THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No:  317/11

In the matter between:

FRANCOIS STEPHANUS CLOETE
Appellant

and

THE STATE
Respondent

Neutral citation:  Francois Stephanus Cloete v The State (317/11) [2011]

ZASCA 02(2 March 2012)

Coram:
MTHIYANE DP, MAYA, MALAN, WALLIS JJA and PETSE AJA

Heard:

23 November 2011

Delivered:

2 March 2012

Summary:
Murder – what constitutes – whether appellant under legal duty to
prevent death – cause of death and common purpose not proved –
Appellant’s actions amounting to assault with intent to do grievous
bodily harm – sentence – imposition of – factors to be taken into
account – appellant dragging the deceased on the road for 50 to 70

metres causing him severe injuries – wanton disregard of the victim’s
rights to physical integrity and privacy a relevant factor.

_____________________________________________________________________
ORDER
_____________________________________________________________________

On appeal from: North Gauteng High Court, Pretoria (Ledwaba, Msimeki and Tlhapi JJ,
sitting as a court of appeal):

The appeal is upheld and the order of the court below dismissing the appeal is set aside
and replaced with the following:

‘1
The appeal is upheld.

The appellant’s conviction for murder is set aside and replaced by a conviction for
assault with intent to commit grievous bodily harm.

The appellant’s sentence is set aside and replaced by a sentence of four years’
imprisonment.’

_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
PETSE AJA (MTHIYANE DP, MAYA, MALAN, and WALLIS JJA CONCURRING):

Introduction
[1] On 11 May 2007 the appellant was convicted in the Regional Court sitting in

Schweizer-Reneke on a charge of murder. On 8 November 2007 he was sentenced to ten
years’ imprisonment.
[2] Disenchanted with his conviction and sentence he appealed against both to the
North Gauteng High Court, Pretoria – with leave granted by it on petition. That court
subsequently dismissed the appeal in a judgment by Ledwaba J, with Msimeki and Tlhapi
JJ concurring. He now appeals to this court with leave granted by the court below on 12
November 2010.

[3] The deceased, Thulasizwe Hlatswayo, died on 13 February 2006 from the
consequences of a subdural haemorrhage. Prior to that he had been subjected to various
assaults by different people including the appellant. The problem, however, is that the
medical evidence is insufficient to establish beyond a reasonable doubt which of these
assaults caused his death. The factual circumstances in which this arises are set out
below.

[4] In convicting the appellant the trial court found that he was under a legal duty to
protect the deceased – whom he had earlier arrested by way of a citizen’s arrest – from
being harmed by others whilst he (the deceased) was under his care. In other words the
conviction was said to be based not on his own conduct in assaulting the deceased, but
on his failure to protect him from an assault by others. That conclusion raises a number of
difficulties that will be dealt with below, both as to the cause of death and as to the
implications of this approach.

[5] It must be mentioned at the outset that the charge sheet contained no allegation
that the appellant was being charged on the basis of his alleged failure to discharge the
legal duty to protect the deceased from harm by others. Nor did it allege that the appellant
had acted with a common purpose with the persons who assaulted the deceased, and
probably caused his death. That raises a further technical question whether the charge
sheet properly reflected the case that the appellant was being called upon to meet but
again it is unnecessary to decide this.

[6] At his trial the appellant pleaded not guilty. He nonetheless admitted that: (a) the

deceased was the person reflected in the charge; (b) the deceased died on 13 February
2006 at or near The Bullet’s Pub, Schweizer-Reneke; (c) the deceased died as a result of
the injuries sustained at the place of assault; (d) the content of the post-mortem report;
and (e) that the blood stain found on his shirt was the blood of the deceased.

Evidence
[7] Mr Tshekoemang Freddy Kit was the first witness to testify on behalf of the State.
His evidence is as follows.  On the night of the murder, he was at Bullet’s Pub restaurant
where he was employed. At about 22h00 he stepped out of the building to relieve himself
at the outside toilet whereupon he saw a red BMW motor vehicle pulling up near the
restaurant. A short while later a red Toyota van left the premises. He also saw two men
pushing a dark blue BMW motor vehicle which belonged to one of the patrons. Upon
witnessing these two incidents he raised the alarm by telephoning the owner of the
restaurant, Mr Genade, and reported what he had seen.

[8] The owner responded immediately and upon his arrival at the restaurant fired a
warning shot into the air. He (the owner) then enquired from Kit as to the direction which
the red Toyota van had taken. The owner, Kit and another man unknown to Kit, boarded
the owner’s motor vehicle and drove in hot pursuit of the Toyota van. As the owner, Kit
and the unknown man were driving along they came upon a Toyota Tazz motor vehicle
parked on the side of the road next to which there were a number of people standing. The
unknown man who was also a passenger in the owner’s vehicle alighted at that spot
whereafter Kit and the owner drove away. Further on, they came upon the red Toyota van
that was abandoned on the road. The owner then telephoned his wife and asked her to
arrange for someone to bring the keys for the van. They eventually returned to the
restaurant. On their arrival there they found the police present. Kit also saw the deceased
lying on his back with his pair of trousers pulled down to his knees and next to him was his
T-shirt. Kit then returned to his workplace where he remained until he knocked off after
which he went to bed. He testified that he knew the appellant by sight only, having seen
him on various occasions when the appellant visited the restaurant.

[9] Ms Kornelia Petronella Genade was the second witness called by the State. She

testified that she co-owned the Bullet’s Pub restaurant with her husband. On the fateful
night she was together with her husband who received a telephone call which prompted
him to leave, saying that there were people stealing cars. He took his shotgun with him.
As her husband left she peeped through the window after which she also went out. When
she came outside she saw a group of people milling around and joined them. She then
observed two human figures across the road about one hundred metres away kicking
something on the ground. She then left that spot where she was and returned to her
residence. After seeing a police van present outside she went out again. She enquired
from one of the police officers as to what they had come there for. The policeman pointed
to a person who was lying on the ground across the road. Next to him were the appellant
and his former co-accused. She said that she overheard the appellant telling his former
co-accused that he (the appellant) ‘will hit the black to death’. This was a translation from
a more idiomatic expression in Afrikaans (‘ek sal hom dood poes’). The appellant had
placed his foot on the person lying on the ground. Under cross-examination she confirmed
that it was possible she had heard some discussion between the appellant and his co-
accused about his chasing the man on the ground. It was put to her that the accused
denied saying that he would kill the deceased and she accepted that he might have said
something like ‘here lies the poes who steals cars’. The appellant and his former co-
accused stood next to a Toyota Tazz motor-vehicle. She could not say whether the
appellant had in fact said that the deceased could ‘stand up now’ as the police were
present.

[10] The appellant testified that at approximately 21h30 on the night the deceased died
he arrived at Bullet’s Pub travelling in a BMW motor vehicle together with his erstwhile co-
accused to ‘enjoy a few drinks’ thereat. As they were about to leave they saw the BMW
motor vehicle being pushed in reverse by two persons with a third person seated on the
driver’s seat. When they shouted at these persons they abandoned the vehicle and fled
the scene in different directions. They gave chase, with him pursuing one of the culprits
for approximately seventy to one hundred metres. He gave up the chase when the culprit
he was pursuing disappeared into the darkness. He was then making his way back to
Bullet’s Pub when someone unexpectedly emerged in front of him. He wrestled with this
person and eventually subdued him and dispossessed him of an object that he was

carrying in his hand which turned out to be a cellular telephone.

