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[2016] ZAWCHC 84
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S v Adams (SS 69/2015) [2016] ZAWCHC 84 (21 June 2016)

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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: SS 69/2015
DATE:
21 JUNE 2016
In the matter
between:
THE
STATE
Vs
BENNIE
ADAMS
JUDGMENT
DELIVERED ON TUESDAY 21 JUNE 2016
MAHOMED,
AJ
INTRODUCTION
[1] The Accused,
Mr Bennie Adams (Adams), is a 38 year-old male charged with:
housebreaking with the intent to commit kidnapping
and kidnapping,
rape, assault (common) and murder.  The allegations arose from
the events that occurred during 10 and 11 December
2014, within the
district of Kuils River.  Mr Caiger appeared on behalf of Adams,
and Mr Theron together with Mrs Herbst represented
the State.
[2] The charges
against Adams, arose from the allegations that: on or about 10
December 2014 and at 3 M S, H P, K R, in the district
of K R, Adams,
an adult male, unlawfully and intentionally, broke into the home of
the complainant, Ms U N (Ms N), a 32 year old
female, with the
intention to commit kidnapping, and kidnapped Ms N by assaulting her
and forcing her against her will to accompany
him to his home at 4 C
H S, K R (charge 1); on or about 10 and 11 December 2014 and at 4 C H
S, K R, in the district of K R, Adams,
an adult male, unlawfully and
intentionally had sexual intercourse with Ms N, a 32 year old female
by penetrating her vagina with
his penis, without her consent in
contravention of the provisions of
Sections 1
;
55
;
56
;
57
;
58
;
59
;
60
and
61
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
and read with
Sections 92(2)
,
94
,
256
and
261
of the
Criminal Procedure Act 51 of 1977
- (rape) read with the
provisions of
Sections 51
and
52
and Schedule 2 of the
Criminal Law
Amendment Act 105 of 1997
, as amended (charge 2); on or about 10 and
11 December 2014 and at 3 M S, H P, K R and 4 C H S, K R, in the
district of K R, Adams,
an adult male, unlawfully and intentionally
assaulted Ms N, an adult female, by hitting her with his fists
(charge 3); and on or
about 10 and 11 December 2014 and at 47 C H S,
K R, in the district of K R, Adams unlawfully and intentionally
caused the death
of his minor son with Ms N, A D N, a two year and
nine month old male toddler, by hitting him with his fists and
assaulting him
in other ways which are unknown to the State.  The
Accused is charged with murder read with
Section 258
of the
Criminal
Procedure Act 51 of 1977
, read with the provisions of
Sections 51
and
52
and
Part II
of Schedule 2 of the
Criminal Law Amendment Act 105 of
1997
, as amended (charge 4).
[3] Adams pleaded
not guilty to charges 1, 2 and 4 and guilty to charge 3 and
understood that the minimum sentence of 10 years imprisonment
in
terms of
Section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
read with
Part III
of Schedule 2 is applicable in respect of charge 2
(rape), and that the minimum sentence of 15 years imprisonment in
terms of
Section 51(1)
of Act 105 of 1987 read with Part II of
Schedule 2, is applicable in respect of charge 4 (murder), in the
event that this Court
finds him guilty.
[4] At the outset
Adams made certain admissions in terms of Section 220 of Act in
respect of charge 4 (murder).  He admitted
the name of the
deceased minor as reflected in the charge-sheet; and that Dr. C I
Herbst performed the autopsy on the body of the
minor deceased on 15
December 2014, and that her findings are reported in the form WC
14-3034-14, marked as Exhibit C1-3.
BACKGROUND
[5]
The substantial facts summarised were as follows:
5.1.
During the night of 10 December 2014, Ms N and the minor deceased
were asleep when they were
abruptly woken up by Adams hitting her.
5.2
Despite locking the door with two slide locks from the inside before
they went to bed, Ms
N discovered that A had succeeded in opening the
door.  He had reached through a gap in the door, forced the
slide lock open,
and entered the premises together with his friend
Velaphi (Wendell Kouter).
5.3
Adams handed the deceased to Velaphi, while he continuously assaulted
her and forced her
to accompany him to his home at 4 C H S, K R,
against her will.
5.4.
When they arrived at Adams’ home, he chased Velaphi away and
proceeded to assault Ms N
and the deceased by hitting them with his
fists and open hands.
5.5
Each time the deceased attempted to either look at his mother or go
to her, Adams would
assault the deceased repeatedly, saying words to
the effect that he should take his hiding like a man.
5.6
Adams instructed Ms N to make up the make-shift bed on the floor with
the additional mattress
that he had in his home, and he further
assaulted her and ordered her to undress, while the deceased lay on
the bed in the same
room.
5.7
Adams then proceeded to have sexual intercourse with Ms N without her
consent while the
child lay on the bed in the room.  Ms N
pleaded with Adams and expressed her wishes not to have intercourse.
