S v Van Breda (SS17/16) [2018] ZAWCHC 87 (7 June 2018)

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[2018] ZAWCHC 87
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S v Van Breda (SS17/16) [2018] ZAWCHC 87 (7 June 2018)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No: SS17/16
In the matter between:
THE STATE
HENRI
CHRISTO VAN
BREDA
Accused
JUDGMENT
DESAI,
ADJP:
Introduction
[1]
This is an alleged parricide.
[2]
The Accused, HENRI CHRISTO VAN BREDA, is
indicted before us for the murder of his brother, father and mother,
and the attempted
murder of his sister. He faces a further charge of
defeating or obstructing the administration of justice. The State
contends that
the deadly assaults upon the victims were committed by
the Accused who repeatedly hit them with an axe or a similar sharp
object
and committed other unknown acts of violence. The last charge
relates to the apparently false information given to the police and

related activities in order to mislead them as to the true identity
of the perpetrator of these crimes.
[3]
The incidents underpinning these charges
occurred at [..] G. Street, […] Estate, Stellenbosch.
[4]
The Accused, his parents, MARTIN and TERESA
VAN BREDA, and his siblings RUDI and MARLI VAN BREDA resided at the
said premises. The
Accused was the middle child. I shall refer to the
victims by their first names for the purposes of this judgment. It is
convenient
to do so.
[5]
[...] has controlled access and is a
security estate with a wide range of security features, inclusive of
electronic fencing and
cameras as well as regular patrols of the
property by security personnel.
[6]
On the morning of 27 January 2015, the
emergency services (EMS) were summoned by the Accused to the
residence. A true copy of the
emergency call made by the Accused at
07h12 was handed up in evidence and played in court.
[7]
Upon their arrival on the scene, the police
found the Accused at or near the front entrance of the property. He
was only wearing
a pair of sleeping shorts and socks. Superficial
injuries on parts of his body were discernable.
[8]
Two of the deceased, MARTIN and RUDI were
found inside the bedroom on the first floor. This was the bedroom
used by the Accused
and RUDI. TERESA and MARLI were found nearby in
the doorway or rather the passage area outside the same room. MARLI
was still alive,
but barely so.
[9]
The deceased and MARLI had severe head
injuries probably caused by the axe found on the stairway leading up
to the first floor.
Although MARLI did not succumb to her injuries,
the injuries sustained by her are similar to the injuries sustained
by the deceased.
[10]
Some of the family members were last seen
alive the previous afternoon by the domestic worker Ms P Munqongani
when she left the
house to go home.
[11]
These events lead to the case before us.
[12]
The State indicated that the provisions of
the
Criminal Law Amendment Act 105 of 1997
are applicable. The
offences in Counts 1 to 3 are specified in
Part I
of Schedule 2 of
the said Act in that the murders were planned or premeditated and
that a minimum sentence of life imprisonment
would therefore be
applicable. At the commencement of the proceedings, counsel for the
Accused, Adv P Botha, appearing with Adv
M Combrink, confirmed that
the aforesaid provisions were explained to the Accused and that the
Accused is aware of the applicable
minimum sentences. Adv S Galloway,
together with Adv M Blows, appears on behalf of the State.
The
Plea
[13]
The Accused pleaded not guilty in respect
of all the charges and an extensive written plea explanation was
placed before the court.
[14]
In the said statement it was,
inter
alia
, alleged that the persons
responsible for the attack upon the Van Breda family were unknown
intruders, one of whom wore dark clothes,
gloves and a balaclava-type
mask. This assailant, whose silhouette the Accused saw from the
toilet door was busy attacking RUDI
when the dad – MARTIN –
switched on the lights of the room and came to the assistance of his
son. MARTIN was also hit
with the axe by the attacker who was
laughing as the attack continued.
[15]
The Accused then heard TERESA’s
voice. She wanted to know what was happening. He did not see what
occurred next as the attacker
was outside his field of vision. He
does not recall hearing any sounds of the attack upon his mother.
[16]
The laughing attacker then came towards
him. He managed to remove the axe from the attacker who came at him
again, this time with
a knife. A scuffle ensued in which the Accused
sustained certain injuries. He hit the attacker with the blunt side
of the axe.
The Accused pulled the knife out of his side and dropped
it, probably to the ground.
[17]
The attacker fled the room with the Accused
following him. The Accused heard persons speaking in what sounded to
him like Afrikaans.
As he left the room he had a “glimpse”
of MARLI and his mother lying outside the bedroom door.
[18]
He threw the axe at the attacker, lost his
footing and fell down the stairs. He got up and followed the attacker
toward the kitchen
and out the backdoor.
[19]
When the attacker or attackers left, the
emergency services were not called as he did not have a number for
them. Instead he tried
to call his girlfriend, Bianca.
[20]
Upon re-entering the house, the Accused
then lost consciousness on the stairs and is unable to state whether
this was due to shock
or to the injuries sustained by him or to a
combination of both. He was unsure for how long he was unconscious.
[21]
In any event, when conscious again, he
endeavoured to find the emergency number and lit a cigarette to calm
down. Because of his
Australian accent and because he stuttered as a
child, he spoke slowly and calmly. In his plea explanation the
Accused also refers
to the circumstances in which he later made a
statement to the police. He concedes that the gist of what is
contained in that statement
is correct but it contains some
inaccuracies and, in particular, the grammatical errors were made by
the police officer who was
Afrikaans speaking.
[22]
That, in essence, is what is contained in
the written plea explanation in terms of
Section 115
of Act 51 of
1977.
[23]
While the contents of the plea explanation
constitute a disclosure of an Accused’s defence, it is not
evidence. It forms part
of the evidential materials upon which an
Accused may be cross-examined. The State is, of course, obliged to
disprove the defence
raised in it (see S v Cloete
1994 (1) SACR 420
(A) at 424)).
The
Legal Issue
[24]
It was the State’s contention that
the Accused was responsible for the attack on his family and that he
subsequently tampered
with the crime scene. The State’s case is
based on circumstantial evidence. There is no direct evidence
implicating the Accused.
The State contends that no one else could
reasonably possibly have committed the crimes and that the Accused’s
version, of
intruders committing the crimes, is simply not true.
[25]
Defence counsel argued that the
circumstantial evidence presented by the State to prove its case
against the Accused does not warrant,
as the only reasonable
inference, that the Accused was the person who attacked his family.
It was argued that the circumstantial
evidence presented by the State
supports the Accused’s, and not the State’s, narrative.
The
Van Breda Family
[26]
Mr Cornelius Andries van Breda, the brother
of the deceased MARTIN van Breda, described the Van Breda family as a
close-knit decent
family with no enemies. The Accused also testified
that the family had no real enemies and that he was not aware of
anybody who
had a grudge against the family.
[27]
MARTIN and TERESA van Breda were married on
16 February 1990.
[28]
The children RUDI, the Accused, and MARLI,
were born on 10 July 1992, 01 November 1994 and 12 October 1998,
respectively. The family
emigrated to Perth, Australia in the
beginning of 2006. The Accused matriculated at Scots College in 2012.
[29]
MARTIN, TERESA and MARLI van Breda
relocated permanently back to South Africa in January 2014. MARTIN
had launched a new school
project in South Africa called Edugro. They
relocated primarily because of the demands of MARTIN’s business
and TERESA’s
desire to live closer to her family. RUDI and the
Accused remained in Australia and studied at the University of
Melbourne.
[30]
MARLI attended school in Somerset West
(upon the family’s return to South Africa). In March 2014 the
family moved from Gordon’s
bay to [...] Estate. The Accused
terminated his studies in Australia and joined the rest of the family
at [...] Estate in August
2014. RUDI and his girlfriend visited the
family in December 2014. RUDI’s girlfriend returned to
Australia in mid-January
2015 and RUDI intended to return to
Australia by mid-February 2015.
[31]
The members of the Van Breda family were
described as well-educated, intelligent and well-mannered. MARTIN was
respected in the
business community for his achievements and
integrity. MARTIN was described as a dominant figure and a strong
man. No evidence
of financial difficulties was evident.
SECURITY
AND LAYOUT OF [...] ESTATE
General
Layout and Functionality of the System
[32]
The Accused alleged that the Van Breda
family had been attacked by an intruder during the early morning
hours, shortly before 04h24,
when he made his first call to his
ex-girlfriend Bianca van der Westhuizen.
[33]
[...] Winelands Estate near Stellenbosch is
what is can be termed a “medium security estate”. Ms
Marcia Rossouw, who
was employed at [...] Estate as Security Manager
since February 2014, explained the layout of the Estate with
reference to the
map in Exhibit “P2”. The house at [...]
G. Street is indicated with a red rectangle block on the map. On the
right
side of the map is the R44, a public road. At the top of the
map is the Protea Hotel, Kleine Zalze, the Terroir restaurant and the

Techno park area; on the left side of the map are surrounding
farmlands, an open field, including Spier farm; and at the bottom
of
the map is the airfield and municipal land. A river runs through the
Estate.
[34]
Lorenzo Afrika, a security officer employed
by Thorburn Security Solutions at [...] Estate, described the area at
Zone 23 (where
the river runs) as agricultural land, with vineyards
at certain times of the year. The green bushes alongside the river
can be
seen in Exhibit “V”.  here is a dam on the
left side of the map at Zone 15, as can be seen in Exhibit “W”.

A line of trees can be seen above the golf course and throughout the
Estate. A gravel road runs alongside the electric fence around
the
entire Estate.
[35]
On 29 January 2015 Warrant Officer Andre
Hitchcock, stationed at the Criminal Record Centre in Worcester as a
photographer, plan
draftsman, a crime scene investigator and forensic
fieldworker, took aerial photographs of [...] Estate and the house at
[...]
G. Street. This can be clearly seen in Exhibit “A1 –
6”. A close-up of the Van Breda residence with a police vehicle

parked in front of it, can be seen in the middle of the two
neighbouring houses in Exhibit “A6”.
[36]
Thorburn Security (hereinafter referred to
as “Thorburn”), contracted by the Estate, provided the
security personnel
who man the entrance gates as well as the guards
who patrol the Estate. Thorburn monitored the electric fence alarms,
beams and
the camera surveillance system of the Estate; this was done
remotely from its control room situated in Parow.
[37]
The Estate is protected by an electrified
fence around the approximately 7,5 kilometres perimeter of the
Estate, a barrier fence,
anti-dig at some places, cameras at certain
points, patrols by security guards and access gates. Proper access to
the Estate can
only be gained through three access controlled gates.
The unmanned gates were generally kept locked. The river is protected
with
an electrified fence as well. At the river inlet was a gate and
barbed wire stretched across the river.
[38]
Defence witness Jaco Pietersen, employed by
Thorburn as the Security Manager at [...] Estate from January 2013
until February 2014,
testified
that the airfield gate had an anti-dig foundation. Mr Pietersen
testified that the anti-dig was a good foundation of deep
cement or
pressed barbed wire under the ground. It prevented people and animals
from digging a hole underneath the fence. The anti-dig
was limited to
the residential and farm boundaries. Zones 16 – 39 had no
anti-dig. A person could not climb over the fence
because the opening
spaces were too small. To be effective the fence had to be
electrified with a reaction unit like an alarm.
[39]
Mr Jaco Pietersen confirmed that the Estate
had, and still has, more than one phase of security.
T
hermal
cameras were installed during Mr Pietersen’s tenure that could
pick up or spot something or somebody twenty (20) metres
from the
fence. A further phase was the security guards who did patrols. The
security guards served as the foot soldiers. Visible
patrolling by
driving around was also an important deterrent.
Mr
Pietersen testified that if a camera did not spot a person, the alarm
would alert the security personnel to the person’s
presence.
[40]
When, and if, an
alarm was activated by an object or person touching the electric
fence, the remote monitoring room in Parow would,
upon seeing that an
alarm had been activated, send out the shift manager or first
responder to that specific area. The system would
only be reset
remotely by the Control room once the cause or reason for the
activation had been established and removed. The alarm
could not be
switched off by the guards patrolling the Estate, only by the remote
monitoring room in Parow. Defence witness, Mr
Charl Rabie, the owner
of Energized Fencing, testified about the conventional system used by
the Estate and confirmed that the
activation remained until the
problem was addressed physically and the alarm system reset.
[41]
Edgar Wyngaard, a security officer employed
since 2014 by Thorburn Security as a shift manager at [...] Estate,
testified that they
had to go around the entire fence to test whether it was functioning.
[42]
Ms Rossouw prepared a map of the “optic”
and “thermal” cameras installed at the gates and other
strategic
points in January 2015. Prior to the incident a limited
area of the estate perimeter was covered by cameras as, at the time,
cameras
were installed at only nine locations. There were cameras and
a fence on both sides of the river.
[43]
It is common cause that the Van Breda
residence at [...] G. Street is situated more or less in the middle
of the Estate in a fairly
built-up part of the area, near the end of
a cul-de-sac. It is the second last house in a cul-de-sac. There is a
road and an open
space next to the last house, with a hedge between
the road and the last house. The house itself is bordered by other
residences.
The houses on the Estate are similar in architecture and
are all in close proximity to one another, with narrow winding roads
linking
all properties to access roads, and with open fields at some
places.
[44]
Ms Rossouw testified that the distance from
the main gate to G. Street is 1.233 kilometres; from the river to G.
Street it is approximately
2.43 kilometres; and from the gate at the
airfield to G. Street it is 1.690 kilometres.
[45]
The Court conducted an inspection
in
loco
and recorded  its findings
with regard to the general layout of the Estate and the house:
(i) House number 10 on the sketch plan
included in Exhibit “A” is the Op’t Hoff house
directly across the road
from the scene of the crime. The two houses
face each other and have a full view of each other;
(ii) Alleman Street runs at the back
of the property situated at [...] G. Street;
(iii) The walls around the house are
plastered and painted white;
(iv) When exiting the back door of the
house from the pantry, there is a narrow pathway around the house for
the greater part of
the route around the house. Currently there are
washing lines in the narrow pathway closest to the back door, as can
be seen in
Exhibits “A 556” and “A 557”;
(v) None of the windows of the
erstwhile Van Breda residence have burglar bars. The windows on the
ground floor were open as can
be seen in Exhibits “A 84”,
“A 85” and “A 87”. The windows can open wide
enough for a person
to get through the window, albeit with some
difficulty;
(vi) In normal circumstances, access
can be gained to the property via the front door, and a gate on the
side of the house, as can
be seen in Exhibits “A 87” and
“A 88”;
(vii) The electric fence surrounding
the Estate has an additional flat piece of electric wire on top of
the fence at some places.
The fence is two (2) meters in height at
its lowest point;
(viii) A small space is visible
between the electrical wire and the pillar at a gate leading to the
airfield and an open field some
distance away from the houses on the
Estate. At the time of the incident, cameras were mounted on poles
near the electric fence
at certain places to cover a specific area
and,
inter alia
, at the gate leading to the air field.
[46]
Extensive evidence was presented with
regard to the security of the Estate and access to it.
[47]
Defence counsel handed in several exhibits
and showed CCTV footage in an endeavour to illustrate weak points and
problem areas in
the system.
[48]
Mr Pietersen referred to five (5) incidents
that occurred during his tenure as Security Manager from January 2013
until February
2014 (also see Exhibit “DD”). In all the
incidents referred to by the witness, the system worked in the sense
that
the prospective intruders were spotted on the camera, the alarm
was activated or foot prints were spotted.
[49]
Mr Wyngaard testified that he was aware of
only one incident of theft since 2014. The perpetrator was a
registered visitor to the
Estate and was caught. Mr Wyngaard and Ms
Rossouw testified that residents sometimes reported crimes directly
to the police. Significantly,
Captain Nicholas Steyn testified that
no robberies or murders were reported at [...] during the 17 years he
was stationed in Stellenbosch.
[50]
Statistics of the crimes committed at [...]
Estate, were presented by the State and handed in as Exhibit “CCC”.
During
the period February 2014 until February 2015, ten (10) cases
were registered with the police. State counsel argued that the crimes

all show a marked difference from the matter at hand. Only one
housebreaking case had been registered and the rest were all theft

cases. Sergeant Marlon Appollis, the Investigating Officer in this
matter and stationed at the Stellenbosch detective branch since
2007,
testified that no evidence of forced entry exists with regard to the
housebreaking. The theft cases were registered mainly
for purposes of
insurance or the crimes were committed by a domestic worker or
employees from a removal company.
[51]
The Court finds that it is certainly
possible for an intruder to gain access to the Estate – despite
the fairly tight, but
not impenetrable, security. Defence counsel
somewhat desperately argued that access to the Estate could be gained
over or under
the electric fence or via the relatively unsecured
areas of the perimeter fence or as a result of ineffective control at
the Kleine
Zalze gate. Witnesses employed by Thorburn and the Estate
all conceded the possibilities put to them by Defence counsel of how
entry could be gained, as possible but unlikely. Ms Rossouw correctly
conceded that the human factor always played a role. However,
someone
attempting to gain entry would had to have extensive knowledge of the
Estate and its security features, the expertise to
overcome the
barriers to entry and was at risk either of injuring himself or of
being detected by the security measures in place.
It was most
unlikely that an intruder entering the premises would have committed
the crimes undetected.
The
Night of the Murders
[52]
Was there a possible breach of security
during the night of 26 – 27 January 2015?
[53]
Mr Pietersen, testifying on behalf of the
Defence with regard to the security measures at [...], conceded that
he had no knowledge
of what transpired at [...] Estate on the night
of 26 – 27 January 2015. Mr Rabie, who also testified on behalf
of the Defence
as an expert on security systems, said he could not
say whether the security system was in working order that particular
night.
[54]
Lorenzo Afrika, a security officer employed
by Thorburn, tested the functioning of the fence and the alarm system
when he came on
duty at 18h00 on 26 January 2015. Mr Afrika testified
that everything was in working order. Both Mr Afrika and Mr Edgar
Wyngaard,
who were on duty that night, testified that no alarms were
activated and that the security was not breached during the period 26

– 27 January 2015.
Visitors
and the Access-Controlled Gates
[55]
No unknown visitors went through the access
controlled main gate during the night of 26 – 27 January 2015.
Nobody signed in
at the main gate from 23h57 until 07h05 according to
a report, Exhibit “Y”, handed in by Defence counsel. Ms
Rossouw
verified the report with regard to access cards and the times
persons went in and out of the Estate.
[56]
CCTV footage of unlogged comings and goings
at the Kleine Zalze gate the morning of 27 January 2015 was presented
by Defence counsel.
A restaurant and a lodge are located at Kleine
Zalze at Zone 39 and 40 which is situated quite some distance from
the residential
area of [...], as can be seen on the map: Exhibit
“V1” and “W”. Ms Rossouw conceded that a
proper record
had not been kept at the Kleine Zalze gate.
[57]
Neither the security guards, the
neighbours, Ms Op’t Hoff and Ms Taljaard, nor the Accused,
testified about the presence of
a suspect motor vehicle in the
residential area of [...] Estate. The Kleine Zalze gate is situated
far from [...] G. Street and
there were probably more suitable places
for a prospective perpetrator to gain access to the Estate, for
example via the uninhabited
open field or an area without access
control. Furthermore, Sergeant Appollis testified that all vehicles
entering the Estate had
been accounted for although statements of all
the drivers had not been taken.
The
Integrity of the Perimeter Itself
[58]
Mr Afrika and Mr Wyngaard were on duty as
Responder and Shift Manager respectively during the night of 26 –
27 January 2015.
Two patrol routes were followed; they did several
general patrols and so-called “blood hound” patrols
within the Estate
and around the boundary of the Estate or the
perimeter fence in a marked security vehicle and on foot. They
inspected and patrolled
a radius of approximately 7.5 kilometres.
[59]
During the night of 26 – 27 January
2015, between 18h00 and 07h00 the next morning, Mr Afrika did five
patrol checks and found
that all was in order. He also did three (3)
“blood hound” inspections with the last one at 02h50 on
27 January 2015.
During the course of the night no alarms were
activated and no trespassers/intruders were found or reported on the
Estate. If any
such event had taken place, the monitor would have
been activated and he would have responded. Therefore there was no
security
breach on the night of the murders.
[60]
During his first patrol at the start of his
shift, Mr Afrika made sure that no obstructions touched the fence and
ensured that it
was still the case the following morning. Mr Afrika
checked the anti-dig zones, whether the energisers were damaged and
tested
the fence. He also checked the “high risk” places
like the fence along the R44 road near Zone 4 and Zone 40 because
it
was adjacent to municipal property.
[61]
Mr Afrika checked the entire green barrier
fence for holes the night of the murders. He has never seen holes or
damage since his
employment at [...] Estate as can be seen in
Exhibits “X10” and “X11”. On 26 January 2015,
Mr Wyngaard
reported for duty at approximately 18h00 as his shift
started officially at 19h00. His shift ended at 07h00 the next
morning. Mr
Wyngaard testified that nothing unusual was reported or
spotted that particular night, nor on the camera footage afterwards.
Nobody
complained about strangers or any other undue occurrence. Mr
Wyngaard testified that he did not notice any holes in the barrier

fence that night. There was also no report that Mr Afrika had picked
up anything at the fence. Mr Wyngaard testified that they
patrolled
the Estate approximately six (6) to seven (7) times along the road
close to the Van Breda residence. He did two “blood
hound”
patrols himself per night but could not remember whether he assisted
Mr Afrika with his patrols of the outside perimeter
of the Estate
that particular night. He testified that the last “blood hound”
patrol ended at 02h50.
The Functionality and the
Integrity of the Fence
[62]
Mr Afrika confirmed that he had tested
whether the fence was functioning when he came on duty but not when
he went off duty. He
stated that he had tested the voltage of the
electric fence around the Estate and checked for obstructions when
his shift started.
There was also a barrier fence to ensure that
nothing, for example branches, blew against the electric fence
causing a low voltage.
When the electric fence was tested in this
manner, it went straight to the monitor in the Control room in Parow
to ensure that
it had been done. All was in working order with the
fence on the evening of 26 July 2015.
[63]
Mr Wyngaard was confronted with the
possibility of the alarm not being activated if somebody stood on
something or someone’s
shoulders and jumped over the fence to
prevent the wires of the fence touching him or if insulated material
was used. Mr Wyngaard
responded that the fence was high and that it
was risky to do that; he would not risk it. A person jumping over the
fence would
have to wear protective material. If there were ways of
getting over the fence, the Control room would have detected the
tampering,
even if the alarm did not go off.
[64]
On 27 January 2015 when Mr Wyngaard
reported again for night duty, he found nothing wrong with the fence.
On 27 January 2015 he
went through all the video security footage and
inspected the fence and gates physically. Mr Wyngaard testified that
it was impossible
for any intruder to have gained access to the
Estate during the night of the incident.
[65]
Both Mr Afrika and Mr Wyngaard were
confronted with an alleged alarm that went off at Zone 39 at 01h37 on
Tuesday 27 January 2015,
and a patrol that was conducted in that area
at 01h41 (see paragraph 5.5, page 3, Exhibit “Y”). They
denied responding
to an alarm, and the possibility that an alarm was
activated at 01h37 as suggested by Defence counsel. There seem to be
a discrepancy
as to which one of the security personnel did the
patrol at 01h41. The Court is not persuaded that the patrol was done
as a result
of a response to an alarm. The Controller, Mr Calvin
Vergotine from Thorburn Security, can be seen at his console in a
photograph
taken at 01h37 (page 3, Exhibit “Y”).
According to the report handed in by the Defence, the Controller
would have heard
the audible alarm and seen the zone flashing in red.
Ms Rossouw confirmed that there would be a loud sound and a pop-up
screen
on the monitor when an alarm is activated. It caused an
irritating sound meant to alert the Controller. In case of “not
true”
alarms, there would be no signs or lights and the
activation would go straight to the history of the computer. The
alarm activated
on 01h37 was described as a “not true”
alarm. It was not the normal activation alarm and it went
automatically into
the history report of the system. Mr Rossouw
testified that in case of “not true” alarms, a responder
was not sent
out to check. Ms Rossouw testified that the system was
not available on the internet for anybody to learn the workings of
the system.
It was a so-called “stand alone” system.
[66]
Defence counsel
handed in a report, Exhibit “Y”,
inter
alia
indicating that four alarms, described as “not actual” or
“not true” alarms, occurred during the night
of the
incident. According to the report, the Controller that worked on the
[...] console on that particular night, did not receive
any positive
fence or CCTV alarms. Mr Rabie, an expert on security systems, was
referred to the report by Thorburn pertaining to
the four incidents
when the alarm had been activated during the period 26 January 2015
at 19h38 until 27 January 2015 at 03h36
and at Zones 11, 37, 39 and
40. The witness could not say what activated these alarms referred to
in the report that particular
night.
Of
significance is the fact that one of the security guards did a patrol
at 01h41, only a few minutes after the “not true”
alarm
had been activated at 01h37, and no problem had been detected or
nothing strange or suspicious had been reported. Furthermore,
it is
interesting that the problems indicated in respect of all four false
alarms, were similar or the same at four different zones.
It is
unlikely that (the) intruder(s) would enter or leave the Estate at
four different zones at different times and not at the
same zone at
the same time, in case of more than one intruder.
[67]
Zone 11 seems to be the closest to G.
Street and the other relevant zones with “not true”
alarms were quite far from
the crime scene. The alarm at Zone 11 was
registered at 19h38 on the evening of 26 January 2015. The murders
were probably committed
between 04h00 – 04h24 on 27 January
2015. If it was a true alarm, a possible intruder would have wandered
around the Estate
or hid on the Estate for a few hours before
committing the crimes the following morning. No other crimes
committed at [...] Estate
during that particular night, were
reported. If a possible intruder entered the Estate later at Zone 39
or 40, he or they would
have gone past a number of other houses
before getting to G. Street. Such a person also had to leave the
Estate again and no other
alarms were registered after 03h36 and
before 08h53 on 27 January 2015. The last mentioned alarm was not
reported as a suspicious
alarm and it was probably a deliberate alarm
to test the functioning of the fence or for another ordinary purpose.
[68]
Defence counsel argued that, in the absence
of any explanation proffered by the Control room operators for not
contacting the responders
regarding the “untrue alarms”,
the most probable explanation is that the operators had simply
omitted to inform the
responders of the alarm activations. This
contention is without merit especially in the light of the report
handed in by Defence
counsel, the report dated 27 January 2015 by
Rejeanne Botha, the Operations Manager of Thorburn Remote Monitoring.
There seems
to be no plausible explanation why the operators would
have chosen to ignore those four “not true” alarms but
not the
others.
[69]
Immediately after Ms Rossouw learnt about
the incident on 27 January 2015, she gave an instruction that the
perimeter fence be inspected
centimetre by centimetre to establish
that there was no sign of entry to the Estate. After the incident
apart from the fence being
inspected, Ms Rossouw watched the video
footage herself. Nothing unusual or suspect was noted or reported.
She requested the remote
monitoring system to check the activation of
the alarms and the cameras and to furnish her with reports.
[70]
Ms Rossouw testified that a report (Exhibit
“AA”) furnished by Thorburn and drawn from the security
system, covered
the “blood hound” patrols of the night of
26 – 27 January 2015 from 17h00 until 05h00. The patrols were
done
as expected. The security guards had to touch the clock-in
points physically. The witness checked the patrols and could confirm

that the log entries and the alarms on Exhibit “Y, A3”
corresponded. The log entries were done by Parow monitoring.
At the
time she had been informed that the actual alarms were activated
deliberately.
[71]
Ms Rossouw instructed Mr Brand and Mr
Voorslag to inspect the fence the following morning. Defence counsel
argued Ms Rossouw’s
testimony about the state of the fence the
morning after the murders, amounts to hearsay because Mr Brand or Mr
Voorslag were not
called to testify. The State submitted that it is
hearsay evidence elicited under cross-examination and thus admissible
as evidence.
If there had been a problem with the fence, it would
have been reported to Ms Rossouw and no such report came to her
attention.
Mr Wyngaard testified he had inspected the fence himself
the following day after the murders when he came on duty for the
nightshift
again. He detected no problem with the fence. Ms Rossouw
said she had no information to the effect that an intruder went to
the
Van Breda house.
[72]
On a question during cross-examination
whether it was possible for an intruder to dig a hole under the fence
and enter the Estate
through the hole, Ms Rossouw responded that
there were no signs of footprints alongside the fence the morning
after the murders.
Defence Counsel pointed out that residents were
active and could be seen running alongside the fence on CCTV footage
on 27 January
2015 at 05h47. Ms Rossouw responded that one could
distinguish between footprints right next to the fence and footprints
some distance
away where the residents were active. The fence had not
been cut and no holes were dug. Ms Rossouw conceded that an intruder
could
wear protective gear or clothes to prevent shocking.
[73]
It was certainly possible for an intruder
to gain access to the house situated at [...] G. Street. As
demonstrated during the inspection
in
loco
, access to the property could, for
example, be gained over a side boundary wall near the kitchen. There
was also a black side-gate
with a Yale lock and a key that was on a
piece of string, next to the house that locked automatically. The
windows on the ground
floor were open and had no burglar bars. The
back door of the house was also left closed but unlocked from time to
time for the
domestic workers, according to Precious Munqongani and
the Accused.
[74]
During cross-examination the Accused agreed
that it was a fair assessment to make that possible intruders had to
go to an enormous
amount of trouble to get into the Estate surrounded
by an electrified fence. He conceded that the intruders had to move
from the
perimeter fence, undetected, to their house in the central
area of the Estate. The intruders managed to find the Van Breda house