[11] The appellant stated that he thereafter pulled the man through a barbed wire fence
taking him back to the restaurant. As he was tired he paused to take a breather whilst the
person he apprehended lay on the ground. At this juncture a Toyota Tazz motor vehicle
with four occupants pulled up next to him. The four occupants then assaulted the
deceased by kicking, stamping on him and striking him with some object whilst the
appellant was busy trying to telephone his erstwhile co-accused to arrange a bakkie to
convey the deceased to the police. But he was unsuccessful in his endeavours. He then
returned to the spot where he had left the deceased and found him seated on the ground
with his head leaning against his raised knees. At that stage the four men who assaulted
the deceased had left with three of them returning to the pub. As no vehicle was available
to convey the deceased the appellant, assisted by one of the four assailants, held the
deceased by his shoulders and pulled him, taking him to the pub. The deceased,
however, was wrestling and kicking in an attempt to free himself. Because the deceased
was resisting they decided to pull him by his feet – whilst he lay on his back – across the
tarred road back to the pub.

[12] When the police arrived the appellant informed them that ‘hier lê die bliksem …
hier lê die bliksem wat die karre gesteel het en weggehardloop’ (‘here lies the bliksem
who stole cars and [then] ran away’) referring to the deceased. The appellant accepted
that the peeling of the skin on the deceased’s back, skull and buttocks was directly
attributable to his dragging the deceased across the road to the pub. In cross-examination
he conceded that the superficial injuries that he sustained on the fateful night were not
caused by the deceased. He also said that he struck the deceased on his chest with his
elbow and kicked him on his legs as he lay on the ground subdued. The four persons who
assaulted the deceased whilst he lay on his stomach kicked him on his face and body and
also hit him on the head with an object he subsequently learnt was a plank. The assault of
the deceased lasted about fifteen minutes. Although he could have remonstrated with the
perpetrators of this assault he did not do so for he believed that they would not have
listened to him. Nor could he have intervened as he was tired. When the four persons
stopped assaulting the deceased he found him bleeding from his head and face with his

clothes drenched in blood. As he dragged the deceased from that spot over a distance of
fifty to seventy metres the deceased’s buttocks, back and head were rubbing against the
surface of the ground. He confirmed, that when he dragged the deceased it was with full
appreciation that his conduct might cause the deceased bodily injuries.

[13] Two witnesses were called by the trial court in terms of s 186 of the Criminal
Procedure Act 51 of 1977 (the Act). They were Constable Jan Segopotso Peo and Dr
Moorad who were, respectively,  the police officer who attended at the crime scene and
the pathologist who performed the post-mortem examination of the deceased.

[14] Peo testified that he met the appellant’s erstwhile accused outside the pub. The
latter reported to him that there had been an attempt to steal his car. The appellant called
out to him to ‘Come and see. Here lies the person who wanted to steal the car. I chased
him and caught him in the veld’.
1 He then approached the appellant and observed that the
latter had his one foot on the head of the deceased who lay on the ground. He asked the
appellant if he knew the deceased and the appellant answered in the negative. The
appellant then spilt the contents of the glass he had in his hand on the deceased. He then
asked his colleague Constable Galai to call an ambulance and request Inspector Nthele
to come to the scene. He left the scene upon Inspector Nthele’s arrival.

[15] In cross-examination it was put to Peo that the appellant told the deceased to get
up now that the police were there and said to him that there had been nothing wrong with
him when the police came. Peo did not accept this proposition and said that the appellant
had said to the deceased – in his presence – that ‘he must get up and try to run away as
he did before the police came’.

[16] Dr Moorad testified that he conducted the post-mortem examination of the
deceased and compiled the post-mortem report. He confirmed his finding that the
deceased suffered a left side subdural haemorrhage and swelling of the brain due to a
blunt force head injury. Although he confirmed that the death of the deceased was not

1 The evidence was given in Afrikaans and this is a translation.

instantaneous he could not say with any degree of certainty what the length of the period
of survival after the initial head injury would have been. But he stated that once the brain
started to swell it could no longer control pressure with the result that all systems within
the brain would fail following the initial haemorrhage, the swelling and the contusions that
the deceased had on the brain. Under examination by the court the doctor accepted the
proposition put to him that it is quite possible that the deceased was already fatally
injured, when he was dragged by the appellant, after the intervening assault by the four
occupants of the Tazz motor vehicle. His evidence requires repetition:
‘Court: Now would you say that, being dragged on a tarred road for that distance, which we estimate
between 70 and 100 metres, could also fall within that blunt force head injury?
Witness: It could fall within the blunt force injury, but what is difficult for me to offer an opinion based
on the pathological findings is that, a subdural haemorrhage which is the haemorrhage on the left
side which I was talking about, occurs often in assaults, but it can also occur in falls. So if one is
given a scenario of the deceased being dragged by his feet, presumably it is a gravel road, with the
head bumping.
Court: It is a tar road.
Witness: Is it a tar road? Then, still I am assuming the head would be subjected to a fair amount of
bouncing. A subdural haemorrhage is basically caused, it is velocity injury, which causes the brain,
or the head being moved in an anti-postural direction. And what happens is the veins which insert
into the surface of the brain, because of the velocity injury therefore get ruptured and that leads to
the haemorrhage. But, as I said, it could also happen by being punched against a hard surface so
that, the head is moving forward and backward as well.
. . .
Cross-examination: . . . Doctor, a blunt force head injury is a type of injury which one normally gets
when a person is hit several times with an object? Is that correct? – It is one of the findings you
could get, yes.
It often occurs when a person has been hit with a stick or a knobkierie several times or even with a
fist or kicked on the face or on the head? – Yes.
And after several of these blows have been administered, to put it that way, death does not occur
instantaneously, because sometimes people die two days after the application of such force. Is that
correct? – That is correct.
Even longer sometimes? – That is correct.
Now you do agree, the scenario as put to you by the Court, this man was hit several times, kicked in
the face, hit with some or other object as well. He was basically hit into submission after some time
he was dragged. You would agree with me that, it is quite possible and likely that, at that stage, he

had been fatally injured already? You cannot say (inaudible)? – No, I cannot, and certainly after an
assault that (inaudible) severe, judging by the external injuries and the photographs, it is quite likely,
yes.’ (Counsel were agreed that the words I have inserted and italicised accurately convey
the gist of what the typist found inaudible.)

[17] Having summarised the evidence adduced at the trial, the trial court stated that as
the appellant was charged with murder it was incumbent upon the State, which bore the
onus, to prove that the deceased died as a result of the injuries unlawfully and
intentionally
inflicted on him by the appellant. Accepting that the deceased had earlier been assaulted
by four men before the appellant dragged him on the ground for fifty to seventy metres it
proceeded to ask itself whether the death of the deceased was brought about by the
dragging to which the appellant had admitted or the earlier beating to which the appellant
was not a party.