5.8
The following morning at approximately 6.00am, Ms N fled to the K R P
Station seeking help.
5.9
At the time, Ms N left the deceased with Adams, thinking that it
would raise his suspicion
if she left with the deceased and that
Adams would follow them and force them to go back to his home.
5.10
Ms N went to the Kuils River Police Station.  She was not
assisted, turned away and told that she was
under the influence of
alcohol.  I will return to this aspect later.
5.11
After spending all morning at the police station expecting to be
helped in her hour of need, Ms N went to
the Magistrates Court
nearby. Sometime during the afternoon of 11 December 2014, Ms N with
the assistance of Ms Judith Anne Du
Preez, a crisis counsellor with
Mosaic stationed at the Magistrate's Court, finally managed to obtain
a Protection Order against
Adams.
5.12
Despite the Protection Order, the police still refused to assist Ms N
and after various attempts to seek
help she then made her way to
Adams’ home.  She waited on the street corner nearby
fearing that if she entered Adams’
home he would assault her
again.
5.13
While Ms N was waiting there her mother arrived with her older sister
after receving the news that her grandson
had died.  When the
ambulance arrived Ms N discovered that the deceased had passed away
and had visible and severe injuries,
which were not there when she
left him with Adams.
5.14
According to Ms N, both she and the deceased had been diagnosed with
HIV when she gave birth to the deceased.
5.15
Ms Nicholas stated that she had contracted the HIV virus from the
Accused.
SUMMARY
OF STATE EVIDENCE
[6] The State
relied on the evidence of nine (9) witnesses namely, Ms U N, the
complainant (Ms N); Ms Judith Anne Du Preez, a crisis
counselor in
domestic violence employed by a non-governmental organisation (NGO)
called Mosaic; Dr. Donovan Mark Andrews, who examined
Ms N on the 12
December 2014 in regard to the rape incident; Constable Rhys Malcolm
Jackson, a Detective Constable in the South
African Police Services
(SAPS) who was called to the crime scene on 11 December 2014; Mr.
Dimitri Jonathan October, the paramedic
who issued the Declaration of
Death of the deceased; Dr. Celeste Ingrid Herbst (Dr Herbst), who
performed the post-mortem examination
on the body of the deceased;
Professor AB Van As, who gave an expert opinion based on the findings
of Dr Herbst and his own experience
and expertise as a Paediatric
Trauma Surgeon; Colonel Edward Clark the SAPS detective who, in his
capacity as Commander of the
Detective Unit of the Kuils River
Detective Services, arrested Adams on 12 December 2014 on the charges
of murder (of the deceased)
and rape (of Ms N); and Lieutenant
Colonel Adriaan Pretorius, the SAPS detective stationed at the Blue
Downs Cluster who was part
of the investigation team.
[7] The State
also relied on various documents: the Application for the Protection
Order in terms of
section 4(1)
of the
Domestic Violence Act 116 of
1998
; the J88 report; the post-mortem report and a portfolio of
photographs of the minor deceased compiled by Dr CI Herbst as well as

photographs of the crime scene supported by the affidavit of
Constable Lauren Natalie Williams (the police photographer); the
identification statement of Ms U N; the Forensic Pathology
Identification and affidavits of the Forensic Officers Andre Roland
Koopman, Na-eem Smith and Bradley Du Preez, in terms of
section 212
of the
Criminal Procedure Act 51 of 1977
; and the written
Medico-Legal Opinion of Prof AB Van As dated 2 October 2015, the
Notice of Rights in terms of the Constitution;
the Statement
regarding the interview with the suspect;  a further Notice of
Rights in terms of the Constitution; and a warning
statement by
suspect.
[8] The Defense
called three (3) witnesses to testify, including Adams (the accused),
Mrs O A (A’ mother), and Ms N A (A’
sister).
[9] The State
attempted to call a person known as Velaphi (Wendell Kouter) as a
witness but he could not be traced.
[10]
The second witness to testify for the State was Ms Judith Anne Du
Preez (Ms Du Preez), a crisis   counsellor in domestic
violence
employed by an NGO called Mosaic. She testified that she was
stationed in Room 14 at the Magistrate's Court in Kuils River
on the
afternoon of 11 December 2014, when she encountered Ms N who was
concerned about the safety of her child and desperately
seeking help
from the police to fetch him.
[11]
Ms Du Preez confirmed that at the time Ms N presented herself, she
was barefoot, unkempt, very emotional and deeply distressed
but not
under the influence of alcohol.  She testified that the police
had refused to help Ms N.
[12]
The evidence of Ms Du Preez established the basis for the "first
report" of rape and she also confirmed Ms N’
statement of
the assault that took place on 10 December 2014.
[13]
Ms Du Preez was instrumental in assisting Ms N to obtain a Protection
Order which was intended to solicit help from the police
to fetch the
deceased from the accused.
