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REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

CA 161/2010

In the matter between: Case No:

MARCUS VINCENT VAN HEERDEN …............................................................Appellant

And

THE STATE …...............................................................................................Respondent

Coram: Chetty, Griffiths JJ and Kemp AJ

Date Heard: 5 September 2011

Date Delivered: 19 September 2011

Summary: Criminal Law – Culpable homicide – Whether negligence established – Evidence – Adequacy of Proof – Trial court’s acceptance of evidence – Although trial court had advantage of hearing and seeing witnesses, record of proceedings showing that factual findings clearly wrong – Appellate court entitled to interfere – Conviction and sentence set aside.

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JUDGMENT

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Chetty, J

[1] This is a tragic case in more ways than one. The first casualty was the deceased, Mrs. Ilse Edith Malherbe, and the second, equally unfortunate, the truth. The deceased was certified dead at 17h20 on the 19^th October 2004 at the St Georges hospital (the hospital), Port Elizabeth. She had been admitted there during the course of that morning for surgery for a vaginal hysterectomy, and a major posterior vaginal repair. The surgeon was the appellant, a specialist gynaecologist and obstetrician. His consulting rooms were located within the hospital complex and so too those of the deceased’s husband, Dr. Malherbe, a radiologist and colleague of the appellant. The deceased first consulted the appellant on 18 June 2003, having been referred to him by her husband’s partner, Dr. Sandra Basson. As time passed, the deceased, when the occasion arose, consulted the appellant, an examination would ensue and treatment would be administered. The doctor/patient relationship developed to the extent that the appellant became her confidant and that situation endured until her untimely death. Although she and her husband were on friendly terms with the appellant this never extended into the social arena, the relationship between them was limited to their respective professional capacities.

[2] Following upon the death of the deceased, the appellant was arraigned for trial together with Dr Michael C Botha (Dr. Botha) before Liebenberg J, on a charge of culpable homicide. In response to a request for further particulars delineating the grounds of negligence upon which the state relied, the appellant was informed that the negligent acts, the “commissiones et ommissiones” which the state intended to rely upon were:-

“a) The accused failed to ensure that all blood vessels were securely sutured or tied off after having performed a vaginal hysterectomy on Ms. Ilse Malherbe, hereinafter called “the deceased”;

and/or

b) The accused, being the surgeon during the aforesaid operation, failed to find out what the deceased’s condition was while she was in the recovery room;

and/or

c) The accused failed to ensure that the deceased was in a stable and satisfactory condition before allowing her to be discharged from the recovery room;

and/or

d) The accused failed to visit the deceased in the ward and/or determine her current condition as soon as reasonably possible after finishing his operation list;

and/or

e) The accused failed to immediately visit the deceased and determine the cause of her condition after having been alerted to it by Sister Maritz (now Cooper) and address it;

and/or

f) The accused in general failed to show a proper interest in his patient, the deceased after he had operated on her;

and/or

g) The accused failed to identify the fact of the deceased’s internal bleeding after the operation;

and/or

h) The accused, suspecting that the deceased was bleeding internally, failed to take appropriate steps to stop the bleeding;”

[3] In similar vein, various acts of negligence were imputed to Dr. Botha. After a protracted trial which generated a record of over 8000 pages, the appellant was convicted and sentenced to imprisonment for one year suspended in its entirety however for three years. His co-accused, Dr. Botha, was acquitted. This appeal is before us with leave granted on petition.

[4] Ex facie the indictment and further particulars supplied the negligence imputed to the appellant was alleged to be both intra, and, post operatively. That was the case which the state sought to establish and which the appellant was required to meet. At the conclusion of the state case, appellant’s counsel, Mr. van der Spuy, applied for the appellant’s and Dr Botha’s discharge in terms of the provisions of s 174 of the Criminal Procedure Act¹. The application was opposed and during the course of Mr. Bezuidenhout’s address, he, unequivocally, renounced and abandoned the grounds of negligence imputed to the appellant during the intra operative period. At the commencement of the defence case, he disingenuously sought to wriggle out of the admission made, necessitating a lengthy argument and culminating in a ruling by the learned judge that the state had expressly abandoned the grounds of negligence imputed to the appellant intra operatively.

