THE National Prosecuting Authority (NPA) is still considering its options after paediatric surgeon Professor Peter Beale was acquitted on three charges of murder and two of fraud following the deaths of three children he had operated on.

The Gauteng High Court, Johannesburg, found that the State did not prove its case that Beale was guilty of murder, nor could it prove the lesser charges of culpable homicide.

Beale, who pleaded not guilty, faced a lengthy trial after he was arrested and charged in 2019.

This week, Gauteng NPA spokesperson Phindi Mjonondwane said that the prosecuting authority is still studying the judgment and has not yet decided on whether to appeal it.

Lawyer Sinen Mnguni, who appeared in the case on behalf of some of the parents, shortly after the judgment commented that while the parents were disappointed with the verdict clearing Beale’s name, it was still a victory for them to have arrived at the point where Beale was, in fact, prosecuted.

Although Judge Thifhelimbilu Mudau had acquitted Beale on all five charges against him, the judge referred his judgment to the Health Professions Council of South Africa (HPCSA). This is to consider an admission by Beale during the trial that he regretted leaving the hospital when the condition of one of the children was reported to him but chose to do so.

“Because of this conduct and admission, this judgment is to be referred to the HPCSA for consideration, in the event the accused considers pursuing his practice,” the judge said.

The fraud charges against Beale followed arguments by the State that he fraudulently undertook surgeries in a bid to “re-establish” his financial position after he had lost R1.5 million in the Tannenbaum Ponzi scheme.

But Judge Mudau said this was not proved by the prosecution. Beale was charged following the death of a 21-month-old baby girl in 2016 after surgery to treat acid reflux. A three-year-old also died later after being operated on by Beale. The court ordered that these two names not be made public.

Beale, who is in his 70s, also faced a murder charge following the death of 10-year-old Zayaan Sayed. In October 2019, Zayaan underwent a routine laparoscopic procedure for acid reflux at Netcare’s Park Lane Private Hospital. After nearly a four-hour surgery, his lungs collapsed, and he died a short while later.

Judge Mudau said regarding the murder charges, the State had to prove not only that the accused’s actions were the factual cause of the deaths, but also that they were the legal cause.

He noted that an issue that underlined the entirety of the State’s case, as the defence pointed out and is supported by the charges, is that the accused performed unnecessary surgeries for financial gain.

“As counsel for the accused contended, without the alleged financial motive — stemming from the need to recover losses incurred due to the Tannenbaum Scheme — the State's entire case collapses,” Judge Mudau said.

In rejecting the argument that Beale had performed the operations simply for financial gain, the judge pointed out that Beale was financially secure at the time. He also rejected the argument that Beale could have foreseen the deaths of these children before he had operated on them.

He said if this was the case, every surgeon whose patient dies during surgery would be guilty of murder based on the principle of dolus eventualis, since every surgeon is aware that death may occur in the course of an operation.

“Consequently, the necessary knowledge of unlawfulness, which is required for criminal intent, is absent, and foreseeability does not come into the picture,” Judge Mudau said.

He presided over the trial with the help of two assessors, both of whom were medical experts.

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