[14]
Dr Donovan Mark Andrews (Dr. Andrews), the doctor who examined Ms N
at 03:40pm on 12 December 2014 and compiled the J88 form,
gave
evidence that he had noted approximately one week old injuries on her
lower arms indicative of a previous assault reported
by Ms N as an
assault with a hammer in those areas.
[15]
Ms N reported to him that she was raped.  Dr Andrews testified
that while the vaginal and anal examination did not show
injuries,
the “
patient stated that the
alleged attacker had not used a condom, she had bathed, washed,
douched, showered, urinated or changes clothes
prior to me examining
her
.”
[16]
Dr Andrews further testified that it is usual when someone alleges
rape that a swab is taken for DNA purposes. There was not
enough DNA
when he examined Ms N and he explained that could mean a number of
things. A negative DNA swab would indicate a number
of scenarios but
it would be speculative as to what the reasons were.  He stated,
for example, that the attacker could have
ejaculated outside of the
vagina, or the attacker could've worn a condom, or the patient could
have wiped or washed herself.  In
some women, the particular
bacterial colony in the vagina actually destroys the DNA.  He
testified that the absence of physical
signs of rape could be
explained by the fact that Ms N was an adult, was sexually active and
had already given vaginal birth twice.
He concluded that there
was no medical evidence that Ms N had been raped, but stated that he
could not rule out rape or sexual
assault.
[17]
Constable RM Jackson testified that he was on standby when he was
called to the crime scene. When he arrived there he found
Ms N was
unable to speak and in a state of shock.  He asked Adams what
had happened and he responded that the deceased fell
off the bed
while they were sleeping and that the deceased had no injuries before
they went to bed.  In his opinion, it was
impossible for someone
to sustain the type of injuries on the deceased from falling off the
bed.  When he questioned Adams
further about this he stated that
Adams "
didn't want to speak to me
anymore
".
[18]
Mr. Dimitri Jonathan October, was the paramedic who responded to the
call that there was a two year old baby with respiratory
distress and
arrived at the crime scene on the 11 December 2014. He issued the
declaration of the death of the deceased after examining
the body at
18:45.  He testified that the accused informed him that the
deceased had been ill for a long time and that he
may have sustained
injuries from falling at the shebeen frequented Ms N when the
deceased was with her.  He testified that
he could see, “
there
were visible signs of trauma, there were some scratch marks on the
baby’s face, there was also a bluish discoloration
just above
the eye like a swelling”.
[19]
Dr Celeste Ingrid Herbst (Dr Herbst) was the Forensic Pathologist at
Tygerberg who performed the post-mortem examination on
the body of
the deceased on 15 December 2014.  She compiled the Report on
the Medico-Legal Post-Mortem Examination, took the
photographs marked
exhibit C2 and desposed to the affidavit in terms of
section
212(4)(a)
of the
Criminal Procedure Act 51 of 1977
.  In response
to the question as to whether there was any evidence of previous
neglect or old abuse or old injuries to the
body, she found that the
deceased had no signs of old or chronic injuries and all injuries
were noted as acute and recent.  Her
chief findings of the post
mortem examination were that, “
all
the injuries found at post mortem were acute and inflicted just
before death”
.
[20]
Dr Herbst found that severe blunt force caused the bruises, abrasions
and lacerations to the head, brain, chest, face, mouth,
eyes, abdomen
and even perineum, with abrasions over the scrotum of the deceased.
She testified that the deceased suffered
blood loss as a result
of the injuries.  In her opinion, the cause of death was “
blunt
force trauma to the head and body (unnatural)”
.
[21]
Dr Herbest also noted that, “
the
child had inflammation in the left lung, showing that the child was
in fact ill, however the severity of this did not contribute
towards
the cause of death”
.
[22]
Dr Herbst gave evidence that the deceased’s stomach contained
only approximately 5ml’s of pale brown fluid, his
liver
appeared pale and weighed 460g, and his bladder was empty.
[23]
Professor AB Van As, a Specialist Surgeon in the field of Paediatric
Trauma at the Red Cross Children’s Hospital, corroborated
the
findings of Dr Herbst.  According to his evaluation, the
deceased had a chronic lung infection which did not contribute
to the
cause of his death.  He testified that, “
It
is to me inconceivable that the wide range of injuries sustained in
the deceased were a result from a simple fall.  The
extent of
the injuries can only be explained by the mechanism of a non
accidental injury”
.  He
defined “
non accidental”
as “
violence or maltreatment on
the child”
.  He concluded
that the deceased must have been severely assaulted over a prolonged
period of time, and would only have had
a chance of survival had he
been rushed to the hospital immediately after the assault because,
“
the injuries were really very
very servere”
.  Professor
Van As testified that the extent of the injuries would still have
caused permanent brain damage in the unlikely
event that the child
had survived.
