Van der Westhuizen v S (CA&R127/2014) [2015] ZANCHC 50 (27 November 2015)

Van der Westhuizen v S (CA&R127/2014) [2015] ZANCHC 50 (27 November 2015)

The court found that the injuries inflicted by the appellant during the assault remained the operating and substantial cause of the deceased's death, and that any possible negligence in medical treatment or failure to transfer the deceased to a better-equipped hospital did not constitute a novus actus interveniens. The evidence did not exclude the reasonable possibility that the appellant did not foresee the death of the deceased, but a reasonable person in his position would have foreseen such a result. Accordingly, the conviction for murder was set aside and substituted with culpable homicide. The sentence of 15 years' imprisonment was found to be excessive given the appellant's...

Citation
[2015] ZANCHC 50
Parties
Appellant: David Desmond van der Westhuizen; Respondent: The State
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
27 November 2015
Case Number
CA&R127/2014
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal upheld in part; conviction for murder set aside and substituted with culpable homicide; sentence reduced.
Judges
Olivier, Pakati
Legal Topics
Culpable Homicide, Novus Actus Interveniens, Sentencing Principles, Dolus Eventualis
Criminal Law Culpable Homicide Novus Actus Interveniens Sentencing Principles Dolus Eventualis

Case Brief

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Parties

David Desmond van der Westhuizen

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the appellant's assault was the direct cause of the deceased's death.
  2. 2 Whether the failure to transfer the deceased to a better-equipped hospital constituted a novus actus interveniens breaking the chain of causation.
  3. 3 Whether the appellant acted with the intention to kill (dolus eventualis) or was guilty of culpable homicide.

Ratio Decidendi

The court found that the injuries inflicted by the appellant during the assault remained the operating and substantial cause of the deceased's death, and that any possible negligence in medical treatment or failure to transfer the deceased to a better-equipped hospital did not constitute a novus actus interveniens. The evidence did not exclude the reasonable possibility that the appellant did not foresee the death of the deceased, but a reasonable person in his position would have foreseen such a result. Accordingly, the conviction for murder was set aside and substituted with culpable homicide. The sentence of 15 years' imprisonment was found to be excessive given the appellant's...

Court Disposition

Appeal upheld in part; conviction for murder set aside and substituted with culpable homicide; sentence reduced.

Orders

  • The conviction of murder is set aside and substituted with the conviction of culpable homicide.
  • The sentence of 15 years imprisonment is set aside and substituted with 10 years imprisonment, of which 3 years are suspended for 5 years on condition that the accused is not convicted of an offence involving assault resulting in unsuspended imprisonment of more than 1 year without the option of a fine during the...