with an open  back door, took nothing inside the house, nobody
heard them fleeing from the house and they managed to exit
the Estate
by going over or under the fence without the alarm being triggered.
[75]
The Accused could not say how the security
was breached. He testified that it was a possibility that someone
might have had access
to a resident’s key card and so gained
access to the Estate to commit these crimes. With that scenario the
card must have
been given consciously to the intruder, or stolen for
that purpose. He then conceded that the story with the card seems an
unlikely
scenario because his family had no real enemies.
[76]
The neighbours of the Van Breda family, Ms
Stefanie Op’t Hoff and Ms Annalise Taljaard, testified that the
Estate was a safe
and secure environment to stay in. Ms Op’t
Hoff was of the opinion that [...] Estate was probably the safest or
most secure
place in Stellenbosch and testified that she felt very
safe living there. Ms Taljaard, testified that she felt comfortable
and
secure, living in [...] Estate. She felt so safe that she left
her children at home when she went swimming in the mornings. None
of
them reported any suspicious persons or incidents in the vicinity of
G. Street on the day or night of the murders. The only
unusual event
was the loud male voices coming from the Van Breda home.
[77]
The Accused confirmed that he never felt
insecure, unsafe or threatened whilst living in the Estate. They
slept with open windows
without burglar bars and keys in the doors
without security gates. The back door was even left unlocked some
times.
[78]
The Court finds that intruders, if any,
would have had knowledge of the weak points of the Estate and which
route to follow. It
is highly unlikely that a possible breach of the
security by an amateur perpetrator took place that particular night.
It is also
highly unlikely that persons entered with a resident’s
card or with a motor vehicle at the entrance gates, as the
registration
number of the motor vehicle and/or the face of the
driver were
inter alia
recorded.
Such persons would have had to park the motor vehicle somewhere and
wait until the early hours of the morning before they
entered a house
in the centre of the Estate and then have had to escape again with
the same motor vehicle through the same gate.
No evidence exists of
an abandoned or suspicious motor vehicle on the Estate that
particular night. Otherwise, the resident whose
card was used, must
have known for the purpose for which the intruders had used the motor
vehicle and assisted the intruders somehow.
No evidence existed of
any resident having a grudge against the Van Breda family.
[79]
Although [...] Estate experienced criminal
activity since February 2014, there was only one dubious burglary
reported and no robberies
or murders in the preceding seventeen (17)
years. [...] Estate seemingly has an effective security system as
potential perpetrators
were picked up by the cameras or the alarm
system in recent years. Mr Pietersen confirmed that no burglaries
were reported during
his tenure that were not picked up by the
system. No evidence of criminal activity under Ms Rossouw’s
management, where crime
by outsiders due to the failure of the
security system specifically, was presented. No murders or violent
crimes were committed
at [...] Estate prior to the incident. The
Accused testified that he was not aware of any criminal activities at
[...] Estate.
It was submitted by State counsel that the security
measures of the Estate, the location of the property on the Estate
and the
close proximity of the houses make it highly improbable for
any intruder(s) to access the Estate and the property in question,
commit these crimes and exit the property and Estate without being
detected. Despite lengthy cross-examination, the Defence was
unable
to suggest or present evidence of a real breach of security.
Considering the probabilities, and in the light of what is
said here,
the Court is in agreement with the State that it is highly unlikely
that the security was breached that night by an
intruder from outside
[...] Estate.
The Emergency Call and the
Demeanour of the Accused
[80]
In the early morning hours of 27 January
2015, Janine Philander, employed as an operator by the City of Cape
Town at the emergency
communication centre, received a call from the
Accused. The audio recording of the call, Exhibit “JJ”,
was played in
court.
The
recording started at 07h12 and ended at 07h37; it lasted 25 minutes.
The
Accused
appeared emotional while the audio recording was played in Court. The
Accused confirmed that the sound clips of the emergency
call were
correct and that the contents of it were what happened during the
course of the call.The witness initially thought it
might be a prank
call because the caller was quite calm and co-operative during their
unduly long and laboured interaction. Ms
Philander said the caller
did not get angry, agitated, shout or scream like when something life
threatening happened to a person.
He did not ask what he could do to
assist the victims. The caller reacted strangely in her experience of
callers reporting a home
invasion or an assault. She also heard a
sound that she interpreted as a giggle but someone else could come to
a different conclusion.
From the outset it must be said that there
was no clear evidence of a giggle although a sound of some sort could
be heard on the
audio recording. The Accused testified that he never
giggled but was saying the word “please”.
[81]
The Accused testified
that he had a speech “impediment” and stuttered. He
received speech therapy from grade 4 until
grade 10. The Accused said
that he panicked, was breathing very fast and lit a cigarette at the
kitchen counter while the emergency
call was dialling to calm himself
down. He smoked three cigarettes in short succession and dropped the
last to the floor where
it burnt out. He said the reason for that was
that his hands were shaking so much that the cigarettes just fell out
of his hand.
In normal circumstances it was not acceptable to smoke
inside the house. The Accused was taught the technique to speak
slowly and
calmly because as soon as he started speaking fast, he
would get stuck. When listening to the audio recording, it was quite
clear
to the Court that the Accused stuttered slightly. The witness
conceded that towards the end of the call the Accused appeared to
be
calmer than he was initially and that it could have been the case
because she had stayed calm. It is apparent from the recording
that
it was not necessary for the operator at any specific time to request
the Accused to calm down.
[82]
Ms Philander asked
the Accused whether he was the patient and he replied in the
negative, saying that someone had attacked his family.
The Accused
gave his address and an alternative address several times to the
operator. The operator struggled to locate the given
addresses. The
Accused could not find his address – [...] G. Street – on
Google maps and referred the operator to the
address he picked up on
Google maps, namely 10 Alleman Street. He also furnished his home
telephone number and his cell phone number.
He confirmed no one else
was in the house. Initially the Accused said that three adults and
one teenage girl were injured in an
attack by someone. He said that
his sister was moving. The injured persons had head injuries. Later
he said the perpetrators ran
away and that he and his family were
attacked with an axe. The Accused also said he thought that he had
blacked out, and that he
had just woken up. He asked for more than
one ambulance to be dispatched. Conference calls were also made with
the police and the
ambulance dispatcher during this long
conversation.
[83]
Although Ms Philander
conceded that the Accused did nothing wrong when making the call, the
lack of urgency and the demeanour of
the Accused, during a disturbing
and unduly long conversation with the emergency services, seemed to
be highly unusual for a traumatised
victim.
[84]
The Court is mindful
of the testimony of Dr James Butler, the neurologist that testified
on behalf of the Defence, but will deal
with his evidence at a later
stage. At this stage it suffices to mention that the Accused
testified that he could not recall feeling
confused or dizzy while on
the phone to Ms Philander. He testified that he was fully conscious
at that stage and conceded that
he gave Ms Philander details of his
whereabouts in a coherent manner, even providing them with an
alternative address and other
landmarks such as spelling street names
and the name of the estate. At one stage he even corrected the
spelling of the name of
the estate when the operator spelled it
incorrectly during the conference call to the ambulance dispatcher.
He also established
the coordinates on Google maps to relay his
location to the operator.
[85]
The Accused testified
that he decided to contact the emergency services directly to save
time and not make use of other obvious
options to get help. During
cross-examination the Accused was confronted with the fact that he
verbalised certain emotions to the
Court but it was not evident from
the emergency call. The Accused said he did not get angry because he
was under the impression
that they were having some sort of technical
issue. Later he testified that he was trying his best not to reflect
his agitation
and get as angry over the phone as he should have been.
The Accused testified that he did get frustrated with the emergency
services
when they did not react quickly. He said he did nothing to
convey his feelings of frustration to the operator despite being in
dire need and instead suppressed those feelings of frustration. He
felt that it would only confuse the communication and not help.
[86]
Emotion of some sort
is to be expected whether the Accused was a victim or the
perpetrator. The Accused’s explanation regarding
the lack of
urgency on his part could possibly be expected in less traumatic
circumstances. Initially the Accused sounded anxious
and short of
breath on the sound clips. However, the composed, calm, almost
calculated and self-controlled manner in which the
Accused dealt with
an extremely traumatic situation, for the greater part of the call,
seems inconsistent with human nature. Both
Ms Philander and Captain
Steyn from the Detective branch in Stellenbosch, testified that, in
their vast experience, victims of
crime are emotional although they
might be quiet, hysterical, frantic, shouting, confused, unable to
remember certain things like
contact numbers, persistent or angry. Ms
Philander herself seems to get impatient with the police operator at
some stage. The Court
bears in mind that victims react differently in
similar circumstances. The Accused’s largely calm demeanour,
however, seemed
so out of the ordinary to Ms Philander that she
thought it was a prank call and flagged her supervisor.
[87]
The Accused testified
that he was aware that it was a very serious situation. During his
evidence-in-chief the Accused testified
that at that moment he was
still under the impression that both RUDI and MARLI were alive. He
heard gurgling sounds from above.
Peculiarly enough, the Accused made
no mention to Ms Philander that his brother was also alive; he only
mentioned his sister being
alive. During cross-examination by the
State, the Accused was unable to explain why he did not mention that
two of his family members
were still alive. The Accused conceded that
the gurgling sounds could have emanated from MARLI only and not from
both RUDI and
MARLI. Despite being uncertain in this regard, the
Accused stated it as a fact in his plea explanation that he could
hear what
sounded like RUDI making gurgling sounds in their room.
[88]
During
cross-examination it was put to Ms Philander that the Accused will
say that he told her they were bleeding from the head
because in
Australia they will send an ambulance immediately, and treat it as a
real emergency if head injuries are involved. When
confronted with
why the Accused deemed that explanation necessary, while his family
indeed sustained head injuries, the Accused
merely explained that it
was part of his thought process and an effort to get help as quickly
as possible.
[89]
The Accused stated
during cross-examination that he immediately went and phoned the
emergency services
again
(my emphasis) after regaining consciousness. This is simply an
incorrect statement. Considering the timeline as set out in Exhibit

“UU”, the Accused never phoned the emergency services
before he lost consciousness. He did an internet search for an

ambulance at 04h27 and attempted to phone the emergency services from
his mobile phone for the first time at 07h12.
[90]
Dr James Butler
inter
alia
testified
about the Accused’s behaviour on the audio clip of his
emergency call, during which he appears “inappropriately
calm
and lacking in urgency, given the gravity of the circumstances”,
and also not knowing about his family’s status.
Dr
Butler said he suspected the general public who have heard it would
be struck by the inappropriateness of the Accused’s
behaviour.
The witness said it was consistent with the behaviour of someone in a
post-ictal state after a seizure. Dr Butler testified that
a
post-ictal state, where the brain is dysfunctional, would very easily
account for his behaviour.
Adv
Galloway questioned the fact that the Accused managed to reason with
the emergency operator and give them Google Maps co-ordinates
as well
as the proper address details. It was also put to the witness that
the Accused was able to make an alternative plan with
reference to
his phone calls to his ex-girlfriend and the different addresses
given. Dr Butler testified that the frontal lobes
are still working,
the thought process is consistent and the person can make plans.
This
is in contrast to the Accused’s cognition immediately before he
lost consciousness.
[91]
Defence counsel argued that insofar the
Accused’s behaviour prior to the loss of consciousness may be
held to be somewhat
apathetic and inappropriate, it is possible that
it may be attributed to the brief electric discharges leading up to a
generalized
tonic-clonic epileptic seizure (GTCS), which impairs
cognitive processing speed, concentration and attention. The Accused
did not
testify that he experienced brief electric discharges in the
period leading up to his loss of consciousness. There is no other
evidence from another source to this effect. Counsel’s argument
amounts to sheer speculation and is not based on objective
proven
facts.
[92]
Dr Butler agreed that the demeanour of the
Accused and his communication in the emergency call was inappropriate
and peculiar if
not for the witness’s diagnosis. The witness
said it was possible that the Accused was malingering and conceded
that if one
takes other data and probabilities into account, that
could sway a person one way or another. The Accused explained why he
spoke
in a calm manner but a different picture was painted by the
Accused to the witness.
It
was put to the witness that the Accused’s memory was much
clearer in court than the fragmented version that was alluded
to by
the witness.
Dr Butler testified
that the fact that the Accused was lucid beforehand and less so
afterward is more pertinent to him. He said
he did not go into a lot
of detail, the incontinence and neglect were more compelling to him.
In a court case the need to justify
and the imperative is even
greater. On a question whether the Court must accept the witness’s
view, the Accused’s version,
or both, Dr Butler responded that
the evidence presented to him gives a strong impression that the
Accused had post-ictal delirium.
During cross-examination the witness
conceded that it would be a problem for him if the Court were to
conclude differently on the
facts, but stressed that the incontinence
aspect was important.
[93]
Dr
Butler said it was more likely that the Accused suffered a seizure
before the phone call to the emergency services at 07h12.
The witness
agreed that his opinion was based on the assumption that the Accused
had a seizure. Dr Butler said that the fact that
the Accused wet
himself and was unaware of it and also the forehead injury, shows a
more severe post-ictal delirium. Dr Butler
said the severity was much
greater, therefore he doubted that the Accused had a short seizure
and recovered quickly. The witness
agreed that only the Accused could
say where what happened, and where and when the seizure happened; the
witness could not scientifically
determine that. Dr Butler could also
not with scientific certainty say how long the seizure lasted, but
was drawing inferences.
The Court will later deal with Dr Butler’s
testimony in more detail and the weight to be attached to it.
[94]
The
audio recording of the emergency call is indeed a silent,
unemotional, trustworthy, unbiased and accurate witness to the
Accused’s
demeanour and seemingly inappropriate lack of emotion
after the extremely traumatic events, as argued by the State.
Although State
counsel conceded that not every person reacts the same
in traumatic circumstances, it was argued that the emotional state of
the
Accused during the call is inconsistent with being a victim of a
crime and losing most of his family members. The Accused was calm,

fully conscious and able to relay his version of the events to the
police at the scene and later at the police station. Dr Michelle
van
Zyl also described the Accused as confident, not emotional, and
conversing casually and relaxed with staff. She noted that
he was
orientated to person, place and time.
The
Emergency Numbers
[95]
Sergeant Adriaan
Kleynhans, stationed at the Stellenbosch police station for the past
twelve (12) years, was the first police officer
that attended the
crime scene at [...] G. Street, [...] Estate. The witness observed a
piece of paper with telephone numbers stuck
on the fridge on the
ground floor of the house, as can be seen in Exhibit “D”.
[96]
Marcia Rossouw, the
Security Manager at [...] Estate, confirmed that a newsletter with
emergency numbers (Exhibit “D”)
that was stuck to the
fridge door
inter
alia
contained her telephone number, the number of Rene Coetzee from the
home–owners’ association, and the numbers of the
house
doctor as well as the hospital in Stellenbosch. A twenty-four (24)
hour emergency number was distributed to the residents,
as was the
number of the remote monitoring service,
by
regular newsletters issued by the home-owners’ association. The
number was also written on their bakkies.
[97]
Precious
Munqongani,
the domestic worker at the Van Breda household, since October 2014,
worked at the house three times a week. The witness
testified that
when she started working at the house, she was told that the paper
stuck to the fridge in the kitchen, as can be
seen in Exhibit “D”,
contained numbers that she had to contact in case of emergency.
[98]
James Reade-Jahn, MARLI’s
ex-boyfriend, recognised the emergency numbers stuck to the fridge as
can be seen in Exhibit “D”.
His own inference was that
the paper contained an emergency contact list for the children if
ever they needed it.
[99]
During the
cross-examination of Ms Rossouw, it was admitted on behalf of the
Accused that he knew about the numbers on the fridge.
According to
his plea explanation, the Accused scanned the numbers on the fridge
when he regained consciousness after his alleged
blackout (see
paragraph 41, Exhibit “J”). In his plea explanation, and
during his evidence-in-chief, the Accused said
that he looked at the
emergency numbers on the fridge door but they did not appear to him
to be of any assistance. During cross-examination
by the State, the
Accused advanced a slightly different reason for not making use of
the emergency numbers on the fridge. The Accused
testified that it
was not that he decided that it would not be of any assistance, but
he thought that he would do more by getting
the number for the
emergency services himself. He indicated that it would have taken too
long to explain what happened and that
such a person had to repeat it
again to the police. He thought he’d be better-off speaking
directly to the people that were
going to help. The Accused explained
further that he thought he could get an ambulance quicker rather than
getting the people on
the list to do it. It was pointed out by the
State that the numbers were nicely categorised with medical support
indicated as one
heading. There were at least two 24-hour emergency
numbers on the piece of paper stuck to the fridge, and also the
number of a
hospital. The explanation advanced by the Accused seems
to be quite irrational. The general practitioner who had a
twenty-four
(24) hour emergency number, or the hospital personnel
would have been able to assist the Accused directly without further
explanations
to more persons. The hospital would probably have been
able to dispatch an ambulance even quicker than the emergency
services.
In his evidence-in-chief the Accused testified that he
started googling the number for the emergency services on his phone
when he was on
his way from the back door walking through the kitchen to go
upstairs. He was busy googling on his mobile already
as he was
entering the house. The fridge in the kitchen was close to the back
door and the Accused would probably have been able
to get the
emergency numbers on the fridge quicker than googling it.
[100]
If the Accused’s
intention was to get help as quickly as possible by speaking to the
emergency services directly, it does
not explain why he first tried
to contact Bianca van der Westhuizen, his girlfriend at the time, at
04h24 before googling the number
for the emergency services at 04h27
on 27 January 2015 (see Exhibit “UU”).
The
Accused confirmed that the landline and mobile phone numbers
indicated in Exhibit “UU” belong to him and Bianca
and
their home landline. He said he accepted that the information
downloaded from the mobile phone was correct.
Furthermore,
the Accused was confronted with the fact that he did not seek help
from other obvious sources like neighbours, [...]
security or the
other emergency numbers on the list against the fridge, while on the
cordless phone to the emergency services.
Instead he called a minor
school girl residing in a hostel, several times from his mobile
phone. The Accused explained he just
wanted to speak to someone and
Bianca was pretty much his only friend in South Africa at the time.
James Reade-Jahn testified that
he got along really well with the
Accused and that they had a good relationship. Later that day the
Reade-Jahns and Alex Boshoff
were also at the police station during
his interview with the police, waiting to take the Accused home. It
seems that the Accused
had a support system as well at the time. The
Accused testified that he did not know what he would have said to
Bianca and what
assistance she could have rendered.
[101]
During
cross-examination the Accused created the impression that he was not
aware of the 24-hour emergency numbers on the fridge
after staying
permanently with his family for approximately five months and also
did not see it when he scanned through the numbers.
The fridge was
close to the kitchen counter and place where Sergeant Kleynhans found
three cigarette butts and a packet of cigarettes,
as can be seen in
Exhibits “A117 – 120, “A117 – 135”,
“A117 – 502” and “A117
– 503”.
The distance from the kitchen counter to the fridge in the kitchen
with the paper containing emergency telephone
numbers, was 1.53
meters. The Accused’s version in court was that he smoked the
cigarettes at the kitchen counter whilst
making a call from the
landline, the cordless telephone that was lying on the kitchen
counter. He testified that if he reconsidered
the list while on the
phone with Ms Philander, he would probably have ended up seeing the
24-hour emergency numbers. The Accused
conceded that he had the
opportunity and should have called [...] security as well. He also
conceded that they presumably would
have been able to get the
emergency services straight to the Estate. He also did not think of
calling the doctor whose emergency
number was also on the list. It is
unlikely that the Accused was not aware of what emergency numbers or
whose numbers were on the
list as the occupants of the house and
workers were made aware of the numbers.
[102]
The Court is cautious
not to adopt an armchair approach when evaluating the conduct of the
Accused who found himself in a very traumatic
situation. Apart from
the medical emergency numbers, the numbers of the Control room, the
Security manager and four friends were
on the fridge list (see
Exhibit “D”). In his plea explanation the Accused said
that he struggled for a very long time
trying to get the operator to
send an ambulance. According to the Accused the operator seemed
confused and he did not get the quick
response that he was expecting.
He was trying his best to formulate a plan to get help as soon as
possible. The Accused did not
try any of the numbers on the fridge
from his mobile phone while being on the landline with the emergency
services. As stated above,
an ambulance could probably have been
dispatched much quicker by phoning one of the numbers on the fridge
than by googling an emergency
number followed by a twenty-five (25)
minute call for help. The very reason for the list of numbers on the
fridge was to make use
of it in case of an emergency and for it to be
at the quick disposal of the person needing it.
Attempts to
Seek Other Assistance
[103]
It is common cause
that the Accused did not attempt to alert the security officers at
[...] with regard to the presence of an alleged
and seemingly very
dangerous intruder at large on the grounds of the Estate. The Court
accepts that the wellbeing of the injured
would take preference,
especially in a traumatised person’s mind, rather than the
presence of a dangerous assailant. It is
also common cause that the
Accused did not seek help from the security officers to obtain
medical assistance.
[104]
Ms Annalise Taljaard
was aware of patrols being undertaken by security guards; they often
did their rounds in the vicinity of her son’s room at
the front
of their house in G. Street. Ms Taljaard resided with her three
children at [...]4 G. Street, [...] Estate, since approximately

February 2014. The house situated at [...]3 G. Street was
uninhabited. The Van Breda residence was situated between [...]1 and

[...]3 G. Street.
[105]
The Accused did not
seek assistance from Ms Taljaard. Ms Taljaard testified that she
herself did not hear the Accused shouting for
help or the three
persons being murdered. The witness said she was stunned that she did
not hear anything, being a light sleeper.
[106]
Ms Stephanie Op’t
Hoff resided at 10 G. Street right across the street from [...] G.
Street. She testified that she had heard
an argument from the
direction of the Van Breda residence on the night of 26 – 27
January 2015. She said that she did not
want to interfere with their
affairs because she respected their privacy and wanted to save them
the potential embarrassment. Ms
Op’t Hoff said she would have
reacted if somebody was yelling for help. She testified that nobody
shouted for help or knocked
on her door for help. She displayed
disbelief that the Accused did not break down her door to seek help.
During the inspection
in
loco
the
Court noted that there is a balcony door leading from the boys’
room, to an outside balcony with a view of Ms Op’t
Hoff’s
house across the street.
[107]
In his
evidence-in-chief, the Accused testified that he shouted for help in
one way or another when he saw the assailant attacking
his brother.
He said he could not remember what he said or if he said anything but
he had made some sort of noise. The Accused
testified that he did not
call for help from his neighbours when he went out of the back door
after the attack. He said that there
was no particular reason why he
did not call for help. With the benefit of hindsight, that is
something he should have done. The
Accused confirmed that the houses
on the estate are close to each other.
The
Accused conceded that Ms Opt’ Hoff would have come and helped,
but he thought she could not do anything. He was of the
opinion if
people were not medical professionals they would not have been able
to help.
[108]
There is no evidence
that the Accused yelled for help when his father was being attacked.
He also did not call out to warn his mother
and sister to flee after
the attack on his father nor when he heard his mother’s voice
asking what was going on. The Accused
also did not call for help
after the attacker had left the room.
The
Accused testified that he thought he was doing the most he could to
get help. He could not explain why he did not shout to his
mother to
run away. He did nothing when the attacker moved in his mother’s
direction and out of the room. The Accused said
that he also did not
try and attract MARLI’s attention at the time. He explained
that if he had been thinking clearly, he
probably would have done
these things. The Accused said he was scared and unable to decide
upon what action to take. The Accused
conceded that, in ordinary
human experience, one instinctively tries to help your loved ones.
However, he put his total inaction
down to his state of fear. The
Accused, however, appeared to be brave enough to chase after the
attacker and other intruder(s)
after the attack on his family.
[109]
The Accused furnished
different versions about the presence of a person that he encountered
outside:
(a)
In his plea
explanation the Accused said he went outside via the front door while
still on the phone to the emergency operator.
When he was outside, he
noticed someone. As far as the Accused could recall, he requested
this person to get help. The Accused
could not recall who this person
was (see paragraphs 47 and 48, Exhibit “J”).
(b)
His statement
to the police is silent in this regard; the Accused merely stated
that he went outside for a bit via the front door.
Then he went back
inside and waited for the emergency services in the kitchen, having
some cigarettes while waiting (see paragraph
10, Exhibit “SS”).
(c)
During his
evidence-in-chief the Accused testified that he told a lady outside
in the street to please get help whilst busy communicating
with the
emergency services. He did not interact further with the lady.
(d)
During cross-
examination the Accused testified that the processes of the trial
jogged a lot of his memory and that there is a statement
in the
police docket of a lady that was outside their house. He could not
recall whether he mentioned it to the police or not.
Surprisingly he
also testified that it did not seem relevant information to him. Such
a person could possibly have assisted the
police with information on
the alleged intruders; the Accused was not aware of what she had seen
or known about the incident/intruders.
When probed again about his
failure to mention it to the police, the Accused responded that he
was fairly sure that he did mention
it to the police but that they
just did not include it in his statement. He then testified that he
did not deem it necessary to
point it out to the police that he
sought help from a lady on the estate and that the police had to find
her. Both scenarios as
stated by the Accused can simply not be true;
he either told the police about the lady or he did not deem it
necessary to mention
his encounter with the lady.
[110]
It is unlikely that a
complete stranger would have been wandering in that particular
cul-de-sac street in a security Estate like
[...] Estate at that time
of the morning. Ms Taljaard testified that no strangers were roaming
inside the Estate.
The
Accused thought it was a domestic worker at one of the neighbour’s
houses, even possibly Ms Op’t Hoff’s employee

(babysitter). The Accused testified that he was dressed in his
sleeping shorts with blood spatter and socks when he encountered
the
lady after the attack. He also had wounds on his body at the time.
[111]
This alleged unknown
person apparently never contacted security or the management of the
Estate or another resident/person for help.
The Accused testified
that it appears that the lady did nothing. It is highly unlikely that
the lady would not have raised some
sort of alarm after witnessing a
bloodied person asking for help at that time of the morning in a
quiet, safe and secure Estate.
None of the residents came to
assistance of the Accused which is strange if they were alerted to
the murders that had taken place
at the Van Breda residence. Even
after the discovery of this gruesome scene by the police, it seems
that nobody came forward claiming
that the Accused had requested help
from them.
[112]
As mentioned above, a
witness statement of a lady, possibly a domestic worker at one of the
neighbour’s houses, was filed
in the police docket. This
important witness was not called by the Defence to corroborate the
Accused’s version, justifying
an adverse credibility finding
against the Accused in this regard. No evidence exists supporting
this averment by the Accused.
[113]
In summary, the State
argued that the conduct of the Accused after the attack on his family
is inexplicable:
1.
The internet
search for emergency services whilst there was no need for it in the
light of the list mounted on the fridge for emergency
purposes;
2.
Not seeking
assistance from neighbours living in close proximity;
3.
The failure to
attempt to make use of the easily accessible security and emergency
services available to the residents of the Estate;
4.
The inability
of the Accused to explain sensibly why he opted to call Bianca, a
minor school girl living in a hostel, instead of
other people who
could render assistance; and
5.
His failure to
attempt to assist his family medically or comfort them in their dying
hour. Instead he smoked three cigarettes.
6.
The failure
to, at least, warn his mother and sister about the intruder in the
boys’ room after the attack on RUDI and his
father, can be
added to the State’s submissions.
[114]
Defence counsel
initially ascribed the unusual behaviour of the Accused due to a fall
and possible concussion, and later it was
attributed to a post-ictal
stage with which the Court will deal during the discussion of Dr
Butler’s evidence. The failure
of the Accused to contact or
approach obvious sources of help or persons in his immediate vicinity
and his behaviour towards his
family in need, is certainly most
extraordinary.
The Time
Period between the Incident and Attempts to Seek Assistance
[115]
On the Accused’s
version the attack happened not long before 04h24 on the morning of
27 January 2015. Ms Op’t Hoff testified
that she heard loud
male voices with an aggressive undertone from the Van Breda residence
on the night of the murders from 22h00
until 00h10. The sound of the
monitor for her son woke her up at 04h00. She found it strange that
both her sons were awake at 04h00
that morning as her eldest son
never woke up at night. The windows of the children’s room
opened towards the Van Breda residence.
The Accused attempted to call
Bianca immediately after the attack when he went out at the back door
at 04h24 on 27 January 2015.
He said he searched for the number of
the emergency services on the internet on his mobile phone at 04h27,
shortly after he tried
to phone Bianca. The Accused accepted that the
information downloaded from the cell phone was correct and,
therefore, the timeline
in Exhibit “UU”. He did not know
why the calls to the emergency line from his mobile phone at 07h12
were not successful.
The first successful call to EMS was from the
landline at 07h12 on 27 January 2017. The Accused confirmed that the
attack on the
family was completed at approximately 04h24.
[116]
Taking into
consideration the testimony of Ms Op’t Hoff, the incident
probably took place at approximately 04h00 to 04h24
on 27 January
2015. The Accused attempted to contact the emergency services for
help at 07h12 for the first time, in other words
approximately two
hours and forty-eight minutes later. The question is what transpired
during that period of time and the significance
thereof, if any.
[117]
During this period
the Accused smoked at least three cigarettes at the kitchen counter.
The Accused smoked the cigarettes one after
the other. Three (3)
cigarette butts on the floor close to the kitchen counter can be seen
in Exhibit “A42 - 44”.
[118]
In his statement the
Accused said that he got hold of the emergency services, went outside
for a bit, then went back inside and
sat in the kitchen having some
cigarettes whilst waiting for the emergency services (see paragraph
10, Exhibit “SS”).
In his plea explanation the Accused
said that he lit a cigarette at the kitchen counter to try and remain
calm whilst he was dialling
the emergency number on the landline (see
paragraph 43, Exhibit “J”). During cross-examination t
he
Accused was confronted with his police statement saying that he
smoked while waiting for EMS and after going outside the house
(see
paragraph 10, Exhibit “SS”). The Accused explained it was
incorrect. He told the police that he had cigarettes
at the kitchen
counter, the police probably misunderstood him and wrote down
something different. The Accused said it was a misinterpretation

because he had to repeat his story. Adv Galloway said the sequencing
or time line in the statement was also different from his
testimony
in court. In the statement the Accused said he was smoking after
making the call. The Accused responded the word “then”

established a misleading sequence. The Accused said he smoked at the
same time when making the EMS call.
[119]
James Reade-Jahn
testified that he never saw the Accused smoking when any of his
family members were around, especially his parents.
He witnessed no
other family member smoking. It was put to Sergeant Kleynhans that
the shoes at the bottom of the staircase belonged
to the Accused and
that the Accused put a packet of cigarettes in one of the shoes
behind the staircase. The Accused testified
that only one packet of
cigarettes was hidden in his shoe that particular night. He said he
kept both shoes at the bottom of the
stairs to go for a walk with
Sasha, the family dog. MARLI was not supposed to know that he smoked;
it could have influenced her.
He normally hid his cigarettes in his
shoes behind the stairs. The Accused testified that the shoes had
been standing at the bottom
of the stairs for a few days before the
incident.
Considering
the secrecy of him smoking and hiding the shoes and cigarettes from
MARLI at the insistence of his parents, and the
tidy appearance of
the rest of the house on the ground floor as can be seen in Exhibit
“A”, it seems odd that the shoes
would be standing at the
bottom of the staircase for a few days (see Exhibit “A20 and
A23 - 26”). Domestic workers
apparently cleaned the house every
day except for Sundays. Adv Botha put a different version to Sergeant
Kleynhans, namely that
the Accused put the shoes at the bottom of the
stairs before the arrival of the police. The Accused said the
bloodspots on his
shoes were presumably from the blood dripping from
upstairs as could be seen on the carpet next to the shoes.
Loss of
Consciousness
[120]
The Accused claimed
that he lost his footing and had a severe fall during his pursuit of
the attacker. He said that he got up again
and only lost
consciousness later as he moved past the middle landing, ascending
the stairs, after having tried to google the emergency
number on his
phone. The Accused could not explain why he wanted to go upstairs
again after returning from the back door. He was
unsure whether he
lost consciousness due to the shock of seeing his mother and MARLI,
or to the injuries sustained when he fell
down the stairs, or a
combination of both (see also paragraphs 37 and 39, Exhibit “J”
and paragraphs 8 and 9, Exhibit
“SS”). He allegedly lost
consciousness or blacked out for approximately two hours and
forty-eight minutes.
The Accused
testified that he was initially very, and even completely,
disorientated when he regained consciousness. He was confused
for a
while before he stood up from the stairs. He testified that when he
saw MARLI, he sort of snapped back into consciousness.
Examinations by General
Practitioners and the Possibility of Concussion
[121]
Dr Lizette Albertse,
a District Surgeon from Stellenbosch, testified that she did not get
a clinical picture of concussion when
she examined the Accused later
that day at about 10h30. However, she did not perform further tests
on the Accused in this regard.
[122]
She examined the Accused approximately 5 –
6 hours after he had sustained the injuries. Dr Albertse testified
that she would
have expected signs of concussion or a head injury.
The head injuries of the Accused could possibly have fitted in with a
significant
fall. However, if he had fallen with his head against the
edge of the step, one would have expected a burst wound. In her
opinion
it was improbable that the Accused fell like that. She was
also of the opinion that it was unlikely that the injuries to his
body,
thorax, back and knee fitted in with a significant fall. The
knob on his forehead could have been caused by blunt force like a
fall against a wall or an assault. The abrasions on his back were the
superficial part of the skin that had been scrapped off; the
lineal
appearance of the injuries could be indicative of the body pressing
against an object or being scraped.
[123]
During cross-examination it was put to Dr
Albertse that when the
Accused
ascended the stairs, he fainted when he saw his mother and sister on
the landing. The Accused wet himself.
It was put to the witness that the spelling on the Google search was
distorted and that he was for a period of time disorientated
once he
had regained his consciousness. Dr Albertse testified that it could
fit in with a head injury. Dr Albertse said it was
possible that he
bumped his head with the fall as the injury presented as blunt
trauma. The abrasion under the right knee of the
Accused could fit in
with either a fall and losing consciousness or with hurting oneself.
The abrasions on his back could also
fit in with someone falling down
the stairs on his backside. The head and knee injuries could have
been sustained on the stairs
or during a scuffle.
[124]
Dr Albertse testified that a person would
not be disorientated for a long time in the case of a light bump
against the head. In
the case of a more serious injury, a person
would be disorientated for a longer period and the recovery time
would be longer.
Dr
Albertse testified that a person who suffered from concussion would
not necessarily be unconscious, but the person’s reactions