TRIAL-WITHIN-A-TRIAL
[24]
During the testimonies of Colonel EW Clark and Lieutenant Colonel AM
Pretorius, the detectives who investigated the charges,
the Defense
questioned whether Adams had properly understood his constitutional
rights as a suspect and accused because he cannot
fully appreciate
English.  This resulted in a trial-within-a-trial to determine
the admissibility of the Statement of Interview
with the Suspect
marked exhibit “P”, Notice of Rights in terms of the
Constitution marked exhibit “Q”,
and the Warning
Statement by the Suspect marked exhibit “R”.  After
hearing the evidence presented particularly
from the accused, I
decided to accept and allow to be led into evidence the fact that
Adams made a statement to the police, in
particular, Lieutenant
Colonel Pretorius, and the statement is marked exhibit “P”;
also that Adams was informed of
his constitutional rights set out in
exhibit “Q” and that he was clearly advised of his rights
and the contents of
the statement are not in dispute; and further,
Adams received a warning statement marked exhibit “R” and
that his signatures
are appended to all these documents.
Accordingly, I concluded that Adams understood his rights and
admitted into evidence
exhibits “P”, “Q”, and
“R”.
SUMMARY
OF DEFENCE EVIDENCE
[25]
Adams initially elected to remain silent and not testify, but during
the trial he indicated through his counsel that he wished
to testify
in his own defense.  The Defense also called his mother and
sister as witnesses before closing his case.
[26]
During examination-in-chief, Adams testified that on 10 December
2014, he opened the door of the place where Ms N and the deceased

were sleeping by reaching through a small gap under the door and
opening the lock.  He entered the “
hokkie”,
as he called it, without her permission.  He therefore conceded
that he had entered without consent and was guilty of housebreaking.
[27]
Adams admitted that he assaulted Ms N while she was sleeping next to
her child, in the process waking her up.  He testified
that he
hit her with an open hand and stated that Ms N panicked in the
darkness and screamed when he assaulted her.
[28]
When confronted with the injuries of the deceased in
examination-in-chief, and how it came about that the child was
severely
injured, Adams simply stated “
geen
kommentaar”
(no comment).
[29]
The Defence led evidence from Adams and Ms Olga Adams to the effect
that Ms N was a terrible mother to such an extent that
she
contributed to the deceased’s death because of her drug
addiction.  Adams testified that he is a good father, and
went
to look for Ms N and the deceased because he was concerned that the
child was ill and was not being cared for properly.
[30]
Adams wanted the Court to believe that Ms N voluntarily accompanied
him and even initiated intercourse with him.  He testified
that
she had made advances towards him for the purpose of having sexual
intercourse on the evening of 10 December 2014 and denied
that he had
sexual intercourse with Ms Nicholas.
[31]
Adams testified under cross-examination that he had not given the
deceased anything to eat or drink throughout the period that
he was
in his care.  He tesfified that he found the deceased outside
the door the following morning (11 December 2014), crying
for his
mother.  The accused noticed an old abrasion underneath the
deceased’s eye, but that his eyes were not swollen
as yet.  He
picked up the deceased, discovered that he wet his pants and dried
his bottom.  He then placed the deceased
on the bed where they
slept further.  Adams gave no account of any events for the
remainder of the day until it was discovered
that the deceased had
died.
[32]
The accused testified, "
Toe ek
wakker skrik het ek vir my ma n entjie gevra
en vir my ma gesê om na die kind
te gaan kyk want die kind lyk nie reg nie.  My ma het toe
opgelet dat die kind dood
is
."
[33]
Ms O A, the mother of the accused, was called to testify on his
behalf.  She gave evidence on the circumstances before
the death
of the deceased and confirmed that she had encouraged Adams to fetch
the deceased because she heard that he was ill and
concerned that his
mother was neglecting him due to her drug problem.   She
stated that she was aware that Ms N and the
deceased were in the
accused’s “
hokkie”
on the 10 December 2014.  Under cross-examination she testified
that she heard them having a verbal altercation - in her words
it was
"’
n
stryery, nie bakleiery nie
",
implying that there were no signs of Ms N being beaten.
[34]
Ms N A, the Accused’s sister, also testified on his behalf but
her evidence did not take the case further in any material
way.  She
testified that she became aware that the deceased had taken ill and
that her mother wanted to fetch him.  When
Adams came out of
work, her mother told him to look for Ms N and the child.  That
evening she thought she heard Ms N’
voice but wasn’t sure
and did not look out of her window.  She testified that Adams
looked after his children and that
they loved him.  On the
evening of 10 December 2014 she heard “’n
stryery”
but not “
bakleiery soos goed wat
in the rondte val, sulke harde geluide nie”
.
She did not hear the child crying that evening.  She could
not say if Ms N had been beaten by Adams.  She testified
that
she heard the door to the “
hokkie”
open at approximately 06:00am on 11 December 2014, but was not sure
who it was that left.  She did not see the child all day
because
she went to work.
