KImberley - “Would a reasonable man have foreseen the possibility of death, as a result of head injuries sustained from falling down in rocky terrain, while chasing a man after beating him with a sjambok?”
This was the crux of the arguments presented in the Northern Cape High Court in the case of Carlo du Plessis, a businessman and miner, who was accused of the murder of a farmworker after beating him with a sjambok.
Du Plessis will hear on Tuesday if his original murder charge will be changed to one of culpable homicide, assault with the intent to do grievous bodily harm or common assault in the Northern Cape High Court.
Du Plessis was initially facing a charge of murder as well as three charges of assault with the intent to do grievous bodily harm (GBH), after beating four farmworkers with a sjambok on the farm Makoenskloof, of which he is the co-owner, near Douglas on August 23 2014.
One of the workers, Mosimangape Alfred Phakedi, died on the night of August 23/morning of August 24, as a result of head injuries, allegedly sustained during the beating by Du Plessis.
However, Northern Cape High Court Judge President Frans Kgomo last week, while not formally granting an application by Du Plessis’ legal representative, Advocate Barry Roux SC, for the discharge of the murder charge, said that he “could not see how Du Plessis could be convicted of murder”; and was of the opinion that murder could not be proved.
In Du Plessis’s plea explanation, he said that after the beatings he had chased Phakedi, who ran from the road into rocky terrain, where he fell twice.
Two doctors, who testified, said that the head injuries which were the cause of death could not have been caused by the sjambok beating and that the injuries were more in line with Du Plessis’ version of events, as described in the plea explanation.
Both Roux and the State prosecutor, Theunis Barnard, on Monday presented heads of arguments on whether Du Plessis should be convicted of culpable homicide, assault GBH or common assault, in respect of the original murder charge.
Barnard argued for a culpable homicide conviction and asked one simple question; “Would a reasonable man have foreseen the possibility of death (while chasing Phakedi into a rocky terrain after beating him with a sjambok.)”
His answer to the court; “Yes, Du Plessis must have foreseen the risk of death during his pursuit of Phakedi.”
He added that it was the State’s submission that Du Plessis was, beyond reasonable doubt, guilty of culpable homicide.
Roux, in turn, made submissions on two issues, namely, whether the facts proved culpable homicide or assault GBH.
Roux said that it is common cause that Du Plessis used a “light, plastic sjambok”, hitting the deceased “moderately and without severe force, four times over his body, causing tramline bruising and not lacerations”.
He added that Phakedi then ran away and turned into the bushes, where the accused saw him fall twice.
“It is clear that the ground surface is even, with a lot of small stones and a small number of larger stones. Furthermore, he fell in an area close to his house and must have known the area well. Also, while three other complainants and even the accused ran that day, none of them fell,” Roux stated.
He then submitted that a reasonable person would not have foreseen that the deceased would fall and sustain a fatal injury, as that would “incorrectly introduce prophetic foresight, which was not the criterion”.
He requested that Du Plessis be acquitted on the verdict of culpable homicide.
On the possible assault GBH charge, Roux said that Du Plessis’ intent in his plea explanation, not to do grievous bodily harm to Phakedi, not only found support in the fact that the injuries were described as moderate but also when regarding the injuries sustained by the other complainants.
“The evidence presented by the State does not justify the intent to injure in a serious respect. I therefore submit that the court give consideration to finding the accused guilty of (common) assault (and not of assault GBH),” Roux concluded.
Kgomo is set to hand down his verdict on Tuesday.
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