would be delayed.
[125]
Dr Michelle van Zyl is a general
practitioner specialising in emergency medicine since 2007 and saw
the Accused twice that evening
at 20h25 and 21h45 respectively.
[126]
During the first visit the Accused was
fully orientated. The witness had a good and proper conversation with
the Accused. When the
Accused returned for the second time
accompanied by the police, he was still a hundred per cent
orientated.
[127]
The Accused was
orientated to person, place and time.
During
the second visit the Accused answered specific questions coherently.
With reference to the injury against his forehead, Dr
Van Zyl
testified that there were no signs of concussion or brain injuries.
[128]
The discolouration of the eyes could have
been as a result of the bump/injury to the head.
Adv Botha asked whether it would be
possible that the blood could flow from one eye to the other if a
person had laid flat on his
right side. Dr Van Zyl responded not
likely but it was not impossible.
[129]
Dr Van Zyl did tests for concussion during
the Accused’s first visit,
inter
alia
movement tests and the “Nystagmus”
test. Such tests excluded the possibility of concussion. The Accused
experienced
no middle-ear problems; if that had been the case, she
would have sent the Accused for further tests. She would have
expected signs
of concussion to be present, but there was no history
of nausea, vomiting or amnesia.
[130]
According to Exhibit
“J”, MARLI had an injury on her right hand and the bump
was caused by blunt force trauma. During
cross-examination the
Accused denied sustaining the injuries when MARLI defended herself
against him. The Accused said MARLI did
not hit him with a fist.
Comment on
the Period of Unconsciousness and a Brain Injury by a Specialist
Forensic Pathologist, Dr Tiemensma
[131]
Dr Marianne
Tiemensma, is a medical specialist and was employed at the Clinical
Forensic Unit at Victoria Hospital, Wynberg at the
time of her
testimony; she has emigrated since testifying. Apart from forensic
pathology, she also practiced clinical science.
Her qualifications
and experience were listed in Exhibit “NN”; her expertise
includes pathology which she started to
practice in 2007. The Court
finds that Dr Tiemensma was an exceptional witness and the criticism
by Defence Counsel that she was
not an objective witness, was
unfortunate and unfounded.
[132]
Dr Tiemensma
testified that the swelling above the left eye and the bruise under
the left eye of the Accused, were in keeping with
blunt force
injuries. The skin overlying these wounds was intact. The wounds to
the head, swelling and bruise on the eye, could
be caused by a blow
to the face or a fall. On a question whether the injuries would be
consistent with a fall on the stairs as
the Accused allegedly blacked
out, Dr Tiemensma said the Accused could have fallen on the stairs
because the back and head injuries
were consistent with a fall. She
testified that there seemed to be minimal bleeding from the wounds; a
tiny amount of blood was
not enough to go into shock as a result of
blood loss. Therefore she was of the opinion that the Accused would
not have fainted
due to blood loss. However, he could have fainted
because of shock. Dr Tiemensma said if a person had fainted because
of a medical
reason, his unconsciousness would have continued for
some time. In case of shock, a person would recover quickly. She did
not expect
a person to be out for hours. Bruising and injury might
have caused a mild concussion but she said Dr Albertse did not
mention
anything about disorientation.
[133]
Dr Tiemensma had the
opportunity to read the Accused’s plea explanation. When asked
to comment on the fact that the Accused
could recall certain details
vividly, but could not correctly type words in a Google search, Dr
Tiemensma said a bit of dizziness
was not recorded. Warrant Officer
Jeremias Engelbrecht, stationed at the Directorate of Priority Crime
Investigations, testified
that a Google or internet search was made
by the Accused at 04h27. The words “emergency” and “South
Africa”
were spelled incorrectly, but the words “ambulance”
and “number” were spelled correctly. The Court is of
the
view that these could be simple spelling mistakes under stressful
circumstances and that these were not in themselves necessarily

indicative of a medical condition. At 07h45 the Accused sent a text
message to Bianca with no spelling mistakes. Dr Tiemensma said
it was
quite obvious some incidents were described in detail in his
plea-explanation, and others not. She said it was interesting
how
“selective” it was. In the case of a concussion one would
suffer short-term amnesia but the Accused displayed selective
memory
loss.
[134]
Dr Tiemensma
testified that there were at least two causes for loss of
consciousness; one was an emotional shock or trauma, the
other was a
medical reason. The witness explained that fainting was short-term
with a brief loss of consciousness. Emotional shock,
for instance
when a person saw blood, would have symptoms like stress,
light-headedness, fast heartbeat, resulting in a person
passing out
and losing consciousness. The average duration is a couple of seconds
to one minute at most. Low blood pressure increases
once you fall to
the ground. A person did not need medical help to recover. The second
type was a form of shock because of blood
loss or a bump to the head.
The rate at which a person lost consciousness depended on the amount
of blood lost. If a person lost
less than 500 ml of blood, the person
could tolerate that and not lose consciousness. Medical correction
was necessary if a person
experienced fifteen (15) to thirty (30) per
cent blood loss; such a person would need fluid replacement. Adv
Botha indicated that
it was not the defence case that the Accused
lost consciousness due to blood loss.
He
indicated it was the defence case that the Accused sustained
concussion, not a brain injury
.
[135]
Dr Tiemensma
testified that a head injury, blow to the head or a concussion is a
mild traumatic brain injury, and can result in
a loss of
consciousness for a couple of seconds at most as stated above. Ninety
(90) per cent of persons suffering from concussion
do not lose
consciousness. If it lasts for more than one minute, it involves a
serious medical condition and is in keeping with
a more serious brain
injury.
[136]
Dr Tiemensma
testified it was unlikely that the blood spot on the stairs could be
as a result of a fall. The witness testified that
there seemed to be
minimal bleeding from the wounds of the Accused. Dr Tiemensma
testified that the injuries of the Accused would
not fit in with a
fall on that particular spot on the stairs as can be seen in Exhibit
“A124”. Superficial abrasions
would not cause a blood
spot like that. She was of the opinion that a 10 mm wound would not
have entered the abdominal cavity.
It penetrated the skin and the
body fat. To go through the skin and body fat, it depended on how
much force was used, the build
of the person and where on the body
the injury was inflicted. Keeping in mind the build of the Accused,
he was sturdy, the knife
wound did not penetrate the abdominal wall.
The wound was below the spleen and did not enter the internal cavity
to cause such
a spot of blood on the step. There should be at least a
40 mm penetration to go through the skin and tissue.
[137]
During cross-examination an enlarged
photograph of part of the staircase of the same area as in photograph
“A124”, was
shown to Dr Tiemensma and marked as Exhibit
“NN5”. A blood spot or smudge can be seen on the vertical
part where cone
69 is. It was put to the witness that
the
Accused said when he regained consciousness, he was on the stairs in
that vicinity, and noticed the stain on the stairs.
It depends on the position of his
body when he fell whether the smudge on the stairs could have been
caused by the stab wound. The
police did not take a swab of this
blood. Dr Tiemensma conceded that if the Accused fell forward and his
body was fixed in that
position, it was possible. She conceded if the
Accused was lying on the stairs, bleeding, that it could have
resulted in that blood
smudge. However, Dr Tiemensma questioned why
the blood would flow in an opposite direction against gravity and not
running down.
[138]
Dr Tiemensma
conceded
that a neurologist would be in a better position to comment on
concussion but said that she often dealt with head injuries
sustained
by patients and with concussions. Dr Tiemensma said the bump to the
Accused’s left forehead and the discolouration
could have
resulted in concussion. Defence counsel put it to the witness that
the spelling of emergency services on the phone was
distorted. She
replied if the Accused was able to Google, he was not that confused.
He knew what he was doing when he googled emergency
services. A mild
concussion would not result in loss of consciousness for hours. Adv
Botha said the Accused had constricted pupils
and slow reaction to
light and asked whether those signs were indicative of concussion.
However no evidence in this regard was
presented. Dr Tiemensma said
it was not because the pupils were equal. If one received a bump on
one side, there would be a difference
in the appearance of the
pupils. Constricted pupils could be as a result of drugs or any other
condition, it was not limited to
concussion. Dr Tiemensma referred to
page 250 of the article by James Kelly,
Journal
of Athletic Training
, “Loss of
Consciousness”, issued in 2001, Volume 36, saying that periods
of brief unconsciousness might be common to
concussion and that
longer periods of unconsciousness would occur in case of a brain
injury.
[139]
The Court adjourned
for cross-examination of this witness in respect of the concussion
aspect only at the request of the defence.
However, counsel did not
request that the witness be recalled.
Possible
Reasons Advanced by a Neurosurgeon for the Loss of Consciousness and
the Period, Dr Du Trevou
[140]
Defence witness Dr
Michael Du Trevou
is
a semi-retired Specialist neurosurgeon in private practice since
March 1993.
[141]
Regarding the version
of the Accused and the loss of consciousness due to shock or his
injuries (see paragraph 37, Exhibit “J”),
the witness
testified that all retrograde and post-traumatic amnesia was a
feature of traumatic brain injuries, including concussion.
It could
last from minutes to days depending on the severity of the impact.
During that time normal physical activity (for example
playing rugby)
was possible but the person might have absolutely no recollection of
those activities. That loss of memory was usually
permanent. To
determine how to make a finding, Dr Du Trevou said concussion was a
temporary alteration of functioning. Symptoms
of headaches and nausea
would be indicative of the condition. Primarily one looked at the
history of the patient. The neurological
examination of the patient
was almost always normal.
[142]
Any episode of loss
of consciousness lasting two (2) hours and forty (40) minutes
following a head injury was an indication of a
mild to moderately
severe traumatic brain injury. The witness said he doubted however
that this kind of injury, that could not
be picked up on an MRI scan,
would have resulted in retrograde amnesia (which was a loss of recall
of events before the insult)
as it was an indicator of severe or a
more severe brain injury. It was not possible to determine,
ex
post facto
,
whether the Accused had lost consciousness or whether he merely lost
recall of the incident.
[143]
The mere fact that no
evidence of a prior injury was visible on the MRI scans, did not
exclude the possibility that the Accused
had lost consciousness or
recall of the events subsequent to hitting his head. Absent
Nystagmus, as reported by Dr Van Zyl some
16 hours later, was also of
no value in excluding previous concussion, especially after such a
prolonged period. The witness indicated
that he saw the photographs
of the Accused in the ambulance which showed the bump on his
forehead. When Dr Van Zyl’s testimony
to the effect that she
would have expected to see signs of Nystagmus in case of concussion,
was put to the witness, he responded
that one could get such signs
but mostly one did not expect that. Passing-out or being confused
after a fall for such a period
as the Accused had described, was
consistent with a mild head injury.
[144]
Concussion does
affect decision making, patients frequently could not operate
normally, that why a sportsman would be taken off
the field. It takes
ten days to recover fully, on average. For a period of time
thereafter, it was possible for the person to operate
and function
fairly normally for a period of two hours or longer. A person would
have no recollection of the period that he was
unconscious.
[145]
Most importantly, Dr
Du Trevou testified that he did not examine the Accused and
rightfully conceded that he was asked to comment
blindly on
memory loss and loss of consciousness.  Dr Du Trevou was asked
to comment on whether the Accused could have
had a 2 hour 40 minutes
post-traumatic amnesia spell. The witness responded that it was a
common scenario to lose consciousness
but said that he needed more
information to determine the length of post-traumatic amnesia.
[146]
Dr Du Trevou conceded
that history was very important to the concept of diagnostic medicine
in order to eliminate possibilities
and get to the cause of a
problem. There are many causes for a loss of consciousness.
[147]
One cause is a
medical condition. The witness was not informed that the Accused
suffered from any related medical condition. Therefore
the witness
had not been informed of any condition that would have made the
Accused lose consciousness or of a similar episode
since the
incident. The Court is of the view that this is very important
information in the light of the testimony of Dr James
Butler, a
neurologist, whose evidence the Court will deal with later. The
possibility of a seizure or unusual episodes experienced
by the
Accused in the past, were not dealt with. The Accused was clearly not
aware of any medical condition with similar consequences
or effects
before or after the murders, otherwise the witness would have been
informed about it. After the conclusion of Dr Du
Trevou’s
evidence, the Accused also testified that he did not suffer from any
underlying medical conditions that would cause
him to randomly lose
consciousness.
[148]
A vasovagal attack
(fainting occurs when the body malfunctions because of shock or
extreme emotional stress) was a possible cause.
Dr Du Trevou
confirmed that the symptoms of such an attack are a pale skin, light
headedness, nausea, yawning, blurred vision,
etc. as a result of lack
of blood to the brain. When a person falls to the floor, the blood
supply improves when being horizontal
and the person recovers and
would feel better. Dr Du Trevou said he imagined a person will not
lose consciousness except if he
falls and bumps his head. Dr Du
Trevou said the Accused could have been unconscious for 2 hours and
40 minutes if he suffered a
vasovagal attack and fell on his head.
[149]
Physical injury was
another possibility. The bruising on the left side of his forehead, a
black eye and the bruising under both
eyes (see Exhibit “C8 and
9”) could have caused a loss of consciousness, or a minor brain
injury, assuming that he
had hit his head. The witness agreed that
the injuries, a mild bruising and injury to the soft tissue, were not
severe. The injury
to the brain could be mild to moderate. The
Accused could also have suffered concussion from a punch to the head.
[150]
The State’s
counsel confronted the witness with the text book scenario stating
that when a period of unconsciousness lasting
longer than thirty (30)
minutes occurred, it was indicative of a more serious brain injury.
Dr Du Trevou responded that the length
of time of unconsciousness was
controversial; various times were proposed regarding this issue. It
was not clearly defined. Dr
Du Trevou conceded that it was not normal
to lose consciousness for 2 hours and 40 minutes. Dr Du Trevou
testified that it was
common that patients that were concussed, were
entirely normal.
On
a question by the State’s counsel what the likelihood was of a
person suffering such a long period of unconsciousness recovering
on
his own without medical intervention, Dr Du Trevou said that it was
unlikely; it was more likely a loss of memory or a post-traumatic

amnesic period.
When a person lost consciousness due to the loss of oxygen, it could
cause brain damage within a few minutes. With reference to
the issue
whether a person would have known whether he had amnesia or lost
consciousness, the witness said it was not possible
for him to
determine that.
[151]
Dr Du Trevou
testified that the loss of memory of the period during which one has
been unconscious, will be permanent. One can also
lose one’s
memory of a period prior to losing consciousness. It is called
retrograde amnesia when one cannot recollect a
period before the
injury. That is indicative of a serious injury. One can suffer
retrograde amnesia as a result of mild to moderately
severe traumatic
brain injury. Retrograde amnesia is not selective, it is complete and
the amnesia regarding that period is permanent.
As time progresses,
one’s memory does not recover. In the case of post-traumatic
amnesia, in the period after regaining consciousness,
one might not
have a recollection of one’s activities or might have a patchy
memory which improved with time.
[152]
The witness conceded
that he had no objective verification of the Accused’s
condition; his opinion was based on what he had
been told. He would
physically examine a person and admit the person for neurological
observation to determine whether the person
was concussed. This is a
very important concession and the Court finds that Dr Du Trevou’s
opinion regarding the condition
of the Accused after the attack is
merely of a speculative nature. The bottom line is that he did not
examine the Accused at the
time, nor did he do any tests in this
regard. He did examine an MRI scan, presumably done on 25 July 2017.
The scan was normal
except for two minor congenital abnormalities
which the Accused was born with. There were unrelated abnormalities
which had no
effect on the issue at hand.
[153]
Dr Du Trevou
testified that it was impossible to exclude malingering. It is a
proper medical diagnosis and simply means faking an
illness. His
opinion on the entire issue was a theoretical comment without having
the medical history of the Accused.
The Loss
of Consciousness and the Significance of Blood Flow Patterns
[154]
Captain Marius Joubert has 27 years’
experience in the SA Police Service. He is currently stationed at the
Forensic Science
Laboratory in Plattekloof as a Bloodstain Pattern
Analyst and Forensic Crime Scene Expert. His qualifications and
experience are
stated in paragraphs 2 – 4, Exhibit “DDD1”.
He commented on the blood flow patterns on the body of the Accused

and a possible fall, which could be related to the issue of
concussion, unconsciousness and the approximately two hours and forty

minutes time line.
[155]
The Accused testified that in pursuit of
the fleeing attacker, he lost his footing and fell down the stairs.
He landed on his back
near the bottom of the top half of the stairs.
During cross-examination, the Accused said he fell as he was throwing
the axe after
the attacker. He explained how the actual fall happened
and, whether he was falling backwards or forwards, he ended up on his
back.
He could not recall rolling forward but if he had tumbled down
the stairs, it could have only been one forward roll, or
alternatively
he had slid onto his back and down the stairs. The
Accused conceded that it was two very different motions. He felt a
little disorientated
but it seems that he got up immediately and
moved through the kitchen to the back door. The Accused agreed that
the fall down the
stairs did not have very much of an effect on him
until he went up the stairs again.
[156]
He walked back up the stairs and when he
was already past the middle landing, he lost consciousness upon
seeing MARLI and his mother
lying on the top landing. He testified
that he lost consciousness just above the middle landing.
The
Accused claimed after he regained consciousness, to have seen blood
on a spot on the stairs where he had blacked out (see Exhibits
“A124”
and “NN5”).
The Accused
claimed seeing a patch of dry blood on the vertical side of the
stairs that was at the exact height of where his stomach
had just
been and he inferred that it was caused by the stab wound. He saw the
blood as he was getting up; he was on his knees
about to stand up and
pushing himself off the stairs. He did not see other blood spots on
the stairs because he did not specifically
check.
[157]
Captain Joubert was
of the opinion that the flow patterns on the upper body of the
Accused at point “CS13”, photographs
73 – 75,
Annexure L, Exhibit “DDD2”, suggested the Accused’s
torso was erect when the flow pattern was
created, with insignificant
movement of the upper body before the bloodstain pattern dried. A
slight deviation of the blood flow
occurred just above the left
nipple and it was caused by the pooling of blood at the bottom of the
flow pattern; the blood was
pushed to one side depending on the
contours of the skin.
[158]
The flow pattern at
point “CS14” on the left arm of the Accused indicated no
deviation within the flow pattern and followed
the contours of the
Accused’s left arm. The flow pattern indicated that the
Accused’s left arm was in a similar position,
as observed on
photograph 73, Annexure L, Exhibit “DDD2”, when the flow
pattern was created, with insignificant movement
of his left arm
until the bloodstain pattern dried.
[159]
Captain Joubert
accordingly confirmed that the flow pattern originated from one
superficial stab wound sustained by the Accused
on his left upper
torso and the stab and cut wounds on his forearm did not indicate
deviation and therefore insignificant movement
(see paragraphs 18.1
and 18.2, Exhibit “DDD2”).
[160]
A slight zig-zag
pattern was visible on the photograph 75, Annexure L, Exhibit “DDD2”.
The witness explained that it
was because the blood was drying and
flaking off. The chest hair of the Accused could also have caused the
zig-zag pattern.
[161]
There was no
significant movement of the upper body. Captain Joubert testified
that running after the attacker, falling on the staircase
and
possibly fainting, would change the upper torso position; the gravity
angle changes and the deviation changes. Lying on one’s
side,
the deviation would be towards that particular side; it was true for
the fainting as well. He said it all depended on the
movement, taking
into account the running. The forearm cutting was superficial and
indicated no deviation within the flow pattern
with insignificant
movement of the left arm until the bloodstain pattern dried (see par
18.2 and photograph 76, Annexure L, Exhibit
“DDD2”). The
witness agreed that the blood was only oozing out of the wounds on
the Accused’s arm with a slow
flow.
[162]
A smear indicating a
disturbance could be seen on photograph 73, Annexure L, Exhibit
“DDD2”. Captain Joubert agreed
that the blood could have
been smeared against a surface close to the skin area. The witness
conceded that such a smear could have
been created when the Accused
fell, brushing his arm.
[163]
No significant
deviation of blood flow from the stab wound in his left side towards
any side of the Accused’s body can be
seen on photograph 74,
Annexure L, Exhibit “DDD2”. On the photograph it seems
that wound dressing was applied and removed.
Reason for
the Loss of Consciousness and Period Advanced by a Neurologist, Dr
Butler
[164]
The Accused was of the view that he
possibly passed-out because of the shock of seeing MARLI and his
mother at the top landing or
from the fall down the stairs earlier.
The Accused confirmed that he had never before suffered such a random
loss of consciousness
for more than two and a half hours. He
confirmed that he did not consult any doctor regarding his loss of
consciousness for that
long a period. He consulted with Dr James
Butler after the conclusion of his evidence and when his girlfriend’s
father, Dr
Janse van Rensburg, arranged for him to consult with Dr
Butler on 09 November 2017. Dr Butler was approached as a result of
an
incident that occurred on 08 November 2017 where the Accused lost
his memory without warning and
inter
alia
his arms and legs were shaking for
approximately one minute.
[165]
Dr James Butler
obtained an MBChB in 1988 and a FCP (SA) Neurology in 1995. He did a
Canadian Society of Clinical Neurophysiology
EEG Examination in 1998.
Dr Butler is a neurologist with a private practice at the
Constantiaberg Medi-Clinic since 1998 to date.
He
is also a part-time consultant neurologist at Tygerberg hospital and
the University of Stellenbosch as well as at the Department
of
Neurology, Groote Schuur hospital and UCT. He specializes in epilepsy
and epilepsy surgery. The witness is involved in the Epilepsy

Research Unit, of Constantiaberg Medi-Clinic. He worked in Canada,
did peer-reviewed publications and did epilepsy related conference

presentations, internationally and nationally. Dr Butler’s
Condensed CV is contained in his report on pages 48 – 50,

Exhibit “GGG”. The list of publications in his CV is
incomplete and not updated.
Dr
Butler testified on behalf of the Defence and attempted to explain
the probable cause of the unaccounted time loss and the reason
why
the Accused behaved in a certain manner after the incident.
[166]
Dr Butler testified that the diagnostic
process starts with pre-test probabilities which could change once
seeing and examining
a patient. This comment by the witness is
significant in the Court’s view as will be pointed out later.
Dr Butler testified
there were three possible diagnoses:
(i)
Psychogenic
non-epileptic seizures: the loss of blood to the brain causes loss of
consciousness.
Seizures
are developed or memory loss occurs related to previous emotionally
traumatic events. Experiencing emotional trauma is
embedded in memory
and parts of the brain. The individual experiences emotional trauma,
it is buried in the brain and the brain
converts it into neurological
processes, like seizures. Dr Butler explained it is a subconscious
process resulting in psychogenic
non-epileptic seizures.
The loss of blood to
the brain causes loss of consciousness;
(ii)
An epileptic seizure;
or
(iii)
Malingering
which
is a deliberate conscious attempt to fabricate a medical condition.
It can be described as a fabrication of symptoms of mental
or
physical disorders.
[167]
The witness arranged
for a twenty minute outpatient electroencephalogram (EEG) to be
performed on 09 November 2017.
A
slide of the Accused’s EEG report was shown in court and the
result was normal (see also page 37, Exhibit “GGG”).
On
10 November 2017 Dr Butler consulted with the Accused in the Epilepsy
Unit in the afternoon between 17h00 and 19h00.
On
10 November 2017 he arranged for
the
Accused to be admitted to Constantiaberg hospital for a 24-hour
video-EEG recording to be performed and brain electrical activity
was
recorded.
Dr
Butler
explained subsequent tests were done for a diagnosis.
[168]
The
history of the Accused’s problem was obtained from the Accused
and his girlfriend who was present during the consultation.
Dr Butler
said she was present at the consultation because he needed an
independent
account
of what happened after the patient had a blackout or lost
consciousness. They
need as
many people as possible to give a collateral history. The witness
said he was aware that the girlfriend could be part of
the
malingering.
History
taking is obtaining spontaneous history and systematic interrogation.
The purpose of the systematic process was to establish
pre-existing
symptoms and individualised symptoms.
The Accused had
no
family history of seizures, no childhood seizures, and no injuries or
trauma to the brain or infections in the brain.
[169]
The Accused and his
girlfriend described two events or episodes when the Accused became
abruptly amnesic in approximately February
2016 and on 08 November
2017. No history of incontinence of urine or laceration of the tongue
was present in any of the instances.
With regard to the incident in
February 2016, the Accused consumed at least six glasses of wine and
apparently did not have a lot
of sleep the night before. The Accused
also reported intermittent shivers of his whole body while completely
awake and dated these
shivers to the early part of 2015.
[170]
Dr Butler testified
that he did not discuss the events on the night of the murder
preceding the loss of consciousness. He focussed
on the details
around the period of amnesia. The version of the Accused appears on
page 6, paragraphs 19 and 20, Exhibit “GGG”.
[171]
There are a myriad
symptoms, of which only two are indicative of generalised seizures
and all the others are indicative of focal
epilepsy.
The two symptoms for
generalised seizures are
b
rief
absences, which the Accused denied the presence of, and
a
funny twitch or jerk.
According to Dr
Butler the only symptom the Accused
confirmed,
were jerks.
Dr
Butler testified that m
any
people do not see it as seizures
.
The witness testified that persons could live their lives
experiencing these jerks without it affecting their daily functions.
When
examining the subsequent EEG reports and seeing the abnormalities, Dr
Butler was confident that the Accused
had
epilepsy. The abnormalities found could be seen on the EEG on page
38, Exhibit “GGG”, a 10 second excerpt from a
24-hour
recording, and were also discussed on page 32 of his report, Exhibit
“GGG”. The spikes were an indication of
generalised
epilepsy or seizures.
A
video clip of a thumb movement by the Accused was handed in as
Exhibit “GGG1” and the other video with a bigger movement

by the Accused, as Exhibit “GGG2”. The witness
diagnosed
the Accused with
Juvenile
Myoclonic Epilepsy (JME).
JME
starts in the teenage years or twenties as the age of onset, and
sometimes even in a person’s thirties. People could suffer
from
JME and experience a
generalized
tonic-clonic epileptic seizure
(also known as a grand mal seizure or a fit).
Dr
Butler testified that he was as certain of his diagnosis as he has
ever been of anyone with an epilepsy condition.
[172]
The Court accepts
that the Accused indeed suffered from a seizure in November 2017 and
it is not necessary to go into the detail
of the evidence in this
regard. In November 2017 Dr Butler not only consulted with the
Accused, he also did tests before making
the diagnosis. The only
other source of information about the episode in approximately
February 2016, is the girlfriend of the
Accused. She did not testify
and therefore the Court is not in a position to evaluate the
independence and reliability of her version
of the history. The
Accused himself did not testify about the circumstances pertaining to
the incident in February 2016. Even if
he did not remember much about
it, his girlfriend surely would have alerted him to it. Therefore the
Court makes no finding in
this regard. The fact is that Dr Butler did
not examine the Accused or do tests on him in February 2016. Dr
Butler testified that
it is highly likely that the Accused had a
generalised tonic-clonic seizure in February 2016. He conceded that
he will only use
the word “definite” when he has a video
EEG running on somebody. The Court will come back to the relevance of
this
issue.
[173]
The question that the
Court must decide is whether sufficient evidence existed to conclude
that the Accused suffered his first so-called
“grand mal”
seizure during the night of the murders in January 2015.
[174]
The Accused said he
felt disorientated and he was in shock when he had woken up from the
period of amnesia on the night of the murder.
The Accused also has a
vague memory about certain things as set out in Dr Butler’s
report
(see
paragraphs 25 and 26, Exhibit “GGG”),
inter
alia
of
the arrival of the ambulance and being in the ambulance.
Subsequently
the Accused also indicated to Dr Butler that his memory from the time
he got up from the toilet until he walked up
the stairs prior to
losing consciousness, was “a bit fragmented” and he could
not really put a time reference to how
it happened, but said he could
remember clearly what he saw at that time (see paragraph 32, Exhibit
“GGG”).
The
Accused testified that he thought that Sergeant Kleynhans asked him a
couple of questions but he could not recall what Sergeant
Kleynhans
had asked him. The EMS personnel arrived after that. He remembered
them walking past him. The Accused said he spent a
while outside the
front door and one of the officers brought Sasha to him and put her
on his lap.
[175]
During the
cross-examination of Dr Tiemensma, it was put to the witness that the
Accused would say that he was certain that the
paramedics did not
clean his wound as the person who took the photo wanted to document
them as it was at the time. Dr Butler stated
in paragraph 25,
Exhibit
“GGG”, that the Accused had no recall of some of the
questions put to him and was told that he did not answer
some of the
questions. Dr Butler could not say by whom the questions were put to
the Accused. None of the police witnesses testified
that the Accused
did not answer their questions and no such allegations were made
during the cross-examination of the State’s
witnesses. The
Accused even gave an account of the events to Captain Steyn at the
crime scene. The Accused gave a detailed account
at the police
station and in court of the sequence of events after he had woken up
until the arrival of the police and he had a
coherent conversation
with EMS and Captain Steyn. On behalf of the Accused it was put to
Sergeant Kleynhans that the Accused put
his shoes at the bottom of
the stairs before the arrival of the police. Even more telling was
the statement put by Adv Botha to
Sergeant Kleynhans that the Accused
will say that the piece of cement from the floor, as one entered the
front door, was not chipped
out from the floor until he left the
scene. This statement is indicative of acute awareness of one’s
surroundings. The Accused
remembered observing a blood mark when he
got up after regaining consciousness.
[176]
According to Dr
Butler the Accused remembered “bits of the interrogation”
at about midday. From his testimony it was
clear to the court that
the Accused contested the contents of his comprehensive statement to
the police (Exhibit “SS”)
taken the same day, being
fairly certain of the events that transpired at the police station.
[177]
Dr Butler concluded
that there was compelling evidence that the Accused had a
“generalised tonic-clonic (epileptic) seizure”
on the
night of the murders (see paragraphs 33 – 37, Exhibit “GGG”).
He testified that there was a high probability
that the Accused had a
seizure the night of the incident. He based this conclusion upon the
following:
(i)
The Accused
had a proven diagnosis of JME in 2017;
(ii)
He had two
generalized tonic-clonic (“grand-mal”) seizures since the
family murders. These type of seizures are more
visible and the most
serious. They last for up to five to ten minutes and a person passes
out. As stated previously, it cannot
be accepted as a fact that the
Accused had a “grand mal” seizure in February 2016
without being able to verify the
incident with reliable independent
evidence and medical tests. Dr Butler said the seizures of February
2016 (if any) and November
2017 were unrelated to the murders.
Effectively, Dr Butler made an inference from another inference
regarding the alleged seizure
at the time of the incident in January
2015;
(iii)
The Accused’s
myoclonus, started around the time of the family murders according to
Dr Butler. A myclonic seizure is another
type of seizure that goes
with jerking. The presence and time of onset of his myoclonus was not
“cherry-picked” by
the Accused as he was completely
oblivious to the significance of these shivers. On 10 November 2017
the Accused denied a long
list of brief, episodic neurological
symptoms, each of which may present minor seizures, except myoclonic
jerks. Dr Butler stated
that the Accused was unaware of his
condition; he did not pick the timing of the myoclonus and did not
fake symptoms. The myoclonus
coincided with what was found on the EEG
in November 2017.
The
aftermath of a myoclonic seizure suffered by the Accused can be seen
on page 38 of his report. It lasted 330 to 350 milliseconds
(a third
of a second). It was quick occurrence. The movement was brief and had
it not been for the machine and the video, he would
not have picked
it up.
The EEG
could not be faked; either the result is on the scan or not.
Dr Butler said
deliberate twitching would not reflect on the EEG. The presence of
myoclonus is highly unlikely to be a “false
positive” or
coincidentally correct symptom as this symptom was the only one in a
long list of symptoms presented to the
Accused that he reported to be
present. The Accused would have been completely ignorant of the
importance of this symptom in the
diagnosis of his condition.
According to the
doctor,
the
Accused’s girlfriend often noticed jerks, would ask him if he
was alright and therefore provided corroborative evidence
for his
history. There is no basis for this statement as the reliability of
the girlfriend’s version could not be tested.
Dr Butler
testified that the mild vagueness with regard to dating the onset
exactly, is to be expected. It happened with many patients
with minor
seizures that were not recognized as such. To summarize, the history
obtained from the Accused about the myoclonus is
at a time when he
was oblivious to its diagnostic significance. Hence, the dating of
its onset to the early part of 2015 is deemed
to be reliable,
according to Dr Butler. The “early part of 2015” was not
defined.
[178]
The
Accused had no warning immediately before his period of amnesia as he
walked up the stairs. Lack of warning, as reported by
the Accused,
indicates a generalized tonic-clonic (grand-mal or major) seizure
rather than one that starts in one part of the brain. The absence
of
symptoms of syncope, namely light-headedness or dizziness, blurred or
receding vision and or the sound and the feeling of an
imminent
faint, effectively excludes this as a cause for his loss of
consciousness. Syncope is typically brief and recovery usually
occurs
in seconds, without residual symptoms or confusion. It is unlikely
that the Accused was hit on the head because there is
no evidence to
that effect. This is true if one has to accept the Accused’s
version that he was not hit on his head. During
the testimony of Dr
Tiemensma, it was the Accused’s case that he possibly suffered
from a concussion as a result of the fall
on the stairs.
[179]
The
Accused had a bump against his head and discolouration of the eyes
after the incident (see Exhibit “OO”). Dr Butler