ARGUMENTS
The
State
[35] At the close
of the Defenses’ case, after all the evidence was presented,
counsel for the State argued that Adams be
found guilty on all 4
charges against him.  They argued that the Court should have
regard to all the evidence as a whole,
and specifically that the
deceased’s lung condition had no bearing on the cause of death.
Adams had forcefully taken
Ms N and the deceased to 4 C H S, K
R, assaulted them, raped Ms. N and murdered his son with
dolus
directus,
because Adams had testified that he was not under the
influence of alcohol or drugs.  The Court was asked to look at
the surrounding
circumstances and the fact that Ms N did not want to
be at 4 C H S, K R with Adams.  The question was asked, why then
would
Ms N initiate sex by sitting on Adams, while she had been
deprived of her freedom, was concerned about her child and did not
want
to be there.  Mr Theron argued that there are cases where
fathers kill their children in a fit of rage often to punish the

woman, and highlighted a recent case that appeared in the media
involving a six-month old baby that was allegedly killed by the

father.  Having regard to the injuries, he submitted that it
wasn’t a “
klap here or there”,
because it
caused the swelling of the brain. Mrs. Herbst argued that the State
did not consider the evidence of Ms O A and Ms N
A to be of any value
that would add to the points in dispute because they were not present
during the day of the assault and murder
of the deceased, and assault
and rape of Ms N.  The State accepted that they did not add
anything to the statements that they
had provided in the initial
consultations when the prosecution considered calling them as
witnesses.
The Defense
[36] Mr. Caiger
argued that Adams had admitted to the charge of assault on Ms N
(charge 3).  He conceded that the evidence
presented by Adams
confirmed his admission to committing housebreaking (charge 1) at the
place where Ms N was residing on 10 December
2014.  In his
submission, the reason Adams pleaded not guilty was because he did
not understand that if you just open a door
or push a door open, that
it amounts to housebreaking.  Mr Caiger argued that with so
little proof, the charge of rape came
down to Adams’ version as
against Ms N’ version, and that Adams did rise to the occasion
and rebut the evidence against
him.  Adams version was that he
denied raping Ms. N and that she wanted it.  He conceded that Ms
N testimony improved
under cross-examination and he would not place
much credit on Adams’ version that she wanted it.  In his
view the charge
of murder was based on circumstantial evidence,
except for the doctors who gave evidence as to the injuries which
caused the child’s
death, albeit without arguing another
possible conclusion.  He argued that Ms O A gave useful evidence
on the surrounding
circumstances of the child’s death and the
fact that she told Adams to take the child – the reason why the
child was
fetched.  She heard the argument that was going on
which according to him, supports Adams’ version that he argued
with
Ms N.  Ms Adams said it was a “’
n stryery,
nie bakleiery nie”.
He argued that this meant there
wasn’t any fists or hitting or anything.
[37] Mr Caiger
submitted that it is not the practice of the Defense to put a useless
or hopeless case when the case of the Defense
is not a strong one.
He argued that Adams did not want to comment on the death of
the child and because of this the only
version put forward by the
defense is that the child slipped or fell off a bed.  But he
conceded that the injuries were inconsistent
with this version.
[38] Mr. Caiger
argued that he did not think that any father would commit a murder
with
dolus directus
.  He conceded that Adams might have
gotten into a rage for some reason or other and therefore
dolus
eventualis
was more appropriate in the sense that if one
continues with these assaults death could have been foreseen.  In
his view
dolus directus
is an inference too far and that
dolus
eventualis
was more consistent with the evidence.
[39] Mr. Caiger
asked the Court to consider the evidence of other witnesses (Adams’
mother and sister) who testified of his
regard for his children and
how well he looked after them.  While Ms N had a lot to say
about this, he asked the court to
bear in mind that she had a
particular grudge against Adams because he beat her.  He
conceded Adams’ guilt in respect
of housebreaking and assault
and asked the court to decide whether Adams was guilty or not of rape
and murder.
THE
APPLICABLE LAW
[40]
It is axiomatic based on well-established legal principles that
the
guilt of Mr Adams must be proved beyond reasonable doubt.  Plasket
J enunciated the principle in
S v
T
2005(2) SACR 318 (E) at
p329 para [37]
as follows:
“
The
State is required, when it tries a person for allegedly committing an
offence, to prove the guilt of the accused beyond reasonable
doubt.
This high standard of proof-universally required in civilized systems
of criminal justice-is the core component of the fundamental
right
that every person enjoys under the Constitution, and under the common
law prior to 1994, to a fair trial.  It is not
part of a charter
for criminals and neither is it a mere technicality. When a court
finds that the guilt of an accused has not
been proved beyond
reasonable doubt, that accused is entitled to an acquittal, even if
there may be suspicions that he or she was,
indeed, the perpetrator
of the crime in question. That is an inevitable consequence of living
in a society in which the freedom
and the dignity of the individual
are properly protected and are respected. The inverse-convictions
based on suspicion or speculation-
is the hallmark of a tyrannical
system of law. South Africans have bitter experience of such a system
and where it leads to.”