[5] The case which the appellant was thus called upon to answer, viz, negligence post operatively, rested almost entirely upon the testimony of Sister Beatrix Maritz (Cooper). The court below concluded that the state had discharged the onus of proving beyond reasonable doubt that the act of negligence resided in the appellant’s omission to respond to the telephone call made to him by Cooper at approximately 13h50. That ground of negligence was presaged in paragraph 1 (e) of the further particulars, to wit, “the accused failed to immediately visit the deceased and determine the cause of her condition after having been alerted to it by Sister Maritz (now Cooper) and address it”. The appellant’s account of the content of the telephone call between himself and Cooper was rejected as false and so too the entire body of his testimony where it conflicted with that of the state witnesses, in particular that tendered by the district surgeon, Dr. Volodia Angelov (Angelov), and his mortuary assistant, Inspector Ebersohn.

[6] It will be gleaned from the aforegoing that the focus of the attack on the conviction is against the court below’s acceptance of the testimony of Cooper that when she spoke to the appellant telephonically at 13h50 she specifically informed him that the deceased’s blood pressure was 50/30 and her heart rate, 118 bpm. In contradistinction, the appellant’s version was that those vital signs were never communicated to him, the only information imparted to the effect that the deceased’s blood pressure was low but that her condition was otherwise satisfactory.

[7] Before I turn to consider the competing submissions advanced on behalf of the appellant and the state, it is opportune to restate the trite principles governing the hearing of appeals against findings of fact. These were succinctly stated by Jones J, in S v Leve² where the learned judge stated as follows: -

“The fundamental rule to be applied by a court of appeal is that, while the appellant is entitled to a rehearing, because otherwise the right of appeal becomes illusory, a court of appeal is not at liberty to depart from the trial court’s findings of fact and credibility, unless they are vitiated by irregularity, or unless an examination of the record of evidence reveals that those findings are patently wrong. The trial court’s findings of fact and credibility are presumed to be correct, because the trial court, and not the court of appeal, has had the advantage of seeing and hearing the witnesses, and is in the best position to determine where the truth lies. See the well known cases of R v Dhlumayo and Another 1948(2) SA 677 (A) at 705 and the passages which follow; S v Hadebe and others 1997 (2) SACR 641 (SCA) at 645; and S v Francis 1991 (1) SACR 198 (A) at 204c-f. These principles are no less applicable in cases involving the application of a cautionary rule. If the trial judge does not misdirect himself on the facts or the law in relation to the application of a cautionary rule, but, instead demonstrably subjects the evidence to careful scrutiny, a court of appeal will not readily depart from his conclusions.”

[8] The judgment of the court below is however impugned not only on the basis that it was wrong in accepting the evidence of certain of the state witnesses but is moreover assailed on the basis that in two crucial respects it misdirected itself, viz, wrongly interpreting the contents and implication of firstly, a document, (exhibit UUUU) which contained various assessments made by Dr Morrell regarding the possibility of the deceased dying at 14h00 and secondly, to the application, relevance and implications of the Apache II Scale, (exhibit XXXX), which Professor Coetzee had regard to in assessing the deceased’s survival prognosis³.

[9] As far as the trial court’s findings of fact and credibility are concerned, I am constrained, with respect, to disagree with those findings. They are, to my mind, clearly wrong. Notwithstanding the fact that the trial judge had the distinct advantage of hearing the witnesses and seeing and observing their deportment, the transcript of the proceedings and an assessment of the probabilities compel the conclusion not only that the version deposed to by Cooper is false but that the appellant’s evidence was reasonably possibly true, the real test. It is apposite thus to examine the evidence adduced in some detail and to that end, to commence at the beginning and to chart the deceased’s passage through the hospital. It is largely common cause and may be summarized as follows.

[10] At 07h00 on 19 October 2004 the deceased was admitted in the ward for theatre. She was seen by Dr Botha, the anaesthetist, the erstwhile accused number 2. Pre-medication was administered, she was prepared for theatre and in due course admitted thereto. The requisite surgery was performed and in addition a minor anterior vaginal repair was attended to. The operation entailed the division and ligation of six pedicles that attach to the sides of the uterus at various levels, three on the left hand side and three on the right hand side. Encompassed by these pedicles are arteries and veins that are required to be clamped and then ligated prior to the removal of the uterus in order to prevent haemorrhaging therefrom. During the course of the surgery it became necessary to approximate and to ligate the right arterine and right transverse sacral pedicles respectively in order to achieve and ensure proper haemostasis. Prior to concluding the surgery the appellant satisfied himself that haemostasis had been obtained. His evidence concerning the manner in which he performed the operation was undisputed and reads as follows: -

“MR VAN DER SPUY Now as far as the right side of this patient is concerned, the three pedicles, did your ligating process differ from what you have described in any manner whatsoever? --- No, I tied off the three pedicles individually.