testified that in this instance there are no other possible causes of
amnesia. The Accused was perfectly lucid while he walked
up the
stairs immediately prior to becoming amnesic. His vivid recall of
certain moments is evidence of relative preservation of
his brain’s
functioning, including memory, in the minutes leading up to his
amnesia. The lack of retrograde amnesia is a
hallmark of an epileptic
seizure. Patients with moderate and severe traumatic brain injuries
frequently have varying durations
of retrograde amnesia. Dr Butler
concluded that an epileptic seizure represents the only plausible
explanation for the abrupt onset
of amnesia, without premonitory
symptoms.
[180]
The witness was of the opinion that the
corroborative evidence suggests that the Accused blacked-out for a
period of 2 hours and
40 minutes before he woke up in exactly the
same place where he became amnesic, lying face down on the stairs.
According to the
Accused it was dark when he became amnesic and light
when he awoke, indicating a long period of amnesia consistent with
independent
evidence. In paragraph 38 of his report, Exhibit “GGG”,
Dr Butler listed possible causes for this. He testified that
a
traumatic brain injury can readily cause unconsciousness for the
entire period of 2 hours and 40 minutes of lying in exactly
the same
place, and not simply being amnesic. In the event of a brain injury,
the period of loss of consciousness would indicate
a moderate diffuse
traumatic brain injury. A full neurological recovery over hours,
characterised by amnesia and immobility or
very little movement for 2
hours and 40 minutes, is highly unlikely.
There
is confirmation in literature that a “grand mal” seizure
can last 2 hours and 40 minutes or longer.
Most
last a few minutes. It is impossible to say how long the seizure
lasted; it might have been a three minute seizure, followed
by a
post-ictal state.
Lying
in the same place, the level of consciousness is depressed and the
whole brain is not working. When a seizure lasts a few
minutes, then
the brain cells recover and the post-seizure state can last hours or
days. The brain does not work properly during
that period. One cannot
say whether the Accused had a three-minute seizure or an hour long
seizure with amnesia.
[181]
The witness disagreed with Dr Du Trevou,
the other Defence witness, that the Accused lost consciousness
possibly because of a head
injury, a syncope or a combination.
Therefore, contradictory evidence by two expert witnesses on the same
topic was presented during
the Defence’s case, although the
Court bears in mind that Dr Du Trevou’s opinion was based on
theory. However, Adv
Botha indicated during the cross-examination of
Dr Tiemensma that it was the Defence’s case that the Accused
lost consciousness
as a result of concussion.
Dr
Butler, like Dr Du Trevou, did not examine or consult with the
Accused at the time of the incident. They had to rely on photographs

of the injuries of the Accused, like all the other medical expert
witnesses, except for Dr Albertse and Dr Van Zyl.
[182]
Dr Butler said no other medical cause for
lying in the same position like this, is apparent. The Accused’s
failure to move
is indicative of dysfunction in the motor systems of
the brain, which are represented in the frontal lobes, while amnesia
is indicative
of dysfunction in the temporal lobes. Lying in the same
position/place can only be explained by diffuse brain dysfunction (a
depressed
level of consciousness) or by fabricating the history.
Lying in a relatively immobile, amnesic state in exactly the same
place
for a few hours, after an abrupt onset of amnesia, is typical
of an epileptic seizure. There are no other diagnostic possibilities,

other than malingering, which can explain the time period. Abruptness
of onset of amnesia can only be caused by a seizure if one
accepted
the correctness of the facts of the black-out.
[183]
Dr Butler referred to
the bruise around the Accused’s left eye, and said he was
struck by the fact that the Accused failed
to mention this, and
possibly did not realise it had happened. His clear awareness and
memory of his other injuries is evidence
that his brain was
functioning well prior to the period of loss of consciousness, and
dysfunctional from the moment he lost consciousness
and remained
dysfunctional until it was pointed out to the Accused by the District
Surgeon. If the Accused was malingering, he
would have pointed out
all the injuries (if he was aware of them). The Accused’s lack
of awareness that his pants were wet
is equally crucial, indicating
that his brain was dysfunctional, as is always the case during a
post-ictal period following a generalized
tonic-clonic seizure. It is
a form of neglect. Adv Botha put it to Dr Albertse that the Accused
would say that when he went up
the stairs again, he fainted when he
saw his mother and sister on the landing. Adv Botha said the Accused
wet himself, creating
the perception that the Accused was aware that
he wet himself at that moment.
The
witness was of the view that incontinence with neglect and the
unawareness of the bump to his head exclude the possibility of

malingering. Dr Butler conceded that he is not qualified to testify
about the psychiatric aspects of the case.
Dr
Butler testified that
incontinence
is of profound significance in this case despite the traumatic
background. Dr Butler said his conclusion was not based
on the
incontinence only, but also on the neglect and amnesia. He said the
evidence and
probabilities were so overwhelming that he was forced to come to this
conclusion.
[184]
State counsel pointed out that the Accused
had
access to the police docket before the commencement of the trial in
April 2017. A part of the docket contains the findings of
the blood
spatter expert. Captain Joubert reported on the urine stain on the
Accused’s pants (see Exhibit “DDD”
and “DDD1,
Annexure C, photographs 182 and 182”) and testified in this
regard. Therefore the Accused did not forget
about the stains, he was
well aware of the evidence before consulting with Dr Butler.
[185]
Dr Butler fully
agreed that there are other conditions and reasons that can cause
incontinence;
it cannot be ascribed only to a tonic-clonic seizure. Defence counsel
argued that no alternative scientific explanation
for his
incontinence had been put forward. In the light of the concession
made by Dr Butler, it can be accepted there are other
explanations
for it. Dr Butler was of the view that a combination of losing
consciousness and wetting oneself indicate something
else. In a case
of extreme fear or fright, a person will be prone to it. Dr Butler
conceded that it was an extraordinary situation
and said there are
exceptions to everything.
Dr
Butler testified that urine incontinence could have occurred prior to
the black-out. The Accused was on the toilet when the sequence
of
events unfolded. There appears a lot of or substantial amount of
urine in front and at the back of the pants as can be seen
on
photographs 182 and 183, Exhibit “DDD1”. The bladder
function is controlled by the nervous system. It could not
be
determined from the photographs when the Accused wet his pants. Dr
Butler said that no objective evidence existed and he had
to look at
what the Accused had told him. The Accused was lucid prior to the
period of amnesia and he would have remembered wetting
his pants
because he remembered other details; he had a recall of events up to
the period of amnesia. Therefore he was of the view
that the Accused
wet his pants during the period of amnesia. As indicated above, the
perception was created that the Accused was
aware of wetting himself
during the cross-examination of Dr Albertse. Dr Butler conceded that
undoubtedly trauma would also make
one want to urinate if one is
conscious.
[186]
If
the seizure lasts longer than five minutes, the person is in a
continuous seizure, and it is considered a medical emergency to

prevent a disaster. One seizure, not separate seizures, or recurrent
seizures in the case of a grand-mal seizure lasting 30 minutes

without regaining consciousness, indicate big problems and will be
considered as a medical emergency. It is clear that the Accused
could
not have suffered a seizure lasting that long as there is no evidence
of such a medical emergency suffered by the Accused.
[187]
The
witness agreed that only the Accused could say where and what
happened and where and when the seizure occurred, the witness
could
not scientifically determine that. The witness could also not, with
scientific certainty, say how long the seizure lasted
but was only
inferring it. In justification of his opinion that the Accused was
not hit on the head, Dr Butler explained that the
Accused was
perfectly lucid immediately prior to becoming amnesic, while he
walked up the stairs. The Accused’s vivid recall
of certain
moments is evidence of relative preservation of his brain’s
functioning, including memory, in the minutes leading
up to his
amnesia. Adv Galloway asked whether given the facts and
circumstances, there is a possibility that the Accused committed
the
murders, did things and then had the seizure. Dr Butler replied that
the answer is emphatically yes.
However,
in that instance, Dr Butler said, whether the Accused was lucid or
not amounts to speculation.
[188]
Dr Butler also agreed that
it
is more probable that the self-inflicted injuries, if such, would
have occurred after the murders, but before the seizure. Dr
Butler
also agreed that the Accused had to think about the circumstances,
made a decision and execute it.
Adv
Galloway asked whether the Accused would have been able to inflict
injuries, being self-inflicted according to two doctors,
in a
post-ictal state. Dr Butler again confirmed that it was much more
likely that the injuries were inflicted in the pre-ictal
stage before
the seizure, when the brain was working well.
[189]
The witness testified that he did not focus
on the events of the night of the murders, instead he focussed on
what happened on 08
November 2017.
The
witness agreed that only the Accused could say where and what
happened and the witness could not scientifically determine that.
The
witness could also not with scientific certainty say how long the
seizure lasted, but was only inferring it.
During
cross-examination it was put it to the witness that his source, the
Accused, gave the impression of a fragmented memory,
but in court
(and also to the police) he gave a more detailed account. Dr Butler
responded that there is a reasonable probability
of memory problems
but conceded that he relied on the Accused’s version. Dr Butler
also conceded that the reliability of
the truth told by the source,
was important. State counsel said the Accused described the
interrogation by the police as fragmented
to the witness, but in
court he told a different story with details from what he had worn to
what he had eaten. Dr Butler conceded
that it discounts the strength
of that evidence. Dr Butler agreed that at the time when the
statement was taken, the Accused could
have recovered sufficiently
but said he did not see the Accused at the time. It needs to be
mentioned that the Accused not only
gave a reasonably detailed
account of the events to the police a few hours later at the police
station, but also provided a coherent
version to Captain Steyn at the
scene not too long after he had woken up from the alleged total
black-out.
[190]
Dr Butler confirmed
that he
diagnosed
the Accused with JME in 2017 and that he was also of the view, based
on the history, it was highly likely that the Accused
had a seizure
in January 2015. Dr Butler conceded after a seizure, there is no
objective medical evidence to confirm it like after
a heart attack.
If an EEG is not done shortly after a seizure, one relies on the
totality of the evidence. The witness
said
clinical
skill then comes in, circumstantial evidence is used. When he takes a
history, there are three bits of information he needs:
two come from
the patient regarding what happened in the moments leading up to the
seizure and how the patient felt and function
after regaining
consciousness. The other part of the information comes from observers
of the patient or an outsider. The Court
is wary of the fact that, on
Dr Butler’s own version, he did not have much information about
what happened leading up to
the suspected seizure in 2015, and nor
were there any observers of the patient or information from an
independent outsider.
Dr
Butler conceded that his backdated diagnosis of 2015 was based on the
history provided by the Accused, and also his girlfriend’s,

regarding the 2016 incident.
The witness confirmed
that
the
history is uncorroborated. As mentioned before, the witness testified
that he only can be certain about a diagnosis when he
gets a video
EEG running on the patient at the time.
[191]
No other symptoms of
epilepsy were reported until the seizure in February 2016 occurred.
Between February 2016 and the seizure in
November 2017, there were no
other reports of symptoms apart from twitching. No reports of urine
incontinence or amnesia were made
pertaining to the 2016 and 2017
incidents.
Dr
Butler conceded that the Accused was the only source of information
about any symptoms prior to February 2016.
Dr
Butler said he had no knowledge of the Accused consulting with
another doctor in this regard. He confirmed that he first made
the
diagnosis.
[192]
The witness agreed that t
he
best time to make a diagnosis is at the time of the incident or
occurrence but said it is not always possible.
It was pointed out
that his diagnosis comes two and a half years later and that it makes
his diagnosis complicated. Dr
Butler
responded that he had an independent way of verifying his diagnosis.
Dr Butler testified that he
cannot see on an EEG what happened in 2015 and that his diagnosis was
simply based on history.
He
testified that the diagnostic process starts with pre-test
probabilities which could change once he saw and examined the
patient.
[193]
For the Court to accept Dr Butler’s
evidence, the Court, at the very least, has to accept the version of
the Accused, that
he wet his pants as a result of the seizure and
that he suffered from amnesia for a prolonged period after the
seizure. The Court
is of the opinion that Dr Butler’s backdated
diagnosis pertaining to the night of the murders is a conclusion
with, perhaps,
exaggerated inferences as it is based on information
that is incomplete, not necessarily reliable and it is also not
corroborated
by independent sources or objective evidence like
medical tests.
According
to the witness himself
a
ccurate
diagnosis needs careful history and examination, as per standard
clinical practice, although, in this instance, he was prepared
to
make a diagnosis with some certainty without an examination or
consultation with the patient in 2015.
[194]
Even
if the Court accepted Dr Butler’s view that is was likely that
the Accused suffered a “grand mal” seizure
on the night
of the murders, no evidence exists that it had any bearing on what
transpired prior to it, his actions and decision
making before the
seizure. Therefore it would have had no bearing on the commission of
the murders, if the Court finds the Accused
to be responsible for the
crimes. In that instance, it could at most explain the inappropriate
behaviour of the Accused after the
murders.
[195]
The question is whether there is another
explanation for the two hour forty-eight minute period and what
transpired then. The State
alleges that staging took place,
inter
alia
the Accused sustained the
self-inflicted injuries and the axe was hit into the wall above the
stairs with a controlled action. The
Court will deal with these
submissions later.
The Scene
of the Crime and the Demeanour of the Accused
[196]
On 27 January 2015, Sergeant Kleynhans and
a colleague were busy with patrols when they received a complaint
from the Radio Control
room and attended the scene at [...] G.
Street, [...] Estate. According to CCTV footage shown in court, the
police arrived at the
contractors’ gate of the Estate at
07h40:42 and went through the main gate at 07h41:16. With the
assistance of a security
guard, it took them less than a minute to
get from the main gate of the Estate to G. Street.
[197]
Upon arrival Sergeant Kleynhans observed
that the front door of the house was slightly open. He approached the
house with his firearm
in his hand. It was pointed to the ground. The
Accused came out of the front door of the house wearing grey sleeping
shorts and
white socks. The Accused had minor injuries and dry blood
on his body. Blood spatters could be seen on the sleeping shorts of
the
Accused and his boxer shorts in Exhibit “C4” (see
also Exhibit “DDD1, Annexure C, photographs 5, 9 and 170). The

Accused appeared to be nervous, very emotional, scared,
panic-stricken and trembled slightly. He also appeared to be
traumatised.
He did not cry and was not tearful. The witness
testified that he was sympathetic towards the Accused and that he
treated him as
a victim. It would have been surprising if the Accused
was not traumatised or affected by the brutal events, whether he was
a victim
or the perpetrator.
[198]
The Accused said that his family had been
attacked with an axe and requested Sergeant Kleynhans to check on
them. The Accused testified
that Sergeant Kleynhans instructed his
partner to sit him down at the front door. One of the officers put
Sasha on the Accused’s
lap. The Accused sat there for quite a
while and was then taken to the ambulance where a patch was put on
his stab wound and pictures
were taken. The police took his grey
sleeping pants and white socks that he was wearing, leaving the
Accused dressed only in boxer
shorts.
[199]
Sergeant Kleynhans smelled alcohol on the
breath of the Accused. He testified that he encountered persons under
the influence of
alcohol or that had consumed alcohol on a daily
basis throughout the years. Sergeant Kleynhans did not communicate
further with
the Accused and the Accused did not enter the house
again. The witness was challenged by Defence counsel with the fact
that Dr
Albertse did not find any clinical signs of alcohol or drugs
on the Accused. The result of a blood sample taken from the Accused

by Dr Van Zyl the same day of the incident, obtained the following
result: “No
drugs
could be detected in the blood specimen”. On his own version,
the Accused had had a beer before seeing Dr Van Zyl and the
family
had had a bottle of wine the previous night. According to his
statement to the police, Exhibit “SS”, the Accused
had
consumed other drinks
as well the previous night. There is a discrepancy in the evidence of
the Accused whether he denied having the other drinks or
whether he
could not remember having them.
The
precise amount of liquor consumed during the relevant period is not
of much significance in this case, save to say that the
Accused
probably did smell of alcohol.
[200]
Sergeant Kleynhans found the scene as
reflected in the photo album, Exhibit “A”, except for the
presumable blood drops
and marks as well as the shoe prints on the
floor, possibly caused by the paramedics who attended to the victims.
TERESA was also
not found in the same position as she appeared in the
photo album, Exhibit “A”. At the insistence of the
paramedics,
Sergeant Kleynhans took photographs with his cell phone,
reflecting the correct position of the female victims when he
discovered
them, as can be seen in Exhibits “B1” –
“B4”. The witness saw MARLI’s right leg and foot
move
as well as her right arm, while lying on her back. He
immediately requested the Radio Control room to contact the Emergency
Medical
Services (EMS) for help. The paramedics carried MARLI down
the stairs with a stretcher. The bodies of the male victims were
discovered
in the first bedroom, known as the boys’ room.
[201]
The axe, Exhibit “1”, was found
on the first landing of the staircase as can be seen in Exhibit
“A111”.
Sergeant Kleynhans observed an open packet of
cigarettes on the kitchen counter and three cigarette butts lying on
the floor as
can be seen in Exhibits “A42” – “A44”.
Sergeant Kleynhans testified that the back door was slightly
open and
he opened it wider. According to the Accused, the back door was in a
wide open position after the attack, as can be seen
in Exhibits
“A228” and “A229”. Sergeant Kleynhans went
around the house and saw a closed black gate with
a key as can be
seen in Exhibit “A88”.
[202]
Experienced members of the SA Police
Services testified that the crime scene was not consistent with a
house robbery or a burglary.
[203]
Sergeant Kleynhans, with twenty (20) years
of service in 2015, testified that the appearance of the ground floor
did not give the
impression of burglary or a crime scene. The house
on the ground floor was not in disarray and items of value were not
taken. It
is clear from the crime scene photographs that items of
value were within the view of anyone entering or exiting the house.
The
items were easily accessible and portable.
[204]
Captain Nicholas Steyn, with twenty-eight
(28) years of service, also testified that the profile of the crime
scene did not correspond
with other robbery crime scenes. The scene
was not turned upside-down and there were no signs of forced entry.
Captain Steyn testified
that it appeared strange to him that
electronic appliances, cell phones, laptops and purses/wallets were
left behind in the house
by the possible intruders. The items in
Exhibit “EE” were recovered from the scene and handed to
the family.
[205]
An open handbag was standing on the dining
room table and there was an open laptop bag in the study (see
Exhibits “A30”,
“A38” and “A98”).
The cupboard doors in the study were open but the content of the
cupboard was neat (see
Exhibit “A102”).
[206]
Defence counsel suggested that the open
handbag on the dining room table as well as an open laptop bag and
open cupboard door and
drawer of the desk in the study would fit in
with somebody looking for valuable items. The open bags are of no
real significance
as these could have been left open by the Van Breda
family members when they last used them, as conceded by the Accused.
Sergeant
Kleynhans testified that the cash was not taken out of the
handbag. The Accused agreed that nothing appeared to be missing from

the handbag.
[207]
The open cupboard door and desk drawer is
the one aspect that seems out of the ordinary. Touch DNA samples were
taken from the doors
and drawer in the study as a matter of routine.
No DNA results could be obtained from the samples. What is
significant is that
the contents of the cupboard and drawer were not
disturbed as nothing was thrown out; everything appeared to be very
neat. Captain
Steyn and Sergeant Kleynhans testified that usually in
a case of house robbery or burglary, one would see items thrown out
of cupboards
and drawers. Apart from the unusually neat condition of
the ground floor, there was no evidence of obviously missing items.
[208]
The Accused could not shed light on th
e
issue of the open doors and drawer in the study, although he found it
strange.
The
Accused testified that he did not change anything at the scene after
the incident.
[209]
During the cross-examination of Sergeant
Kleynhans and Captain Steyn it was implied by Defence counsel that a
balaclava gang was
involved in the commission of the crimes, as such
a gang was operating in the Stellenbosch area. Captain Steyn was part
of a task
team established as a project by the Provincial office to
investigate a spate of house robberies by the balaclava gang. The
task
team investigated house robberies in the Stellenbosch and
Helderberg Districts and covered fairly vast areas.
[210]
They were called out when they received a
description of suspects wearing balaclavas, communicating in a
foreign language and involving
a group of four suspects with a small
person in charge of the group. In the current matter the Accused
initially alleged that the
intruders communicated in Afrikaans but
later said they could have communicated in English; he only assumed
they spoke Afrikaans
because of the harsh tones. During the Court
proceedings it was evident that the Accused is quite familiar with
the Afrikaans language.
[211]
The balaclava gang targeted isolated or
free standing houses, for example farms in the abovementioned
districts. The balaclava gang
only once targeted a house in a
populated area, situated some distance from the other houses. The
house at [...] G. Street was
almost in the middle of the Estate and
there were houses in close proximity and all around [...] G. Street.
It was a fairly built-up
area.
[212]
Captain Steyn testified that the project
lasted from June 2014 until August 2015. The members of the balaclava
gang were arrested.
They were charged with ten (10) matters and
inter
alia
linked with DNA.
[213]
With the previous fifty (50) to sixty (60)
crime scenes that the task team investigated, the intention of the
perpetrators was robbery
and theft. All moveable items of value, for
example jewellery, televisions and laptops were stolen.
[214]
Valuable items like laptops, mobile phones,
a television, electrical appliances and money were still inside the
Van Breda house,
and seemingly not disturbed or moved. Captain Steyn
conceded that items of value could have been left behind if the
intruders were
interrupted.
Although
it was possible, Sergeant Kleynhans testified that the scene did not
present with a disturb-scenario.
[215]
The Accused conceded
that it was strange that nothing valuable was taken on the way out by
the intruders, but said that he had interrupted
them. The Accused
initially agreed that there were no signs of interruption but
tailored his answer after an objection by Adv Botha
saying that the
cupboard doors and drawers in the study and kitchen were open. The
Accused conceded that the study cupboard and
drawer were not in
disarray. There was also no stuff packed up or stacked up somewhere
in the house near an exit or entrance to
the house. The Accused
confirmed that nothing was missing from the house as far as he was
aware.
He did
not notice anything that could be ascribed to the intruders being
downstairs and
conceded
that the house did not look burglarised.
[216]
Sergeant Kleynhans
testified that the valuables were mainly on the ground floor of the
house and that the attack took place on the
first floor, therefore an
intruder had ample time to remove the items on the ground floor. For
an intruder to kill the three victims,
injure a fourth victim
seriously and have a physical altercation with the Accused, must have
taken some time. If the intention
of the perpetrator(s) was to steal,
one would have expected them to remove the numerous valuables from
the ground floor without
disturbing the assumingly sleeping or
oblivious occupants on the first floor.
[217]
It is nonsensical
that an intruder, with the intention to steal, would go upstairs and
start attacking a member of the household
in bed with an axe, with
the risk of alerting the other occupants of the house to his
presence. During cross-examination, the Accused
conceded that had the
initial attack on RUDI not taken place, the intruders could have
cleaned out the house and gone away quietly.
[218]
The Accused testified that
the
s
tudy light
was on when he went downstairs; he remembered seeing a ray of light
across the bottom of the stairs.
When
they went to bed the
night
before, all lights had been switched off. After the attack,
no
lights were on in the living room and lounge area, except for the
study. On the top floor only the boys’ room light was
on. The
Accused said he would have been able to see the intruders despite the
fact that the lights were off, there was enough light
to do so. It is
unlikely that the intruders would have switched on lights but if so,
they opted to switch on a light in a room
with less valuables. Items
like electrical appliances, a television, a laptop, a handbag and
other items had to be in their immediate
sight when they entered the
house on the ground floor, before even getting to the study.
[219]
The Accused agreed
that one could not normally get access to the property from the
kitchen side of the house. After the attack the
intruders had to run
out of the back door, down the side of the house where the washing
line was and exit through the side gate
on the other side of the
house. Otherwise they had to go over the neighbour’s wall. The
route around the house contained
hard surfaces. The Accused conceded
that the intruders had to have some knowledge of the area to escape.
[220]
Defence counsel
argued that two blood drops on the wall of the adjacent property and
near the rear gate, are indicative of the presence
of intruders
fleeing after the commission of the crimes. Captain Joubert testified
that the drops could have been deposited on
the wall by an object or
they could have been spatter from the window of the boys’ room.
There is no corresponding dripping
trail or blood drops inside or
outside the house to support the inference drawn by counsel.
[221]
Cornelius van Breda had no knowledge of the
personal items belonging to the victims, but testified that no report
was made to him
that anything was missing from the house. They went
through the entire house and, according to Mr Van Breda’s
observation,
nothing in the house was tampered with or missing.
[222]
The Court agrees with the State’s
submission that it is highly improbable that (an) intruder(s), who
has (have) the intent
to rob or steal, having gained undetected
access to the Estate and the house, would then leave without taking
anything of value
that was clearly visible and easily removable.
[223]
Captain Steyn was tasked to establish the
version of the events from the Accused at the crime scene. The
witness described the Accused
as quiet and calm when he told the
witness what had happened. According to Captain Steyn, most victims
in his experience would
show emotion, although reactions differ from
person to person. During cross-examination Captain Steyn agreed that
the Accused was
severely traumatised. The Accused testified that he
was asked questions by the police officers attending the scene while
he was
in the ambulance. He said he had a vague recollection thereof.
Visits to Medical Practitioners
and the Demeanour of the Accused
[224]
The police took the Accused from the crime
scene to the District Surgeon in Stellenbosch. The Accused confirmed
that he was taken
for medical attention by the police. On 27 January
2015 at about 10h30 Dr Albertse examined the Accused as a victim and
recorded
the injuries sustained by the Accused on a J88 form, Exhibit
“LL”. She took a buccal swab from the Accused for DNA
analysis and nail scrapings or swabs from his hands as admitted in
Exhibit “K”. Dr Albertse could not find any clinical

signs of alcohol or drugs. The emotional status of the Accused during
the examination was recorded as very quiet. Dr Albertse recorded
the
length of the Accused as 1,84m, which is relatively tall. He weighed
93.5 kg at the time and had a normal build.
[225]
Dr Michelle van Zyl,
a General Practitioner and a Senior Medical Attendant overseeing the
Casualty department of the Vergelegen
Mediclinic in Somerset West at
the time, was on duty at the Mediclinic when she attended to the
Accused later that evening. She
saw the Accused twice on 27 January
2015 at 20h25 and 21h45 respectively.
[226]
When she saw the
Accused for the first time at 20h25, the Accused came to the hospital
together with a friend, Mr Reade-Jahn senior.
Dr Van Zyl had to
examine a laceration wound to the left upper abdomen to establish
whether stitches were required. She did not
consider the wound deep
enough for stitches and just cleaned it and clipped it with staples.
[227]
During the first
visit the Accused was talkative. She noted on the J88 form that the
Accused was confident, not emotional, conversing
casually and that he
was relaxed with the staff. During cross-examination it was put to
the witness that the Accused was considered
to be very traumatised by
the police and that he was emotional and crying when he met with his
family after he had been released
by the police. It was denied that
the Accused was friendly and relaxed. Dr Van Zyl was adamant that if
that had been the case,
she would not have made such a note about the
emotional status of the Accused. Dr Van Zyl testified that there was
no indication
of trauma as alleged by his family during the first
visit. The Accused was fully orientated. She noted that there was a
slight
smell of alcoholic metabolics on the breath of the Accused.
According to the Accused’s version, he had a beer before he
went
to the mediclinic the first time.
[228]
The Accused testified
that he was in shock and his hands were shaking before he went
through to the Vergelegen Mediclinic the first
time. No allegation to
this effect was made regarding the preceding period that the Accused
spent at the police station. The Accused
merely said that he shivered
from cold because of the aircon and his scant clothing at the time.
The Accused
said Ms Reade-Jahn gave him a tranquiliser prior to him visiting Dr
Van Zyl. The Accused denied that his mood was jovial,
or that he was
conversing casually and said he was not relaxed with the staff.
During cross-examination the Accused said
he
presumed that niceties were exchanged between him and Dr Van Zyl. He
said he could not recall the specific conversation because
it was a
long time ago. The Accused said he could even have been confused
then.
[229]
When the Accused was brought in the second
time, the police informed Dr Van Zyl he was a possible suspect in a
murder case. The
second visit was conducted on a question/answer
basis and the Accused was less friendly, than the first time. He
appeared to be
less forthcoming and more formal. Dr Van Zyl took a
blood sample from the Accused and had to record his injuries on a J88
form,
Exhibit “OO”.
He
did not dispute that he was in a quiet mood during the second visit
to Dr Van Zyl.
[230]
Although the Accused was understandably
emotional during his meeting with family and friends, the Court has
no reason to reject
the evidence of the police and the doctors
regarding the Accused’s state of mind which was,
inter
alia
, described as traumatised, quiet,
relaxed, confident, talkative and showing no emotion. If the Accused
was indeed the perpetrator,
his state of mind during his first visit
to Dr Van Zyl might be indicative of his relief that the formalities
with the police were
finalised. On his own version, the Accused even
had a beer between the time that the police interviewed him and his
first visit
to Dr Van Zyl. A different mood was displayed during the
other visits to the doctor when he was accompanied by the police.
During
the second visit to Dr Van Zyl he was introduced as a suspect.
Visits to the Family House and
the Demeanour of the Accused
[231]
Cornelius van Breda testified that after
the incident he visited the house twice together with other family
members. On one of the
visits the Accused accompanied them; it was on
this occasion they packed MARLI’s personal belongings. The
Accused was inside
the house on the ground floor and indicated what
he wanted and took whisky. The Accused denied going inside the house
but confirmed
requesting to have the Japanese whisky that he bought
for his father in Australia. It was put to Mr Van Breda that the
Accused
also requested to have a bottle of his father’s
aftershave. The witness was adamant that the Accused was indeed
inside the
house during one of the visits and that the Accused went
to sit in the car when they packed MARLI’s belongings.
Requesting
no other valuable or sentimental items belonging to his
loved ones does not take the matter any further. No adverse
inferences
are drawn by the Court from the visit to the house after
the incident.
[232]
The Accused displayed no emotion of note
during the inspection
in loco
.
The Demeanour of the Accused in
Court
[233]
During the court proceedings, the Accused
became emotional from time to time, for example when clips of the
emergency recording
were played in court and during the testimony of
the pathologist. It is to be expected that it would be emotional to
relive the
traumatic events and his reaction was not unusual in the
circumstances.
[234]
During his testimony the Accused appeared
to be uncomfortable at times and at other times he appeared
confident. On a question whether
he was the only person alive that
could remember what transpired the night of the murders, the Accused,
almost sarcastically, responded
that he had no idea what the
attacker’s memory is like. He would make statements like “we
made every effort to minimise
my exposure to those photos” with
reference to the photo album Exhibit “A”. At one point he
wanted to clarify
what his counsel was objecting to. What struck the
Court, was that the Accused did not show a great deal of emotion,
even when
he demonstrated the blows when the attacker hit RUDI and
his father as well as the altercation between himself and the
attacker.
At times he would give a lot of factual detail just to be
vague  when he was confronted with difficult issues, eg the
dog’s
illness and why it was not barking, in what position his
father was when he was attacked by the intruder, why he did not warn
and
help his mother and sister.
[235]
The Accused testified after the other
defence witnesses except for Dr Butler. During cross-examination the
Accused agreed that the
totality of his version is that he was a
victim to a serious violent crime or a witness thereto. When
confronted with the reason
why he did not testify first under those
circumstances, he said that he was given advice by his counsel not to
testify. The Accused
explained that he “always wanted to have
his say” and that he decided near the end of his case that he
will be testifying.
However, Adv Botha applied, before the start of
the defence case, to have the Accused testify last. It was argued
that the defence
witnesses would not be testifying about factual
aspects and that the Accused had given his version already. It was
stated previously
that the plea-explanation was not meant to be a
detailed account of the events (see paragraph 6, Exhibit “J”).
State
counsel argued that the Accused could tailor his evidence or
alter his decision to testify. The Accused was probably always going

to testify but he elected not to do so when the application was
dismissed by the Court. Despite this manipulation of the process,
it
cannot be said that the evidence of the defence witnesses could
influence the testimony of the Accused in any significant way,
except
maybe the evidence of Dr Olckers and Dr Du Trevou. For example, the
Accused offered the same explanation as Dr Du Trevou
for his loss of
consciousness. In this regard the Court does not make an adverse
finding against the Accused.
The Weapons Used During the
Commission of the Crimes
The axe, Exhibit “1”
[236]
Defence counsel admitted that the axe,
handed in as Exhibit “1”, is the same axe that appears in
the photo album, Exhibit
“A” and agreed that the axe
appeared to be new.
[237]
It is clear that the axe in the photographs
had been used to attack the victims. Apart from the visuals contained
in the photo album,
Lieutenant-Colonel Sharlene Otto,
attached
to the SA Police Services as the Chief Forensic Analyst and Reporting
Officer at the Biology section of the Forensic Science
Laboratory
,
testified that the DNA profile of the majority of the victims could
be read into swab blood samples taken from the axe (see Exhibits

“ZZ1” and “ZZ4”).
[238]
Captain Candice
Brown, stationed at the ballistics section of the Forensic Science
Laboratory in Plattekloof since 2004, examined
the axe, Exhibit “1”,
and measured the actual sizes of the Lasher axe with a wooden handle.
The axe weighed in total
1.17 kg. On the top silver part of the blade
area, there was damage to the “nose” (the top corner edge
of the blade),
namely a little nick in the metal where the metal was
folded to the left side if one was to hold the axe in one’s
right hand.
On the right hand side of the blade, Captain Brown
noticed some scrapings off the head of the axe on the green paint
underneath
the eye of the axe on the blunt side. There were also chip
marks at the rear pole area on the blunt side. Lower down on the left

side, a void area was observed underneath the top of the edge as
could be seen on photographs 9 and 10, Exhibit “YY2”.