[18] In the event the trial court found that if regard was had to the fact that the appellant:
(a) had earlier apprehended the deceased to bring him to justice; and (b) that the
deceased was – having been apprehended – in the control and custody of the appellant,
the appellant was under a legal duty to protect the deceased from attacks by others which
the appellant failed to do. Consequently the trial court found that the death of the
deceased was caused by the appellant’s omission.

[19] I should, however, say that the concluding statement in the judgment of the trial
court is ambivalent as to the actual basis for the appellant’s conviction. It said:
‘In the result I hold that the accused person is because of the death of the deceased by his omission
he also conceded that during this dragging he foresaw also that the deceased could suffer the
injuries he sustained and that as I have submitted, the injuries which he has sustained, they were
fatal.’
I shall return to this aspect later.

[20] The court below, as I have already stated, dismissed the appeal against both the
conviction and sentence. In dismissing the appeal against conviction, it found support in

the decision of this court in S v Musingadi & others 2005 (1) SACR 395 (SCA) in which the
decision in S v Chimbamba & another 1977 (4) SA 803 (RA) was relied upon. In
Musingadi this court in dismissing the appellants’ appeal against their conviction for
murder had regard to the fact that: (a) the appellants were responsible for the deceased’s
captive state as part of the joint enterprise to rob; (b) when they departed, they left the
deceased trussed up and helpless; (c) the appellants knew, when they departed, that no 2
[accused] was intent on killing the deceased; and (d) the appellants must have known,
and therefore knew, that the deceased was powerless to resist or withstand no 2’s
[accused] murderous intent.

[21] The court said:

‘The appellant’s conduct of leaving the deceased who was helpless with the four men and did
nothing to stop them from assaulting the deceased was unlawful. He clearly saw and has described
how the deceased was beaten. Even if his main aim was not to kill the deceased there is no doubt
that in exacerbating the deceased’s injuries by dragging him he subjectively foresaw that death may
possibly ensue and reconciled himself with the possibility. Appellant under cross-examination said
he foresaw that the dragging would cause bodily injuries to the deceased. In dragging him for a
distance of about fifty to seventy metres on tarred road he definitely foresaw that the unlawful result
may ensue. Furthermore, the appellant’s conduct and vile utterances at the pub in the presence of
the police clearly show that he did not care about the wellbeing of the deceased. The appellant was
correctly convicted of murder.’

[22] With respect, I find myself unable to subscribe to the approach of the court below
for reasons that will become apparent later in this judgment.

Argument
[23] In this court counsel for the appellant mounted a three-pronged attack against the
conviction. He submitted that: (a) the appellant was not under a legal duty to prevent the
assault on the deceased by the four persons travelling in the Toyota Tazz and even if it
were found that he was under such legal duty there was not even a shred of evidence –
let alone proof beyond reasonable doubt – to controvert the appellant’s assertion that he
could not have prevented the assault; (b) there was no evidence beyond reasonable

doubt to prove that the assault attributed to the appellant causally contributed to the death
of the deceased; and (c) the state failed to allege, let alone prove beyond reasonable
doubt, that the appellant acted in pursuance of a common purpose with the four assailants
whom he saw stamping on and kicking the deceased. I hasten to deal with each of these
contentions in turn.

Legal duty
[24] The point relating to the question whether the appellant was under a legal duty to
prevent the assault on the deceased by the four occupants of the Toyota Tazz can be
disposed of on the basis of what the appellant said at the trial when he testified in his
defence. His evidence was that at that stage he was tired and realised that his
intervention would not have had any effect as the four assailants would not have listened
to him. There was no evidence adduced by the State to controvert this and it was not
challenged in cross-examination by the prosecutor. This conclusion renders it
unnecessary, in my view, to consider the allied question whether the fact that the
appellant was not alerted in the charge sheet or otherwise that this was the case that he
was called upon to meet should have, in itself, led to the acquittal of the appellant on the
charge of murder.

Causal link
[25] The best that can be said in favour of the State with regard to this point is that the
doctor who was called at the behest of the trial court testified that: (a) the assault on the
deceased by the four persons did not result in an instantaneous death; (b) that the
deceased would have survived for a while after suffering a subdural haemorrhage. The
doctor was asked specifically in cross-examination if the fatal injury could have been
caused by the prior assault by the men in the Toyota Tazz and he said that he thought
that that was ‘quite likely’. It therefore goes without saying that this shortcoming in the
State’s case must redound to the benefit of the appellant. On a proper reading of the
doctor’s evidence it is impossible to say with the requisite degree of certainty that the
appellant’s conduct contributed causally to the death of the deceased. The evidence is at
least consistent with the possibility that the fatal injury was sustained by the deceased as
a result of the blows inflicted by the four assailants from the Toyota Tazz motor vehicle.

Common purpose
[26] With respect to common purpose it was argued, with reference to an abundance of
judgments of this and other courts, that the appellant could not have been convicted of
murder on two bases. First, it was submitted that he was not charged on the basis that he
had acted in the furtherance of a common purpose with the four assailants. Second, there
was no evidence adduced by the State to prove the prerequisites for a successful
invocation of the doctrine of common purpose.

[27] I do not consider it necessary to deal with this part of the appellant’s argument in
any great detail. Suffice it to mention that it was, in any event, never part of the State’s
case that the appellant in doing whatever he was alleged to have done acted in the
furtherance of a common purpose with anyone. On the contrary the charge sheet explicitly
stated that he was charged with murder in that ‘upon or about 13 February 2006 and at or
near Schweizer-Reneke . . . the accused did unlawfully and intentionally kill Thulasizwe
Hlatswayo’ and no less or more. The witnesses who testified on behalf of the State sought
to support the case that the appellant was called to meet and no more.

[28] Moreover the evidence adduced by the State, such as it was, came nowhere close
to establishing any of the pre-requisites of common purpose.
2 The problems of the State
were also compounded by the absence of any countervailing evidence to that of the
appellant which militates against the notion that the appellant acted with a common
purpose with the four assailants who assaulted the deceased. Accordingly the reliance by
the court below on Musingadi must, with respect, be taken to be erroneous. To sum up,
there was no proof of any prior agreement between the appellant and the four assailants
who assaulted the deceased. Nor was there any proof that in dragging the deceased –
after the four assailants had left – the appellant manifested an association with or a
sharing of a common purpose with those four assailants.

2 S v Thebus & another 2003 (2) SACR 319 (CC); S v Mgedezi & others 1989 (1) SA 687 (A) at 705–
706C; S v Musingadi & others 2005 (1) SACR 395 (SCA); S v Jiya & others 1991 (2) SA 52 (E); S v
Mzwempi 2011 (2) SACR 237 (ECM).

