Topic 2.3 Flashcards

Question

What are the facts in the S v Van As case?

Answer 1

In S v Van As case, the accused were Police Officials who had arrested Mr Mokoena. At the time of arrest, Mr Mokoena had 5 children in his care who were weak and sickly. The children became frightened during the arrest and ran away. As a result of exposure to harsh weather conditions, two of the children died. The state argues that the omission by the Police to look for the children was unlawful and negligently caused the death of the children.

Answer 2

It was held that as far as the omission was concerned, the act of arresting the man who looked after these children created a relationship of dependency between the Police Officers and the children as the detainee was no longer able to care for them (special protective relationship). The police were thus under a legal duty to look for the children and to place them into foster care or an otherwise safe environment.

Answer 3

On the issue of causation, the Court had to apply the “but for” test. Since this was an omission, a hypothetical addition had to be made as follows: Had the police conducted a thorough search for the children, would the children have been found and death avoided? It could not be proven beyond a reasonable doubt that the children would have been found if a search had been conducted. Essentially, the test yielded a negative result. The Police Officers were not found liable because it was highly probable that the children were specifically hiding from the Police and that if the Police had searched for them, this would not necessarily have resulted in the finding of the children and the elimination of the unlawful consequence.

Answer 4

In Min of Police v Lee case, the accused was incarcerated for 5 years in a maximum security prison known for being overcrowded where he was allegedly infected with TB. He was released on bail in 2000 for 2 months pending trial but the rest of the time he was in communal cells with +- 25 inmates, spent up to 23 hours a day indoors in poorly ventilated and confined conditions. He was not infected with TB upon initial incarceration. The system regarding TB in the prison relied on inmates self-reporting symptoms. The system also included semi-regular tests all of which were negative for Mr Lee until 2003. When he was diagnosed, L was returned to a cell with at least one other person despite being contagious. L sued the Min of Police for damages claiming that the prison failed to protect against risk of transmission, failed to provide adequate medical treatment when diagnosed and failed to prevent the spread of the disease. In short, there was no proper system in place to manage the disease and prevent its spread. The question was did the correctional services (prison) cause Mr L to contract TB?

Answer 5

The SCA found that it could not be stated beyond a reasonable doubt that L would not have contracted TB if the State had better measures or a better screening system in place. Even with better screening systems, TB will not always be detected before someone becomes contagious. Lee could have been infected by someone that the State could not reasoanbly have known was contagious.

Answer 6

The CC Judge Nkabinde for the majority developed the law on factual causation to require what she termed “probable factual causation”. The existing system was not good enough, there was a duty to have a better system in place to reduce transmission – contagion in a better system would have been less likely than in this negligent system, thus, it is proabale that if there were a better system, Lee would not have been infected. Judge Cameron states that the fact that there was a poor system, it increased the risk of harm which was a negligent enquiry and you cant determine a causation enquiry from negligence

Answer 7

In S v Hartman, the accused who was a doctor, father was suffering from numerous cancers and was close to death. The victim was in alot of pain leading up to his death and the accused instructed the nurse to administer medication and then later administered a fatal dose of pain medication, in order to elevate the victims pain. The accused participated in a mercy killing, which made him guilt of murder

Answer 8

It was held that even if the accused has done something to hasten the death of a human being who was due to die in any event, it nonetheless constitutes the crime of murder

Answer 9

- The injuries inflicted by the accused combine physiologically with those of the third party; - The injuries inflicted by the accused are mortal in and of themselves

Answer 10

In R v Mbambo case, (Mbambo) A threw stones at C which hit him on the head injuring him severely and C fell to the ground. He shouted “Look, I felled him”. B then stabbed C in the chest – this stab wound was a mortal injury and C died shortly afterwards. Cause of death was stated as “penetrating chest wound and head injuries”. The legal question before the court was A and B’s liability in a situation where common purpose could not be established and the Accused’s liabilities had to be established on the basis of their own conduct. The trial court found B liable for murder and A for culpable homicide. The matter was appealed, the primary issue being A’s liability.

Answer 11

In Burger it was stated that in a successive assaults, the later assaults may be an NCI unless the initial blows were mortal or combined physiologically to cause death.