After cleaning the axe, that void area (grey and white in appearance)
was no longer visible.
The Place
Where the Axe Originated from
[239]
The State submitted that the axe belonged
to the Van Breda family.
[240]
James Reade-Jahn, MARLI’s friend, did
not recognise the axe, Exhibit “1”, as the one belonging
to the Van Breda
family. However, he recognised the size and shape of
the axe as similar to the one he had seen in the garage and at the
fireplace.
He never saw the Van Breda family using the axe. From his
recollection, the head or top of the axe was black but said that he
could
be wrong about the colour. Exhibit “1” is a dark
green headed axe with black at the top.
Captain
Joubert testified that the axe had a dark blade appearance.
The
description given by Mr Reade-Jahn was similar to Exhibit “1”,
except for the colour.
[241]
Ms
Precious Munqongani, the housekeeper or domestic worker,
testified
that the axe she identified, was the same type of axe, and similar in
size and appearance, as the one she had seen at
the house (also see
Exhibit
“F”).
The
axe was normally stored in the scullery on the shelf behind the
ironing board
as
can be seen in Exhibit “A72”. It had been kept there ever
since she started working for the Van Breda family in October
2014
.
The
ironing board was usually stored in the same position unless she was
using it. She said that she had seen a lot of axes in her
lifetime
and described the axe as a small size axe. The axe was hardly used
and always in the pantry.
[242]
Sergeant Appollis testified that only one
axe had been found on the crime scene by the police. There was no
indication of a second
axe and no axe was found in the pantry.
[243]
Although Precious Munqonqani and James
Reade-Jahn were aware of the presence of the axe in the house, the
Accused distanced himself
from the axe in his statement to the police
(see paragraph 8, Exhibit “SS”) and in his testimony.
According to the
Accused he did not know the family had an axe in the
house, despite living with his family since August 2014. It is
noteworthy
that Mr Reade-Jahn and MARLI were in a relationship from
February 2014 onwards and he, as a visitor, was aware of the axe.
According
to Mr Reade-Jahn, MARTIN bought the axe in 2014. It does
seem that the axe was hardly used by the family. Importantly, the
Accused
conceded that Exhibit 1 and 2 originated from their house
during cross-examination by the State.
A Second Axe and the Absence of
MARLI’s Blood on Exhibit “1”
[244]
It is the State’s case that the
injuries sustained by the deceased and MARLI were caused by the axe
found on the scene, Exhibit
“1”. Defence Counsel
suggested that a second axe was possibly used during the commission
of the crimes. It was the
contention of the Defence that the chance
of Exhibit “1”, being the weapon with which MARLI was
attacked, is virtually
nil. MARLI had eight (8) penetrating wounds
without leaving any trace on Exhibit “1”. It is assumed
that Defence counsel
is referring to blood or swab DNA. Defence
counsel argued the DNA evidence refutes the State’s narrative
completely. In Court,
the Accused maintained that there was more than
one attacker in the house on the morning in question. It was argued
that the only
reasonable possibility is that MARLI was not attacked
by the same assailant who attacked the other family members and that
she
was also not attacked with Exhibit “1”. This
submission was made on the premise that the DNA evidence is accepted
by
the Court.
[245]
Captain Marius
Joubert,
stationed at the Forensic
Science Laboratory in Plattekloof as a Bloodstain Pattern Analyst and
Forensic Crime Scene Expert,
testified
that MARLI was repeatedly hit with an object similar to the axe,
Exhibit “1”. Of importance is that, according
to
Dr
Daphne Anthony, the State pathologist, the type of injuries to
MARLI’s head was similar to the type of injuries sustained
by
the other three deceased members of the family. They sustained chop
and incised wounds and the measurements of MARLI’s
wounds were
more or less the same as in the case of the other victims.
Prof
Jacob Dempers, a registered medical practitioner and pathologist
testified, with reference to the wounds of MARLI and the deceased,

that all the wounds appeared to be large in length and penetrated
quite deeply into the tissue.
It is
highly unlikely that the alleged perpetrators would fortuitously
bring along a similar axe than the one kept in the Van Breda
home
inflicting similar injuries, and that a second attacker would inflict
injuries with more or less the same degree of force.
[246]
Different types of
samples were taken from the axe, swabs for blood and Touch DNA
samples
.
The blood or DNA of the deceased
victims RUDI, MARTIN and TERESA was found on the axe, Exhibit 1,
according to Lieutenant-Colonel
Sharlene Otto (see Exhibits “ZZ1”
and “ZZ4”). MARLI’s blood or DNA was not found on
the head or blade
area of the axe, but her Touch DNA could be read
into the mixture result from the axe on the stairs together with
RUDI’s
and TERESA’s (see Exhibit “ZZ1”,
paragraph 4.1.17). Dr Anthony testified that MARLI was probably the
last victim
to be assaulted; she probably struggled with the
attacker, taking her injuries into account. It corresponded with her
Touch DNA
being found on the axe, although it could have been on the
axe for another reason. Captain Joubert could not exclude the
possibility
that MARLI grabbed the axe as she had a defensive wound.
It was a fairly new axe that was not used often. According to the
Accused,
he never saw the axe in the house since joining the family
in August 2014. Therefore the chances are slim that MARLI handled the

axe during the period of about five (5) months prior to the incident,
for example during a family barbecue, on his version.
[247]
The Defence DNA
expert, Dr Antonel Olckers, testified
she
could not explain
the
presence of MARLI’s Touch DNA found on the axe.
DNA could remain for
quite a while on a surface depending on the type of surface.
However, Dr
Olckers
was unable to confirm how long Touch DNA could remain on an item.
[248]
TERESA’s DNA
was found on the head of the axe in mixture results. In the result
the inference can be drawn that she had been
attacked with the same
axe as RUDI and MARTIN. A mixture of RUDI and TERESA’s DNA or
possible blood, was found on the axe
blade and head of the axe (see
swab 6(h), paragraph 5.8, Exhibit “DDD1” and paragraph
4.1.5, Exhibit “ZZ4”
and paragraph 4.1.15, Exhibit
“ZZ1”). Her Touch DNA was also found on the axe (see
paragraph 4.1.17, Exhibit “ZZ1”).
She also possibly might
have touched the axe while defending herself.
[249]
With reference to the
relative positions of the victims and attacker during the incident,
Captain Joubert documented and testified
that TERESA was most
probably attacked in the doorway of the first bedroom (boys’
room) with reference to “CS30”
on photographs 107 –
110, Annexure P, Exhibit “DDD2”. The witness testified
that his opinion was supported by
the following:
(i)
The impact/projected spatter at points “B15”, “B25”
– “B27” were most probably created
by an object(s)
in motion, or when an object(s) in motion came to an abrupt halt,
which resulted in droplets being released/projected
from the
object(s). TERESA was the donor of the impact/projected spatter at
point “B27”;
(ii)
The injuries sustained by TERESA, vertical linear lacerations
sustained to the right side of her head;
(iii)
The injury, defensive wound, suggested that the victim was most
probably facing her attacker when the injuries were sustained;
(iv)
The area where TERESA was found in the passageway on the first floor
in close proximity of the first bedroom door and the absence
of any
blood trail or bloodstain patterns in other areas belonging to TERESA
within the crime scene.
[250]
MARLI sustained her
injuries during the confrontation with the attacker, most likely in
the same area as TERESA. It is highly unlikely
that they were
attacked by two different attackers in a relatively confined space
with similar weapons at more or less the same
time. The Accused
confirmed during cross-examination that MARLI was eventually found in
about the same position from where he initially
glimpsed her in
pursuit of the attacker. Although MARLI could move her limbs, no
evidence was presented that she could make significant
movements to
move from one spot to the other.
[251]
Captain Joubert
conceded that it is expected to find some traces of MARLI’s
blood on the axe. He also conceded that an explanation
for the
absence of MARLI’s DNA on the axe, would be if she was attacked
with another weapon. However, he testified
there
could be many reasons for the absence of MARLI’s blood on the
axe and that is not inexplicable.
[252]
T
he
axe did not have as much blood on it as would be expected, if it was
used in so many murders. All the victims were struck multiple
times.
When one used the axe repeatedly and the axe impacted with the next
victims, blood would be “projected” from
the axe.
[253]
Bloodstains from RUDI
and MARTIN (“B25” and “B26” as can be seen on
photographs 115 – 118, Annexure
“A”, Exhibit
“DDD1”) were found outside the first bedroom and against
the passageway wall next to the window
as can be seen on photograph
115, Annexure “A”, Exhibit “DDD1”. MARLI was
found closest to the window in
front of the cupboard in the
passageway. Captain Joubert handed in a copy of the five stains at
point B25 against the passage wall
as Exhibit “DDD10”.
The donors of the bloodstains at point “B25” and “B26”
were RUDI and MARTIN,
suggesting that an object(s) was in contact
with a blood source(s) from both victims
before
bloodstains at point “B25” and “B26” were
created (see paragraphs 37.19 – 37.21, Exhibit “DDD1”).

In his report dated 06 October 2015, paragraphs 10.25 and 10.26,
Exhibit “DDD1”, the witness stated that the mechanism

responsible for the deposition of the stains suggests projection or
alternatively impact. Although the bloodstains themselves indicated

projection or impact, impact could not have created these stains as
RUDI was attacked on the bed or close to it. The bloodstain
at point
“B26” were classified as “Cessation cast-off”,
and was most probably created by an object(s) in
motion or where it
came to an abrupt halt, which resulted in blood droplets being
released/projected from the object(s). The stains
could therefore be
created when MARLI was attacked with the same axe covered with blood
from RUDI and MARTIN, being attacked first
inside the boys’
room by the same attacker.
[254]
He said there had to
be blood from MARLI on the weapon in liquid form but it all depended
on how much blood went from the wound
onto the axe.
There
was not a lot of MARLI’s blood identified at the scene.
MARLI
and TERESA were lying in a large pool of blood, so spatter stains
could have been masked by all the blood near MARLI. The
only
bloodstains documented at the crime scene associated with MARLI, were
at points “B12”, “B13”, “B14”
and
“B30” (as can be seen in Exhibit “DDD1, Annexure
A”, photographs 55 – 57 and 125 – 126),
in close
proximity to where MARLI had been found by the police. The donor of
the bloodstains was MARLI (see the DNA reports of
Lieutenant-Colonel
Otto, paragraph 4.1.5, Exhibit “ZZ1” and paragraph 4.1.7,
Exhibit “ZZ2”). Captain Joubert
said it was possible that
MARLI caused the spatter herself by moving her limbs. Captain Joubert
testified that he did not know
who the donor of stain “B29”
was, as can be seen in Exhibit “DDD1”, Annexure “A”,
photographs
123 – 124. Impact was the possible mechanism
creating that stain. It is possible that the blood could be from
MARLI and TERESA
who were attacked outside the door of the boys’
room, given the general direction.
[255]
Captain Joubert
testified that MARLI’s injuries were spread out and in
different areas (see Exhibit “H1 – 18”).
S
he
had blows to the head and neck area.
MARLI
also sustained one laceration to her left lower arm, which might
suggest a defensive position when sustaining the injury.
When
MARLI was attacked, there was not a lot of spatter due to the
distribution of injuries over the entire head.
He
explained that if one struck different areas with the axe, the
possibility of blood on the object would be minimal; creating
new
wounds. There might not have been a lot of blood transfer if tissue
was struck after the first blow. It explained the reason
for less
blood.
[256]
In February 2015,
Captain Joubert collected eight (8) swabs from the axe, four (4)
swabs from the handle of the axe and four (4)
swabs from the blade of
the axe (see paragraph 15, Exhibit “DDD1”). The swabs 6a
– 6h represented the entire
axe (see Exhibit “DDD9”).
Four swabs were also taken by Warrant Officer Hitchcock, namely swabs
“121A –
B” and “122A – B”. Three
of the swabs taken by Warrant Officer Hitchcock were tested for the
presence of
blood and one test was for Touch DNA.
Despite
the fact that the swabs were representative of the entire axe, only
certain random blood spots on the axe were identified
and analysed.
Captain Joubert testified that it was possible that a spot on the axe
had been missed when the eight samples were
collected. Furthermore,
Lieutenant-Colonel
Otto testified that, in respect of the blood swab collected from the
bottom of the axe handle, she could only
include the reference sample
of the Accused in the mixture although there was more DNA. The other
DNA belongs to family members,
but she could not say to which family
members (see page 7, Exhibit “ZZ1” and “ZZ5”).
Therefore the additional DNA found was not
enough to reach a result.
The
possibility that MARLI’s blood was also on the axe cannot
entirely be ruled out. It was simply not enough to obtain a
DNA
profile.
A second
axe and the absence of MARLI’s blood on the Accused’s
shorts and socks
[257]
Defence counsel
argued that if MARLI was attacked with another similar object, it
would also explain the absence of MARLI’s
DNA on the Accused’s
sleeping shorts and socks.
Captain
Joubert pointed out that none of the stains on the shorts, socks and
two duvets were presumptively tested for blood with
reference to his
assumptions contained in paragraph 8, Exhibit “DDD1”.
Defence counsel acknowledged that the chances
that the stains were
anything other than blood where a DNA result was obtained, were so
slim that it could be ignored.
[258]
Captain Joubert confirmed that there were
19 spots on Exhibit 120 (the Accused’s shorts) for which he did
not have a DNA result
and that were not necessarily blood spots.
Lieutenant-Colonel
Otto testified that all the samples pertaining to the shorts that
tested positive for blood were analysed, therefore
other stains, not
tested positively for blood, were possibly not analysed. Four (4)
stains on the socks were unidentified.
[259]
Captain Joubert
testified that “The absence of evidence is not the evidence of
absence”. One could actually strike a
person with an axe
without getting a single drop of blood on you. The witness said the
position of the attacker would play a role.
MARLI had five (5) very
deep lacerations on her skull and on her arm, ear and neck
respectively (see the photographs, Exhibit “H”
and
Exhibit “BBB12”). All the wounds were on one side, namely
the left side of her body, and one wound on the right
side (Exhibit
“H13”). Captain Joubert said the absence of MARLI’s
blood could possibly be explained because the
injuries were not close
to each other. In the case of impact to the blood source, most
spatter could be directed away from the
attacker, very little would
come back to the attacker. That might explain the absence of MARLI’s
blood on the shorts and
socks of the Accused.
[260]
The blood stains
identified as MARLI’s, were possibly projected in an opposite
direction away from the attacker, coming from
the staircase or the
doorway of the first bedroom, ie towards the passage way and the
passage wall next to the table.
[261]
Captain Joubert did
not examine the bottom part of the socks because there would have
been blood on the floor and the Accused would
have stepped on it. The
witness said he just observed dark stains, it could be dirt or blood.
Nothing else that the Accused had
worn, had been presented to the
witness.
[262]
In conclusion,
Captain Joubert confirmed the following possibilities as reasons for
the absence of MARLI’s blood on the shorts
of the Accused:
(i)
The Accused
was not the attacker;
(ii)
The
directionality of the blood spatter was away from the attacker; and
(iii)
Some of the 19
stains where no DNA profile was found, could have emanated from MARLI
or could be MARLI’s blood.
[263]
Defence counsel
argued that the absence of the DNA does not stand in isolation; it
must be viewed against the improbability of the
Accused being able to
fabricate a version that fits perfectly with the objective scientific
evidence at a time when he could not
have been aware thereof. The
Court considered this submission by Defence counsel and is in
agreement that the DNA evidence must
be weighed together with other
objective reliable facts. The absence of MARLI’s DNA on the
clothing of the Accused, is not
inexplicable. The Accused has
intimate knowledge of the events that occurred that particular night.
There are, however, other anomalies
in this matter which the Court
does not have to speculate about.
(i) MARLI and
TERESA were lying on the top landing close to the doorway of the
boys’ room. MARLI was found with her feet and
legs inside the
doorway. Both victims were probably attacked in the vicinity of the
doorway before the alleged altercation between
the Accused and the
alleged attacker took place. In the light of Dr Anthony’s
testimony, the head wounds would have bled
profusely. Yet no obvious
and identifiable blood could be seen on the bottom of the Accused’s
socks, whether he was a victim
or the perpetrator.
(ii) The Accused
testified that MARLI was found close to where he last saw her. He did
not claim that his mother moved in any way.
Despite running after the
attacker, who was in flight, the bodies of the female victims
apparently did not obstruct the path of
any one of them where they
were lying in close proximity of the doorway of the boys’ room.
(iii) The
Accused’s fingerprints were not found on the axe, whether he
handled the axe when trying to defend himself or to
attack his
family.
(iv) If there
was a second axe used to attack MARLI, and carried by the attacker
from the first landing to the back door, around
the house to exit via
the side gate on the other side of the house, the absence of a
corresponding drip trail of blood appears
to be unlikely. No DNA was
found pertaining to the possible blood drop on the kitchen door and,
according to Lieutenant-Colonel
Otto, it could possibly have been
animal blood. Only human DNA can be extracted from blood. MARLI was
also not the donor of the
two solitary drops below the boys’
window on the wall of the adjacent property.
(v) The position
of the duvet that originated from the Accused’s bed, that was
found on top of a relatively huge amount of
blood on the floor in the
boys’ room, was not explained.
(vi) The neat
appearance of the ground floor despite the presence of more than one
intruder and the amount of blood on the first
floor.
(vii) If the DNA
results are to be accepted, without deciding the issue, it is strange
that a mixture of both the Accused’s
and RUDI’s DNA ended
up together at the same specific corner of the shower.
MARLI’s
position and the presence of a second attacker
[264]
According to his
plea-explanation and testimony,
the Accused could not
recall the positions of the female victims when he exited the room.
He could recall MARLI’s feet were
not lying inside the doorway
due to the fact that the doorway was unobstructed. Therefore
he
was certain that MARLI’s feet were not in the same place as
they are on the photographs taken by Sergeant Kleynhans, Exhibit
“B”.
On a question
of how MARLI’s feet ended up in the doorway, the Accused said
she must have moved there during the events.
Dr
Anthony testified that movement by MARLI depended on the blood loss
and the compensatory mechanism. Due to the extent of the
head
injuries, it was possible that MARLI would have been able to move a
limb despite the trauma although she could not exclude
severe
movements. Sergeant Kleynhans and the Accused testified that they
only saw MARLI’s one leg and arm moving.
According
to the Accused,
MARLI
was lying next to his mother in the passageway on the top landing
when he saw them before and after he allegedly lost consciousness.

Given the space between the table against the wall and TERESA’s
body, it is unlikely that there had been significant movement
by
MARLI, at least not before the paramedics attended to her.
[265]
Captain Joubert
testified that it is possible, taking into consideration MARLI’s
body position and her legs inside the doorway
of the first bedroom,
as can be seen on photographs 175 and 176, Exhibit “DDD1”,
that the attacker came from inside
the room. There was nothing in the
blood spatter pattern that contradicted that scenario. He could not
exclude the possibility
that MARLI was attacked by somebody from the
outside of the bedroom as suggested by Defence counsel. With regard
to MARLI’s
body position, Captain Joubert said she was most
probably attacked from the front, she could have been collapsing and
extending
her legs. It is noticed that the bottom part of the
doorframe was higher than the floor at the entrance of the first
bedroom, making
it difficult to extend her legs into the bedroom. The
Accused said MARLI was in around about the same position when he saw
her.
The position and general direction of both MARLI and TERESA’s
legs was near the doorframe towards the boys’ bedroom
door,
indicating that they were probably facing their attacker coming out
of the boys’ bedroom.
Concessions
by the Accused regarding a second axe
[266]
During
cross-examination by State counsel, the Accused conceded that
the
attacker used the same type of weapon (an axe) and executed the same
type of attack (blows to the head) on the victims. It is
highly
unlikely that a second person would have executed blows in
predominantly the very same area as the other attacker, ie the
head
of the victims, and with more or less the same degree of violence or
force. It is also unlikely that TERESA and MARLI would
have been
attacked by two attackers almost simultaneously in the same area.
[267]
The Accused said it
was plausible that there was a second axe on the scene.
However,
the Accused conceded that his family members were all attacked by the
same attacker, wielding the same weapon.
He
said he only saw one attacker and one axe. When asked whether he
accepted that no other axe was found and that it was unlikely
that
there was a second axe on the scene, the Accused agreed. He agreed
that no evidence of a second axe exists.
[268]
During the emergency call the Accused told
Ms Philander that “someone” attacked his family, three
adults and one teenager,
with an axe. No allegations of a second
attacker with a second axe was made by the Accused shortly after the
incident.
Conclusion re second axe
[269]
Apart from the fact that it can be clearly
seen on the photographs in the photo album, Exhibit “A”,
that Exhibit “1”
had been used to commit the crimes, the
Accused himself only mentioned one axe used by an alleged intruder.
Captain Brown testified
that she cleaned the axe herself during her
investigation. The Court finds that there is no convincing basis for
the contention
that a second axe had been used during the attack. The
Court is satisfied that Exhibit “1” is the only axe used
during
the commission of the crimes and that it belonged to the Van
Breda household, being fairly new as well as similar in size, shape

and appearance as the axe kept in the house, as well as the fact that
no other axe was found in house or the pantry. No evidence
of the
presence of a second axe exists on the Accused’s own version.
The knife, Exhibit “2”
[270]
A knife, handed in as Exhibit “2”,
was found on the scene, partly hidden under RUDI’s bed (see
Exhibits “A205”,
“A206”, “A208”,
“A237”, “A238” and Exhibit “F2”).
The Accused alleged
that an intruder stabbed him with a knife. The
Accused testified that
t
he
attacker
recovered
fairly quickly after being disarmed and
came
back at him with a knife in his right hand. The Accused did not see
where the
knife came from. T
he Accused said
that he pulled the knife out of his side and dropped it, presumably
somewhere on the floor in the first bedroom
(also see paragraph 33,
Exhibit “J”).
[271]
Captain Brown
examined the Swiss-manufactured 19cm slicing/carving knife with the
inscription Victorinox, (Exhibit “2”).
The weight of the
knife was 0.0824 kg. The exposed blade was 18.3 cm from the tip to
the plastic handle.
The place
where the knife originated from
[272]
Exhibit “A36” shows the kitchen area of the Van Breda
household. The top drawer of the kitchen cabinet left from
the stove,
appears to be slightly open. The knives and spoons were kept in that
particular drawer. Ms
Munqongani
testified that the knife, as can be seen in Exhibit “F2”
looks the same as a set of knives kept in the drawer
with the spoons.
She testified both the axe and knife, Exhibits “1” and
“2”, look the same as the ones
that were kept in the Van
Breda residence.
[273]
On 24 August 2015 Captain Steyn and Warrant
Officer Hitchcock compared Exhibit “2” with the knives
inside the house.
The contents of the drawer in the kitchen where the
knives were kept and a set of Victorinox knives can be seen in
Exhibit “E3”.
According to Captain Steyn, two knives and
a fork inside the drawer in the kitchen looked the same as Exhibit
“2”.
[274]
The
Accused confirmed that
Exhibit
“2” resembles their kitchen knives and agreed that the
knife came from the kitchen. The Accused confirmed that
the knives
were kept in the top drawer. The extended view of the kitchen can be
seen in Exhibits “A33” – “A36”.
The
kitchen appeared to be undisturbed excepting for the two drawers in
the same location; these were the only cabinetry disturbed
in the
kitchen.
[275]
The Court is satisfied that Exhibit “2”
belonged to the Van Breda household, being part of a set of
Victorinox knives
kept in the kitchen drawer.
Motive of alleged intruder(s)
and the weapons used
[276]
An axe would be a peculiar choice of a
weapon for a burglar or thief to take along to the intended crime
scene. Before the attack,
the Van Breda family were presumably all
asleep, except for the Accused who was in the en-suite bathroom of
the first bedroom.
The Accused did not hear intruders inside the
house before the attack on his brother. There was no risk of
identifying the balaclava-wearing
intruder(s) and therefore no reason
for the intruder(s), with the intention to steal, to wipe out almost
an entire family who were
oblivious to the presence of the
intruder(s). The violence prevalent in the country does not serve as
a convincing explanation,
as argued by Defence counsel, for this
scenario.
[277]
If the intention of the intruder(s) was to
kill the occupants of the house, it would be senseless not to bring a
weapon along. The
alleged intruder clearly planned the commission of
the crimes by wearing gloves, dark clothes and a balaclava mask.
Laughing, whilst
attacking family members, certainly appears to be
strange behaviour for a random assailant. It can possibly be expected
from a
perpetrator with a personal issue.
[278]
The Accused conceded that it would be
strange that the persons who planned to enter the house and attack
the family, came unarmed
or armed inadequately that night. He found
it strange that the one person who went upstairs was also
incidentally the same person
who was armed with both the knife and
the axe that came from the house.
The severity of the attack
[279]
The degree of
violence displayed towards the deceased victims and MARLI, seems to
be excessive. All the deceased and MARLI had several
wounds directed
at the part of the human body with a high mortality rate, according
to Dr Anthony.
[280]
The attack on the Accused was certainly not
launched with the same intensity than those on the other family
members, so it is unlikely
that the attacker had a grudge against the
Accused.
On a
question why the Accused did not have potentially fatal wounds, he
conceded that the attack on him was more restrained compared
to those
of the other family members.
Motive to
commit the crimes
[281]
Cornelius van Breda testified that his
brother, MARTIN, had no enemies. He was not involved in underhanded
business transactions
and that MARTIN’s former colleagues had
the greatest respect for him. Mr Reade-Jahn and Ms Van der Westhuizen
testified that
the Van Breda’s were a normal family with normal
differences.
[282]
The Accused testified that he was not aware
of anyone bearing a grudge against the family members. If the alleged
intruder wanted
to kill MARTIN, it does not explain why he attacked
RUDI first.
The
Accused agreed that initially the attacker targeted RUDI and then the
rest of the family. The Accused testified that he could
not think of
a reason why RUDI appeared to be specifically attacked and why the
intruder(s) did not simply remove valuables from
the house.
RUDI studied and lived in Australia before the attack and was home
only for a short while on holiday. It is unlikely that he made

enemies, going to that extent, in such a short time.
[283]
Defence counsel
argued that the Accused had no reason to attack his family and had no
motive as the family was a close-knit family
without serious issues.
Furthermore, it was argued on behalf of the Accused that there seemed
to be no tension or unresolved issues
in the Van Breda household up
to 22h00 on 26 January 2015, based on communication via Whatsapp
between the Accused and Bianca and
the lack of communication between
MARLI and James after 22h00 that particular night.
[284]
The Accused’s
version is that
there
was no argument amongst the family members on 26 January 2015.
Arguments in the family, centred around MARLI because she was
growing
up and starting to rebel. The Accused denied having any serious
arguments with his family and stated that there was nothing
out of
the ordinary in the evening before the attack.
[285]
No evidence exists to indicate a specific
motive for killing any of the apparently decent family members,
whether they were killed
by an unknown intruder or by the Accused.
[286]
The neighbours of the Van Breda family, Ms
Op’t Hoff and Ms Taljaard, testified that the Estate was a safe
and secure environment
to stay in and none of them reported any
suspicious persons or incidents in the vicinity of G. Street on the
day of the murders.
Ms Taljaard heard nothing untoward that
particular night, despite being a light sleeper and the fact that the
murders were committed
not far from her house. The only unusual event
or evidence of something unusual, were the loud male voices coming
from the Van
Breda residence, heard by Mrs Op’t Hoff between
22h00 and midnight that particular evening.
[287]
Ms
Op’t
Hoff resided at 10 G. Street across the street from the Van Breda
residence. She testified that she had heard loud male
voices, with an
aggressive undertone that sounded like an argument, from the
direction of the Van Breda house the night of 26 –
27 January
2015. It lasted from 22h00 until after midnight (00h10) without
stating that it was unabated or uninterrupted; it went
on
continuously. She confirmed there were plants and shrubs in front of
her house and that the windows and curtains were closed.
Ms Op’t
Hoff testified her house consisted of a lot of glass and French
doors. During the inspection
in
loco
it
was evident that there is a balcony door leading from the boys’
room, to an outside balcony with a view of Ms Op’t
Hoff’s
house across the street. Ms Op’t Hoff’s uncontested
evidence is that audio specialists tested the reliability
of her
version afterwards and confirmed the possibility of her having heard
sound coming from the Van Breda residence. Her sons
were also woken
at approximately 04h00 the next morning, fortuitously the time that
the murders probably happened. Considering
that it happened at a
quiet time at night in a quiet environment and the other
abovementioned factors, the Court finds that Ms
Op’t Hoff must
have been able to hear the sounds as she testified.
[288]
According to the
Accused, the Van Breda men watched a movie called “Star Trek 2
into Darkness”. It was suggested that
the movie was
approximately two hours long and that was what Ms Op’t Hoff had
heard between 22h00 and midnight the night
of the murders. Ms Op’t
Hoff was adamant that she did not hear a movie with music and a sound
track and testified that she
was familiar with the Star Trek theme
song. The loud voices were so disturbing that she had a fright. Ms
Op’t Hoff is an
independent witness who was unwilling to get
involved. She did not implicate any specific person, including the
Accused. Ms Op’t
Hoff impressed as a witness and the Court has
no reason to reject her evidence.
[289]
Sergeant Appollis testified that the police
had the cell phone data of the entire family and they could not find
any threatening
messages, except for the message of James Reade-Jahn
to MARLI. Mr Reade-Jahn’s cell phone data confirmed that he was
at home
the night of the incident. Mr Cornelius van Breda was not
aware of enemies MARTIN or TERESA had, personally or in terms of
business.
[290]
Mr Reade-Jahn, Ms Van der Westhuizen and Mr
Cornelius van Breda testified that there seemed to be no major
problems amongst the
family members before the incident. Ms Van der
Westhuizen spent only two-and-a-half weeks with the Accused as a
friend before the
incident. Mr Reade-Jahn testified about a heated
argument between the family members at some stage that upset MARLI
and TERESA
to such an extent that the witness actually wanted to
murder the family around MARLI. He said that he was concerned about
the reason
why TERESA got so upset and he felt there might have been
something more to the argument than was let on. The reaction by
MARLI,
Mr Reade-Jahn and possibly TERESA seems to be a bit excessive
if the argument simply revolved around MARLI’s weight. Mr
Cornelius
van Breda lived with the family for a few months when the
children were still at a young age. He probably did not share the
day-to-day
trials and tribulations of the Van Breda victims. The
aggressive male voices heard by Mrs Op’t Hoff on the night of
the murders
indicates that everything was not as it seemed on the
surface in the Van Breda household.
[291]
It is inconceivable that an unknown
perpetrator would gain entry to the Estate and house with great
planning and effort, seriously
injure the entire family in that
manner for no apparent reason (except for the Accused), and flee
again without taking obvious
valuable items from the house. The Court
does not have to speculate about the motive of the assailant.
The intention of the perpetrator
[292]
On 29 January 2015 Dr Daphne Anthony, a
Senior Specialist in Forensic Pathology Services based at the
Tygerberg campus of the University
of Stellenbosch, performed the
post-mortem examinations and recorded her findings in the post-mortem
reports marked as Exhibits
“L”, “M” and “N”.
She was appointed as a Senior Specialist Forensic Pathologist at
Stellenbosch
mortuary from May 2009 until June 2016.
[293]
RUDI had extensive
scalp lacerations and injury to the brain,
consisting
of seven (7) wounds. The wounds were located more towards the left
side and back of the head. He also had three
(3) minor blunt force
trauma wounds to the leg and wrist. Wound eleven (11) was a defensive
wound, a small incised wound on the
left little finger, and wound
twelve (12) was the loose nail of the left little finger. Dr Anthony
concluded that a severe skull
fracture caused damage to the brain
itself and contributed to death, together with a large amount of
blood. Five (5) wounds in
themselves could be fatal. Dr Anthony said
the use of the axe, Exhibit “1”, would fit in with the
injuries.
She described the axe as a
heavy object with a
sharp edge, and that it was consistent with the chop wounds inflicted
with a tremendous amount of force and
high rate of speed.
[294]
MARTIN presented with
sharp and blunt force trauma involving the head and upper back
consisting of four (4) lacerations and incised
wounds as contained in
Exhibit “M”. All the wounds were potentially fatal except
for the incised wound on the upper
back at the junction of the neck.
A considerable amount of force was required to cause the injuries and
the skull fracture. Dr
Anthony was of the opinion that the trauma was
most likely inflicted from behind. She based her opinion on the fact
that no evidence
of protecting vital parts could be found as well as
the location of the wounds.
[295]
TERESA had a chop
wound or laceration that had split into two wounds, involving the
right side of the top aspect of the scalp. Dr
Anthony was of the
opinion that a heavy bulky object moving with a tremendous amount of
force and a high rate speed had been used.
TERESA also had an incised
wound to the right frontal-middle aspect of the scalp. Both wounds
were potentially fatal. There was
evidence of skull fractures and
brain injury. Furthermore she presented with abrasions on the nose
bridge and contusions on her
back. An incised wound on the inner side
of the right thumb is suggestive of a defensive wound caused by a
sharp object. Her injuries
are contained in Exhibit “N”.
[296]
The wounds sustained
by TERESA and MARTIN, were also caused by the axe as the weapon that
was used. The axe fitted the instrument
in terms of wounds sustained,
taking into consideration the size and characteristics of the wounds.
[297]
A report from Dr
Marius Small-Smith, who treated MARLI at Vergelegen Mediclinic,
citing the injuries sustained by MARLI, was handed
in as Exhibit
“BBB12”. Photographs of her injuries were handed in as
Exhibits “H1” –“H18”.
She had five (5)
deep lacerations to her head with the brain tissue visible; four (4)
lacerations on the left side and one (1)
laceration more to the right
side (see Exhibits “H9” – “H11”). She
also had a deep laceration to
her left ear that was partly severed
from her head (see Exhibit “H4, 5 and 7”) and another
deep laceration to the left
side of her neck (see Exhibits “H1”,
“H2”, “H4”, “H5” and “H7”).
Furthermore,
MARLI sustained a wound to the inside of her left lower
arm (see Exhibits “G5 and “G6” and Exhibits “H17”