We will get to what happened later on, I am talking about the initial stage. --- No. I did a routine vaginal hysterectomy on the right hand side.

And on the left hand side? --- I did a routine vaginal hysterectomy on the left hand side. I identified the pedicles, cut them through, ligated them with a double knot, and obtained haemostasis.

COURT And obtained? --- Haemostasis, made sure the pedicles were not, that blood was not dripping or oozing.

MR VAN DER SPUY Let us just deal with that in a moment, the haemostasis. Did the ligation, the figure of eight, the double knot, and the removing and clamping, and the entire process differ on the left from the right? --- No, it did not.

I am referring particularly now to the left uterine artery. --- No, it did not.

Now you said that you achieved haemostasis. --- Yes M’Lord.

In other words a situation where there was no bleeding.

How did you ensure or check, if at all, that you had achieved haemostasis? --- Once I had removed the uterus out of the vaginal vault top I asked my scrub sister for a swab and a stick. That is where she wraps a latex swab around an artery forceps, and then you dab each pedicle with this swab, and you visually inspect each pedicle to make sure that there is no bleeding.

Now in the case of Mrs Malherbe what did you do? --- I visually inspected each pedicle starting from the left bottom, the left utero-sacral, the left uterine, the left ovarian, then I moved to the right where I checked the right utero-sacral, the right uterine and then the remnants of the right ovarian pedicle. While checking the right uterine I noticed a bit of oozing (intervention)

COURT While checking the? --- Right uterine pedicle I noticed a bit of oozing.

VAN DER SPUY Oozing of blood? --- Oozing of blood.

COURT The right uterine pedicle? --- That is correct M’Lord. On a close inspection the patient was oozing between the right uterine pedicle and the right utero-sacral pedicle.

Say again where was it oozing? --- Between the right utero-sacral and the right uterine pedicle. I dealt with this bleeding or this oozing by firstly trying to tie it off with a suture line. She was still oozing. Then I brought the right utero-sacral and the right uterine pedicle together.

You brought what together? --- The right utero-sacral and the right uterine pedicle. I tied these two together, and this resulted in haemostasis. Then I went back and I rechecked all the pedicles for a second time starting again at the left utero-sacral, left uterine, left ovarian. Then I went back to the right hand side to check the right, that haemostasis had been achieved, and at that stage there was no bleeding.

MR VAN DER SPUY Now this oozing on the right hand side, which does not seem to have played a further role in this matter, but just generally speaking is that an unusual thing to happen, is it regarded as a serious complication, is it something which frequently happens, are gynaecologists accustomed to that? --- By performing vaginal surgery we work through a very small opening and we do get oozing and bleeding on the pedicles, the arteries, as long as you have identified it and treated the bleeding or the oozing in such a manner that you have obtained haemostasis.

So oozing like that which is observed, identified, dealt with and resolved, would that be classified by gynaecologists as a complication? --- No, it would not.

Except for oozing, which you dealt with, on the right hand side did anything else happen which was in even (sic) the slightest manner out of the normal routine ordinary hysterectomy or repairs with regard to Mrs Malherbe? --- No, none whatsoever.

For you or any other gynaecologist in your position was there any reason to suspect a possible later complication? --- No, none whatsoever.”

[11] The surgery was completed at approximately 10h00 and the deceased transferred to the recovery room where she fell under the care and management of the nursing staff. It is common cause that Dr. Botha’s responsibilities extended to her tenure in the recovery room. In the interim, the appellant, whilst scrubbing for his next operation, was appraised of the fact that 18g of morphine had been administered to the deceased. At 10h55 Dr Botha authorized the deceased’s transfer from the recovery room to the ward. Her blood pressure, a minute earlier had been recorded as 96/54. At 11h11 the deceased was taken to the ward notwithstanding the fact that her blood pressure dropped significantly, recorded at 11h00 at 75/48. It is common cause that neither Dr Botha nor the appellant were appraised of this fact by any of the nursing staff.

[12] Sister Müller formally received the deceased from Sister Carelse at 11h20. The deceased’s blood pressure was measured and recorded as 66/45 at 11h20, a further significant drop. Yet again, neither Dr Botha nor the appellant were appraised of this fact. They remained blissfully unaware of what these vital readings, ominously portended.

