More than a decade ago Acting Judge Mike Hellens made a ruling that helped to define the law around legal causation.
But now that he has returned to his position as a defence advocate, and has chosen to take on Duduzane Zuma as a client, Hellens may have to argue against his own ruling.
In 2006, Hellens was the presiding officer in S vs Tembani, a case involving a Tembisa man who shot his girlfriend in a fit of rage.
She was taken to hospital, but received negligent medical treatment and later died.
Tembani tried to argue that he should not be charged with murder - rather attempted murder - because of the hospital’s negligence, but Hellens ruled that a poor health-care system did not absolve the attacker of responsibility for her death.
It is this case law, which was later backed up by a Supreme Court of Appeal ruling that agreed with Hellens, that has enabled the State to charge Zuma with a second count of culpable homicide.
Appearing on Thursday at the Randburg Magistrate’s Court, Zuma stands accused of being responsible for the deaths of two people after his reckless driving led to a crash between his Porsche 911 and a minibus taxi.
While the first charge concerns how Zuma was responsible for the death of Phumzile Dube, the second concerns another passenger, Nanki Mashaba, who died five months after the 2014 incident.
The State suggested that Mashaba’s death was caused by the trauma she sustained during the accident, and has even used S vs Tembani to initiate the charge.
It’s a bizarre situation for Hellens, who if he decides to argue against the principles of S vs Tembani, will be disagreeing with himself.
“It’s entirely possible, and legal. He has different functions in this matter.
“Defence advocate Mike Hellens could argue against Acting Judge Mike Hellens,” said one legal expert directly involved in S vs Tembani, who asked not to be named.
The expert said there was room to argue that the case was wrongfully decided, but that it may not be required if Hellens chooses to argue the facts of the case, instead of the principles set by S vs Tembani.
It’s understood that Zuma’s defence team will argue that Mashaba’s death was unrelated to the crash, challenging the State’s causal links.
The State would likely have to prove that injuries sustained during the incident led directly to her death.
It will also have to explain why the National Prosecuting Authority failed to initiate prosecutions for four years since magistrate Lalita Chetty, in an inquest in 2014, found that Zuma was driving recklessly and could be held accountable for the deaths.
The case was postponed until August 8 to allow disclosure of the State’s evidence to Zuma’s defence team.
Duduzane Zuma also appeared in the Commercial Crimes Court in Johannesburg on Monday.
He was charged with corruption for his alleged role in attempting to bribe former deputy finance minister Mcebisi Jonas, seemingly at the behest of the controversial Gupta family.