Answer 12

Common purpose can hold more than one person guilty for a crime as perpatrators not accomplainces, where they all partook on in the crime or by active association. If we can prove common purpose we dont need to prove causation on independently because it ill be assumed based on the primary perpetrator

Answer 13

It was held that A was the factual cause because but for A providing the opportunity to B to kill the deceased, he would not have died when she did. With regards to legal causation, the question hinged on whether B’s conduct (stab wound) was an NCI breaking the chain of causation between A’s conduct and the unlawful consequence. Unless the blows from both A and B combined physiologically to cause death, it could not be said that A was the legal cause of the death. Evidence was that death occurred in a matter of seconds after the stab wound. It could not be established if the head wounds were mortal in and of themselves, according to the court, even if the head wound was mortal but the deceased would have taken longer to die, if B had stabbed the deceased independently before he died, his conduct would be the NCI (abnormal, independent and FC in itself). Mambo could only be convicted of assault. (This favoured the Proximate cause test)

Answer 14

In S v Daniels case, A and B had been driven by the deceased in a taxi. The deceased and A got out of the taxi and when A produced a gun, the deceased started to run away. A pursued the deceased firing 3 shots. B followed them and used the gun A had discarded to shoot the deceased in the head. Forensics established 3 bullet wounds, 2 in the back (from A) and 1 in the head/ear (from B). The proximate cause of death was the wound to the head but the deceased would have died from the two wounds to the back if he did not receive medical treatment within half an hour (which was unlikely). Initially, both accused's were convicted of murder and sentenced to death. Appeal was in respect of A’s liability, is A liable for murder? More specifically, does the conduct of B constitute an NCI and is this sufficient to negate legal causation as a whole?

Answer 15

The majority judgment concurred by Nicolas, Trengove and Botha found A should be held liable for assault and not murder. This favoured the adaquete cause test.

Answer 16

Van Winsen and Jansen in the dissenting judgment, held that the accused conduct would be the adaquete cause showing he is the legal cause through his material contribution which removed the NCI, they confirmed that factual causation goes to far and that on policy grounds we restrict the enquiry at the legal causation stage. We have reached a stage where it is clear that causation is found on policy grounds. A should be held liable for the murder

Answer 17

In S v Burger case, the accused assaulted X on Saturday night with a few kicks to the stomach. Evidence established that this caused a perforation of the small intestine. On Monday, the deceased was assaulted by two other men and died shortly afterwards. The accused argued NCI.

Answer 18

It was held that medical evidence suggested that the initial kicks had caused the death even though the subsequent assaults may have hastened the death. The court found the accused guilty of culpable homicide.The written judgment fails to adequately deal with the court’s reasoning regarding causation but the principle seems to be the same as that in Tembani, if the original wound was still an operating and substantial cause of death, then the Acc was the legal cause of death regardless of possible NCI.

Answer 19

Where a person is so seriously injured that they would die in the absence of medical intervention, the fact that the intervention is not provided cannot be seen as an NCI (death is foreseeable and not independent of the accused's conduct) as seen in Williams. [NCI is unlikely where the Accused’s original wound was mortal]

Answer 20

Medical intervention will only be an NCI if it is grossly negligent as it is only such gross negligence that would satisfy the “abnormal/unusual and independent” requirements, as seen in Tembani.

Answer 21

In R v Mabole case, the accused stabbed the deceased in the abdomen. The wound was not considered particularly dangerous however, the deceased’s condition deteriorated without a known cause. The decision was made to see an experienced surgeon to conduct an exploratory procedure to confirm whether there were any penetrating wounds. The procedure, whilst conducted with reasonable skill and care, caused a fatal pulmonary embolism (unrelated to the original stab wound). The accused argued that the medical treatment was the legal cause of death (NCI).

Answer 22

It was held that that medical treatment is given with goodwill and with reasonable care (no negligence), the accused cannot argue that a misdiagnosis or mistake in treatment is an NCI as the medical intervention would not have been independent of the accused’s conduct, that is, the victim would not need to be treated or diagnosed in the first place if they had not been wounded by the accused

Answer 23

In S v Williams case, the accused shot the victim in the neck. In an attempt to save her life, medical treatment was given which resulted in the victim being put on a respirator which was artificially helping her heart and lungs to function. Later, it became clear that the brain had irreversibly ceased to function and the decision was taken to switch off the machines resulting in a cessation of heartbeat aqnd breathing. The accused tried to argue that switching off the machines was the NCI.

