Acting Judge of Appeal Frans Kgomo, writing for a unanimous court,[5] approved the following dictum from S v Van Wyk:[6] All the relevant facts which bear on the accused's state of mind and intention must be cumulatively assessed and a conclusion reached as to whether an inference beyond reasonable doubt can be drawn from these facts that the accused actually considered it a reasonable possibility that the deceased could die from the assault but, reckless as to such fatal possibility, embarked on or persisted with the assault.On the medical evidence the injuries which caused death were the blows to the head.
[7]Having regard to the "sustained" and "vicious" assault upon the deceased by the appellant, the court found that "the appellant subjectively foresaw the possibility of his conduct causing the death of the deceased and was plainly reckless as to such result ensuing," and that he was therefore guilty of murder on the basis of dolus eventualis.
[8] This finding rendered the question of whether or not the appellant owed a duty to the deceased of obtaining medical assistance for him (the basis for the conviction in the trial court and subsequent appeal) unnecessary.
"[11] The SCA, despite citing Van Wyk with approval, with regard to evidential matters, did not adopt the view set forth in that case that only foresight of a reasonable possibility of the harm occurring could constitute dolus eventualis.
[12] Hoctor submits that this approach is correct, and that the foresight component of dolus eventualis should not be subjected to any such qualification.