow was being struck; but correlated and equally cogent considerations are the nature of the weapon about to be used, the A degree of control over the extent and effect of its use, the physique of his victim, and the part of the body aimed at.

In the present case the proved facts are as follows:

1.

The appellant is an adult Bantu.

2.

On the occasion in question he was apparently in his sound and sober senses...