and “H18”) as well as bruising and an abrasion to the
dorsal aspect of her right hand (see Exhibit “G8”).
[298]
According to Dr
Small-Smith the injuries presented by MARLI are not only potentially
fatal, they are in fact usually fatal (see
Exhibit “HHH”).
He confirmed that MARLI’s prognosis upon admission was very
poor. The injuries fit in with infliction
with a sharp instrument
like an axe.
[299]
The deceaseds’ injuries were mainly
confined to the head. RUDI suffered the most violent attack of the
deceased, in terms
of the number of injuries. Second was MARTIN and
then TERESA, with lesser injuries. Dr Anthony testified that MARLI’s
injuries
to her head and neck were consistent with injuries sustained
by the other three deceased family members. Injuries involving her

hands and extremities were indicative of self-defensive wounds and
were multiple in origin, indicative of a severe scuffling.
Considering the seriousness and number of head injuries, the location
of the wounds and the considerable amount of force with which
they
were inflicted, there can be no doubt that the attacker had the
intention to kill all the deceased and MARLI.
Dr
Anthony testified that traumatic head injury has a high mortality
rate. The Accused
conceded
during cross-examination that the intent was to kill if one hit a
person over the head with an axe.
Defence
counsel rightfully conceded that MARLI’s injuries were
life-threatening and were inflicted with the intension to kill
her.
[300]
Taking into account the type of weapon, and
the number and nature of the injuries, the Court finds that the
perpetrator had the
intention to kill the victims in the form of
dolus directus.
[301]
Whether an intruder entered the house armed
with an axe or the perpetrator armed himself with an axe from the
pantry inside the
house, the attack on the presumably sleeping family
members on the first floor of the house and in the early hours of the
morning,
had to be planned. The weapon had to be taken to the first
floor; it would not have been readily at hand at the time of the
attack.
Other relevant aspects about the
injuries of the victims
[302]
The cause of death in
all three post-mortem reports was listed as being head injuries and
the consequences thereof. Lacerations
or incised wounds will bleed
profusely which can cause shock leading to death.
Scalp injuries lead
to loss of a large amount of blood. The skull bone is rigid and the
skull can fracture if the limits of elasticity
are exceeded. In the
case of a compound fracture one can see the bone end or fracture
which protruded through a scalp wound. One
can deduct from skull
fractures that a considerable amount of force had been applied. It
was not a skull fracture that caused the
death, but the underlying
brain injury. To put it differently, it was the injured brain tissue
which would cause the death. Injury
to the base of the brain can be
indicative that a considerable amount of force was applied to the
head. Intracranial (inside of
the brain) haemorrhage can also occur,
leading to raised intracranial bleeding causing space-occupying
lesions, swelling, and the
eventual death of the person.
[303]
Dr Anthony dealt with the injuries
sustained by
RUDI van Breda
as contained in Exhibit “L”:
(i)
The relevant chief post-mortem findings
indicated external blunt and sharp trauma involving the neck and left
lateral upper neck.
(ii)
Evidence suggestive of defensive wounds on
his left little finger and a loose nail was present. Defensive wounds
are normally an
indication that the individual attempted to ward off
an attack on his vital parts, face and head area.
(iii)
There were also skull fractures to the base
of the skull and the skull cap. Furthermore, the small focal
abrasions on the right
anterior knee and left and right dorsal wrist
could be due to any form of blunt trauma or the body could have been
in contact with
a rough surface.
(iv)
Blood was
found in the deceased’s stomach. It indicated that RUDI was
alive for some time subsequent to the injuries sustained
for the
blood to enter the oesophagus and stomach, ie because he swallowed
blood. It could not be done passively and he, as an
individual, had
to be alive for longer than a few minutes.
(v)
The sustained
injuries had to be very painful due to the head injuries.
(vi)
With a head
injury one would not necessarily be dead immediately, but could be
unconscious or semi-conscious and actively inhale
and swallow blood.
The victim would still feel or suffer pain. To be incapacitated, it
means that a person could be unconscious
or dead. There were three
different stages of consciousness. One could be still able to survive
for a period of time and able to
make slight movements but not active
movement. One might possibly be able to lift one’s head, or
move one’s limbs and
body slightly. With a head injury it was
most likely for the person to be in an incapacitated state and the
person would not be
able to move around.
(vii)
RUDI had five
potentially fatal wounds, namely wounds three to seven described in
the post-mortem report.
(viii)
RUDI was
wearing blue striped boxer shorts, considered to be “sleep
wear”.
[304]
The Accused confirmed that MARTIN and RUDI,
and probably TERESA and MARLI, were attacked with the axe that was
found on the middle
landing. During Sergeant Kleynhans’
evidence-in-chief, Adv Botha indicated that it was admitted on behalf
of the Accused
that Exhibit “1” was the same axe that
appears in the photo album, Exhibit “A”.
[305]
Dr Anthony then dealt with the injuries
sustained by
MARTIN van Breda
as contained in Exhibit “M”.
[306]
The chief post-mortem
findings on the body were as follows:
(i)
External sharp
and blunt trauma involving the head and central upper back were
noted.
(ii)
No evidence of
defensive wounds could be found.
(iii)
Microscopic
evidence of blood aspiration of both lungs indicated that MARTIN was
not dead immediately because he actively inhaled
the blood.
(iv)
There was
blood in the stomach indicative that the deceased was not dead at the
time of infliction of the trauma.
(v)
The organs
were pale which was indicative that the individual bled out.
(vi)
Injuries to
the skull and brain caused the death.
(vii)
MARTIN had
three potentially fatal wounds. Each one could have killed him on
their own. The wounds are described in par 4.1, 4.2
and 4.3 of
Exhibit “M”.
(viii)
A considerable
amount of force was required to cause the external injuries and skull
fracture. MARTIN was most likely not aware
of the attack from the
back, and completely surprised by it. She based her opinion on the
fact that no evidence of protecting vital
parts could be found as
well as the location of the wounds.
(ix)
MARTIN was
dressed in multi-coloured striped boxer shorts, considered to be
“sleep wear”.
[307]
Dr Anthony also dealt with the injuries
sustained by
TERESA van Breda
as contained in Exhibit “N”.
[308]
The chief post-mortem
findings were described as follows:
(i)
External
evidence of sharp and blunt trauma involving the head.
(ii)
Small focal
abrasions on the nose bridge and focal contusions on the right back.
(iii)
Evidence of a
defensive incised wound on the right dorsal thumb (posterior).
Dr
Anthony testified that it was highly likely that TERESA faced the
attacker and raising her hand to protect her face. There was
no
aspiration of blood which was an indication that she was most likely
dead or she could have been in an unconscious state but
not able to
swallow blood. TERESA died fairly quickly after the trauma had been
inflicted.
(iv)
Evidence of
skull fractures and brain injury.
(v)
Bleeding
between the rib spaces but no rib fractures.
(vi)
Haemorrhage,
severe head injury and hypertension due to severe  blood loss.
(vii)
The organs
were pale, suggestive of extensive loss of blood.
(viii)
The cause of
focal left lateral intercostal contusions was a form of blunt trauma
bleeding in the underlying tissue. She probably
fell on her left
side, sustaining contusions on the lateral aspect of her chest. The
cause of the abrasions on the nose bridge
was a form of mild blunt
trauma. It was an indication that the deceased fell on her face,
having an impact on her nose and causing
the abrasions. The
contusions on her back indicated blunt trauma to her lower back,
likely sustained with a fall.
(ix)
Dr Anthony
testified that the chop wound to TERESA’s head could be
potentially fatal, and also the incised wound to the head.
The wounds
are described in par 4.1 and 4.2 of Exhibit “N”. The
others were all minor injuries.
(x)
TERESA was
wearing beige underwear and a navy sleep vest.
[309]
Photographs of MARLI
and TERESA were taken by the first responder at the scene (Exhibit
“B”); photographs of MARLI’s
hands and limbs
(Exhibit “G”); photographs of the extend of MARLI’s
head injuries (Exhibit “H”) as
well as photographs of the
Accused at the scene (Exhibit “C”) were shown to Dr
Anthony.
[310]
MARLI’s
injuries to her head and neck were consistent with injuries sustained
by the other three deceased family members.
MARLI’s injuries
were indicative of a bigger scuffle between MARLI and the attacker,
than between the attacker and RUDI,
MARTIN and TERESA respectively.
[311]
MARLI’s
injuries involving her hands and extremities were indicative of
self-defensive wounds and multiple in origin, indicative
of a severe
scuffling. This was in comparison to RUDI’s pinkie wound and
TERESA’s thumb. With MARLI, more severe injuries
and
specifically the location of the injuries more on the extremities and
hands, were indicative of a more significant struggle
going on during
the attack in an attempt to save her life.
[312]
Exhibit “B1 and
4” of the scene showed a large pool of blood around TERESA and
MARLI. Dr Anthony said scalp wounds would
bleed profusely so the
bleeding would have developed quite quickly.
[313]
The report from Dr
Marius Small-Smith, who treated MARLI at Vergelegen Mediclinic, was
handed in as Exhibit “BBB12”,
citing the injuries
sustained by MARLI. Defence counsel admitted the contents of the
doctor’s report, Exhibit “BBB12”,
including MARLI’s
physical injuries and that she has no memory of the incident.
[314]
State counsel asked Dr Tiemensma, a medical
specialist, to comment on the photographs of the injuries sustained
by MARLI, as can
be seen in Exhibit “G”.
The
witness categorised MARLI’s hand injuries as a sharp force
injury to the wrist. The injury that can be seen in Exhibit
“G6”
appeared to be a typical passive defence injury, ie holding one’s
hands over whichever area was attacked.
There was contusion
or bruising on the back of MARLI’s hands, and on her knuckle
visible in Exhibit “G8”. There
was also a small abrasion.
The injuries corresponded with someone actively fighting back, ie it
had the appearance of active defence
wounds. The witness was hesitant
to comment on the injuries on the inside of MARLI’s calve as it
looked faded in Exhibit
“G10”.
[315]
Dr Anthony said she
could postulate the possible sequence of events, inferring from her
observations.
[316]
She postulated that
RUDI’s injuries showed him lying on the bed on the right side
of his face due to the fact that his injuries
were located to the
lateral aspect the neck and the left as well as the side of his neck.
With the infliction of the trauma, he
was aware of the blows and what
was coming. He raised his hand in an attempt to ward off the attack,
which was why he sustained
an incised wound on his little finger with
lifting of the nail. First the two incised wounds described in
paragraphs 4.1 and 4.2,
Exhibit “L” were inflicted and
the other wounds followed.
[317]
The witness was asked
to comment why RUDI was lying near the doorway of bathroom inside the
room as could be seen in Exhibit “A191”,
if he was
assaulted on the bed. Dr Anthony said that it was possible after an
attack, that the victim might still be able to lift
himself up. A
person would not immediately be immobile or unconscious; he could
still move although he would not be mobile depending
on the level of
consciousness or survival period. Alternatively, if attacked in bed,
he could have been moved by someone else to
a different location.
[318]
During
cross-examination Dr Anthony agreed with the contents of paragraph
6.4 of Dr Reggie Perumal’s report, Exhibit “QQ”.

According to the report RUDI lay on the bed for a while probably as a
result of a concussive state, taking into account the pool
of blood
on the bed. It was highly unlikely that he died immediately in an
unconscious state. Dr Anthony testified that there was
no injury that
could have either rendered RUDI immediately immobile or causing death
soon after sustaining the injuries. It was
very likely that RUDI was
capable of physical activity after being injured. He might have been
disorientated from a probable concussion
and his vision might have
been affected; RUDI would have been blind in at least the one eye. Dr
Anthony responded that she was
not at liberty to absolutely dispute
the time period of 2 hours 40 minutes for RUDI to die, but one had to
take into account the
blood loss. Dr Perumal never testified and
therefore his opinion is not considered, except for the parts with
which Dr Anthony
agreed. It would be highly co-incidental if the
Accused phoned emergency services just after RUDI died.
[319]
Captain Joubert
testified that it
takes
3 - 15 minutes for the clotting process of blood to start. He
testified there are so many variables, like the temperature
playing a
role. Looking at the bloodstains it was not possible to say how long
RUDI was lying on the bed and the floor respectively.
[320]
Dr Du Trevou
testified that the gurgling sounds made by RUDI were most probably
due to blood in his throat in the process of dying.
RUDI would have
had limited movement.
Dr
Du Trevou presumed that the blow to the head with the axe would have
rendered RUDI unconscious. Then he could have recovered
a level of
consciousness and it was possible that he was able to move. RUDI
would have been able to make purposeful movement but
the witness did
not know to what extent. The witness said the amount of blood on
RUDI’s bed was not his area of expertise.
There was a lot of
blood on RUDI’s bed so he lay on the bed for quite some time.
Head wounds bleed profusely and RUDI would
have been in a state of
concussion. Dr Du Trevou testified that RUDI would have been able to
crawl but not to stand or walk. The
witness said to have moved the
duvet from the Accused’s bed to the floor next to the wall on
top of blood, would have been
a goal directed movement. It was only a
theoretical possibility that RUDI could have moved the duvet, there
was no physical perspective
to say that.
[321]
The Accused testified
that during the period that the attacker left the room, RUDI was
moving around in his bed rather violently
and was shaking. The
Accused saw RUDI’s arms and legs shaking around; it was not
goal orientated movements.
State
counsel pointed out a discrepancy between his plea explanation and
testimony and his police statement in respect of RUDI’s

movements after the attack. In his plea explanation the Accused said
he heard RUDI making gurgling sounds and he saw him moving
around
violently, whilst in paragraph 5, Exhibit “SS” no
reference was made to that. The Accused merely said that he
saw RUDI
lying there. The Accused agreed that it was a contradiction. Adv
Galloway asked whether the version about RUDI’s
movements was
an afterthought because of Captain Joubert’s opinion regarding
RUDI being dragged from the bed. The Accused
denied using the words
in his police statement.
He
heard gurgling sounds from the kitchen and on the stairs. As stated
previously, the Accused made no mention to Ms Philander that
his
brother was also alive; he only mentioned his sister being alive.
During cross-examination by the State, the Accused conceded
that the
gurgling sounds could have emanated from MARLI only and not from both
RUDI and MARLI. RUDI was not alive when the police
and paramedics
arrived approximately 30 - 45 minutes later.
[322]
Dr Anthony testified
that MARTIN was most likely completely unaware of the attack and had
been attacked form behind.
[323]
During cross-examination, Dr Anthony
conceded that it was possible that MARTIN could have sustained the
injuries if the attacker
was physically higher than MARTIN and the
latter faced completely downwards.
It
was put to the witness that the Accused’s version was that his
father came into the room and moved towards and onto the
bed, over
RUDI, towards the attacker, who was on the opposite side of the bed.
His dad was struck with the axe as he lunged towards
the attacker.
The complete version of the Accused was contained in paragraphs 25 –
26 of Exhibit “J”. The attacker
was between the beds.
RUDI was lying on the bed as per photographs “A188” and
“A189”. Dr Anthony responded
that it was possible,
MARTIN’s injuries were located to the
right.
[324]
In his evidence-in-chief the Accused said
MARTIN
immediately moved towards the attacker; he
moved
onto the bed, looking like he wanted to tackle the attacker. MARTIN
placed himself between RUDI and the attacker. MARTIN lunged
and was
hit on the head. MARTIN did not move again.
The Accused said
MARTIN
was
then hit several times by the attacker. The Court observed that
MARTIN’s body can be seen on the side of RUDI’s
bed next
to a bloodied pillow and pool of blood in Exhibit “A188 - 189;
192, 198 and 202”.  MARTIN’s head
was lying in a
pool of blood against a pillow with blood spatter. It seems that the
blows were administered whilst he was in that
area. During
cross-examination by the State, the Accused said
MARTIN
was next to Rudy; not on top of him. The Accused said his father
never moved over RUDI that was the direction where his father
was
heading when he was hit.
[325]
TERESA faced the
assailant and was also aware of the infliction of the trauma. She
instinctively raised her right hand to ward off
the impact of the
first wound to the right frontal area of the skull, resulting in the
incised wound on the thumb. She most likely
fell forward on her face
with the abrasions on her nose bridge and also more to the left side
where she sustained contusions. The
other wounds were inflicted after
that.
[326]
MARLI, in terms of
the pictures, had extensive defensive wounds and she was quite
apparently in a more sustained and life threatening
altercation with
the attacker. The type of injuries to her head are similar to the
type of injuries to the other three deceased
members of the family.
They sustained chop wounds and incised wounds and the measurements
were more or less the same as in the
case of the other victims.
[327]
On a question how
MARLI survived the attack, Dr Anthony responded that the issue of the
survival period after infliction of trauma
depended on various
factors; i.e. age (the younger will survive longer), the amount of
blood loss, compensation mechanisms and
the severity of the wounds.
The injuries of the Accused
[328]
Captain Nicholas Steyn communicated with
the Accused at the crime scene. The Accused had a reasonably large
knob on the left side
of his head and a swelling under his left eye
as well as superficial cuts and a stab wound. Captain Steyn could not
remember a
fresh bruise under the Accused’s right knee.
[329]
On 27 January 2015 at about 10h30 Dr
Albertse examined the Accused as a victim. Dr Albertse recorded the
injuries sustained by the
Accused on a J88 form which was handed in
as Exhibit “LL”.  The recorded injuries were read
out by Dr Albertse.
The Accused had four parallel, “very
superficial” cuts on his left forearm, two above his right
nipple and another
above that, a superficial stab wound on the left
thorax, one superficial cut above his left nipple, and two stab
wounds to the
left abdominal area. Most of the injuries on the front
of his body and forearm broke the skin. On his back, he had a scratch
on
the left side of his back over the scapula and a scratch on the
right side of his back under the scapula. These scratches did not

break the skin. He had two abrasions on his back. There was old
scarring on his right knee, a bruise and swelling just below it,
and
another two old bruises. He had swelling above his left eye and a
bruise under it.
[330]
Dr Albertse testified that she did not
regard his injuries as serious. The injuries of the Accused appeared
as in the photographs,
Exhibit “C”. Her description of
the injury as a scratch mark in “A31” is incorrect, she
would rather describe
it as a cut wound. There were scratch marks
also on the Accused’s back. The scratch marks could have been
caused by blunt
force that scraped off the top layer of the skin. The
cut wounds (a)–(i) could have been caused by sharp trauma like
a knife
or a sharp object.
[331]
Dr Van Zyl recorded the injuries of the
Accused later that day as can be seen in Exhibit “OO”.
The Accused was brought
in as a possible suspect in a murder case
when she saw him for the second time at 21h45. Colonel Beneke
requested her to fill in
the CAS number of the case. She referred to
the injuries to the Accused’s chest as superficial scratch
marks. The injuries
to his left arm were parallel horizontal marks
suggesting possible scratch marks approximately 3 cm each. Dr Van Zyl
recorded a
superficial puncture mark close to the left side clavicle
of his chest. The laceration or stab wound to the left upper abdomen
was cleaned and clipped; the Accused received no stitches as the
wound was not deep enough. Both eyes had surrounded bruises in
early
stages of development. She recorded a bruise to the left knee but
testified that it could have been the right knee and that
it could
have been a mistake. She confirmed that the Accused had a bump
against his head. Dr Van Zyl testified that the discolouration
of the
eyes could have been as a result of the bump or injury to his head.
Possible self-inflicted wounds
[332]
The Accused alleged that one of the
policemen that accompanied him to Dr Albertse, asked her whether the
wounds were self-inflicted
and that Dr Albertse replied that she
would see what she could do. Dr Albertse could not remember whether
the question was asked
at the time. At a later stage Colonel Beneke
asked her
opinion
about the cut wounds on the thorax and left forearm of the Accused
and the method of inflicting the wounds. Dr Albertse
did not give an
opinion but asked Dr Tiemensma for an opinion. It was put to Dr
Albertse that the Accused will say that the assailant
had a knife in
his hand and cut and stabbed whilst the Accused held onto the arm of
the assailant. A demonstration by Adv Botha
was described as follows:
The Accused held onto the arm of the assailant with his hand close to
the elbow of the assailant who
cut the Accused over his thorax and
arm. Dr Albertse replied that it was possible but unlikely. However,
she indicated that she
was hesitant to say it was unlikely. It is
noted that during his testimony
the
Accused testified that he grabbed the attacker’s right hand,
holding the knife, just below his wrist
–
and not close
to his elbow as stated by Adv Botha. In his plea-explanation it was
alleged that the Accused was holding onto the
right forearm of the
attacker, not specifically just below the attacker’s wrist (see
paragraph 31, Exhibit “J”)
as he testified later.
[333]
Dr Marianne Tiemensma
is a Specialist Forensic Pathologist and Clinical Forensic
Practitioner that was employed at the Clinical
Forensic Unit at
Victoria Hospital, Wynberg at the time of her testimony. Her
expertise include pathology which she started to
practice in 2007.
Apart from forensic pathology, she also practiced clinical science.
Her qualifications and experience were listed
in Exhibit “NN”.
Dr Tiemensma was asked by SAPS and Dr Albertse to comment on the
method used and the manner in which
the Accused sustained his
injuries. The witness received a written request from Dr Albertse,
the J88, a typed copy of the translation
of Dr Albertse’s
findings in English and the photographs contained in Exhibit “C”.
The police brought the suspected
weapon, Exhibit 2, in an evidence
bag to her office. At a later stage she also had the plea-explanation
of the Accused at her disposal.
Colonel Beneke requested
telephonically whether the witness could comment on the wounds of the
Accused and the issue of self-inflicted
injuries. She said it was not
unusual to receive such a request. Dr Tiemensma compiled two reports
on her findings with regard
to the injuries sustained by the Accused,
and handed in as Exhibit “NN2 and 3” respectively.
[334]
Defence counsel
submitted that the mandate with which Dr Tiemensma was tasked, was
embedded with an inherent confirmation bias.
There is no grounds for
this submission as Dr Tiemensma not only motivated her conclusion
thoroughly, she also referred to text
book pictures for confirmation
of her conclusion. The absence of bias is,
inter
alia
,
illustrated by her concession that it is a difficult task to
determine whether injuries have been self-inflicted or not. She also

identified certain injuries to be self-inflicted and others not
necessarily. It was further argued that her analysis cannot be

afforded the same weight as evidence stemming from a physical
contemporaneous examination of the patient and his injuries. The
same
argument goes for the Defence experts on the injuries and condition
of the Accused. Dr Tiemensma had the opportunity to form
an opinion
from enlarged photographs and the detailed notes of Dr Albertse. No
tests were required to come to a conclusion.
[335]
Dr Tiemensma
summarised the Accused’s injuries as thorax, head, back and leg
injuries (see Exhibit “NN2”).
Dr Tiemensma
testified that the injuries on the dorsal aspect of the left forearm,
marked (a)–(d) and to the chest, marked
(e), (f) and (h) were
consistent with self-inflicted injuries (see the J88 completed by Dr
Albertse, Exhibit “LL”).
The other injuries were less
likely to be self-inflicted and were unusual if self-inflicted.
During cross-examination Dr Tiemensma
conceded that it was very
difficult to determine whether wounds were self-inflicted, as stated
above, but she was adamant that
it was indeed the case. The fact that
the wounds were superficial and non-fatal, was not necessarily
conclusive. One had to look
at all the characteristics of the wounds.
The more characteristics that were present, the more suspicious you
would get. One would
then look at how they would have been sustained,
ie the history and discrepancies. Conclusions of possible
self-inflicted wounds
are determined by a number of factors and one
had to look at it in totality.
[336]
The cut marks on the
chest were superficial and non-fatal. Incisions had an equal depth,
were parallel and avoided sensitive areas
like nipples. The chest
injuries were in a reachable area for self-infliction.
[337]
The forearm wounds
were also in keeping with self-inflicted injuries, non-lethal,
superficial, of an equal depth, and the cuts were
parallel. It was
unlikely for a victim who was being attacked, to stand still and not
take evasive action to allow such multiple
and uniform injuries to be
executed. The incisions were on the left forearm and the Accused was
reportedly right-handed. It was
not a typical area where one would
expect defence wounds with sharp instrument attacks; defence wounds
were more likely to be found
on the ventral/palmar aspect of the
forearm or wrist, elbows, palmar surface of the hand in grasping
motion in an attempt to grab
the weapon, or on the backs of the hands
or fingers from non-grasping movements in attempts to ward off a
weapon. The forearm injuries
were in reachable areas for being
self-inflicted.
[338]
Therefore the
injuries to the forearm as well as the cuts to the chest were
consistent with being self-inflicted. The other injuries
of the
Accused were less likely to be self-inflicted.
[339]
The sharp force
injuries to the thorax and abdomen had a slightly different
appearance, and it seemed to have been inflicted with
a stabbing
action versus a slicing action. These wounds were still superficial
with the one bigger stab wound having a depth of
approximately 10 mm.
Judging the shape and size of knife, it was virtually impossible for
the knife to have been stuck in any of
the stab wounds. On the stab
wounds she was of the opinion that they were superficial and
non-fatal.
[340]
The swelling above
the left eye and bruise under the left eye were in keeping with blunt
force injuries. The skin overlying these
wounds was intact and
non-fatal. The wounds to the head, swelling and bruise on the eye,
could be caused by a blow to the face
or a fall. It was unlikely that
it was self-inflicted.
[341]
The wounds to the
back and the right leg could be described as blunt force trauma and
unlikely to be self-inflicted because of the
location of these wounds
and the type of injuries. Review of the wounds was difficult due to
the absence of photographs of these
areas but Dr Albertse described
it as superficial. Scratches and abrasions were typically as a result
of contact of the skin with
a rough surface after a fall, a scratch
with fingernails or other blunt objects, or from a blow with an
object.
[342]
Dr Tiemensma referred
to her report dated 12 February 2015, page 2, Exhibit “NN2”
with regard to the reasons for describing
some of the Accused’s
injuries as possibly self-inflicted injuries. If one looked at the
type of wounds to his chest, abdomen
and arm, they were superficial
and non-fatal. The cuts occasionally penetrated the skin and the
incisions were regular and were
linear and parallel. The wounds were
grouped and similar in appearance. It appeared to be typical
self-inflicted wounds. The wounds
were therefore regular and equal in
depth and origination, uniform, linear, no movement in the wounds,
parallel, equally deep.
A regular
wound would be a straight linear line with no movement in the wound
tract.
Equal depth
could be inflicted by another person but the track and direction of
the wound would differ because a person would want
to withdraw or
evade the infliction of the wounds. There would be a deeper entrance
and it would become shallower if someone was
stabbed by another
person.
The
cuts were not only parallel but also avoided sensitive areas. It was
unlikely that someone would have stood still and not taken
evasive
action. Self-inflicted wounds would usually be found on the chest,
abdomen, arms or hands of a person. The wounds were
in reachable
areas and were accessible.
[343]
The witness added
three more reasons to her report on which her opinion was based, ie
the wounds were symmetrical, of uniform shape
and that the same
instrument had been used.
Dr
Tiemensma explained that symmetrical wounds were both sides of the
body and have exactly the same appearance.
The
cuts could have been caused by one instrument. Conclusions of
possible self-inflicted wounds are determined by a number of factors

and one had to look at it in totality.
[344]
State counsel
described the circumstances to the witness, saying that the alleged
attack took place in the bedroom, at the foot
of the beds with two
persons facing each other with sharp weapons and pushing and pulling
each other. Dr Tiemensma responded that
in the circumstances it would
be very difficult to execute very uniform and similar
incisions/wounds to another person’s
body, holding on to each
other. The angles and direction of the incisions would be different
if a person pulled away. The wounds
on the torso and left arm of the
Accused were very similar.
[345]
Counsel for the Accused demonstrated the
Accused’s version as to how the wounds were sustained. It was
put to the witness
that according to the Accused the knife had been
close to his chest and the Accused would push the attacker’s
arm away from
his body. It was put to the witness that the attacker
cut the Accused in an attempt for the Accused to let go of the axe.
[346]
Dr Tiemensma stated that in respect to the
injuries to the arm, the Accused had a group of wounds, parallel to
each other and with
equal depth. Dr Tiemensma testified that the cuts
were also very uniform and linear. There is lots of movement so it
would be unlikely
to inflict wounds of the same nature. One would
expect different angles and depths. It was the same attacker who
inflicted serious
harm to other people. She testified that it was
very unlikely that the wounds were inflicted as demonstrated by
Defence counsel.
[347]
During
cross-examination she was questioned whether wounds (e), (f) and (h)
could have been inflicted by another person. Dr Tiemensma
replied
that it was not impossible but said if pain had been inflicted, one
would not stand still and one would be able to react
to pain and
would withdraw from the pain. It would cause different angles to the
wounds. These wounds were neat and (f) and (h)
were on different
sides of the chest. She questioned the fact that the wounds were not
more irregular if it had been inflicted
by another person. The wounds
could only be inflicted if the Accused was in a fixed position and
that was not the case according
to the plea explanation of the
Accused. The Accused said in paragraph 31 that there was pulling and
pushing between himself and
the attacker and that the attacker
slashed and stabbed at his chest (the witness moved forward and
backwards). She said that there
appeared to be quite a lot of
movement; o
ne
would try to evade the attack.
[348]
Defence counsel asked
the witness whether wounds (f) and (h) that were on the same
horizontal line, could be one cut wound due to
movement in a
struggle. Dr Tiemensma testified that wound (f) curved slightly
upwards, so it would be unusual if it was the same
cut on the same
level. It was very unlikely. Sensitive parts on the chest were not
cut and one would not expect a neat wound. One
would expect the
victim to pull away. The witness testified that she had seen the
aftermath of knife attacks hundreds of times
and she knew what it
looked like. Adv Botha asked whether cuts (e) and (f) could be an
attempt to slash across the Accused’s
chest. Dr Tiemensma said
one would expect force to be involved but the cuts were superficial.
With resistance, it would be even
more difficult to have managed a
precise cut wound in an awkward position. There would be pushing and
pulling, not a static confrontation.
The position described is
slashing and stabbing. Dr Tiemensma said it did not correspond with
the wounds.
[349]
Defence counsel put
it to the witness that a person’s wrist could move and then
only part of the skin would be slashed. The
witness said with the
movement, pushing and pulling, one could not slash with resistance
applied to the hand; one might be able
to stab but not slash. Dr
Tiemensma testified that cuts (f) and (h) could be one cut, but it
was unlikely due to the upward curve
of the one cut. She conceded
that wound (h) as per Exhibit “C3”, was a cut in an ever
so slightly upward direction.
The one end of the wound was slightly
higher than the other end but it was minimal. Wound (f) visible in
Exhibit “C2”
had a tail in an upwards direction. Dr
Tiemensma conceded the cut wounds (f) and (h) were more or less on
the same level but said
the overall position of the body was unknown.
The upwards tail of wound (f) suggested two separate cuts and not
one. It was unlikely
that the Accused did not move when the two
wounds were inflicted because a normal person would react by pulling
away if pain was
inflicted. The witness also took into account what
was said in the plea explanation.
[350]
The wounds were
suspicious even before the witness had the benefit of the plea
explanation and when she compiled Exhibit “NN2”.
The
witness said the Accused indicated the degree of movement in
paragraph 31 by saying that they pushed and pulled each other,