[41]
In considering all the evidence and the submissions by counsel for
the State and the Defense
in casu
,
it is necessary to have regard to
section 208
of the
Criminal
Procedure Act 51 of 1977
, which requires the evidence of a single
witness to be clear and satisfactory in all material respects.  I
am also mindful
that not every inconsistency or error made by a
witness affects his or her credibility, and the error or
inconsistency does not
ordinarily weaken the other testimony.
(S
v Oosthuizen
1982(3) SA 571 (T))
[42] In
S v
Stevens
2005 (1) SCA
the Court per Navsa and Van
Heerden JJA indicated that the correct approach to the ‘
cautionary
rule’
with regard to single witnesses is the one set out in
S v Sauls and Others
1981(3) SA 172
(A) at
180 E-G
by Diemont JA as follows:
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
remarks
of Rumpff JA in S v Webber…). The trial judge will weigh his
evidence, will consider its merits and demerits and,
having done so,
will decide whether it is trustworthy and whether, despite the fact
that there are shortcomings or defects or contradictions
in
testimony, he is satisfied that the truth has been told. The
cautionary rule referred to by De Villiers JP in 1932 [in R v
Moekoena
1932 OPD 79
at 80] may be a guide to a right decision but it
does not mean “that the appeal must succeed if any criticism,
however slender,
of the witnesses’ evidence were well-founded”
(per Schreiner JA in R v Nhlapo (AD 10 November 1952) quoted in R v
Bellingham
1955 (2) SA 566
(A) at 569.) It has been said more than
once that exercise of caution must not be allowed to displace the
exercise of common sense.”
[43] The court
takes cognizance of Adams’ stark “
no comment”
response to the severe injuries found on the deceased’s body.
In
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(at para 22)
the Constitutional Court held:
“
The
fact that an accused person is under the obligation to testify does
not mean that there are no consequences attaching to the
decision to
remain silent during the trial.  If there is evidence calling
for an answer and an accused person chooses to remain
silent in the
face of such evidence, the court may well be entitled to conclude
that the evidence is sufficient in the absence
of an explanation to
prove the guilt of the accused.”
[44] In order to
establish
dolus directus
it is necessary to consider whether
Adams had directed his will to causing the death of the deceased.
Intention must not
be inferred by hindsight from the fact of
death. If Adams foresaw the possibility that his actions would cause
the death of the
deceased, and was reckless to such a result, then
dolus eventualis
may be found.  The fact that objectively
Adams ought reasonably to have foreseen the possibility of the death
of the deceased
is not sufficient. Subjective foresight may be proved
by inference and to constitute proof beyond reasonable doubt that
inference
is the only one, which can reasonably be drawn. It cannot
be drawn if there is a reasonable possibility that subjectively the
accused
did not foresee.  Per
S v
Sigwala
1967 (4) 566 AT 570 B-E.
[45] Similarly,
Snyman (5
th
edition), refers to
S V De Bruin &
Another
1968 (4) SA
498A
at 501G-H
and
explains:
“
For
dolus eventualis to exist a person must be proved beyond a reasonable
doubt to have acted with the intention where the commission
of the
unlawful act was the causing of the unlawful result is not the main
aim but he subjectively foresees the possibility that
in striving
towards his main aim the unlawful act may be committed and he
reconciles himself to that possibility.  In reconciling
himself
to the possibility the accused’s conduct may be described as
reckless.”
[46] The State
also made reference to
R v LEWIS
1958 (3) SA 107
(A)
at
109,
that dealt with a deliberate act designed to be effective
where the court held:
“…
in
order to be effective it had of necessity to be severe, continuous
and of some duration.”
[47] In
considering the States’ case against Adams, it is necessary to
have regard to the issue of whether the State has met
the ‘
ultimate
requirement’
referred to in
S v Mthethwa
1972(3) SA
766 (A) at p769D-F:
“
The
ultimate requirement, of course, is proof beyond reasonable doubt;
and this depends upon an appraisal of the totality of the
facts,
including the fact that he did not give evidence
.”
CONDUCT
OF THE POLICE
[48]
The circumstances of this case compel me to comment on the conduct of
the police at the Kuils River Police Station and their
undignified
treatment of Ms N, even after she had obtained a Protection Order on
11 December 2014.  It is now well known that
the police failed
to carry out their duties and to assist Ms N in her desperate time of
need.  Had the police fulfilled their
duties as a police service
to the people they were actually meant to serve, and helped her when
she first approached them, her
son might still be alive today.  I
find the conduct of the police officers that were stationed at the
Kuils River Police Station
on that day especially regrettable
considering the prevalence of violence and abuse of women and
children in the context of the
dire socio-economic conditions of
communities within the district of Kuils River.  In my opinion,
such conduct is akin to
an apartheid police “force”
steeped in ignorant, discriminatory and exclusionary practices that
are inconsistent with
the values and precepts of a constitutional
democracy.