[29] I revert now to the concluding paragraph of the judgment of the trial court quoted
earlier in this judgment. The comment I wish to make in regard thereto is that it is
susceptible to the interpretation that the appellant was convicted of murder on the basis
that he was either under a legal duty to prevent the assault by the four assailants or that
in any event the injuries attributed to the dragging of the deceased by the appellant –
which he admitted to have foreseen – caused the death of the deceased.  In other words
the cause of death was irrelevant as on either basis the appellant was criminally
responsible  therefor. It must be said that on either basis the conviction of the appellant
for murder is, for the reasons already stated, unsustainable. That renders it unnecessary
to consider whether it can ever be permissible to seek a conviction on this basis.

[30] Counsel for the State initially sought to persuade us that the murder conviction of
the appellant was supportable. But she soon realised that apart from all else there was no
evidence, which met the requisite threshold in a criminal trial, to sustain the verdict of the
trial court.

[31] The question that now arises for determination is what offence, if any, is the
appellant guilty of. Counsel for the appellant at the outset candidly accepted that the
appellant could not escape a conviction of assault. Nevertheless he initially argued that
the State failed to prove beyond a reasonable doubt that the appellant had the requisite
intent to cause the deceased grievous bodily harm. In elaboration he submitted with
reference to sound judicial authority that the nature of the injuries suffered by the
deceased as a consequence of the dragging is not the decisive factor in determining
whether the appellant had the requisite intent to do grievous bodily harm.

[32] When it was pointed out to counsel by this court that the appellant had admitted
under cross-examination that when he dragged the deceased on a hard surface (in this
case being a tarred road and gravel) with his back, head and buttocks rubbing on the hard
surface he foresaw that the friction between the body and the ground would cause the
deceased grievous bodily harm, he was constrained to concede that the evidence

3 S v R 1998 (1) SACR 166 (W) at 169f–170b.

established that the appellant had the requisite intent to cause the deceased grievous
bodily harm.
4 In any event it is apparent from the record that all the constituent elements
of the substantive crime of assault with intent to do grievous bodily harm were present.
With respect to the form of intent that the appellant had it bears mention that dolus
eventualis suffices.
6  Although the appellant was charged with murder a verdict of assault

4 S v Erasmus 2005 (2) SACR 658 (SCA) para 10.
5 C R Snyman Criminal Law 5th ed 461-462.
6 R v Basson 1961 (3) SA 279 (T) AT 282C–283C.

with intent to do grievous bodily harm was, in terms of s 258(b) of the Act, competent.

[33] Following this concession the question arose as to whether the matter should then
be remitted to the trial court for it to consider sentence afresh in the light of this judgment.
Given the long passage of time and with a view to avoiding further delay in the disposal of
the matter both counsel were agreed that the interests of justice dictated that the matter
be dealt with to finality in this court. In my view that approach commends itself.

[34] As to an appropriate sentence counsel for the appellant submitted that the
appellant has already served a period of about nine months in jail. Thus it was urged upon
this court to consider a sentence of four years imprisonment under correctional
supervision in terms of s 276(1)(i) of the Act. Counsel for the State argued for a sentence
of four years’ direct imprisonment or if this court were against her on that score she
aligned herself with the argument advanced on behalf of the appellant.

[35] The appellant’s counsel drew our attention to the following mitigating factors in the
appellant’s favour: (a) he is gainfully employed; (b) he has three minor children one of
whom has physical and mental disabilities; (c) he was remorseful; and (d) the occurrence
has caused him grave emotional upheavals to a point where his life nearly fell apart. In
addition, it was submitted that the appellant acted in the heat of a threatening car theft
and without premeditation while he was to some extent under the influence of intoxicating
liquor. However, no matter how important these factors may be we do not have the
advantage that a trial court would have of a current detailed pre-sentencing report in
which the advantages as well as the disadvantages of a sentence of correctional
supervision would be canvassed and the capacity of the relevant authorities to supervise
such a sentence.

7 Section 258 reads: If the evidence on a charge of murder or attempted murder does not prove the
offence of murder or as the case may be, attempted murder, but –
. . .
(b) the offences of assault with intent to do grievous bodily harm;
. . .
the accused may be found guilty of the offence so proved.

[36] Nevertheless, as it behoves this court, these mitigating factors must be weighed
against the aggravating features of this case. At the time of conviction the appellant had a
recent previous conviction for assault in respect of which he paid a fine of R800. The
assault of the deceased both at the time of his arrest and when he was dragged on the
ground, virtually naked, was gratuitous. The appellant accepted that after he had subdued
the deceased he struck him with an elbow on his chest and kicked him on his legs. Again
when the deceased could barely walk on his own – after an assault by the four assailants
– the appellant dragged him over a hard surface for fifty to seventy metres. He dragged a
helpless person who, on his own account, was severely injured and bleeding from the
head and face thus manifesting callousness and utter insensitivity to the plight of the
deceased. He gratuitously violated the deceased’s rights to privacy and physical integrity.
The skin on the deceased’s back was virtually removed and he must have suffered
agonising pain. When the deceased was found by the police he was virtually in a naked
state, severely battered and bruised. Unfazed by the presence of the police the appellant
used derogatory terms in referring to the deceased. He showed utter contempt for the
dignity of the deceased by deliberately spilling liquor on him and placing his foot on his
head. Thus there can be no doubt that the deceased’s rights were gratuitously violated in
many respects in a most callous, demeaning and dehumanising manner.

[37] Accordingly such conduct warrants recognition in the determination of an
appropriate sentence to reflect the natural indignation that the community would feel at
conduct of that kind. This is all the more so if one has regard to the fact that there are also
utterances attributed to the appellant of and concerning the deceased which, on the face
thereof, had racial overtones. Given our painful past such utterances are inimical to the
ethos of our Constitution and the attitude evinced against the deceased aggravated the
assault. It also bears mention that our Constitution firmly sets its face against all forms of
violence and seeks to create a society in which a culture of respect for human rights is
inculcated.

[38] Having regard to all the aforegoing factors and the submissions of counsel, to
which I have given anxious consideration, I have no doubt that a sentence of
imprisonment is called for. That leaves the question whether the appellant is a suitable

candidate for correctional supervision. Rather than pre-empt that issue by exercising our
powers under s 276(1)(i) of the Act I think it preferable to leave it in the hands of the
officials of the Department of Correctional Services who will be better situated to
determine the relevant facts and assess the suitability of the appellant for such a
sentence. If appropriate an application can then be made in terms of s 276A(3) of the Act
for the conversion of his sentence into one of correctional supervision.

Order
[39] In the result the following order is made:

The appeal is upheld and the order of the court below dismissing the appeal is set aside
and replaced with the following:

‘1
The appeal is upheld.

The appellant’s conviction for murder is set aside and replaced by a conviction for
assault with intent to commit grievous bodily harm.

The appellant’s sentence is set aside and replaced by a sentence of four years’
imprisonment.’