stepping forward and backwards. She agreed that the adrenaline level
of the Accused would have been raised quite high and that
a person
might not feel the pain with superficial cuts. She asked why anybody
would stand still when the cutting happened. One
would not be
defending oneself by standing still. If the Accused stood still it
would be possible to have made those cuts but the
Accused never
described that he was standing still during the struggle.
[351]
It was put to the
witness that the Accused will say that with the initial movement of
the attacker, he got the impression that the
attacker was aiming
towards his throat and that he managed to pull the attacker’s
arm slightly down. Dr Tiemensma replied
that the attacker definitely
did not strike anything close to the throat. You would expect the
sharp force injury in a downwards
direction toward the chest but that
was not the case. Wound (f) was a horizontal cut and it was
improbable that the Accused pulled
the knife downwards. She based the
opinion on what was put to her in court and paragraph 31 of the plea
explanation. The throat
was never mentioned in the plea explanation.
[352]
The cut wounds (a),
(b), (c) and (d) on the arm of the Accused can be seen in Exhibit
“C5” with wound (a) at the top
of the photograph. There
was one blot of blood in wound (d) and the cut was close to the
wrist. A close-up of Exhibit “C5”
was handed in as
Exhibit “NN4” (marked photograph 76). The wounds were in
a reachable area. Dr Tiemensma said she looked
at the totality of the
appearance of the wounds. She testified that the wounds must not be
evaluated in isolation. The wounds were
on the left forearm of the
Accused and he was right handed. The cuts were also superficial and
non-fatal. There was dried blood
in all of the wounds but the blood
spots were not relevant. Dr Tiemensma testified that the wounds were
parallel and grouped. Cuts
(b) and (c) would meet up if they had
continued.
[353]
Defence counsel put
it to the witness that the Accused held with his left hand the right
forearm of the attacker with the knife
and the attacker moved his
wrist from left to right and right to left, slashing the Accused arm
by flicking the knife with his
wrist.
Dr
Tiemensma responded it does not explain why the wounds were the same
depth and parallel and of the same resistance. The wounds
were on the
dorsal side and not on the inside of the Accused’s arm. The
blade of the knife, Exhibit 2, was fairly long. The
witness said the
cuts followed the skin throughout. In the plea explanation the
Accused said the attacker slashed at him, not flicked
the knife.
Dr
Tiemensma testified that the injuries were probably inflicted with
the tip of the knife.
Stab wound (j)
was the larger wound on the side and the skin was overlying the
obliged muscles.
[354]
Dr Tiemensma
testified that movement or fighting with resistance would not have
resulted in those wounds. Self-mutilation did occur.
She explained
that in case of self-inflicted cuts a person would be in control of
the amount of pain, the depth and the location.
Cutting and slashing
and another person inflicting the wounds meant one did not have
control of the movement. She said the cuts
were not in keeping with
flicking movements of a knife. The wounds would be deeper on one side
and would go shallower. If one inflicted
the wound oneself, one could
control the movement.
[355]
Dr Tiemensma did not
describe the stab wound to the abdomen visible in Exhibit “C6
and 7” as self-inflicted.
[356]
The wounds to the
thorax and abdomen of the Accused seemed to have a stabbing action,
not a slicing action. The wounds were very
superficial. A similar
instrument or implement was used to inflict the injuries to the
forearm of the Accused. With the knife in
the attacker’s right
hand and no injuries to the ventral area of the arm, it did not fit
in with the history of how the injuries
were inflicted and the
physical injury.
Depending on the
resistance on the knife when the Accused was stabbed, one would have
expected ventral injuries in case of a counter
clockwise grip. In
terms of paragraph 33 of the plea explanation the Accused was still
holding on to the arm of the attacker at
that stage. Whilst the three
cuts on the Accused’s chest and the four cuts on his left
forearm were consistent with self-inflicted
injuries, Dr Tiemensma
could not confirm that in respect of the other injuries.
[357]
Dr Tiemensma
testified the wound in Exhibit “C6 and 7” had a slight
oblique angle. There was no track and it was not
known whether the
knife entered downwards or upwards. If the wound ran parallel, along
the abdominal wall, it could enter the cavity
to the side if
inflicted downwards. She would have expected the knife to penetrate.
Adv Botha said if the knife had been angled
to the left side of the
Accused, the handle would have stuck out. The witness responded that
the wound was not completely on the
side; it was in a more anterior
position. It was put to the witness if the knife entered from the
side, it would not necessarily
have entered the cavity. The witness
responded it depended on the angle.
[358]
Adv Botha put it to the witness that
according to Dr Albertse 10 mm was the minimum depth and that the
shape of the wound was elliptical
and 70 x 7 mm. Dr Albertse said one
had to allow for the elasticity of the skin. Dr Albertse conceded
that the wound could be 23
mm wide and the depth would be 50 mm. Dr
Tiemensma responded that her information was 10 mm and the wound did
not require other
treatment than clipping. Five (5) cm sounded very
deep, she would expect that the knife would have entered the clavicle
cavity.
She would go on less than five (5) cm.
[359]
She was asked about
the direction of the track of the stab wound. Dr Tiemensma replied
that it could have been slightly downwards
or upwards; it depended on
the angle it had been inflicted. If the attacker was standing in
front of a person, the track on photograph
6, Exhibit “C”
was superficial and just entering the fat at a slightly oblique angle
from the front to the back. Dr
Albertse did not describe the wound
track; it was a superficial stab wound and only entered the tissue
and fat. Dr Albertse only
measured the outside dimension of the wound
and did not describe the wound track as more than 10 mm. The witness
accepted that
it was the minimum depth. One could only determine
direction of the track by dissecting it but it was known that the
knife did
not enter the abdominal cavity. No bone or other organs
were involved, only loose tissue.
[360]
Dr Tiemensma was of
the opinion that it would have been impossible for the knife to get
stuck because the depth of the wound was
10 mm. If it was as deep as
50 mm, it could get stuck for a second. If a person was moving, it
would not have stuck. Only skin
and tissue were involved, no bone and
fat. She said she did not believe the Accused’s abdominal knife
wound was up to 50mm.
A sturdy adult male his size had a layer of fat
about 40 mm thick. There was no indication that the wound entered the
peritoneal
cavity. It only penetrated his subcutaneous fat. If it was
50 mm, the knife would have entered the peritoneal or abdominal
cavity.
She would differ from another witness with another opinion on
this aspect. If the wound track was slightly downwards, the knife

could have stuck for a second or two but not long.
[361]
Dr Tiemensma
testified that there was a very strong contrast in comparison to the
serious and fatal head injuries that the rest
of the family suffered.
All the described injuries of the Accused were superficial, minor and
non-fatal with the most severe injury
being the superficial stab
wound to the abdomen (wound g) with a reported depth of 10 mm. None
showed any characteristics that
it was inflicted with the same intent
or force as the deceased’s wounds. The rest of the family had
extensive wounds caused
by an axe with underlying skull fractures.
The Accused had no defensive wounds one would have expected, if
another party was present.
If one would try and disarm an attacker
and grab at a knife or axe, one would expect there to be defensive
wounds.
[362]
Prof Jacob Dempers
qualified as a medical practitioner in 1994 and was a Professor in
Forensic Pathology since 2003. He was head
of the Clinical Unit,
Division of Forensic Medicine, University of Stellenbosch, Faculty of
Medicine and Health Sciences, Tygerberg
and also served as a
Consultant for the Western Cape Government. He was registered as a
Medical Practitioner and a Pathologist.
Prof Dempers compiled a
report on 27 August 2015 on the injuries sustained by the Accused
which was handed in as Exhibit “PP”.
He relied on the
typed notes of Dr Albertse and photographs to come to his conclusion.
The witness also perused the statements
of Dr Anthony and read the
plea explanation of the Accused.
[363]
Prof Dempers
testified that all the information at his disposal should be taken
into consideration in order not to thumb suck a
conclusion. One had
to look at the wounds without the background history, then look at
the defects against the background of what
was said to have happened
and thirdly one had to look at the wounds of other victims. All the
factors in the case needed to be
taken into account. Prof Dempers
testified that it is rare to see self-inflicted wounds. The Accused’s
wounds were consistent
with what the theory said about self-inflicted
wounds. The witness was of the opinion that the wounds on the person
of the Accused
conformed in almost all of their characteristics to
the description in medico-legal texts.
[364]
He testified that it
was not a common occurrence for, when a group of people were
attacked, the wounds to differ significantly from
one person to the
others. If an axe or a knife was utilised as the object to create
force, usually in a situation where malice
was intended towards
people (i.e. not accidental injury), the wounds show some similarity.
They see this in forensic pathology
in cases where more than one
member of a family was injured. In this instance all the defects
pertaining to the Van Breda family
members appeared to be similar.
Similar wounds were not present on the body of the Accused. Prof
Dempers found it hard to believe
that the assailant would only
scratch the Accused. A right handed person possibly inflicted the
wounds because of the fact that
the wounds were predominantly on the
left side of the Accused’s body.
[365]
Prof
Dempers
testified that the same assailant slashed people with an axe and
showed significant violence towards the deceased; there
was no reason
why he would be fighting differently with the Accused.
[366]
During
cross-examination Defence counsel said the Accused’s injuries
were caused by a knife, and not an axe and that would
explain the
difference. Prof Dempers agreed that he would not expect the wounds
being caused by an axe. Prof Dempers noted that
similar wounds were
not present on the body of the Accused in comparison to the injuries
and the defensive wounds of the deceased.
The witness said that he
had not seen defensive wounds on the body of the Accused. Prof
Dempers confirmed that RUDI sustained an
incised defensive wound to
his finger with reference to the post-mortem report, Exhibit “L”.
It was a small incised
wound. The witness was not sure what object
caused it. In case of an axe he would expect a gaping wound. With
reference to the
post-mortem report, Exhibit “M”, MARTIN
had no defensive wounds.
[367]
With reference to the
post-mortem report, Exhibit “N”, TERESA had a 2cm small
incised wound. The witness would not expect
it to be so small if
caused by an axe but said that it was not impossible. MARLI also
sustained defensive wounds to her ventral
arm and hand.
[368]
If a second attacker,
armed with a similar axe, was present in the house on the top floor,
it does not make sense that the attacker
did not yell for help during
the altercation with the Accused.
[369]
In his report dated
27 August 2015, Exhibit “PP”, Prof Dempers stated that
the scratch wounds on the Accused’s
arm were all equal in depth
and were almost perfectly parallel. Two superficial stab wounds were
present on the chest and abdomen
which might represent tentative or
“test” stab wounds. The distribution pattern was equal in
terms of the wounds on
the chest. The witness indicated it was hard
to believe that the assailant had succeeded in causing linear
scratches, some only
a few millimetres apart, without the Accused
flinching and causing further wounds to change direction in the same
region, or at
least resulting in a variation in the depth of the
wounds. The witness found it hard to believe that they were standing
still when
the injuries were inflicted. If people were fighting, they
would move around quite vigorously.
[370]
During
cross-examination Prof Dempers said it was possible that the Accused
might have pulled away, but if a person was determined,
he would sit
quite still in case of self-inflicted injuries. The witness conceded
that the adrenaline levels of the Accused would
have served to mask
the pain if the cuts had been sustained during the course of an
attack.
[371]
The witness was
referred to
photographs of the Accused sitting in the ambulance, Exhibit “C2
and C3”. Adv Botha asked if the two cuts
marked (h) and (f) on
a similar horizontal level on either side of the Accused’s
chest could be caused by one action. Prof
Dempers testified he could
not exclude the possibility, but the smaller one on the left came
from the top and curved downward,
and the one on the left breast
curved up; it appeared to be coming from a different direction.
There were scratches,
if there had been a slash, it was impossible for them to be exactly
the same depth or morphology. They had
the same appearance, same
depth, so the likelihood was very rare. Adv Botha said if the Accused
was cut from right to left, it
would explain the curve. The witness
responded that it could be, but that it was unlikely.
[372]
Defence counsel
demonstrated how the cuts occurred and said,
inter
alia
, the
attacker had tried to cut at the Accused’s throat and the
Accused tried to pull away; they wrestled. Thereafter while
still
holding onto the arm of the attacker with the knife, the attacker
executed cuts horizontally by flicking at the Accused’s
arm.
Their arms were not crossed but Adv Botha was not sure whether the
Accused was holding on to the wrist of the attacker.
Prof
Dempers said he found
it unlikely. If the Accused was holding the attacker’s arm at
the wrist, the scratches would have been
different. The parallel
lines could not be explained; the cuts were perfectly perpendicular.
Fights did not happen like that; the
witness had never seen that in a
fight. A close-up photograph of the Accused’s left forearm,
Exhibit “NN”, was
shown to the witness which indicated
that the first three cuts were not perfectly aligned or parallel and
that the bottom one was
facing towards the wrist of the Accused. Prof
Dempers said the cuts were aligned at the same axis, but not aligned
absolutely in
the same direction. The cuts did not criss-cross in
weird directions; it was parallel and running in the same direction.
[373]
Prof Dempers said
self-inflicted injuries in text books, made with a free hand and a
controlled movement, had exactly the same appearance.
In case of a
struggle or any significant movement, it would not look like that and
would not virtually have the same length etcetera.
The cuts were made
with the tip of the knife, which the witness referred to as
scratches, causing blood spots. Furthermore the
witness said it could
be possible that the Accused sustained the cuts in a struggle, but it
was highly unlikely.
If
part of a struggle, chances of the cuts having virtually the same
length and being parallel were not likely. Prof Dempers said
it was
not plausible and highly unlikely.
[374]
Prof Dempers commented on the alleged
position of the attacker and the Accused involved in an altercation
as described in the plea
explanation of the Accused, Exhibit “J”.
Allegedly the assailant had a knife in his right hand, and the
Accused had
an axe in his right hand. The Accused got hold of the
hand of the attacker and would have had control of how the knife
penetrated.
[375]
A larger stab wound was present just above
a smaller one in the left abdominal area. The witness referred to the
severity of the
larger of the stab wound, which was 17 mm x 7 mm in
dimension with a depth of 10 mm. Prof Dempers confirmed that it would
be hard
to determine the depth of the wound in the circumstances. The
width of the blade measured to the tip had to be taken into account.

He said he had to go on the notes of Dr Albertse, which indicated
that the stab wounds were superficial. They did not go into the

muscles and the bone. The stab wounds were from the front but more to
the side where you will find more tissue. There was no reason
to
believe that the peritoneal cavity was penetrated.
[376]
Prof Dempers illustrated that the blade of
the knife (Exhibit “2”) goes wider from the tip. He
measured the blade across
the blade width as 17 mm and the depth of
the tract as 26 mm or slightly deeper. He conceded that the depth of
the stab wound could
be deeper than 10 mm. Prof Dempers indicated in
his report that even at 40 mm it was difficult for him to maintain
the knife in
a horizontal, upright position by grasping the tip of
the blade tightly between the thumb and forefinger. The witness said
the
knife was sharp, but not razor sharp, and pointed out that the
human dermis was relatively strong. In a 17 mm wound, there could
be
some stretching. Adv Botha put it to the witness that the Accused
still had a scar of 23 mm. According to Adv Botha the width
of the
knife, as can be seen in Exhibit “LL1”, was measured as
23 mm. Prof Dempers was comfortable with the measurement
to allow for
the benefit of the doubt. Prof Dempers said if there was some
stretching the blade did not cut into tissue/skin.
[377]
Prof Dempers conducted experiments
pertaining to the stab wound of the Accused. He used photo evidence
and said the depth came to
2.5 cm to 3 cm, depending on the
stretching of the skin. Referring to the experiment performed by Prof
Dempers with a knife inserted
into a piece of pork, Adv Botha said
that the knife remained lodged for 2 to 3 seconds. Prof Dempers said
he did not shake the
pork but held it still. The underlying tissue
could not clamp the blade.
[378]
The experiment performed by Prof Dempers
does not carry a lot of weight because of the uncertainties and the
difference between
pork skin and human skin.
[379]
Prof Dempers testified that the Accused was
right-handed, and the fact that the abdominal wound was on the left
side meant that
it was more likely to be self-inflicted.
[380]
During cross-examination Prof Dempers was
asked whether the injuries documented are all consistent with
self-inflicted injuries.
The witness was assuming that there had been
a scuffle. He was of the opinion that, looking at the wounds
themselves, they were
superficial scratches and parallel, which was
already suspicious. He looked at the abdomen and the history, then
looked at the
other injuries of the Accused and the injuries
sustained by the other family members. The witness conceded that
there were other
possibilities and explanations with regard to the
classification of the other injuries.
[381]
He believed that the scratches on the
Accused’s arm and chest were more likely to be self-inflicted,
and the wound in the
abdomen may be too. As for the back and head
injuries, he could not say that those were definitely self-inflicted.
A scratch meant
a sharp-tipped object broke the superficial
epidermis. A cut meant something caused penetration of the underlying
tissue. A superficial
cut was considered to be a scratch. The history
is important. If the cuts to the arm or chest were caused by someone
else, the
victim had to stand still. The depth and the
characteristics of the cuts were not in keeping with an attack.
However, he said it
is possible that someone stabbed the Accused.
[382]
In conclusion the Court finds that there is
a striking similarity between the appearance of the wounds of the
Accused on his forearm
and thorax and textbook photographs of
self-inflicted wounds. Prof Dempers corroborated the testimony of Dr
Tiemensma. The general
criticism against their testimonies is
directed at the premise that they are biased witnesses. The Court
finds they were both highly
professional, outstanding and reliable
witnesses. Despite the fact that Dr Perumal advised Defence counsel
on self-inflicted injuries
and despite his presence in the Court, no
expert witnesses were called by the Defence on this vital issue.
During argument it was
submitted by Defence counsel that Dr Perumal
was not qualified to comment in respect of self-inflicted injuries,
and therefore
he was not called in this regard. No evidence was
tendered to gainsay the State’s compelling evidence in this
regard. If
the Court accepts that some of the injuries of the Accused
were self-inflicted, the credibility of the Accused is adversely
affected
to a significant extent.
[383]
During his testimony the Accused explained
that the attacker was holding the knife in his fist, with the blade
downwards and the
sharp edge facing away from the attacker. The
attacker allegedly inflicted the injuries by flicking his wrist,
despite the blade
pointing away from the attacker. State counsel
confronted the Accused with the appearance of his wounds and said
that they matched
the textbook version of self-inflicted wounds. They
were similar in nature and of similar depth, all horizontal and more
or less
parallel to each other. The Accused conceded that his wounds
did conform to those descriptions but denied that he inflicted harm

upon himself. The Accused said that the match between his wounds and
self-inflicted wounds was purely fortuitous.
Collection of forensic samples
and exhibits
[384]
Warrant Officer Hitchcock, with 22 years’
service at the time of his testimony, testified that he had covered
thousands of
crime scenes. He was a trained evidence collector,
proficient in the sealing of exhibits and dispatching thereof. He
arrived at
the crime scene at 10h22 on 27 January 2015; other
policemen were already there. No persons who were not part of the
investigation
were present. Warrant Officer Hitchcock testified that
the crime scene at [...] G. Street, [...] Estate was the crime scene
where
he collected the most blood samples in comparison to other
scenes. It had taken the police a period of three (3) weeks to
collect
all the blood samples at the crime scene. The witness
collected approximately 143 exhibits, including blood samples and
Touch DNA
samples as per Exhibit “K1, Annexure A”.
Certain swabs were taken by the blood spatter analyst, Captain
Joubert, but
the witness was present the entire time when the swabs
were taken.
[385]
Warrant Officer Hitchcock explained the
procedure followed by him and demonstrated the use of the evidence
collection kit. The witness
opened the packet with an instruction kit
inside it. Three carbon copy papers in white, pink and green were
inter alia
inside the packet. The evidence collection kit consisted of an
exhibit plastic bag approximately 50cm x 20cm, with a pre-labelled

unique ID number on it. It also contained two boxes with seals in a
sealed paper bag inside the original bag. Two sealed swabs
were
inside the bag together with six seals (stickers on a piece of
paper). The box would be sealed on three sides and all the
seal
numbers were the same. Each box was issued with a seal number printed
on it. Swabs would be submerged in distilled water.
After the swab
had been put into the box, the exhibit number and a description would
be written on the box. A form would also be
completed and everything
would be sealed in the big plastic evidence bag. A tape would be
removed to seal the big evidence bag,
and the bag could not be opened
if it was stretched on the sides. The bag would be damaged if
somebody attempted to open it, so
one would know if it was tampered
with. All the swabs or samples on the scene were packed as the
witness described. The date and
time that Warrant Officer Hitchcock
collected a specific sample appeared on the three (3) carbon copy
papers inside the collection
kit, as well as a description, in his
handwriting of the evidence collected, as can be seen in Exhibit
“VV”.
[386]
Before the commencement of Warrant Officer
Hitchcock’s testimony, State counsel indicated that the State
wished to amend certain
mistakes in respect of the numbers contained
in Exhibit “K”, the admissions made by Defence counsel in
terms of section
220 of the CPA, pertaining to the collection of
material for forensic examinations. Surprisingly, Defence counsel was
not prepared
for the amendments to be made and effectively was
prepared to risk confusion with regard to incorrect admissions. A
criminal case
is not a game: the correct facts should be presented to
the Court by all parties.
[387]
Several problems with
inter
alia
the marking and sealing of
exhibits were pointed out by Defence counsel. Some samples were
numbered incorrectly, in comparison with
the photographs in Exhibit
“A”. For example, a blue T-shirt with possible blood on
it, collected at the crime scene,
as can be seen in Exhibits “A552”
and “A553”, should be Exhibit “124”, not
Exhibit “118”
or “119”. It was a typing error
on the part of the witness. Exhibit numbers for Exhibits “121A
and B” and
“122A and 122B” had to be swabbed (see
Exhibits “A547 – A550” and “VV7 – 8”).
The
Court is satisfied that the numbering of the exhibits was
explained and rectified by Warrant Officer Hitchcock during his
testimony.
Except for Exhibit “117”, all samples were
properly sealed and no evidence of tampering or contamination was
presented.
[388]
Warrant Officer Hitchcock allegedly
collected swabs pertaining to Exhibits “113” –
“117”, as can be
seen in Exhibits “A539” –
“A543” of the washing basin, shower, and shower floor
respectively. The
witness conceded that there were a number of
problems regarding the collection of Exhibit “117”, the
swab collected
from a corner in the shower in the en-suite bathroom
to the first bedroom. The swab consisted of a mixture of DNA, with
the DNA
profiles of RUDI and the Accused that could be read into it.
The witness conceded that he did not take the swab himself but he was

present. He did not take a photograph of the evidence collection kit
and sealed bag, as was the case with other exhibits. The form
on
which the sealed box appears, Exhibit “VV4”, was amended
from Exhibits “118” to “117”. The
witness
said it was possible that he changed the numbers. The correct number
appears on the box itself, as can be seen in Exhibit
“VV4”.
He confirmed that the middle seal of the box did not appear in
Exhibit “VV4”. The witness could
not explain the reason
for that except to say that it could be his mistake. The witness
testified that evidence swab kits that
were not sealed should not be
sent to the laboratory. The reason that exhibits have to be properly
sealed is to prevent contamination.
[389]
Warrant Officer Lorraine Nel, attached to
the Biology Unit of the Forensic Science Laboratory in Plattekloof as
a Forensic Analyst,
clarified discrepancies in what was sent to her
and what she had received. She prepared affidavits in terms of
section 212(4)(a),
6(a), 6(b) and 8(a) of the CPA that were handed in
as Exhibits “WW1” and “WW2”.
[390]
All the exhibits she had received appeared
in her affidavits, Exhibits “WW1” and “WW2”.
She noted such discrepancies
as that the covering minute did not
correspond with what she actually received. The evidence bags
containing an inventory form
and a covering letter were also sent by
a LCRC member. She contacted a LCRC member to sort out discrepancies
in her case file.
She used the actual exhibit and swab guards that
had been given to her to prepare her record of exhibits, as noted in
pages 27
– 33, Exhibit “WW1”.
[391]
Defence counsel referred, for example, to
the numbering of Exhibits “121A and B” and “122A
and 122B”. However,
it was clear from the handwritten notes of
Warrant Officer Hitchcock on the evidence box that swab numbers “121A
and 121B”
were applicable to the head of the axe (see also
Exhibit “VV7”) and swab numbers “122A and 122B”
to the
handle of the axe (see also Exhibit “VV8”).
[392]
With reference to Exhibit “117”,
as mentioned in Exhibit “VV4” and paragraph 5.1.57,
Exhibit “WW1”,
the witness confirmed that the exhibit box
was not sealed: it arrived unsealed. She received the document,
Exhibit “VV4”,
with the number “7” written
over the number “8”, with reference to the exhibit
number. It was applicable
to the swab taken from the corner of the
shower floor in the first bedroom. She confirmed that the swab taken
of the shower corner
tested positive for the possible presence of
blood. Lieutenant Colonel Otto testified that unsealed evidence bags
will not be accepted
at the case management and reception section of
the FSL where exhibits are handed in and registered.
[393]
Normally, it would be fatal if the exhibit
bags and boxes are not sealed, because of the risk of contamination.
Warrant Officer
Nel testified that in this instance the evidence bag
(with seal number PA4002130723) containing the swab box was sealed.
The other
swab guard in the bag, together with the unsealed swab
guard box, was also sealed. Therefore it was unlikely that
contamination
could have taken place unless it was picked up during
the DNA analysis on the same swab.
[394]
Warrant Officer Nel did presumptive tests
for blood on the exhibits as contained in Exhibit “WW1”.
Any sample or exhibit
where no test for possible blood could be done
was sent straight for DNA examination. The witness conceded that she
did not follow
certain Standard Operating Procedures (hereinafter
referred to as “SOPs”) – for example, by not making
a drawing
or taking photographs of the exhibit tested. Expiry dates
of reagents were also not recorded – for example, the expiry
date
with regard to Exhibit “117”. The swabs were not
available and the results of the presumptive tests could not be
verified
by the Defence. Warrant Officer Nel testified that the end
result of the DNA tests would be reliable with regard to the samples

tested for blood. Because the reliability of the presumptive tests
for blood could not be verified, the Court will not take the
results
of the presumptive tests into account unless it is confirmed by DNA
results.
[395]
Warrant Officer Hitchcock testified that
his investigation diary consisted of his docket, the scene report,
the video report, exhibits,
sketches and general notes. After
exhibits were collected, the witness went to the office and booked
the exhibits into the SAP459/2/2015.
The LCRC did not make use of
SAP13 registers: they used SAP459 for exhibits. The exhibits were
kept there until the witness compiled
the forensic reports and
letters and sent the exhibits off to the Plattekloof Forensic
Laboratory. In this instance, Warrant Officer
Hitchcock took the
exhibits to the Laboratory himself. The witness dealt with his own
exhibits, sealed them and resealed them in
bigger exhibit bags
himself.
[396]
The photo album was compiled by him as it
appears in Exhibit “A”. The aerial photographs contained
in Exhibits “A1
- A6” were taken on another occasion, on
29 January 2015. Photographs “A7 - A226” were taken of
the scene without
marked places. In photographs “A227 - A586”
the places had been marked with cones where he collected
exhibits/evidential
material. The post-mortem photographs appeared
from photograph “A587”.
[397]
The State presented the crime scene video
taken by Warrant Officer Hitchcock, Exhibit “3”, to show
that the scene was
not tampered with between the recording of the
video and the taking of the photographs.
DNA analysis and the relevance
thereof
[398]
The significance of DNA evidence depends
crucially on other circumstantial evidence; it does not stand in
isolation. In the present
matter, a few inconsistencies in the
numbering of the exhibits and the sealing of one of the exhibit boxes
were pointed out, but
the chain of custody was not otherwise
disputed. The scientific validity of the DNA results were strenuously
disputed by Defence
counsel. It was the Defence case that the results
had to be ignored, save for results in respect of twenty-three (23)
samples.
In summary, Defence counsel submitted that the DNA evidence
is inadmissible for reasons stated hereunder.
[399]
Lieutenant Colonel Sharlene Otto is
attached to the SA Police Service as the Chief Forensic Analyst and
Reporting Officer at the
Biology Unit of the Forensic Science
Laboratory
.
She
stated her qualifications as contained in paragraph 2 of Exhibit
“ZZ1”. She has been attached to the Biology Unit
of the
FSL since November 1993. Since then she has received intensive
training in
inter alia
DNA
techniques and attended various national and international workshops,
seminars and conferences pertaining to statistics, Short
Tandem
Repeat (STR) and forensics-related practices. She successfully
completed both internal and external proficiency tests on
a regular
basis. In total she has thirty-one (31) years’ experience in
the biological sciences.
[400]
She prepared four reports on the Van Breda
murders. The reportswere handed up in evidence as Exhibit “ZZ1
- ZZ4”.
[401]
Lieutenant Colonel Otto testified that DNA
is the abbreviation for a chemical molecule, or the molecule of life.
It can be found
in all nucleic cells in the body of a human being.
The DNA for a specific individual will be the same from hair to toe.
Half of
each and every person’s DNA profile comes from that
person’s mother and half from his or her father. Each person’s