[13] Dr Malherbe visited his wife in the ward at 12 noon. The visit, save for the deceased’s complaint of pain, was uneventful and he observed nothing untoward. Sister Müller voiced no concern to him regarding the deceased’s condition. At approximately 13h00, the appellant, en route to his rooms on the completion of his operation list, paid a courtesy visit to Dr Malherbe at his rooms to report that the surgery had gone according to plan. Dr Malherbe, despite having visited the deceased an hour before, made no adverse comment concerning her condition save to indicate that she was in considerable pain.

[14] At 13h51 the crucial telephone call was made to the appellant by Cooper, who had taken over the management of the deceased from Sister Müller. To repeat, she testified that she informed him that the deceased’s blood pressure was 50/32 and her pulse 118 bpm. In contradistinction his evidence was that she merely mentioned that the deceased’s blood pressure was low but that her condition was otherwise satisfactory. He further testified that the tone of her voice was reassuring and given the import of her report to him, advised her to substitute the drip with Ringers lactate and to run it in rapidly. It is common cause that the appellant telephoned Cooper forty minutes later and it is not in dispute that she told him that the deceased’s blood pressure had risen and that her condition was satisfactory.

[15] In the intervening period and mere minutes after the appellant spoke to Cooper at 13h50, Dr Malherbe once more visited the deceased. He testified that she was lying flat in bed and was non-responsive and did not move. She was still suppressed in terms of consciousness and did not speak or react to any questions. Her tongue was dry, her eyes appeared to be dry and she was wet from sweat. Her right radial pulse was weak and it was evident that she was in shock and he informed the nurse accordingly. Understandably concerned at his wife’s condition, Dr Malherbe returned to his rooms, discussed the deceased’s condition with a colleague and elicited the response that he should raise his concerns with the appellant. It is common cause that he did not do so. He next visited her at 15h05. The deceased was alone and no nurses were in attendance. Visually she appeared to be unconscious and his initial deduction was that she was brain dead. He sounded the alarm which precipitated the broadcasting of a code blue emergency message throughout the hospital. It is common cause that, in response, the appellant was the first person at her bedside. Notwithstanding valiant efforts to resuscitate her, initially by the appellant, and thereafter by Dr Pohl, with the assistance of Sister Quinton, the deceased was certified dead at 17h20.

[16] The aforegoing sequence of events is, as I have stated, largely common cause or not seriously in dispute. The content of the telephone call at 13h50 is, as mentioned earlier, of crucial importance. In its evaluation of Cooper’s testimony, the trial court dealt with the criticisms directed at her evidence by Mr. van der Spuy. One of these related to an entry made by Cooper in the deceased’s fluid balance chart several weeks after her death. The learned judge commented that her explanation for recording the deceased’s urine output at a later stage was satisfactory, and so too, what he considered to be her frank admission, that she signed a statement prepared by the hospital’s attorneys, to ensure conformity with the hospital records. The finding that Cooper was a credible and reliable witness overlooks two crucial objective facts, the first, the common cause fact that the hospital records had been tampered with and the second, the overwhelming improbability that the appellant would not have immediately responded to her distress call.

Tampering with the deceased’s hospital records

[17] The fact that the deceased’s hospital records had indeed been tampered with first surfaced during cross-examination of Mrs. Wendy Jane Griffiths (Griffiths), the hospital’s human resources practitioner. During the initial part of her cross-examination she steadfastly maintained that from the time she took the deceased’s file into her possession she kept it under lock and key and that no-one had access thereto. It subsequently emerged that at some stage the contents of the file had been copied by the police and by the appellant’s secretary when he requested sight of the records. Later, and in preparing the appellant’s defence to the charge, a comparison between certain of the records kept by the police and the appellant and those in the hospital’s custody revealed glaring anomalies which proved that the hospital records had indeed been tampered with. On appeal before us Mr. Bezuidenhout was constrained to admit that someone had tampered with the records. On Griffiths’ evidence this could not have happened on her watch and the import of her initial testimony was that no tampering whatsoever occurred. In my judgment the now admitted fact that tampering had occurred must deleteriously impact on the credibility of all the hospital personnel who testified on behalf of the state.

[18] By the time Cooper testified she was aware that the fact that the hospital records had been tamped with was literally out of the bag and she was perforce obliged to acknowledge that her entry relating to the 300ml of urine in the catheter in the fluid balance chart (exhibit A28) had been effected at some later stage. Her explanation as to the circumstances under which, and the reason why she not only remembered that detail, but considered it necessary to enter it into the deceased’s hospital records later, found favour with the trial judge and appears to have been regarded by him as a further factor to enhance her credibility.