___________________

X M Petse

Acting Judge of Appeal

APPEARANCES
For the Appellant:

B Roux SC

Instructed by:

Couzyn Hertzog & Horak, Pretoria

Spangenberg, Zietsman & Bloem, Bloemfontein

For the Respondent :

P du Plessis (Ms)

Instructed by:

Director of Public Prosecutions, Pretoria

Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No:  317/11

In the matter between:

FRANCOIS STEPHANUS CLOETE
Appellant

and

THE STATE
Respondent

Neutral citation:  Francois Stephanus Cloete v The State (317/11) [2011]

ZASCA 02(2 March 2012)

Coram:
MTHIYANE DP, MAYA, MALAN, WALLIS JJA and PETSE AJA

Heard:

23 November 2011

Delivered:

2 March 2012

Summary:
Murder – what constitutes – whether appellant under legal duty to
prevent death – cause of death and common purpose not proved –
Appellant’s actions amounting to assault with intent to do grievous
bodily harm – sentence – imposition of – factors to be taken into
account – appellant dragging the deceased on the road for 50 to 70

metres causing him severe injuries – wanton disregard of the victim’s
rights to physical integrity and privacy a relevant factor.

_____________________________________________________________________
ORDER
_____________________________________________________________________

On appeal from: North Gauteng High Court, Pretoria (Ledwaba, Msimeki and Tlhapi JJ,
sitting as a court of appeal):

The appeal is upheld and the order of the court below dismissing the appeal is set aside
and replaced with the following:

‘1
The appeal is upheld.

The appellant’s conviction for murder is set aside and replaced by a conviction for
assault with intent to commit grievous bodily harm.

The appellant’s sentence is set aside and replaced by a sentence of four years’
imprisonment.’

_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
PETSE AJA (MTHIYANE DP, MAYA, MALAN, and WALLIS JJA CONCURRING):

Introduction
[1] On 11 May 2007 the appellant was convicted in the Regional Court sitting in

Schweizer-Reneke on a charge of murder. On 8 November 2007 he was sentenced to ten
years’ imprisonment.
[2] Disenchanted with his conviction and sentence he appealed against both to the
North Gauteng High Court, Pretoria – with leave granted by it on petition. That court
subsequently dismissed the appeal in a judgment by Ledwaba J, with Msimeki and Tlhapi
JJ concurring. He now appeals to this court with leave granted by the court below on 12
November 2010.

[3] The deceased, Thulasizwe Hlatswayo, died on 13 February 2006 from the
consequences of a subdural haemorrhage. Prior to that he had been subjected to various
assaults by different people including the appellant. The problem, however, is that the
medical evidence is insufficient to establish beyond a reasonable doubt which of these
assaults caused his death. The factual circumstances in which this arises are set out
below.

[4] In convicting the appellant the trial court found that he was under a legal duty to
protect the deceased – whom he had earlier arrested by way of a citizen’s arrest – from
being harmed by others whilst he (the deceased) was under his care. In other words the
conviction was said to be based not on his own conduct in assaulting the deceased, but
on his failure to protect him from an assault by others. That conclusion raises a number of
difficulties that will be dealt with below, both as to the cause of death and as to the
implications of this approach.

[5] It must be mentioned at the outset that the charge sheet contained no allegation
that the appellant was being charged on the basis of his alleged failure to discharge the
legal duty to protect the deceased from harm by others. Nor did it allege that the appellant
had acted with a common purpose with the persons who assaulted the deceased, and
probably caused his death. That raises a further technical question whether the charge
sheet properly reflected the case that the appellant was being called upon to meet but
again it is unnecessary to decide this.

[6] At his trial the appellant pleaded not guilty. He nonetheless admitted that: (a) the

deceased was the person reflected in the charge; (b) the deceased died on 13 February
2006 at or near The Bullet’s Pub, Schweizer-Reneke; (c) the deceased died as a result of
the injuries sustained at the place of assault; (d) the content of the post-mortem report;
and (e) that the blood stain found on his shirt was the blood of the deceased.

Evidence
[7] Mr Tshekoemang Freddy Kit was the first witness to testify on behalf of the State.
His evidence is as follows.  On the night of the murder, he was at Bullet’s Pub restaurant
where he was employed. At about 22h00 he stepped out of the building to relieve himself
at the outside toilet whereupon he saw a red BMW motor vehicle pulling up near the
restaurant. A short while later a red Toyota van left the premises. He also saw two men
pushing a dark blue BMW motor vehicle which belonged to one of the patrons. Upon
witnessing these two incidents he raised the alarm by telephoning the owner of the
restaurant, Mr Genade, and reported what he had seen.

[8] The owner responded immediately and upon his arrival at the restaurant fired a
warning shot into the air. He (the owner) then enquired from Kit as to the direction which
the red Toyota van had taken. The owner, Kit and another man unknown to Kit, boarded
the owner’s motor vehicle and drove in hot pursuit of the Toyota van. As the owner, Kit
and the unknown man were driving along they came upon a Toyota Tazz motor vehicle
parked on the side of the road next to which there were a number of people standing. The
unknown man who was also a passenger in the owner’s vehicle alighted at that spot
whereafter Kit and the owner drove away. Further on, they came upon the red Toyota van
that was abandoned on the road. The owner then telephoned his wife and asked her to
arrange for someone to bring the keys for the van. They eventually returned to the
restaurant. On their arrival there they found the police present. Kit also saw the deceased
lying on his back with his pair of trousers pulled down to his knees and next to him was his
T-shirt. Kit then returned to his workplace where he remained until he knocked off after
which he went to bed. He testified that he knew the appellant by sight only, having seen
him on various occasions when the appellant visited the restaurant.

[9] Ms Kornelia Petronella Genade was the second witness called by the State. She

testified that she co-owned the Bullet’s Pub restaurant with her husband. On the fateful
night she was together with her husband who received a telephone call which prompted
him to leave, saying that there were people stealing cars. He took his shotgun with him.
As her husband left she peeped through the window after which she also went out. When
she came outside she saw a group of people milling around and joined them. She then
observed two human figures across the road about one hundred metres away kicking
something on the ground. She then left that spot where she was and returned to her
residence. After seeing a police van present outside she went out again. She enquired
from one of the police officers as to what they had come there for. The policeman pointed
to a person who was lying on the ground across the road. Next to him were the appellant
and his former co-accused. She said that she overheard the appellant telling his former
co-accused that he (the appellant) ‘will hit the black to death’. This was a translation from
a more idiomatic expression in Afrikaans (‘ek sal hom dood poes’). The appellant had
placed his foot on the person lying on the ground. Under cross-examination she confirmed
that it was possible she had heard some discussion between the appellant and his co-
accused about his chasing the man on the ground. It was put to her that the accused
denied saying that he would kill the deceased and she accepted that he might have said
something like ‘here lies the poes who steals cars’. The appellant and his former co-
accused stood next to a Toyota Tazz motor-vehicle. She could not say whether the
appellant had in fact said that the deceased could ‘stand up now’ as the police were
present.

[10] The appellant testified that at approximately 21h30 on the night the deceased died
he arrived at Bullet’s Pub travelling in a BMW motor vehicle together with his erstwhile co-
accused to ‘enjoy a few drinks’ thereat. As they were about to leave they saw the BMW
motor vehicle being pushed in reverse by two persons with a third person seated on the
driver’s seat. When they shouted at these persons they abandoned the vehicle and fled
the scene in different directions. They gave chase, with him pursuing one of the culprits
for approximately seventy to one hundred metres. He gave up the chase when the culprit
he was pursuing disappeared into the darkness. He was then making his way back to
Bullet’s Pub when someone unexpectedly emerged in front of him. He wrestled with this
person and eventually subdued him and dispossessed him of an object that he was

carrying in his hand which turned out to be a cellular telephone.

