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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT. CAPE TOWN)

CASE NO: SS263/91

DATE: 31 OCTOBER 1991

In the matter between:

THE STATE

and

HENDRIK VAN WYK

JUDGMENT

WILLIAMSON, J

The accused is charged with the offences of murder and robbery with aggravating circumstances. He pleaded guilty to both charges and a written explanation of plea in terms of Section 112(2) of the Act was handed in and confirmed by the accused as being correct.

The State did not accept the plea and led the evidence of four witnesses. It is quite clear that the deceased, who was an elderly woman of 85, who lived alone at her house, number 9, Third Avenue, Boston, Bellville, was brutally done to death on the morning of 29 May 1991. The photographs handed in by consent show the scene all too clearly and horribly. The

medical evidence by the State pathologist, Dr Van Ibberen, shows that the deceased was manually strangled with a force sufficient to fracture the ossified thyroid cartilage. She was also struck on the head and bled profusely from these injuries. She was thereafter strangled with a ligature which was very tight and which was knotted around the neck. Death was probably caused by pressure on the carotid sinus and it seems as if she was probably dead before the ligature was applied, as there were no signs of petechial haemorrhages or amnoxia. The deceased was a healthy woman for her age, and she had an abnormally thick skull which probably accounts for the absence of fractures.

What seems clear that, as the accused said in his confession to Lt Spangenberg he hit her on the head with a brick. What is also abundantly clear is that if the manual strangulation had not succeeded in killing her then the ligature around the neck undoubtedly would have done so.

The evidence of the fingerprint expert, Sgt Cronje. together with what the accused said in his confession to Lt Spangenberg and also the remaining evidence leave no or any reasonable inference other than it was the accused who robbed and killed the deceased.

Mr Sher, who appears for the accused, concedes that the robbery charge has been proved, but questions whether despite the accused plea of guilty of murder, that charge has been proved. He points to the accused plea explanation where at paragraph 4.20 the accused says that though he did not wish to kill the deceased he nevertheless realised that while he was strangling her with the ligature she might die, and yet he decided to carry on and accept that risk. He says that the accused nowhere admits that appreciated that the manual strangulation might cause death, yet on the probabilities it was this that in fact cause death. Therefore, so he argues, the accused should, despite his plea, only be convicted of culpable homicide. He emphasizes the point by arguing that if the accused really wanted to kill the deceased he could have hit her harder and more frequently with the brick which he had in his hand.

I think that the fallacy of this argument is that it adopts a rather artificial piecemeal approach to the different stages of the assault. It is obvious that the assault was one continuous operation of no significant time or duration, and viewed in its totality the assault was vicious, serious, and deadly. It is artificial to single out just single component of the assault, which was technically speaking a probable cause of death, and then say that because death was not foreseen as a result of that particular component the accused is not guilty of murder. The assault as a whole was manifestly life threatening and deadly and the accused must have foreseen and therefore by inference did foresee that death might result from the assault in its totality. Indeed he as admitted he did foresee the possibility of death, as a result of one component of the assault.

Under these circumstances it is artificial to split the one continuous assault up into compartments and describe different intentions and legal consequences to each compartment. If the accused - and even from the accused plea explanation, the objective facts of what was done to the deceased leave no room for any other reasonable inference other than the accused subjectively appreciated that death was highly probable and yet he deliberately carried out all those actions which made death inevitable. He even at the end left the deceased with a very tight ligature around the throat, lying unconscious on the floor in her own blood, and locked the door, knowing she was alone in the house without the prospect of immediate help.

We are satisfied that in these circumstances the only proper conclusion to draw is that the accused intended to kill the deceased and his dolus was directus. That is our unanimous finding and the ACCUSED IS ACCORDINGLY FOUND GUILTY AS CHARGED ON BOTH COUNTS.

WILLIAMSON, J

27 July 2011

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