[19] I am, with respect to the learned judge, constrained to disagree. Cooper’s admission that she made the entry at some later stage must be seen in context. She testified long after Griffiths had concluded her testimony and when tampering of the hospital records had become a matter of public knowledge. This had been prised out of Griffiths during cross-examination by Mr. van der Spuy. The admission must further be considered in the light of her own evidence that following upon the death of the deceased she attended several meetings with the hospital management in order to ensure, as she put it, “die pasient se leêr volledig is”. When it was put to her that her evidence, that her input was necessary in order to finalise the deceased’s hospital account, could not be correct in as much as those had been completed within three days of the deceased’s death, she could provide no answer why, and for what reason, she attended these various meetings. The reason for her inability to do so is self evident – she was party to the falsification of the deceased’s hospital records and the entire body of her evidence must accordingly be viewed against that backdrop. There is to this day no explanation who entered the pulse rates of 68 and 66 at 12h00 and 12h30 respectively on the deceased’s vital signs chart. Furthermore, the blank column under the stipulated time of 13h00 indicates quite unequivocally that the recorded pulse rates and blood pressure readings were made at some later stage.

[20] Save for the finding that the subsequent entry regarding the deceased’s urine output by Cooper on the fluid balance chart was satisfactorily explained by her, the fact that the deceased’s hospital records had indeed been tampered with does not appear to have been of concern to the learned judge. Whilst I accept that no judgment can be all encompassing and that an omission to state a fact does not necessarily convey that the trier of fact has not considered a particular matter, the fact that the deceased’s hospital records had been tampered with was accorded no weight whatsoever in the evaluation of the evidence of the nursing staff and in particular the testimony of Cooper.

[21] In argument before us, Mr. Bezuidenhout was constrained to concede that the nursing care and management of the deceased following upon her admission to the recovery room and thence to the ward was woefully inadequate. He sought to qualify that admission however by submitting that once the deceased came under the care of Cooper, her care and management was beyond reproach. Cooper was at pains to point out that she devoted virtually all her time and energies to the deceased whilst the latter was under her care. The truthfulness and reliability of her evidence on this aspect was seriously called into question during her cross-examination.

[22] The immediate question which springs to mind is why the hospital authorities, and, the nursing staff, considered it necessary to tamper with the deceased’s hospital records if their conduct and care for the deceased had been beyond reproach and in accordance with the required standards. The only reasonable inference is that it was an attempt to cover up their own negligence. No reliance whatsoever can be placed on their records. The blank column in the vital signs chart indicates that the chart was manipulated at some later stage and Cooper’s involvement therein is evidenced by her signature in the appropriate column.

[23] Cooper was a single witness and although the trial court in its appraisal of her evidence stated that it approached her evidence with a measure of caution, her involvement in the unfortunate record tampering incident was never properly considered. Had the court below done so, as I believe it should, I have no doubt that it would not have concluded that she was a satisfactory witness on whose testimony it could safely rely upon. Cooper’s testimony concerning the deceased’s condition at 14h00 is irreconcilable with that of Dr Malherbe. As adumbrated earlier Dr Malherbe’s testimony was that her condition was a matter of serious concern to such an extent that he felt constrained to consult a colleague. The trial court paid scant regard to this material conflict in the evaluation of her evidence. Instead, it, in effect, rejected his evidence as the following passage from the judgment clearly indicates: -

“It was clear from the evidence that Sister Cooper and Dr Malherbe were not with the deceased at the same time. Sister Cooper said that she monitored the deceased at 14h00 whereas Dr Malherbe said he saw her at approximately 14h00. It is also apparent from the evidence of Dr Malherbe that he did not do a full examination of the deceased and did not do any proper check of her level of consciousness. In view of his association with the deceased, his possible anxiety at the time, the possibility that he may as a result be confusing the deceased’s condition at 14h00 and 15h00 as well as the fact that he concedes his shortcomings in the practice of clinical medicine it is in my view appropriate to accept the evidence of Sister Cooper in preference to that of Malherbe.”(sic)

[24] The trial court’s reasoning for “preferring” Cooper’s evidence to that of Dr Malherbe is entirely unconvincing. Dr Malherbe’s uncontradicted testimony was that he visited his wife at 14h00 and was perturbed at what he saw. The fact that his sphere of expertise now resorts in the field of radiology, in no way derogates from the fact that he is a medical doctor possessed of the requisite skill to make a clinical observation. Although the trial court found Cooper to be a credible witness on whose evidence it could safely rely upon, the record indicates the contrary. She was an exceptionally poor witness who fared poorly under cross-examination. Her stock answer when confronted with anomalies in her testimony was that she could no longer remember given the effluxion of time.