[11] The appellant stated that he thereafter pulled the man through a barbed wire fence
taking him back to the restaurant. As he was tired he paused to take a breather whilst the
person he apprehended lay on the ground. At this juncture a Toyota Tazz motor vehicle
with four occupants pulled up next to him. The four occupants then assaulted the
deceased by kicking, stamping on him and striking him with some object whilst the
appellant was busy trying to telephone his erstwhile co-accused to arrange a bakkie to
convey the deceased to the police. But he was unsuccessful in his endeavours. He then
returned to the spot where he had left the deceased and found him seated on the ground
with his head leaning against his raised knees. At that stage the four men who assaulted
the deceased had left with three of them returning to the pub. As no vehicle was available
to convey the deceased the appellant, assisted by one of the four assailants, held the
deceased by his shoulders and pulled him, taking him to the pub. The deceased,
however, was wrestling and kicking in an attempt to free himself. Because the deceased
was resisting they decided to pull him by his feet – whilst he lay on his back – across the
tarred road back to the pub.

[12] When the police arrived the appellant informed them that ‘hier lê die bliksem …
hier lê die bliksem wat die karre gesteel het en weggehardloop’ (‘here lies the bliksem
who stole cars and [then] ran away’) referring to the deceased. The appellant accepted
that the peeling of the skin on the deceased’s back, skull and buttocks was directly
attributable to his dragging the deceased across the road to the pub. In cross-examination
he conceded that the superficial injuries that he sustained on the fateful night were not
caused by the deceased. He also said that he struck the deceased on his chest with his
elbow and kicked him on his legs as he lay on the ground subdued. The four persons who
assaulted the deceased whilst he lay on his stomach kicked him on his face and body and
also hit him on the head with an object he subsequently learnt was a plank. The assault of
the deceased lasted about fifteen minutes. Although he could have remonstrated with the
perpetrators of this assault he did not do so for he believed that they would not have
listened to him. Nor could he have intervened as he was tired. When the four persons
stopped assaulting the deceased he found him bleeding from his head and face with his

clothes drenched in blood. As he dragged the deceased from that spot over a distance of
fifty to seventy metres the deceased’s buttocks, back and head were rubbing against the
surface of the ground. He confirmed, that when he dragged the deceased it was with full
appreciation that his conduct might cause the deceased bodily injuries.

[13] Two witnesses were called by the trial court in terms of s 186 of the Criminal
Procedure Act 51 of 1977 (the Act). They were Constable Jan Segopotso Peo and Dr
Moorad who were, respectively,  the police officer who attended at the crime scene and
the pathologist who performed the post-mortem examination of the deceased.

[14] Peo testified that he met the appellant’s erstwhile accused outside the pub. The
latter reported to him that there had been an attempt to steal his car. The appellant called
out to him to ‘Come and see. Here lies the person who wanted to steal the car. I chased
him and caught him in the veld’.
1 He then approached the appellant and observed that the
latter had his one foot on the head of the deceased who lay on the ground. He asked the
appellant if he knew the deceased and the appellant answered in the negative. The
appellant then spilt the contents of the glass he had in his hand on the deceased. He then
asked his colleague Constable Galai to call an ambulance and request Inspector Nthele
to come to the scene. He left the scene upon Inspector Nthele’s arrival.

[15] In cross-examination it was put to Peo that the appellant told the deceased to get
up now that the police were there and said to him that there had been nothing wrong with
him when the police came. Peo did not accept this proposition and said that the appellant
had said to the deceased – in his presence – that ‘he must get up and try to run away as
he did before the police came’.

[16] Dr Moorad testified that he conducted the post-mortem examination of the
deceased and compiled the post-mortem report. He confirmed his finding that the
deceased suffered a left side subdural haemorrhage and swelling of the brain due to a
blunt force head injury. Although he confirmed that the death of the deceased was not

1 The evidence was given in Afrikaans and this is a translation.

instantaneous he could not say with any degree of certainty what the length of the period
of survival after the initial head injury would have been. But he stated that once the brain
started to swell it could no longer control pressure with the result that all systems within
the brain would fail following the initial haemorrhage, the swelling and the contusions that
the deceased had on the brain. Under examination by the court the doctor accepted the
proposition put to him that it is quite possible that the deceased was already fatally
injured, when he was dragged by the appellant, after the intervening assault by the four
occupants of the Tazz motor vehicle. His evidence requires repetition:
‘Court: Now would you say that, being dragged on a tarred road for that distance, which we estimate
between 70 and 100 metres, could also fall within that blunt force head injury?
Witness: It could fall within the blunt force injury, but what is difficult for me to offer an opinion based
on the pathological findings is that, a subdural haemorrhage which is the haemorrhage on the left
side which I was talking about, occurs often in assaults, but it can also occur in falls. So if one is
given a scenario of the deceased being dragged by his feet, presumably it is a gravel road, with the
head bumping.
Court: It is a tar road.
Witness: Is it a tar road? Then, still I am assuming the head would be subjected to a fair amount of
bouncing. A subdural haemorrhage is basically caused, it is velocity injury, which causes the brain,
or the head being moved in an anti-postural direction. And what happens is the veins which insert
into the surface of the brain, because of the velocity injury therefore get ruptured and that leads to
the haemorrhage. But, as I said, it could also happen by being punched against a hard surface so
that, the head is moving forward and backward as well.
. . .
Cross-examination: . . . Doctor, a blunt force head injury is a type of injury which one normally gets
when a person is hit several times with an object? Is that correct? – It is one of the findings you
could get, yes.
It often occurs when a person has been hit with a stick or a knobkierie several times or even with a
fist or kicked on the face or on the head? – Yes.
And after several of these blows have been administered, to put it that way, death does not occur
instantaneously, because sometimes people die two days after the application of such force. Is that
correct? – That is correct.
Even longer sometimes? – That is correct.
Now you do agree, the scenario as put to you by the Court, this man was hit several times, kicked in
the face, hit with some or other object as well. He was basically hit into submission after some time
he was dragged. You would agree with me that, it is quite possible and likely that, at that stage, he

had been fatally injured already? You cannot say (inaudible)? – No, I cannot, and certainly after an
assault that (inaudible) severe, judging by the external injuries and the photographs, it is quite likely,
yes.’ (Counsel were agreed that the words I have inserted and italicised accurately convey
the gist of what the typist found inaudible.)

[17] Having summarised the evidence adduced at the trial, the trial court stated that as
the appellant was charged with murder it was incumbent upon the State, which bore the
onus, to prove that the deceased died as a result of the injuries unlawfully and
intentionally
inflicted on him by the appellant. Accepting that the deceased had earlier been assaulted
by four men before the appellant dragged him on the ground for fifty to seventy metres it
proceeded to ask itself whether the death of the deceased was brought about by the
dragging to which the appellant had admitted or the earlier beating to which the appellant
was not a party.