[49]
In
casu
,
the events that unfolded on 10 and 11 December 2014, occured during
the official 16 Days of Activism against Gender Violence Campaign,
a
global awareness initiative that has been embraced by the government
of South Africa.  It occurred at a time when the police
ought to
have been especially vigilant in protecting and serving the most
vulnerable and marginalised in our society, namely women
and children
in poor and indigent communities.
[50]
The 16 Days of Activism Campaign commences on 25 November
(International Day for the Elimination of Violence against Women)

each year and includes Universal Children’s Day and World Aids
Day, ending on International Human Rights Day in December.
The
facts of this case resonates with the Court in respect of all of
these significant days in the global human rights calender,
and
highlights the need to review the police protocols in respect of the
treatment of women and children and for the effective
delivery of
policing services to the most vulnerable in our communities.
Where necessary remedial measures should be considered
in
collaboration with NGO’s and should include proper community
participation with the view to ensuring that women and children
who
find themselves in the position of Ms N and the deceased are
respected and protected by the police.  I am therefore directing

the Registrar of the High Court to send a copy of this judgment to
the Station Commander of the Kuils River Police Station, the

Provincial Commissioner of Police in the Western Cape, the
Independent Police Investigative Directorate (IPID), the Office of
the Western Cape Police Ombudsman, the MEC for Community Safety and
the Minister of Police for their consideration.
ANALYSIS
OF EVIDENCE
[51]
In analysing the evidence, on Adam’s own version in regard to
the charge of housebreaking (charge 1), the evidence indicates
his
guilt.  Adams pleaded guilty to the assault charge and the Court
accepts his plea.  In all material respects Adam’s

evidence was corroborated by Ms N’ version relating to the
housebreaking and the assault.  I am therefore satisfied
with
the accused’s guilt on charges 1 and 3, which are closely
related to the circumstances leading up to and including the
rape of
the complainant and murder of the deceased.
[52]
It is necessary for the Court to consider the circumstances
surrounding the rape of Ms N as well as the murder of the deceased

and the testimony of the witnesses.  This Court is mindful that
Ms N is a single witness testifying about what transpired
in the
place where she and Adams were alone with the deceased on the evening
of 10 December 2014 until approximately 06:00am on
the morning of 11
December 2014.  It was clear from the evidence given by Ms N
that she was there against her will and that
she did not want to have
sex with Adams at any stage and told him that she did not want to
have intercourse.
[53]
I have considered and evaluated the surrounding evidence mindful of
the inherent danger attached to single witnesses, and naturally
also
due to the fact that Ms N appeared traumatized about the death of her
son, ostensibly at the hands of the accused.  In
spite of taking
a cautionary approach to Ms N’ evidence, I was impressed with
her candid demeanour in the witness box, cogent
and lucid in her
replies and lacking any material contradictions in her evidence
pertinent to the rape and murder. Ms N did not
come across as being
aggressive or vindictive, and she stated the circumstances in a very
factual manner without embellishing her
testimony in any way.  I
found her to be truthful in her testimony, credible and reliable.
Although quite ill when she testified,
she was very open and honest
with the Court, admitting to her own shortcomings and even to her use
of drugs.  Ms N made a
sound impression as a credible witness in
this court.
[54]
It was clear to the Court that Ms N had been through an ordeal and
was severely traumatised by the experience.  She managed
to
contain her emotions particularly in regard to the circumstances
surrounding the assault and rape, but understandably at times
broke
down in the witness box when speaking about the death of her son.
Even when Mr Caiger put it to Ms N that she did not
take proper
care of the deceased and that her drug abuse rendered her incompetent
as a mother, she maintained a dignified stance.
This was her
final stand, an opportunity to be strong for herself and her deceased
son, and to confront the extreme abuse
that she suffered at the hands
of Adams and the circumstances of extreme poverty in which she and
the deceased found themselves.
[55]
It is common cause that no one else was present during the day while
the deceased was in the care of Adams.  During
cross-examination,
Adams testified that he would be extremely upset
if anyone assaulted any of his children.  However, when asked
about the deceased’s
injuries, he merely stated that he did not
know and denied any knowledge of assaulting the deceased.  Adams’
version
was inconsistent with the statement made to Lieutenant
Colonel Pretorius wherein he admitted that he may have hit the
deceased
while he was hitting the complainant.
[56]
In evaluating the evidence of the defense, I have considered the fact
that Ms O A and Ms N A are closely related to the accused.
In
this context, I am of the view that their accounts of the events of
the 10 and 11 December 2014 were similar and affected
by bias or
their relationship of affinity and was tendered to protect Mr Adams.
They echoed similar words to the effect that
there was “’
n
stryery, nie ‘n bakleiery nie”
i.e. an argument not a fist fight between Adams and Ms N.  Their
testimony, although believable, appeared as though it was
calculated
to be careful not to implicate Adams or put him in a bad light.