[25] In its evaluation and appraisal of the appellant’s evidence the trial court, perhaps because of the manner in which it structured the judgment, dealt with the conflicting versions of what had occurred during the post-mortem examination and concluded that “. . . not only that the evidence of the accused concerning the events at the autopsy in so far as it conflicts with the evidence of Dr Angelov and Ebersohn, is not reasonably possibly true, but that it is in fact a fabrication and stands to be rejected as false. Despite the shortcomings in the standard of the autopsy I accept the evidence of Dr Angelov as to the factual findings made by him at the autopsy”. Having made this credibility finding, it then proceeded to analyse the appellant’s and Cooper’s conflicting testimony concerning the telephone call, and made a further adverse credibility finding against the appellant.

[26] The trial court’s reasoning for rejecting the appellant’s testimony vis-á-vis the post-mortem examination appears to be the following – firstly, that the appellant’s account of what occurred during the post-mortem “borders on the bizarre”; secondly, his contradictory evidence concerning the volume of bloody fluid removed from the deceased’s abdomen; thirdly, the evidence concerning the “aberrant artery”; fourthly, the “adjustment” of his evidence concerning the reason for him attending the post-mortem examination and lastly, his reaction “when he was shown the untied uterine artery”.

[27] In my judgment, these criticisms, either individually or collectively, are entirely unwarranted. The appellant gave a detailed account of Dr Angelov’s conduct prior to and during the post-mortem examination. The groundswell of expert medical opinion advanced during the trial was that the post-mortem examination was performed in a haphazard, unprofessional and completely unacceptable manner. Whilst recognizing the deficiencies in Angelov’s testimony, the trial court concluded that the poor standard by which he conducted the post-mortem examination could be ascribed to “the lack of proper training and experience in the field of forensic pathology and do not mean that he lacked credibility as a witness”. This was a charitable interpretation of Angelov’s testimony, whereas the appellant’s account of Angelov’s conduct prior to, during, and after the post-mortem examination, has a ring of truth around it.

[28] Angelov’s evidence concerning the post-mortem examination was of such a poor quality that it ought to have been rejected. He initially testified that when he arrived in the mortuary “(he) saw the incision made and opening in the abdomen through which blood was pouring out”. Almost immediately he contradicted himself by saying “No, I did not see him make the cut. When I went there the cut was already made”. He was then asked whether the deceased’s abdomen had already been opened to which he responded by saying “Yes, not completely, but sufficiently for the large quantity of blood to spill out”. That version metamorphed shortly thereafter when the appellant’s version of what transpired at the post-mortem examination was put to him. He then admitted that when he and the appellant entered the mortuary, the deceased had been dissected open through the entire length of her body from the chin to the pubis. The aforegoing analysis of a segment of Angelov’s evidence demonstrates that he had never been in the mortuary room prior to the appellant’s arrival and the entire body of his evidence that he had conducted an external examination is clearly a fabrication. His capacity to tailor his evidence was furthermore demonstrated when he was questioned concerning his apparel on the day. In his initial testimony he agreed that he was dressed in civilian clothing when he encountered the appellant and was talking to him when someone shouted that the cause of death had been established. He, followed by the appellant, immediately entered the room. When the appellant’s version was put to him, viz, that he was at all times in civilian clothes, he adapted his evidence by saying that prior to entering the mortuary room he first went to his dressing room to change. It is highly improbable that he did so. Given the contradictory nature of the entire body of his testimony the trial court’s finding that he was a credible and reliable witness is clearly wrong.

[29] Whilst it is so that the appellant’s evidence concerning the occasion he first heard that 4000ml of blood had been removed from the deceased’s abdomen is in conflict with what had been put by Mr. van der Spuy, here too, nothing really turns on the apparent contradiction. It was accepted that a considerable quantity of bloody fluid had been removed from the deceased’s abdomen.

[30] The trial court found that “accused no. 1’s evidence with regard to the aberrant artery found by him was also not impressive”. This finding is factually incorrect. At no stage was it the appellant’s evidence that there was an “aberrant artery”. What the appellant in fact said is the following: -

“ Let us now deal with the crucial one, the left uterine pedicle. Did you examine that? --- I did.

And your finding? --- That pedicle was intact with the suture material around the pedicle.

Court This is now the which uterine?