[18] In the event the trial court found that if regard was had to the fact that the appellant:
(a) had earlier apprehended the deceased to bring him to justice; and (b) that the
deceased was – having been apprehended – in the control and custody of the appellant,
the appellant was under a legal duty to protect the deceased from attacks by others which
the appellant failed to do. Consequently the trial court found that the death of the
deceased was caused by the appellant’s omission.

[19] I should, however, say that the concluding statement in the judgment of the trial
court is ambivalent as to the actual basis for the appellant’s conviction. It said:
‘In the result I hold that the accused person is because of the death of the deceased by his omission
he also conceded that during this dragging he foresaw also that the deceased could suffer the
injuries he sustained and that as I have submitted, the injuries which he has sustained, they were
fatal.’
I shall return to this aspect later.

[20] The court below, as I have already stated, dismissed the appeal against both the
conviction and sentence. In dismissing the appeal against conviction, it found support in

the decision of this court in S v Musingadi & others 2005 (1) SACR 395 (SCA) in which the
decision in S v Chimbamba & another 1977 (4) SA 803 (RA) was relied upon. In
Musingadi this court in dismissing the appellants’ appeal against their conviction for
murder had regard to the fact that: (a) the appellants were responsible for the deceased’s
captive state as part of the joint enterprise to rob; (b) when they departed, they left the
deceased trussed up and helpless; (c) the appellants knew, when they departed, that no 2
[accused] was intent on killing the deceased; and (d) the appellants must have known,
and therefore knew, that the deceased was powerless to resist or withstand no 2’s
[accused] murderous intent.

[21] The court said:

‘The appellant’s conduct of leaving the deceased who was helpless with the four men and did
nothing to stop them from assaulting the deceased was unlawful. He clearly saw and has described
how the deceased was beaten. Even if his main aim was not to kill the deceased there is no doubt
that in exacerbating the deceased’s injuries by dragging him he subjectively foresaw that death may
possibly ensue and reconciled himself with the possibility. Appellant under cross-examination said
he foresaw that the dragging would cause bodily injuries to the deceased. In dragging him for a
distance of about fifty to seventy metres on tarred road he definitely foresaw that the unlawful result
may ensue. Furthermore, the appellant’s conduct and vile utterances at the pub in the presence of
the police clearly show that he did not care about the wellbeing of the deceased. The appellant was
correctly convicted of murder.’

[22] With respect, I find myself unable to subscribe to the approach of the court below
for reasons that will become apparent later in this judgment.

Argument
[23] In this court counsel for the appellant mounted a three-pronged attack against the
conviction. He submitted that: (a) the appellant was not under a legal duty to prevent the
assault on the deceased by the four persons travelling in the Toyota Tazz and even if it
were found that he was under such legal duty there was not even a shred of evidence –
let alone proof beyond reasonable doubt – to controvert the appellant’s assertion that he
could not have prevented the assault; (b) there was no evidence beyond reasonable

doubt to prove that the assault attributed to the appellant causally contributed to the death
of the deceased; and (c) the state failed to allege, let alone prove beyond reasonable
doubt, that the appellant acted in pursuance of a common purpose with the four assailants
whom he saw stamping on and kicking the deceased. I hasten to deal with each of these
contentions in turn.

Legal duty
[24] The point relating to the question whether the appellant was under a legal duty to
prevent the assault on the deceased by the four occupants of the Toyota Tazz can be
disposed of on the basis of what the appellant said at the trial when he testified in his
defence. His evidence was that at that stage he was tired and realised that his
intervention would not have had any effect as the four assailants would not have listened
to him. There was no evidence adduced by the State to controvert this and it was not
challenged in cross-examination by the prosecutor. This conclusion renders it
unnecessary, in my view, to consider the allied question whether the fact that the
appellant was not alerted in the charge sheet or otherwise that this was the case that he
was called upon to meet should have, in itself, led to the acquittal of the appellant on the
charge of murder.

Causal link
[25] The best that can be said in favour of the State with regard to this point is that the
doctor who was called at the behest of the trial court testified that: (a) the assault on the
deceased by the four persons did not result in an instantaneous death; (b) that the
deceased would have survived for a while after suffering a subdural haemorrhage. The
doctor was asked specifically in cross-examination if the fatal injury could have been
caused by the prior assault by the men in the Toyota Tazz and he said that he thought
that that was ‘quite likely’. It therefore goes without saying that this shortcoming in the
State’s case must redound to the benefit of the appellant. On a proper reading of the
doctor’s evidence it is impossible to say with the requisite degree of certainty that the
appellant’s conduct contributed causally to the death of the deceased. The evidence is at
least consistent with the possibility that the fatal injury was sustained by the deceased as
a result of the blows inflicted by the four assailants from the Toyota Tazz motor vehicle.

Common purpose
[26] With respect to common purpose it was argued, with reference to an abundance of
judgments of this and other courts, that the appellant could not have been convicted of
murder on two bases. First, it was submitted that he was not charged on the basis that he
had acted in the furtherance of a common purpose with the four assailants. Second, there
was no evidence adduced by the State to prove the prerequisites for a successful
invocation of the doctrine of common purpose.

[27] I do not consider it necessary to deal with this part of the appellant’s argument in
any great detail. Suffice it to mention that it was, in any event, never part of the State’s
case that the appellant in doing whatever he was alleged to have done acted in the
furtherance of a common purpose with anyone. On the contrary the charge sheet explicitly
stated that he was charged with murder in that ‘upon or about 13 February 2006 and at or
near Schweizer-Reneke . . . the accused did unlawfully and intentionally kill Thulasizwe
Hlatswayo’ and no less or more. The witnesses who testified on behalf of the State sought
to support the case that the appellant was called to meet and no more.

[28] Moreover the evidence adduced by the State, such as it was, came nowhere close
to establishing any of the pre-requisites of common purpose.
2 The problems of the State
were also compounded by the absence of any countervailing evidence to that of the
appellant which militates against the notion that the appellant acted with a common
purpose with the four assailants who assaulted the deceased. Accordingly the reliance by
the court below on Musingadi must, with respect, be taken to be erroneous. To sum up,
there was no proof of any prior agreement between the appellant and the four assailants
who assaulted the deceased. Nor was there any proof that in dragging the deceased –
after the four assailants had left – the appellant manifested an association with or a
sharing of a common purpose with those four assailants.

2 S v Thebus & another 2003 (2) SACR 319 (CC); S v Mgedezi & others 1989 (1) SA 687 (A) at 705–
706C; S v Musingadi & others 2005 (1) SACR 395 (SCA); S v Jiya & others 1991 (2) SA 52 (E); S v
Mzwempi 2011 (2) SACR 237 (ECM).