Answer 24

It was held that even if we accept that there is no legal death until there is cessation of heartbeat, whilst switching off the machines is the proximate cause of death, it cannot be an NCI breaking the chain of causation between the accused’s conduct and the death. Medical intervention not unusual or abnormal nor independent of the accused conduct. Failure to gve treatment is not an NCI if the victim is still dying from the wound caused by the accussed.

Answer 25

In S v Ramosunya case, the accused had stabbed his mother-in-law four times in the region of her collarbone. The deceased who was elderly was treated in hospital for six days and then discharged. She died the day after returning home due to sepsis of the lungs. The doctor who performed the autopsy was of the opinion that the sepsis could have been caused by a number of causes. The accused argued that there was gross negligence on the part of the hospital as she was discharged apparently in a stable condition and sent home and this constituted an NCI.

Answer 26

It was held that on appeal, whilst the court was reluctant to rule that the subsequent medical treatment could be construed as an NCI, in this case, the State could not prove beyond a reasonable doubt that the medical intervention did not constitute an NCI. There was no evidence before court on exactly how the victim was treated in hospital and what was done. The only expert who testified, testified that the sepsis in the lungs could have had numerous causes including natural causes. The accused could only be convicted of attempted murder.

Answer 27

In S v Counter case, the accused was a 31 year old male estranged from his wife. On the day in question, he came to her house and a fight ensued which resulted in the accused firing several shots at the wife. One of the shots struck her buttock. Medical intervention failed to discover that the bullet had penetrated the anal canal until it was too late. This caused virulent septicaemia which led to pneumonia and ultimate death. The accused was convicted of murder in the trial court. On appeal, it was argued for the accused that the negligent medical treatment was an NCI.

Answer 28

It was held that evidence of medical experts was heard and court accepted that there was no other body of medical expertise that would have discovered the problem sooner. Given that no other symptoms presented and there was no necrotic tissue, the hospital acted with reasonable skill and care. Also held that even if the problem was noticed sooner and treated, there was no certainty that the victim would have survived the bacteria. Court found that without any symptoms, the doctor was unable to predict the presence of infection and it was not unreasonable to choose the less invasive treatment. The sequence of events from the time that the accused shot the deceased until her death, was not interrupted by any causal factor which affected or changed the natural order of events. Death resulted in stages predictable in accordance with human experience. (The accused was the adequate cause of death). The gunshot had left germs from the bullet all along the wound track, fragments from anal canal had been deposited and infection set in – any complications related thereto superimposed on the initial injury resulting in ultimate death (not sufficiently abnormal, unusual or unforeseen and not independent of the accused’s conduct).

Answer 29

In S v Tembani case, the accused had shot his girlfriend after an argument. One of the shots had pierced her duodenum and as a result, bile and bowel matter spilled into her abdominal cavity creating infection and septicaemia. It was established through medical evidence that if unattended, the injury was fatal but with timeous and adequate medical attention, the injury would with high probability be rendered non-fatal. Also established that close observation would have been required within the first 12 hours and an exploratory procedure should have been done to trace the path of the wound to establish treatment options. The exploratory procedure was not performed and the deceased had been left in a regular ward for days only receiving basic care. At some point the wound to the duodenum had been repaired but it had been too late as infection had already set in and the deceased died.The accused argued NCI.

Answer 30

It was held that it was common cause that the hospital staff had been negligent due to the hospital being understaffed. The court rejected that the negligent medical intervention (or lack thereof) was an NCI. If at the time of death, the original wound was still an operating and substantial cause of death, then the accused was still the legal cause of death. Only if the medical intervention was so overwhelming as to make the original wound merely part of the history of the chain of events leading to death, could it be said that the death did not flow from the wound. Albeit negligent, the medical intervention was not sufficiently independent of the accuseds conduct and the resultant death not unforseeable in the ordinary course of human experience.

Topic 2.3 Flashcards

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