MR VAN DER SPUY Left uterine M’Lord. Carry on. --- On a closer examination of the left uterine pedicle superior to that, between the pedicle and the ovarian pedicle, there was a small branch that looked like an artery, and this structure appeared to have been crushed, and I pointed this out to Dr Angelov and said to him when you type up your post-mortem report please mention that all pedicles have been examined and make mention of this small structure above the uterine pedicle.”

[31] The criticism relating to the “adjustment” of his evidence concerning the reason for his presence at the post-mortem examination is similarly unwarranted. The general tenor of his evidence was that a combination of two factors, viz, Angelov’s perceived cavalier approach to post-mortems and his own ardent desire to establish the cause of the deceased’s death was what actuated him to attend it. The further critique concerning his reaction at seeing the untied uterine artery is based entirely on an acceptance of Angelov’s and Ebersohn’s testimony. The appellant denied having left the room and gave detailed evidence that the left uterine artery was found to be ligated and that when Angelov commenced prodding from the deceased’s right hand side he commented that the cause of the bleeding was the right uterine artery pedicle. Dissatisfied with the manner in which the post-mortem examination was conducted, he asked Ebersohn for gloves and an apron and examined the pedicles himself and discovered that a small branch which looked like an artery appeared to have been crushed and which he pointed out to Angelov, who stood idly by. The appellant’s evidence on these issues was rejected on the sole ground that it was in conflict with the version deposed to by Ebersohn and Angelov. Given the abominable manner in which Angelov conducted the post-mortem examination he and Ebersohn had more than sufficient reason to collude and fabricate their evidence. I am satisfied that no reliance whatsoever can be placed on their evidence and that the trial court’s acceptance of their testimony was entirely misplaced.

[31] Mr. Bezuidenhout submitted that corroboration for Cooper’s evidence that she conveyed the deceased’s vital signs to the appellant was to be found in the appellant’s instruction to her to change the drip from plasmalyte B to ringers lactate and to push fluids. He submitted further that this aggressive treatment compelled the conclusion that the appellant recognised that the deceased was in shock. The submission is untenable. The term “aggressive treatment” was one coined by Mr. Bezuidenhout during his cross-examination of the appellant. The question put was “But from your side you immediately prescribed reasonably, if I can put it that way, aggressive treatment for low blood pressure, is it not?” The appellant’s response, “That is correct”, does not signify that he agreed that the change in treatment was aggressive. The question was double edged and nothing can be read into his affirmative response.

[32] The appellant’s consistent version was that the information conveyed to him indicated that the deceased was either, behind on fluids, or, that her blood pressure could be low as a result of the morphine administered to her. Drs M.H Botha and J. van Helsdingen were of the unanimous view that on the information supplied to him the appellant’s conduct was beyond reproach. Dr M.H Botha was extensively cross-examined on this aspect and refuted the suggestion that the change in treatment was to treat the deceased for shock. The cross-examination was directed to gainsay the appellant’s version. Dr M.H Botha was however unshaken as the record indicates:-

“ Dis nie te sê ‘n dokter kan dit nie doen nie. Goed. Maar die punt wat ek wil maak is dat daar moes ‘n proses in Dr van Heerden se gedagtes omgegaan het om by Ringers Laktaat uit te kom. En as ek reg verstaan is dit die begin vir die behandeling van skok. --- Edele, ek dink nie ons kan die afleiding maak dat hy skok behandel het op daardie stadium nie. Hy het behandel die feit dat sy ‘n lae bloeddruk het, volgens die oproep wat hy ontvang het, en (Hof tussebei)

HOF Ja, as ek nou reg verstaan het hy toe hy die opdrag gegee het, die vloeistof wat toegedien is, verander. --- Dis reg.

En hy het dit verander na ‘n vloeistof toe wat’n mens sou aanwend waar daar skok is. Nie noodwendig net vir dit nie maar as daar skok is sou jy eerder een aanwend as die ander een weens die inhoud van glucose in die ander een. --- Ja, ek sou daarmee saamgaan, Edele.

So hierso het ons nou ‘n geval van hy word gesê die bloeddruk is laag. En dan gee hy ‘n behandeling maar hy sê nie net “Push fluids” nie, hy verander dit na die vog toe wat ‘n mens eerder gee vir skok. --- Nee, Edele, ek sou nie daarmee saamstem nie. Die rede hoekom hy die vog verander het, is omdat die vog moet vinnig inhardloop; en enige vog wat vinnig inhardloop met ‘n klomp glucose gaan noodwendig die pasiët se glucose, bloedglukose opjaag. So as hy vinnig vog wil gee, vir watter rede ookal, sou hy waarskynlik ‘n ander vog sou kies as Plasma(onduidelik).” (emphasis supplied)

Dr van Helsdingen too supported the treatment regime prescribed by the appellant.