[29] I revert now to the concluding paragraph of the judgment of the trial court quoted
earlier in this judgment. The comment I wish to make in regard thereto is that it is
susceptible to the interpretation that the appellant was convicted of murder on the basis
that he was either under a legal duty to prevent the assault by the four assailants or that
in any event the injuries attributed to the dragging of the deceased by the appellant –
which he admitted to have foreseen – caused the death of the deceased.  In other words
the cause of death was irrelevant as on either basis the appellant was criminally
responsible  therefor. It must be said that on either basis the conviction of the appellant
for murder is, for the reasons already stated, unsustainable. That renders it unnecessary
to consider whether it can ever be permissible to seek a conviction on this basis.

[30] Counsel for the State initially sought to persuade us that the murder conviction of
the appellant was supportable. But she soon realised that apart from all else there was no
evidence, which met the requisite threshold in a criminal trial, to sustain the verdict of the
trial court.

[31] The question that now arises for determination is what offence, if any, is the
appellant guilty of. Counsel for the appellant at the outset candidly accepted that the
appellant could not escape a conviction of assault. Nevertheless he initially argued that
the State failed to prove beyond a reasonable doubt that the appellant had the requisite
intent to cause the deceased grievous bodily harm. In elaboration he submitted with
reference to sound judicial authority that the nature of the injuries suffered by the
deceased as a consequence of the dragging is not the decisive factor in determining
whether the appellant had the requisite intent to do grievous bodily harm.

[32] When it was pointed out to counsel by this court that the appellant had admitted
under cross-examination that when he dragged the deceased on a hard surface (in this
case being a tarred road and gravel) with his back, head and buttocks rubbing on the hard
surface he foresaw that the friction between the body and the ground would cause the
deceased grievous bodily harm, he was constrained to concede that the evidence

3 S v R 1998 (1) SACR 166 (W) at 169f–170b.

established that the appellant had the requisite intent to cause the deceased grievous
bodily harm.
4 In any event it is apparent from the record that all the constituent elements
of the substantive crime of assault with intent to do grievous bodily harm were present.
With respect to the form of intent that the appellant had it bears mention that dolus
eventualis suffices.
6  Although the appellant was charged with murder a verdict of assault

4 S v Erasmus 2005 (2) SACR 658 (SCA) para 10.
5 C R Snyman Criminal Law 5th ed 461-462.
6 R v Basson 1961 (3) SA 279 (T) AT 282C–283C.

with intent to do grievous bodily harm was, in terms of s 258(b) of the Act, competent.

[33] Following this concession the question arose as to whether the matter should then
be remitted to the trial court for it to consider sentence afresh in the light of this judgment.
Given the long passage of time and with a view to avoiding further delay in the disposal of
the matter both counsel were agreed that the interests of justice dictated that the matter
be dealt with to finality in this court. In my view that approach commends itself.

[34] As to an appropriate sentence counsel for the appellant submitted that the
appellant has already served a period of about nine months in jail. Thus it was urged upon
this court to consider a sentence of four years imprisonment under correctional
supervision in terms of s 276(1)(i) of the Act. Counsel for the State argued for a sentence
of four years’ direct imprisonment or if this court were against her on that score she
aligned herself with the argument advanced on behalf of the appellant.

[35] The appellant’s counsel drew our attention to the following mitigating factors in the
appellant’s favour: (a) he is gainfully employed; (b) he has three minor children one of
whom has physical and mental disabilities; (c) he was remorseful; and (d) the occurrence
has caused him grave emotional upheavals to a point where his life nearly fell apart. In
addition, it was submitted that the appellant acted in the heat of a threatening car theft
and without premeditation while he was to some extent under the influence of intoxicating
liquor. However, no matter how important these factors may be we do not have the
advantage that a trial court would have of a current detailed pre-sentencing report in
which the advantages as well as the disadvantages of a sentence of correctional
supervision would be canvassed and the capacity of the relevant authorities to supervise
such a sentence.

7 Section 258 reads: If the evidence on a charge of murder or attempted murder does not prove the
offence of murder or as the case may be, attempted murder, but –
. . .
(b) the offences of assault with intent to do grievous bodily harm;
. . .
the accused may be found guilty of the offence so proved.

[36] Nevertheless, as it behoves this court, these mitigating factors must be weighed
against the aggravating features of this case. At the time of conviction the appellant had a
recent previous conviction for assault in respect of which he paid a fine of R800. The
assault of the deceased both at the time of his arrest and when he was dragged on the
ground, virtually naked, was gratuitous. The appellant accepted that after he had subdued
the deceased he struck him with an elbow on his chest and kicked him on his legs. Again
when the deceased could barely walk on his own – after an assault by the four assailants
– the appellant dragged him over a hard surface for fifty to seventy metres. He dragged a
helpless person who, on his own account, was severely injured and bleeding from the
head and face thus manifesting callousness and utter insensitivity to the plight of the
deceased. He gratuitously violated the deceased’s rights to privacy and physical integrity.
The skin on the deceased’s back was virtually removed and he must have suffered
agonising pain. When the deceased was found by the police he was virtually in a naked
state, severely battered and bruised. Unfazed by the presence of the police the appellant
used derogatory terms in referring to the deceased. He showed utter contempt for the
dignity of the deceased by deliberately spilling liquor on him and placing his foot on his
head. Thus there can be no doubt that the deceased’s rights were gratuitously violated in
many respects in a most callous, demeaning and dehumanising manner.

[37] Accordingly such conduct warrants recognition in the determination of an
appropriate sentence to reflect the natural indignation that the community would feel at
conduct of that kind. This is all the more so if one has regard to the fact that there are also
utterances attributed to the appellant of and concerning the deceased which, on the face
thereof, had racial overtones. Given our painful past such utterances are inimical to the
ethos of our Constitution and the attitude evinced against the deceased aggravated the
assault. It also bears mention that our Constitution firmly sets its face against all forms of
violence and seeks to create a society in which a culture of respect for human rights is
inculcated.

[38] Having regard to all the aforegoing factors and the submissions of counsel, to
which I have given anxious consideration, I have no doubt that a sentence of
imprisonment is called for. That leaves the question whether the appellant is a suitable

candidate for correctional supervision. Rather than pre-empt that issue by exercising our
powers under s 276(1)(i) of the Act I think it preferable to leave it in the hands of the
officials of the Department of Correctional Services who will be better situated to
determine the relevant facts and assess the suitability of the appellant for such a
sentence. If appropriate an application can then be made in terms of s 276A(3) of the Act
for the conversion of his sentence into one of correctional supervision.

Order
[39] In the result the following order is made:

The appeal is upheld and the order of the court below dismissing the appeal is set aside
and replaced with the following:

‘1
The appeal is upheld.

The appellant’s conviction for murder is set aside and replaced by a conviction for
assault with intent to commit grievous bodily harm.

The appellant’s sentence is set aside and replaced by a sentence of four years’
imprisonment.’

___________________

X M Petse

Acting Judge of Appeal

APPEARANCES
For the Appellant:

B Roux SC

Instructed by:

Couzyn Hertzog & Horak, Pretoria

Spangenberg, Zietsman & Bloem, Bloemfontein

For the Respondent :

P du Plessis (Ms)

Instructed by:

Director of Public Prosecutions, Pretoria

Director of Public Prosecutions, Bloemfontein