Balkwell v The State

Steven Balkwell (first appellant) and Clinton Alan Barendse (second appellant) were convicted of culpable homicide and sentenced to seven years imprisonment each. The deceased, Michael Burke, was employed by the Balkwells at their photo-lab. On 1 November 1999, he misappropriated R17,000 from the business and disappeared with the business keys. The next day, the first appellant tracked the deceased to a flat in Paradise Valley. The first appellant returned to the flat that evening with his wife Lindse and the second appellant (a bouncer). They assaulted the deceased at the flat and demanded the money. The deceased arranged to meet his brother-in-law to obtain the money. As they were leaving, the appellants assaulted the deceased again in the parking lot. The deceased lost consciousness, defecated in the car, and appeared to have died. His body was thrown down a gorge at Botha's Hill, Camperdown. The body was found approximately one week later in an advanced state of decomposition after a pointing out by the first appellant. A post mortem examination could not definitively establish the cause of death due to decomposition, but noted various injuries including bruising and a fractured nasal bone. No drugs were found in toxicology tests, though the deceased had a history of drug dependency.

• Whether the appellants caused the death of the deceased through their assault
• Whether the appellants ought reasonably to have foreseen that death might ensue from their assault
• The admissibility and weight to be given to a bail affidavit tendered as an admission under section 220 of the Criminal Procedure Act
• Whether the bail affidavit could be used as evidence against a co-accused
• The reliability of single witness testimony in the absence of corroboration
• Whether the sentences of seven years imprisonment were appropriate

The appeals against both conviction and sentence were dismissed. The convictions for culpable homicide and sentences of seven years imprisonment for each appellant were upheld.

In a culpable homicide case, where an accused assaults a victim who subsequently dies, the accused will be criminally liable if: (1) the assault was the factual cause (sine qua non) of death; (2) the assault was also the legal cause of death; and (3) the accused ought reasonably to have foreseen the possibility of death resulting from their conduct. Reasonable foreseeability must be assessed on the totality of the circumstances, not merely the visible injuries observed post mortem. A bail affidavit tendered by an accused's own legal representative as an admission under section 220 of the Criminal Procedure Act is admissible against that accused but remains hearsay against a co-accused and cannot be used against the co-accused unless properly admitted under section 3 of the Law of Evidence Amendment Act 45 of 1988. Section 60(11B)(c) of the Criminal Procedure Act has no application where the affidavit is tendered by the accused rather than by the State. Evidence introduced at a late stage without being put to relevant opposing witnesses and without affording the opposing party an opportunity to properly respond constitutes trial by ambush and will ordinarily be disregarded or given little weight.

Ponnan JA expressed significant reservations about the use of extra-curial statements of one accused against a co-accused under section 3 of the Law of Evidence Amendment Act, even while concurring in the result. He noted that: (1) At common law, extra-curial statements of one accused were inadmissible against co-accused, a rule given statutory force in section 219 of the Criminal Procedure Act for confessions. (2) The approach in S v Ndhlovu 2002 (6) SA 305 (SCA) which allows such evidence under section 3 raises serious fair trial concerns. (3) An accused implicated by a co-accused's extra-curial statement (which is later disavowed) has no meaningful opportunity to cross-examine and no protection from cautionary rules that would apply to viva voce evidence. (4) This creates an incongruity where extra-curial statements that pass a lower threshold of scrutiny than viva voce evidence can be equally damning. (5) Such an approach may prevent an accused from making informed decisions about conducting their defence. (6) It may be a fundamental aspect of a fair trial and the adversarial nature of criminal proceedings that section 3 be interpreted to prevent extra-curial statements of one accused from being admissible against a co-accused, though this did not arise for decision in this case. Maya JA also observed obiter that trial by ambush is to be frowned upon no less when it occurs at the instance of the defence. She noted that concentrated maggot infestation in the head area is not necessarily indicative of head injury as maggots are ordinarily attracted to moist areas such as nostrils, eyes and mouth, and the brain is 'their food store'.

This case is significant for several reasons: (1) It clarifies the treatment of bail affidavits tendered as admissions under section 220 of the Criminal Procedure Act - such affidavits are admissible against their maker but remain hearsay against co-accused unless admitted under section 3 of the Law of Evidence Amendment Act 45 of 1988. (2) It demonstrates the application of culpable homicide principles where causation is established but exact cause of death cannot be determined due to decomposition. (3) It illustrates how courts approach foreseeability in culpable homicide cases, considering the totality of circumstances rather than focusing solely on visible injuries. (4) Ponnan JA's concurring judgment raises important concerns about fair trial implications when extra-curial statements of one accused are used against a co-accused under section 3 of the Law of Evidence Amendment Act, questioning whether adequate safeguards exist and expressing disquiet about the approach in S v Ndhlovu 2002 (6) SA 305 (SCA). (5) The case reinforces principles regarding trial by ambush and the duty to put one's case to opposing witnesses, particularly when introducing expert evidence at a late stage.