[33] In evaluating the evidence of Cooper and the appellant, the trial court clearly had little or no regard to the probabilities. The appellant was pertinently asked what his immediate reaction would have been had the deceased’s vital signs been conveyed to him at 13h51. His response was that he would have rushed to her bedside.

[34] Given the relationship between the deceased and himself and ordinary human reaction to dire information concerning his patient, the probabilities are overwhelming that the appellant would immediately have gone to see her. The reason advanced by the trial court that his omission to go to the deceased “can be found in the fact that he had a consultation to attend to at 14:00” cannot, upon a holistic appraisal of the evidence, be sustained. The probabilities clearly favour the appellant’s version and the trial court’s conclusion to the contrary is unsustainable.

[35] It follows from the aforegoing that I accept the appellant’s evidence that at no stage were the deceased’s vital signs communicated to him and that had they been, he would have rushed to her bedside. The corollary to this finding is that the act of negligence imputed to the appellant had not been established and that his guilt, beyond a reasonable doubt, had likewise not been proved.

[36] In his judgment the trial judge, perhaps inadvertently, broadened the ambit of the act of negligence alleged in the indictment as amplified by the further particulars. The basis upon which the conviction of the appellant was sought was encapsulated in paragraph (e) and read: -

“e) The accused failed to immediately visit the deceased and determine the cause of her condition after having been alerted to it by Sister Maritz (now Cooper) and address it;”

In its judgment, the trial court, proceeding from the assumption that the deceased’s vital signs had been conveyed to the appellant stated the following:-

“It is clear from his own evidence that he should have gone to see her and it is further clear that her condition would have required that further more appropriate steps should have been taken. It follows that Accused No. 1 was also negligent by not taking appropriate steps to stop the internal bleeding of the deceased whilst suspecting that condition to exist.”

[37] The assumption proceeds from a false premise. It was never the appellant’s case that following upon the conversation with Cooper he should have gone to see her. What he in fact said was that had her vital signs in fact been conveyed to him he would, in that event, have gone to see the deceased. It was never the state’s case that his omission to visit the deceased prior to his scheduled visit between 15h00 and 15h30 during his routine ward round constituted negligence. The ground of negligence imputed in paragraph (h) of the particulars was entirely dependent on a finding against the appellant pursuant to paragraph (e) thereto. The two paragraphs must therefore be read conjunctively. The entire edifice of the state case, the actus reus upon which it relied on for a conviction, resided in paragraph (e) of the further particulars.

[38] The crime of culpable homicide consists in the negligent killing of another person and the concept of negligence has two significant components – the first, the issue of the foresight that death would be a consequence of the conduct in question. If the person’s death was not foreseeable there is no negligence. The second component relates to X’s conduct. The test of negligence requires an assessment of what should have been done in order to guard against the death of Y occurring. In order to decide whether X negligently caused Y’s death there must be a determination of what steps should reasonably have been taken to prevent the death of Y and whether X, in fact, took those steps. It is X’s failure to take those reasonable steps which determines that he was negligent in bringing about the death of Y⁴. The evidence adduced in the court below satisfies neither of these components. In conclusion I am satisfied that the state failed to discharge the onus resting upon it to establish that it was the appellant’s negligence which caused the death of the deceased and that the court below’s finding to the contrary is clearly wrong.

[39] In the result the following orders will issue: -

1. The appeal is allowed.

2. The conviction and sentence are set aside.

________________________

D. CHETTY

JUDGE OF THE HIGH COURT

Griffiths, J

I agree.

_______________________

R. GRIFFITHS

JUDGE OF THE HIGH COURT

Kemp, AJ

I agree.

______________________

L. KEMP

ACTING JUDGE OF THE HIGH COURT

On behalf of the Appellant: Adv G.E van der Spuy

Instructed by: Macrobert Inc., 50 Keerom Street, Cape Town, Tel: (021) 464 2400, Ref: Nicola Caine c/o Nettletons, 118A High Street, Grahamstown, Tel: (046) 622 7149, Ref: Mr Hart

On behalf of the Respondent: Adv J. Bezuidenhout / Adv Packery

National Director of Public Prosecutions, High Street, Grahamstown, Tel: (046) 602 3000

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