In sum, the State called for the conviction of the accused for culpable homicide in A[…]’s case. Regarding causation, there is no evidence connecting A[…]’s death to any wrongful actions by the accused. There is nothing to show that his conduct deviated from that of a reasonable person (paediatric surgeon) in the circumstances. As the defence contended, given that the onus is on the State to prove the offence beyond a reasonable doubt, even on circumstantial evidence — the State’s case falls short of the requisite proof and is seriously wanting.
In this case, it must first be established that the initial requirement for liability is met, namely, that the accused directed his will towards committing the crime (before considering foreseeability). As the defence argued, if this requirement is overlooked, every surgeon whose patient dies during surgery would be guilty of murder based on dolus eventualis, since every surgeon is aware that death may occur in the course of an operation. In this instance, the State failed to demonstrate that the accused knew that the intra-operative act was not indicated, considering the totality of the evidence. Consequently, the necessary knowledge of unlawfulness, which is required for criminal intent, is absent, and foreseeability does not come into the picture. The State also failed to prove that the accused foresaw that E[…] could die as a result of the intra-operative act and that he recklessly disregarded this possible outcome.
Criminal law-Fraud and Murder charges following surgery related deaths- Intention – dolus eventualis – Test for dolus eventualis restated- it is whether accused subjectively foresaw the possibility of harm ensuing from his conduct, and whether he reconciled himself to that possibility- dolus eventualis nor culpable homicide not established- Circumstantial evidence – Insufficient proven facts.
FLYNOTES: CRIMINAL – Murder – Surgery on children – Deaths of three children – Fraud alleged in misrepresenting medical conditions requiring procedures to be performed – State contending that accused suffered financial losses – Motivation to perform unnecessary surgeries – State witness unreliable and discredited – Inferential reasoning to argue dolus eventualis – Accused had genuine belief that operations were indicated – Evidence showed accused to be financially secure at time of operations – Not guilty on all charges.
Regarding the requirement of causation in relation to the murder charge in Z[…]’s case, both the accused and Dr Munshi were unaware, and could not have reasonably been aware, that Z[…] was suffering from underlying myocarditis, which undoubtedly complicated the surgical process. Based on the common cause evidence and viewed objectively, had Z[…] not been suffering from myocarditis, he would likely have been able to withstand the stress imposed by the tension pneumothorax, as suggested by the expert testimony referred to above. The crime of murder is only complete when the victim dies. It is only at that moment that the cause takes effect and becomes effective as the cause of death.[10] This principle applies to all the murder charges in this case.
The undisputed evidence shows that E[…] suffered from a serious functional disease that could only be treated surgically. E[…]’s parents consented to the operation to address this functional problem. The State’s key witness, Professor Banieghbal, acknowledged that E[…] may have been suffering from a functional disease, a variant of Hirschsprung's Disease, as supported by existing literature on the condition (Exhibit W), a point that Prof Banieghbal was constrained to concede.
[162] The evidence before this Court clearly established that that there is a group of paediatric surgeons, including the accused, who, in exercising their clinical judgment, would reasonably have concluded that E[…] suffered from a functional disease that required surgery. The accused’s approach in this case was further supported by Dr Gildenhuys’ report, whom the State failed to call, recording the presence of occasional groups of ganglion cells.
[163] As for the surgery itself, Dr Banieghbal initially criticised the procedure performed by the accused on E[…]. However, when asked whether his evidence on the surgery should be ignored until the pathologist, Dr Moeng, had explained her report, he conceded, thus making a vital concession. As indicated, Dr Moeng was never called by the State. The accused specifically disputed Dr Moeng’s post-mortem report. Dr Moeng's report refers to the “defect” being in the rectum, whereas, according to the accused, the operation was performed on the anal canal, as demonstrated in his testimony. Given the accused’s testimony and his demonstration of how the surgery was conducted in E[…]’s case, Dr Moeng's post-mortem report cannot be relied upon, notwithstanding the provisions of section 212(4) of the CPA.
Contrasting evidence before the Court does not assist the Court in determining with any degree of certainty whether E[…]’s rapid deterioration in the ward was because of peritonitis due to an anastomotic leak or from aspiration of gastric content into the lung. Complications are part of everyday surgical practice, Their detection and management form part of every surgeon’s training and practice. E[…]’s complication, whether primarily abdominal or pulmonary should have been detected earlier and managed appropriately. That this did not happen is primarily due to the inadequate number of experienced nursing staff in the ward on the night of E[…]’s surgery who neglected to report to the accused the deteriorating situation of E[…] on time. When they finally did so in the morning, it was too little too late.
The undisputed evidence shows that when the accused visited E[…] post operatively on the evening of the operation, there was no need for medical intervention, other than possibly following up on E[…]’s progress. Nurse Mankoe, on behalf of the State, confirmed that when the accused attended to E[…] at about 19:20, “there was no reason for concern”. The nursing staff assured the accused that E[…] was fine, which was consistent with Sister Hine’s assessment. The accused was contacted around 4:20 regarding E[…]’s deteriorating condition. He immediately departed for the hospital, where upon arrival, the code blue team and Dr Obor had already attended to E[…], and the accused took over.
S v Beale (SS10/2021) [2025] ZAGPJHC 209 (4 March 2025)