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Case summaries - Chp 1 - 3

Indigenous law (University of Johannesburg)

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R v Dhlamini 1955 (1) SA 120 (T)

Facts:
 50’s (Natives) – everyone slept together – i.e. 15 people in one room
 6 others, incl accused and deceased, people sleeping in a room at the time
 Deceased – 15 year old boy
 Deceased went to pick up mat, near accused
 Accused lunged at him w/ knife 3 times (1 – fatal)
 Accused rushed out room & disappeared
 Accused had a nightmare (defending himself)
 Went to court & told the court he had a nightmare & didn’t have control over his actions
 Involuntary movements – automatism

Legal question:
 Can the accused use the motive of automatism?

Judgment:
 Not guilty of murder
 Acted mechanically w/out motive/ intention
 Acquitted of murder and culpable homicide

S v Henry 1999 (1) SACR 13 (SCA)

Facts:
 Divorced from wife
 Has 3 daughters – sees from time to time
 1 daughter wants to sleep over
 Ex-wife says no
 Goes to ex-wife and has argument (has firearm)
 Shoots ex-wife and mother-in-law
 Says he heard zing noises, banging and saw a ‘blur coming towards him’

Legal question:
 Was his conduct voluntary or involuntary?

Judgment:
 Charged with two counts of murder
 He raised defence of automatism – rejected
 Convicted and charged
 Appealed to SCA – dismissed

S v Chretien 1981 (1) SA 1097 (A)

*Applicable to conduct element*

Facts:
 Accused at party – consumed copious amounts of alcohol
 Drives his car into group of people – thought they’d move
 Kills 1, injures 5
 Charged with murder and attempted murder
 Tells court he was intoxicated & conduct wasn’t voluntary

Legal question:
 Can the fact that one was so drunk or under influence of drugs make ones conduct
involuntary?

Judgment:
 Had no intent to drive into people
 Convicted of culpable homicide – lacked intention – not guilty
Minister van polisie v Ewels 1975 (3) SA 590 (A)

Facts:
 Plaintiff assaulted by police sergeant not on duty

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 Took place in presence of other police officers – no prevention taken

 Plaintiff claimed damages from minister of police (not his own capacity but the state)

Legal question:
 Whether minister of police was liable as a result of the omission of other policemen present to
come to the plaintiff’s assistance and to defend him against the assault.

Judgment:
 No gen legal duty on person to prevent harm even if it could be done easily
 Certain circumstances – legal duty on one to prevent harm to another
 Failure to comply – unlawful omission can give rise to claim for damages
 Sec 5 of police act – one activity of policemen is prevention of a crime
 Duty of policemen to assist plaintiff – legal duty – because omission took place in duty of
policemen, defendant is liable.

S v Mokgethi 1990 (1) SA 32 (A)

Facts:
 Joint robbery of a bank
 1 appellant shot deceased (teller at bank) between should blades
 Deceased became paraplegic – used a wheelchair – became well enough to wok at bank again
 Doctor told him to shift regularly to avoid pressures sores from forming on his buttocks
 Failed to shift his position – as a result form pressure sores accompanied with septicemia
resulting in death
 Died 6 months after being shot
 Appellants convicted of murder
 On appeal – argued that they shouldn’t of been convicted of murder because there wasn’t
sufficient causal connection between bullet wound and deceased death
 Bullet was factual cause not legal cause

Legal question:
 Whether the gunshot wound was, legally speaking, the cause of the death of the deceased

Judgment:
 General approach to causation already formulated
 Court refused to recognize a causal link where the victim, after the wound, acted
unreasonably by not adhering to doctors instructions

Basdew NO v Minister of safety and security 2012 (2) SACR 205 (KZD)

Facts:
 Plaintiff (as curator ad litem) to 3 children – instituted action against defendant for loss of
support of children’s mother (deceased)
 Through failure of police to protect deceased from ex-husband
 Claim – deceased asked for police protection when collecting belongs and car from family
home (feared for her life) – husband had a firearm but denied it to policemen
 Husband – told purpose of visit by police – police waited in lounge while deceased collected
her belongings
 Husband went to bedroom after a while, pulled out gun and fired at the deceased
 At the time of shooting the police were at the gate – defendant contended that there was no
evidence of negligence by the policemen
 HELD – clear warning signs that ex-husband of deceased posed a serious threat to her physical
safety
 Reasonable policemen would of guarded husband and done more than ask if he was in
possession of a gun
 Failure to search ex-husband/ prevent him from getting to deceased made defendant liable on
BOP
Legal question:
 Whether there is factual causation between the police’s omission and the deceased’s death
 Whether the omission of the officers in not seizing the firearm of the ex-husband led to
foreseeable harm

Judgment:

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 Action for loss of support where mother of 3 was shot and killed by her ex-husband
 Deceased was killed at time she sought protection from the south African police
 Plaintiff is the advocate who acts and sues in her capacity as curator ad litem to the children
 Defendant is the minister of safety and security and employer of two policemen called to
assist the deceased
 Defendant denies that the officers were negligent
 An omission will cause liability if the omission is culpable
 Both officers were clearly engaged in the business of their employer when the delict was
committed
 Policemen were under the gen duty to prevent and protect – they agreed to help the deceased
so they owed her a special duty
 Defendant is found to be liable for all damages and ordered to pay the plaintiffs costs of the
action.

Cloete v the state 2011 ZASCA 02

Facts:
 Appellant (Cloete) was convicted on a charge of murder in 2007 to 10 years
 Disappointed by conviction and sentence – he appealed against the North Gauteng HC –
dismissed appeal
 Deceased died from subdural hemorrhage – subjected to various assaults by different people
incl defendant
 Appellant was under legal duty to protect the deceased - arrested by way of citizen’s arrest-
from being harmed by others whilst deceased was under his care
 Conviction was failure to protect deceased from others
 At his trial the appellant pleaded not guilty
 Deceased was part of a hijacking and was assaulted by 4 other men and Cloete failed to
protect him under his legal duty

Legal question:
 V

Judgment:
 Appeal from appellant is upheld and the order of the court dismissing the appeal is set aside
 Appellant’s conviction for murder is set aside and replaced by conviction for assault with
intent to commit grievous bodily harm
 Appellant’s sentence is set aside and replaced by a sentence of 4 years imprisonment

S v Tembani 2007 (1) SACR 355 (SCA)

Facts:
 Accused shot his girlfriend twice – once in the chest (penetrating her right lung) and one in the
calf
 She was taken to state hospital and died 14 days later
 Accused shot the deceased unlawfully and intentionally
 Evidence shows she died from negligent and substandard treated received in hospital
 Argued on behalf of accused that negligent treatment had broken the chain of causation and
the shots fired were not the cause of death
 Accused’s legal rep said the negligent treatment constituted a novus actus interveniens which
broke the chain of causation – accused couldn’t be held legally responsible for her death

Legal question:
 Whether the accused’s act had been the cause of the deceased’s death

Judgment:
 Court held that the improper treatment of the deceased (by hospital staff who were
overworked and understaffed) did NOT break the causal chain between the firing of the shots
and the deceased’s death
 The deliberate infliction of the wound was likely, without medical attention, would of generally
ensued death

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 Was unjust to let accused argue about the negligent medical care and absolve him from full
responsibility of his deed.
 The appeal was dismissed

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