[57]
The J88 was not a neutral report and the evidence of Dr Andrews, who
compiled the report, confirmed old injuries and scars
that indicated
Ms N had been beaten the week before with a hammer on her lower arms.
The report did not indicate injuries
from the vaginal and anal
examination but confirmed that there was in fact some evidence of an
assault upon Ms N that took place.
The Court does bear in mind
that the J88 report does not eliminate the possibility that Ms N was
in fact raped.
[58]
The “first report” given to Ms Du Preez at the Kuils
River Magistrates Court on 11 December 2014, corroborates
Ms N’
testimony regarding the rape.  Ms Du Preez confirmed that Ms N
seemed highly upset and emotional when she recorded
her statement
marked exhibit "E", in support of the Protection Order in
terms of
Section 4(1)
of the
Domestic Violence Act 116 of 1998
.
As stated before, Ms N is a single witness and impressed the Court as
an honest, truthful and reliable witness, the Court
is satisfied that
she spoke the truth.  Ms N’ version of the rape that
occurred on 10 December 2014 is therefore accepted.
[59]
Ms Du Preez equally impressed the Court with her evidence and her
clear and unambiguous recollection of the events at the Magistrate’s

Court on 11 December 2014.  The Court is satisfied that she was
honest and truthful in respect of what she remembered took
place on
11 December 2014, and accordingly accepts her evidence.
[60]
In respect of the murder charge, Adams simply refused to comment when
confronted with the evidence of injuries that the deceased
had
sustained which ultimately led to his death, and he simply denied any
knowledge thereof.  A glaring silence in the face
of substantial
evidence of assault and trauma.
[61]
The Accused testified that he was not under the influence of alcohol
or drugs on 10 and 11 December 2014.  This is an
important fact
in determining culpability and the Court is enjoined to consider
Adams’ intention when he carried out his
assault of Ms N and
the deceased. Mr Theron suggested that the reason for Adams’
assault of the deceased was his discovery
that she had gone and in a
fit of rage he beat his son.  The nature and extent of this
beating was completely disproportionate
to its object i.e. of
expressing his anger towards Ms N because she had absconded.  This
Court finds Adams to have a plausible
motive.
[62]
This Court further finds that the Accused left the testimony of the
various state witnesses largely unanswered.  Ms N
did not
implicate Adams directly regarding the murder charge.  However,
she testified that the deceased was not visibly injured
when she left
him in the care of Adams.  If Adams was innocent of the murder
charge, he would have put forward his own version
of events that
unfolded, and explained certain injuries that the deceased had
sustained while in his care.  Adams failed to
rise to the
challenge and to provide the Court with a single acceptable
explanation for his behaviour or the events that unfolded
in regard
to the murder charge.
[63]
The Court accepts the testimony of Dr Herbst, which is corroborated
in all material respects by Professor Van As that the death
of the
deceased was caused by blunt force trauma to the body of the deceased
child.  Both doctors’ evidence with regard
to the extent
of the injuries completely refuted Adams suggestions to the various
witnesses at the scene of the crime that the
deceased had fallen off
the bed or near the door on a patch of sand, or at a shebeen.
The Court finds the medical evidence
credible and reliable.
[64]
Adams left the
prima facie
case in regard to the murder to speak for itself and his silence is
damning in the circumstances.  There is no other conclusion
to
be drawn other than that he inflicted injuries on the minor which
caused his death.  Indeed there is nothing before the
Court
suggesting subjective ignorance by Adams in regard to the
consequences of hitting Ms N or the deceased with his fists
repeatedly
on the body and head.  The only reasonable inference
from the facts to be drawn is that Adams did subjectively appreciate
the possibility that an assault over a prolonged period inflicted
with his fists upon the tiny child aged two years and nine months

would be fatal. His evidence regarding the events that took place on
10 and 11 of December 2014, is so unbelievable that the Court
cannot
place any reliance on this evidence in the circumstances.  I am
not persuaded that there is any possibility that his
version can be
accepted as probable and reject it.
[65]
Taking into consideration the totality and weight of the evidence in
conjunction with the Accused’s silence, particularly
in respect
of the murder, the Court is left with the undisputed evidence that
the Accused murdered the deceased with
dolus
eventualis
at his home at 4 C H S, K R.
[66]
In the circumstances, having regard to all the material evidence, the
Court is satisfied that the State has discharged the
onus to prove
the guilt of the Accused on all the charges beyond reasonable doubt.
ORDER
[67]
Accused, Bennie Adams, you are found
GUILTY
on charges
1,
2, 3 and 4.
MAHOMED,
AJ
DATE
OF START OF HEARING 30 MAY 2016
DATE OF
JUDGMENT 21 JUNE 2016
FOR THE STATE
ADV J H THERON
FOR THE
ACCUSEDADV A G CAIGER
DATE OF
SENTENCE1 AUGUST 2016