DNA is unique and therefore, indicates differences between
individuals. STR is an abbreviation for Short Tandem Repeat, a
technique
used throughout the world. Lieutenant Colonel Otto referred
to Appendix B, attached to her affidavits in terms of section 212 of

the CPA, Exhibits “ZZ1 – ZZ4”, to explain the DNA
analysis process.
[402]
In all cases, exhibits are received at the
laboratory in a sealed condition, then analysis takes place. In this
matter preliminary
analysis was done by Warrant Officer Lorraine Nel.
The DNA process started after the preliminary analysis. Lieutenant
Colonel Otto
was not involved in the analysis processes. The analysts
are all competent and proficient and are specialists, according to
the
witness. The analysts have a supervisor and everywhere along the
way checks and balances are used. They receive a work list and
would
not know which case they are working on or where the samples come
from. The reason for this is that the analysts dealing
with the
samples work completely objectively and blindly in the sense that
they are just following a procedure. At no stage of
the process is
any fact established. Lieutenant Colonel Otto, as the reporting
officer, is the person interpreting and establishing
and stating
facts. Lieutenant Colonel Otto also does the statistical calculation.
No affidavits in terms of section 212 of the
CPA were requested from
the specialists who dealt with the samples.
[403]
In the case of Touch DNA samples, no
preliminary process takes place. The polymerase chain reaction (PCR)
process is where specific
areas in the DNA molecule are targeted to
distinguish between individuals. Ten (10) areas are targeted, and
each area is biochemically
tagged by a fluorescent tag or colour.
Data analysis is done with the assistance of software, looking at raw
data and profiles.
The initial step which brings everything together
and is done after the preliminary analysis is sample preparation. The
analyst
dealing with it attaches to the sample a barcoded sticker
that can be traced throughout the entire process.
[404]
The witness testified that Defence counsel
requested documents about the process. All instruments are serviced
and maintained according
to the manufacturers. The witness indicated
that she had in her possession at court an affidavit in terms of
section 213 of the
CPA from the service engineer; it was available.
The reliability of the instruments was not disputed. Lieutenant
Colonel Otto testified
that the laboratory has a strict and stringent
quality control system in place. They are guided by international
standards, namely
ISO 17025, specific for testing and calibration
laboratories. They are guided by Standing Operating Procedures
(SOPs), handed in
by Defence counsel as Exhibit “AAA”.
Repeatability is to confirm that the instruments are in perfect
working order.
Errors do occur, but the quality system enables them
to pick it up and apply corrective measures and correct it before
affidavit
is submitted. In the case of contamination a test will not
be used. In terms of ISO 17025, the laboratory and analysts always
have
to comply with international standards by using positive and
negative controls. When the witness gets to the stage of writing an

affidavit, it will reflect a true and reliable result.
Basis on which the DNA results
were challenged
[405]
Defence counsel challenged the competency
and proficiency of Lieutenant Colonel Otto and the reliability and
functioning of the
laboratory according to international standards.
Defence counsel did not challenge the reliability of the equipment or
machines
used or the correctness of specific results, except where
specifically pointed out.
[406]
In 2001 Defence expert, Dr Antonel Olckers,
started DNA Biotec (Pty) Ltd and has served as its CEO since then.
Her curriculum vitae
was attached to her report dated 06 October
2017, Exhibit “EEE”. Her skills and experience included
DNA isolation,
DNA quantification via qPCR, electrophoresis, STR
analysis, DNA sequencing, as well as the interpretation of DNA
sequences, qPCR
analyses, STR results and STR-based DNA profiles. She
has eighteen (18) years of experience in the interpretation and audit
of
forensic DNA evidence. Her mandate was to assess the scientific
validity of the results reflected in the reports compiled by
Lieutenant
Colonel Otto and Warrant Officer Nel.
[407]
At best it was the Defence case that a
sample taken near where MARLI van Breda’s body was found
presented with foreign allele
not belonging to the family. Lieutenant
Colonel Otto disagreed with the Defence expert, Dr Olckers, in this
regard.
[408]
The result of the blood or DNA found in the
corner of the shower floor in the first bedroom was also challenged
to the effect that
it covers two donors and not three donors as
testified by Lieutenant Colonel Otto. Lieutenant Colonel Otto
conceded that it could
be the case that only two donors are covered.
[409]
The Defence argued that the results of
forty (40) other samples, where less than one (1) ng of input DNA was
used in the PCR, should
be ignored as they were of no value.
[410]
Further, it was the Defence case that the
bulk of the DNA results were scientifically invalid because certain
Standing Operating
Procedures (SOPs) were not complied with.
[411]
The Court is satisfied that Lieutenant
Colonel Otto’s competence was established above any significant
doubt. She is a seasoned
and qualified member of the FSL with
extensive experience. Defence counsel referred to a proficiency test
the witness participated
in in 2015 (see Exhibits “AAA4 and
AAA5”). It was suggested by Defence counsel that the witness
failed the test as
120 laboratories found that both male and female
DNA profiles were found on the known bloodstains in a sexual assault
scenario.
Three laboratories found only the male DNA profile,
including the laboratory that the witness was attached to. Lieutenant
Colonel
Otto explained that they found the same profile as the other
laboratories. They had done the test in the context of the evidential

value and the SOPs’ governing their own laboratory; it was not
right or wrong. Since October 2016 they identify all profiles.
During
cross-examination of Dr Olckers, she elected not to answer the
question whether she had information at her disposal on the

circumstances in which the test was presented to Lieutenant Colonel
Otto.
[412]
The witness had been a reporting officer
for more than ten years. Lieutenant Colonel Otto testified that her
competence was verified
by training and mentorship. A reviewer
reviewed the work of the witness. She had to do at least one
proficiency test a year, national
or international. All analysts
would also be tested and therefore the whole system would be tested.
The results of the laboratory
are measured against the company’s
results and compared with the results of other laboratories.
[413]
The functionality and non-accreditation of
the FSL in Plattekloof was also challenged by Defence counsel.
[414]
Lieutenant Colonel Otto testified that the
Profiler Plus kits used in SAPS laboratories are bought from US
companies and are in
accordance with international standards.
Laboratories all over the world make use of them. It must have
certain loci (genetic markers)
which must be scientifically accepted.
The witness testified that FSL now uses the Identifier Plus Kit which
identifies 15 loci.
It might have a better identification and match
probability. In 2015 other countries like Australia and the UK used
16 and more
loci. The STR kit was used in 2015 because the Identifier
kit was not validated by the FSL at the time. The results would not
have
been affected if the new kit had been in use, though one might
have had an extra allele to differentiate between family members.
[415]
Equipment manufacturers have their own
guidelines for use. The Pretoria laboratory has to validate the
process but the Plattekloof
laboratory does a verification as well.
There might be slight changes used between laboratories but it will
be within acceptable
limits. To each and every amplification a SOP is
applicable. Instructions will be incorporated to make it practical
for their laboratory.
Lieutenant Colonel Otto testified that the user
manual for a PCR kit would remain the same, but every laboratory had
different
platforms. She said they did not work in isolation and
compared their profile results with the results in other countries.
[416]
Lieutenant Colonel Otto testified that for
the 24 years she had been working at the laboratory the SAPS
laboratory had not been
accredited with SANAS. The only difference
between the SAPS laboratory and an accredited laboratory is an audit
by SANAS. The SAPS
laboratory is audited internally but not by SANAS.
It is an international standard to be accredited. Accreditation of
the laboratory
is not a legal requirement in South Africa. She said
there are not many accredited laboratories in South Africa. The FSL
follows
ISO guidelines. Accreditation is not proof that a laboratory
is perfect. Lieutenant Colonel Otto testified that compliance with

international standards is more important. A laboratory can be
accredited and a month later lose its accreditation. Proficiency

testing takes place to prove that the SAPS laboratory is on par with
other laboratories. The SAPS laboratory does not operate in

isolation.
[417]
Adv Combrink questioned the fact that there
is no international or national oversight of the work at the SAPS
laboratory. The witness
did not agree: duplicate tests or retesting
of samples can prove it is trustworthy. Some of the processes used by
US laboratories
are accredited, like the PCR system. She said there
is a perception amongst the courts and labroartory’s clients
that accreditation
is the answer to reliability. Lieutenant Colonel
Otto testified that by following ISO guidelines the FSL follow the
same checks
and balances as those followed by an accredited
laboratory. In terms of ISO 17025, they always have to comply with
international
standards by using positive and negative controls. They
also have internal checks done by the quality section, which is not
part
of the laboratory.
[418]
In this matter two hundred and sixteen
(216) samples were analysed. Lieutenant Colonel Otto testified that
they did not struggle
to get optimal DNA.
Dr
Olckers testified that this was a case with more samples than she had
ever seen before.
The DNA results of
the samples analysed appear in her reports, Exhibits “ZZ1”
– “ZZ4”. Lieutenant
Colonel Otto brought the raw
data with her to illustrate and explain the results better. The
document containing the raw data results
was handed in as Exhibit
“ZZ5”.
DNA results
[419]
The reference samples of the Van Breda
family are contained in Lieutenant Colonel Otto’s first report,
Exhibit “ZZ1”,
dated 15 April 2015:
(i) The reference
sample “WC12/0032/2015” (PA4002208787) on page 4 belongs
to
TERESA
.
TERESA’s profile was obtained as illustrated on page 1, Exhibit
“ZZ5”. The gender marker is XX, indicating it
is the
profile of a female person.
(ii) The reference
sample “WC12/0033/2015” (PA4002208791) on page 5 belongs
to
MARTIN
.
MARTIN’s profile was obtained as illustrated on page 2, Exhibit
“ZZ5”. The gender marker is XY, indicating it
is the
profile of a male person.
(iii) The reference
sample “WC12/0034/2015” (PA4002208786) on page 5 belongs
to
RUDI
.
RUDI’s profile was obtained as illustrated on page 3, Exhibit
“ZZ5”. The gender marker is XY, indicating it
is the
profile of a male person.
(iv) The reference
sample “Victim” (PA5002187712) on page 5 belongs to
MARLI
.
MARLI’s profile was obtained as illustrated on page 4, Exhibit
“ZZ5”. The gender marker is XX, indicating it
is the
profile of a female person.
(v) The reference sample “Henri
van Breda” (PA4002209180) on page 5 belongs to the Accused. The
Accused’s profile
was obtained as illustrated on page 5,
Exhibit “ZZ5”. The gender marker is XY, indicating it is
the profile of a male
person.
[420]
The results for the single profiles
obtained were as follows.
[421]
The DNA result of the following samples
matches
RUDI’s
reference samples and profile (see paragraph 4.1.1, Exhibit “ZZ1”,
dated 15 April 2015; paragraph 4.1.1, Exhibit “ZZ2”,

dated 29 May 2015; paragraph 4.1.1, Exhibit “ZZ3”, dated
27 August 2015; and page 3 and paragraph 4.1.1, Exhibit “ZZ4”,

dated 02 December 2015):
(i) swab “39a
- possible blood on knife” on the blade (PA4002125823);
(ii) swab “86
- headboard” and swab “87 - wall” (PA4001946056);
(iii) swab “88
- wall above headrest” and swab “89 - carpet of room 1”
(PA4001946052);
(iv) swab “91
- on floor in room” (PA4001946058);
(v) swab “92
- wall” (PA4001946054);
(vi) swab “94
- wall by stairs”, where the axe hit the wall (PA4001946055);
(vii) swab “98
- blood spatter” (PA4001949040); swab “99 - blood
spatter”; swab “100 - blood spatter”

(PA4001949041); swab “107 - blood spatter”
(PA4001949032); swab “109 - blood spatter”; swab “110

- blood spatter” (PA4001949036); and swab “111 - blood
spatter” (PA4002130718);
(viii) socks “119
- stains 2, 3 – 6, 8, 13, 15 and 16” (PA4001274944);
(ix) shorts “120
- stains 1, 2, 3, 5 – 9, 11 – 16, 18, 19, 21, 25, 28 –
30, 32, 33, 35, 38, 40, 43 –
48, 54, 55 and 75”
(PA4001275139);
(x) duvet “138
- stains 4, 5, 6, 9 and 12” (PA4001275138) and “138 -
stains D1 – D11, D12(1), D12(2) and
D12(3)”
(PA5001558351);
(xi) duvet “139
- stains 4 and 6” (PA4001274951) and “139 - stains C1(2),
C1(3), C2(2), C2(3), C3(1), C3(2), C4(1)
and C4(2)”
(PA4002208786);
(xii) swab “85
- blood on door - room 1” (PA4001946053);
(xiii) swab “90
- blood on floor in room” (PA4001946058);
(xiv) swab “33
and 34 - floor in bathroom in room 1” (PA4002125824); and
(xv) axe, swabs “6a, 6c, 6d and
6g” (PA4002208786).
[422]
Match probability or the most conservative
occurrence for the DNA result of the exhibits is an indication how
easy or difficult
it is to find another person in the South African
population with the same DNA profile. The most conservative
occurrence for the
DNA result, matching RUDI’s profile, from
these exhibits that can be calculated is one (1) person in every 70
billion people.
It is theoretical, on the calculation found in the
national statistics basis.
[423]
The DNA result of the following samples
matches
MARTIN’s
reference samples and profile (see paragraph 4.1.9, Exhibit “ZZ1”,
and paragraph 4.1.3, Exhibit “ZZ2”):
(i) shorts “120
- stain 17, 27 31, 37 and 41” (PA4001275139); and
(ii) socks “119 - stain 10”
(PA4001274944).
[424]
The most conservative occurrence for the
DNA result, matching MARTIN’s profile, from the exhibits that
can be calculated is
one (1) person in every 645 billion people.
MARTIN was the biological parent of the three children.
[425]
The DNA result of the following samples
matches
TERESA’s
reference samples and profile (see paragraph 4.1.7, Exhibit “ZZ1”,
and paragraph 4.1.5, Exhibit “ZZ2”):
(i) the swab
“passage top floor - 81” (PA4001946060);
(ii) socks “119
- stain 11” (PA4001274944);
(iii) swab “77
- passage top floor” (PA4001946057); and
(iv) swabs “101 and 102 - blood
spatter” (PA4001949037).
[426]
The most conservative occurrence for the
DNA result, matching TERESA’s profile, from these exhibits that
can be calculated
is one (1) person in every 90 billion people. If
her profile is compared with the three profiles of the children, at
least one
allele is exactly the same, which is what one would expect
from the profile of the biological mother.
[427]
The DNA result of the following samples
matches
MARLI’s
reference samples and profile (see paragraph 4.1.5, Exhibit “ZZ1”,
and paragraph 4.1.7, Exhibit “ZZ2”):
(i) swabs “blood
spatter - 105 and 106” (PA4001949039); and
(ii) swabs “82 and 83 - passage
top floor” (PA4001946061) and swab “84” - passage
top floor” (PA4001946053).
[428]
The most conservative occurrence for the
DNA result, matching MARLI’s profile, from the exhibits that
can be calculated is
one (1) person in every 35 billion people.
[429]
The DNA result of the following samples
matches the reference samples and profile of Henri, the Accused (see
paragraph 4.1.3, Exhibit
“ZZ1”; paragraphs 4.1.9 and
4.1.11, Exhibit “ZZ2”; and paragraph 4.1.7, Exhibit
“ZZ4”):
(i) cigarette “45”
(PA6002002527); cigarette butt “46” (PA6002002528); and
cigarette butt “47”
(PA6002002529);
(ii) socks “119 - stains 14 and
17” (PA4001274944); and
(iii) shorts “120
- stains 53, 62 – 64, 68, 72, 76, 77, 79, 82, 84, 85, 87 and
90” (PA40012755139).
[430]
The most conservative occurrence for the
DNA result, matching the Accused’s profile, from the exhibits
that can be calculated
is one (1) person in every 261 billion people.
[431]
Lieutenant Colonel Otto then referred to
the mixture DNA results of the samples.
[432]
The DNA results from
TERESA,
RUDI and the Accused
can be read into
the mixture DNA result from “
Nail
scrapings from the Accused’s left hand
”
(PA4001788408) (see page 4 and paragraph 4.1.11, Exhibit “ZZ1”,
and page 6, Exhibit “ZZ5”).
[433]
The most conservative occurrence for the
mixture DNA result of the “Nail scraping (L) hand (Henri van
Breda, PA4001788408)”,
for all possible permutations and/or
genotype combinations that can be calculated, is one (1) person in
every 709 000 people.
[434]
The DNA result of the reference sample of
the Accused
can be read into the mixture DNA result on the swab “
blood
from the bottom of axe handle” –
Exhibit 122B
(PA4002126775) (see page 4 and paragraph 4.1.13, Exhibit “ZZ1”,
and page 7, Exhibit “ZZ5”). There was additional
DNA but
not enough to reach a result, according to the witness. Lieutenant
Colonel Otto testified that she could only include the
reference
sample of the Accused in the mixture, although there was more DNA.
The other DNA belongs to family members, but she could
not say to
which family member(s) it belongs.
[435]
The most conservative occurrence for the
mixture DNA result on the swab “blood from the bottom of axe
handle” (PA4002126775),
for all possible permutations and/or
genotype combinations that can be calculated, is one (1) person in
every 741 000 people.
[436]
The DNA result of the reference sample of
TERESA and RUDI
can be read into the mixture DNA result on the swab “
blood
from head of axe” – Exhibit 121
(PA4002126776) (see page 4 and paragraph 4.1.15, Exhibit “ZZ1”,
and page 8, Exhibit “ZZ5”).
[437]
The most conservative occurrence for the
mixture DNA result on the swab “blood from head of axe”
(PA4002126776), for
all possible permutations and/or genotype
combinations that can be calculated, is one (1) person in every 5.6
million people.
[438]
The DNA result of the reference sample of
TERESA, RUDI and MARLI
can be read into the mixture DNA result on the swab “
Touch
DNA on axe on stairs” – Exhibit 44
(PA4002125827) (see page 4 and paragraph 4.1.17, Exhibit “ZZ1”,
and page 9, Exhibit “ZZ5”).
[439]
The most conservative occurrence for the
mixture DNA result on the swab “Touch DNA on axe on stairs”
(PA4002125827),
for all possible permutations and/or genotype
combinations that can be calculated, is one (1) person in every 240
000 people.
[440]
The DNA result of the reference sample of
TERESA, RUDI and the Accused
can be read into the mixture DNA result on the swab “
Corner
of floor of shower” –
Exhibit 117
(PA4002130723) (see page 4 and paragraph 4.1.19, Exhibit “ZZ1”,
and page 10, Exhibit “ZZ5”).
[441]
The most conservative occurrence for the
mixture DNA result on the swab “Corner of floor of shower”
(PA4002130723),
for all possible permutations and/or genotype
combinations that can be calculated, is one (1) person in every 429
000 people.
[442]
The DNA result of the reference sample of
RUDI
can
be read into the mixture DNA result on the swab “
Touch
DNA on handle of knife” – Exhibit 39
(PA4002125823) (see page 4 and paragraph 4.1.21, Exhibit “ZZ1”
and page 11 of Exhibit “ZZ5”).
[443]
The most conservative occurrence for the
mixture DNA result on the swab “Touch DNA on handle of knife”
(PA4002125823),
for all possible permutations and/or genotype
combinations that can be calculated, is one (1) person in every 38
million people.
[444]
The DNA result of the reference sample of
RUDI
can
be read into the mixture DNA result on the swab “
Fingernail
swabbing Right” (PAD000878447) taken from MARTIN
(see page 4 and paragraph 4.1.23, Exhibit “ZZ1”, and page
12, Exhibit “ZZ5”).
[445]
The most conservative occurrence for the
mixture DNA result on the swab “Fingernail swabbing Right”
(PAD000878447) taken
from MARTIN, for all possible permutations
and/or genotype combinations that can be calculated, is one (1)
person in every 14 million
people.
[446]
The DNA result of the reference sample of
MARTIN and RUDI
can be read into the mixture DNA result on the swab “
Blood
spatter - 96
” (PA4001949034) (see
page 4 and paragraph 4.1.25, Exhibit “ZZ1”, and page 13,
Exhibit “ZZ5”).
[447]
The most conservative occurrence for the
mixture DNA result on the swab “Blood spatter - 96”
(PA4001949034), for all
possible permutations and/or genotype
combinations that can be calculated, is one (1) person in every 2
million people.
[448]
The DNA result of the reference sample from
the Accused
can be read into the mixture DNA result on
shorts
“120 - Stain 23
”
(PA4001275139) (see page 3 and paragraph 4.1.11, Exhibit “ZZ2”,
and page 14, Exhibit “ZZ5”).
[449]
The most conservative occurrence for the
mixture DNA result on shorts “120 - Stain 23”
(PA4001275139), for all possible
permutations and/or genotype
combinations that can be calculated, is one (1) person in every 5
million people.
[450]
Both the DNA results of the reference
samples of
TERESA and RUDI
can be read into the mixture DNA result on
shorts
“120 - Stain 34
”
(PA4001275139) see page 3 and paragraph 4.1.13, Exhibit “ZZ2”,
and page 15, Exhibit “ZZ5”).
[451]
The most conservative occurrence for the
mixture DNA result on shorts “120 - Stain 34”
(PA4001275139), for all possible
permutations and/or genotype
combinations that can be calculated, is one (1) person in every 5.6
million people.
[452]
The DNA results of the reference samples of
TERESA, RUDI and the Accused
can be read into the mixture DNA result on
shorts
“120 - Stain 69
”
(PA4001275139) (see page 3 and paragraph 4.1.15, Exhibit “ZZ2”,
and also page 16, Exhibit “ZZ5”).
[453]
The most conservative occurrence for the
mixture DNA result on shorts “120 - Stain 69”
(PA4001275139), for all possible
permutations and/or genotype
combinations that can be calculated, is one (1) person in every 709
000 people.
[454]
The DNA results of the reference samples of
RUDI and MARTIN
can be read into the mixture DNA result on
duvet
cover “139 - stain C1(1)
”
(PA5001558352) (see page 3 and paragraph 4.1.3, Exhibit “ZZ3”,
and also page 17, Exhibit “ZZ5”).
[455]
The most conservative occurrence for the
mixture DNA result on duvet cover “139 - stain C1(1)”
(PA5001558352), for all
possible permutations and/or genotype
combinations that can be calculated, is one (1) person in every 2
million people.
[456]
The DNA results of the reference samples of
RUDI and MARTIN
can be read into the mixture DNA result on
Axe
“swab 6f
” (PA4001275137)
(see page 3 and paragraph 4.1.3, Exhibit “ZZ4”, and also
page 18, Exhibit “ZZ5”).
[457]
The most conservative occurrence for the
mixture DNA result on Axe “swab 6f” (PA4001275137), for
all possible permutations
and/or genotype combinations that can be
calculated, is one (1) person in every 408 000 people.
[458]
The DNA results of the reference samples of
RUDI and TERESA
can be read into the mixture DNA result on
Axe
“swab 6h
” (PA4001275137)
(see page 3 and paragraph 4.1.5, Exhibit “ZZ4”, and also
page 19, Exhibit “ZZ5”).
[459]
The most conservative occurrence for the
mixture DNA result on Axe “swab 6h” (PA4001275137), for
all possible permutations
and/or genotype combinations that can be
calculated, is one (1) person in every 5.6 million people.
[460]
Adv Combrink handed in Exhibit “AAA10”,
containing extractions from the results contained in Exhibit “ZZ1”,

ie the DNA profiles of five reference samples of the Van Breda family
and the mixture of all alleles of the DNA profiles of the
five family
members. The mixture of all alleles of the DNA profile from the
reference samples of RUDI and Henri gave the same profile.
TERESA
contributed fifty per cent to their DNA profile, and the rest would
differ. The mixture profiles, looking at the alleles,
would be the
same whether they were a mixture of the Accused, RUDI and TERESA or
TERESA and RUDI, but the gender would differentiate.
However, both
mixtures would include X:Y, indicating the male allele.
[461]
Lieutenant Colonel Otto testified that she
included those profiles that she could in respect of a mixture and
also looked at the
probabilities. She conceded that where there was a
mixture profile from the Accused, RUDI and TERESA it could very well
have been
a mixture from the Accused and RUDI. For example, the DNA
of the Accused, RUDI and TERESA found in the shower (Exhibit 117)
could
only be a DNA mixture of the Accused and RUDI. There was no
distinction between the STR profiles of the three members of the
family’s
in respect of the sample found in the shower. This was
true for all the mixture samples with regard to the three family
members.
Lieutenant Colonel Otto explained that she mentioned
everything and that their reference samples could be read into the
mixture
DNA. She only included someone in the mixture result if she
looked at the whole profile. For instance, MARLI got a 13 at the D5

allele, so she could not be read into the mixture profile of the
sample found in the shower. At the D13 allele the entire family
was
12:12 if one looked at the comparison of the different loci.
[462]
Defence
counsel indicated that it is not in dispute that the Accused’s
DNA, mixed with that of RUDI, was found in the corner
of the shower
that they utilised (Exhibit 117).
Lieutenant
Colonel Otto testified that, because it is a shower, the use of soap
and detergents or shower gel is expected. The sample
tested positive
for blood. The probabilities are slim that one will be able to get
body cells from a person washing himself.
Body cells can be
excluded because of the soap, shower gel and cleaning products used
in a shower. Blood is more resistant to normal
detergents. The
Accused offered an explanation for the fact that RUDI’s and his
own DNA was found in the shower, namely that
they occasionally used
to shave in the shower. Later the Accused added that shaving in the
shower was a regular occurrence and
that his father also shaved in
the shower. The Accused said that if the DNA in the shower was not
blood then it might have been
there as a result of them touching that
part of the shower.
[463]
Dr Olckers dealt with the number of STR
loci used in DNA profiling in paragraph 3.5 of her report, Exhibit
“EEE”. The
FSL used the Profiler Plus Kit to generate DNA
profiles in this case. The test provides for a comparison of alleles
at nine (9)
STR loci at a time when many countries had already been
using tests comparing the alleles at fifteen (15) or more STR loci.
The
manufacturer discontinued the Profiler Plus Kit in 2016.
[464]
Dr Olckers illustrated in paragraph 3.5.3
the problematic nature of using only 9 STR loci in DNA profiles. The
D13 locus in the
Van Breda family was uninformative as the entire
family had the same homozygous (two copies of the same allele)
genotype at this
locus, namely 12:12. The FSL was left with only 8
STR loci to distinguish between family members. The D5 locus was also
not fully
informative in respect of this family, with three members
homozygous (TERESA, RUDI and the Accused) and two (MARTIN and MARLI)
being heterozygous (two different alleles) at this locus (see Exhibit
“AAA10” as an example where one would be unable
to
distinguish between family members in a profile). The DNA profile of
TERESA could not be distinguished from the mixture of RUDI
and the
Accused at the remaining 7 loci. The DNA profile of TERESA could be
distinguished from the mixture of RUDI and MARLI and
MARLI and the
Accused. The witness stated in paragraph 3.5.4 of her report that the
FSL could not determine whether certain samples
reported by
Lieutenant Colonel Otto as mixtures contained the DNA profiles of
three individuals (TERESA, RUDI and the Accused),
or whether the
samples contained a mixture of the DNA profiles of only two persons
(RUDI and the Accused). Nine (9) loci were not
enough to distinguish
between the family members or only two persons; 15 loci might have
been enough to make the distinction.
[465]
Dr Olckers dealt with the interpretation
and reporting of certain mixtures in paragraph 3.6 of her report,
Exhibit “EEE”.
According to Dr Olckers it appears that
Lieutenant Colonel Otto took only the qualitative aspects of the DNA
profiles (ie, the
presence of alleles) into account when she reported
her findings pertaining to the following DNA mixture profiles:
(i) nail scrapings, left hand of the
Accused;
(ii) corner of the shower floor; and
(iii) shorts of the Accused, stain
“120 - 69”.
[466]
Dr Olckers testified that Lieutenant
Colonel Otto’s report could have left the impression that the
DNA of TERESA, RUDI and
the Accused was present in the aforementioned
samples. However, during cross-examination Lieutenant Colonel Otto
confirmed that
each of these samples could with equal possibility
have been a mixture containing the profiles of only RUDI and the
Accused. According
to Dr Olckers, if one takes only the qualitative
aspects of the DNA profiles into account; one could not distinguish
between two
or three family members’ qualitative profiles.
Taking all the data, qualitative and quantitative data, into account,
one
alternative could be eliminated.
[467]
It is more probable that the three
aforementioned samples contained mixtures of only male DNA, as stated
on the sample status reports,
belonging to RUDI and the Accused. In
all three samples, the female component was calculated to be in the
negative range; the male
DNA concentration was reported as being more
than the total human DNA concentration. The Quantifier DNA
Quantification Kit measures
how many human DNA and male components
are present. To get the female component, one must take the human
component and subtract
the male component from it (see Annexure AO3,
Exhibit “EEE”). Therefore, it was only when the
quantitative data were
also taken into account that a female
contributor to the three aforementioned mixture samples could be
excluded (see paragraph
3.6.5, Exhibit “EEE”). Only RUDI
and the Accused’s DNA could be read into the three mixture
samples. Dr Olckers
confirmed that she could say with certainty that
only male DNA was found in the corner of the shower.
[468]
State counsel questioned the fact that the
witness used two of the 40 samples,
that
she said should not be used for further analysis,
to
make
calculations to determine the amount of male and female DNA in the
samples.
The witness herself made
calculations based on these allegedly flawed results
(see
Annexure AO3, Exhibit “EEE”). Dr Olckers was confronted
with the fact that she used the same data to say that the
Court could
just read two profiles into the sample and not three. Dr Olckers said
she took the document that L
ieutenan
t
Colonel Otto based her opinion on to show how wrong L
ieutenan
t
Colonel Otto’s conclusion was.
[469]
The Court accepts that Lieutenant Colonel
Otto included all the profiles that could be read into a mixture
sample. It cannot be
said that she was dishonest in this regard; she
conceded the qualification immediately. However, it can be misleading
if the result
is not qualified, by stating all relevant information
affecting the interpretation of results. Forensic analysts should be
mindful
of clouding the interpretation of ambiguous results.
[470]
Dr Olckers listed non-compliances with the
process followed by the FSL. Lieutenant Colonel Otto said that if a
non-conformance had
been registered and corrective action applied and
the sample was retested there is no reason why the final result
cannot be used.
The witness could not recall whether she had dealt
with an instance of non-conformance in this matter. The FSL analysed
216 samples.
There might have been non-conformance, but when the
reports were sent out they had clear results.
[471]
The 1997 certificate received by Lieutenant
Colonel Otto had no date and could not be backdated. The ISO guide
regulating the issue
of certificates was dated 2005 (see Exhibit
“AAA2”, read with Exhibit “AAA3”). Dr Olckers
said the issue
with the certificate was the absence of the date: the
ISO guide stated that the certificate had to be dated. If the
certificate
had been issued prior to the ISO guide’s coming
into operation in 2005, Dr Olckers accepted that the certificate
could not
be backdated.
[472]
The second non-compliance was the
proficiency test which was referred to as Lieutenant Colonel Otto’s
proficiency test (see
Exhibit “AAA4” and Exhibit “AAA5”).
Dr Olckers said that on the basis of that test Lieutenant Colonel
Otto
was not proficient. She confirmed that she based her opinion
merely on the answer given regarding Item 3 of the test. Dr Olckers

said that the FSL did report a result, she only did not agree with
Item 3 of the FSL results. Lieutenant Colonel Otto testified
that the
test was applicable to a rape case, so evidentiary value played a
role. It would be prudent to report on a female profile
in case of
multiple victims in a rape case. The Court dealt with Lieutenant
Colonel Otto’s proficiency earlier on in this
judgment.
[473]
Dr Olckers testified that the proficiency
of six (6) analysts who worked on this case, including Lieutenant
Colonel Otto, was based
on that test referred to in Exhibit “AAA4”
and “AAA5”. Therefore they were not regarded as
proficient by
Dr Olckers. Lieutenant Colonel Otto testified that the
analysts who dealt with this matter are all competent and proficient
and
are specialists. It was never put to the State witnesses that the
other analysts were not proficient. Dr Olckers testified that
the
proficiency issue of the other analysts, was indicated to Defence
counsel. She did not know why they did not raise it. Once
again, she
based her opinion merely on the answer given regarding Item 3 of the
test.
[474]
Another alleged instance of
non-conformation was that an alphanumeric signature did not appear on
the relevant documents as required
(see Exhibit “AAA6”).
Dr Olckers conceded that there was an alphanumeric number on the
document and that the letters
“KS” were indicated as the
signature. The witness said she could not see the signature initially
but accepted that
there was such a number and signature on the
documents.
[475]
Regarding the absence of a seal in the
middle of the box containing swab guard 117 (Corner floor of the
shower – see Exhibit
“AAA6”), Adv Galloway pointed
out that if the box was not sealed it had been put together with
another box in a sealed
evidence bag, with the other box sealed. Dr
Olckers conceded that she did not have evidence or information to
contradict what the
State witnesses testified to in this regard. In
light of the concession regarding the result, no evidence of
contamination exists.
[476]
Lieutenant Colonel Otto testified that the
SOPs put control measures and check measures in place, ie quality
control measures. So,
if the FSL get a result, they can accept it
because the sample moves through the process and passes through all
other control measures.
Lieutenant Colonel Otto will be able to
determine that the SOPs were not followed, when there is a failure in
negative or positive
control, samples have been switched or in the
case of contamination of the samples.
[477]
There is also a database for the analysts
called the personnel elimination database. It includes all analysts
and everybody entering
the laboratory – for example, visitors
and cleaners. Should a person not wear gloves, that person’s
profile will be
picked up. If there was a breach of the SOPs, it
depends on the seriousness of the breach. If the pixels, for example,
are not
correct but the data analysis is still perfect, one would
nevertheless have a result.
[478]
According to Dr Olckers, quality assurance
and scientific validity of results are achieved through the
implementation of the following
interdependent systems (see Exhibit
“EEE”):
(i) the validation
of the processes used;
(ii) the use of
standard operating procedures (SOPs);
(iii) the
competence and proficiency of analysts; and
(iv) the accreditation process
providing an external and independent audit as well as oversight.
[479]
Dr Olckers pointed out that certain
relevant SOPs were not followed during the course of the analysis of
various samples and that
the results were therefore scientifically
invalid. The SOPs are part of the quality manual which is like a user
manual. The SAPS
laboratory follows ISO 17025, ie the international
standard for calibration. All the SOPs govern the work at the
laboratory and
are made specific for the SAPS laboratory. Lieutenant
Colonel Otto testified that if an analyst does not comply with the
SOPs no
result, or an unusable result, will be obtained.
[480]
In this matter two hundred and sixteen
(216) samples were analysed. The FSL did not struggle to get optimal
DNA. Furthermore, Lieutenant
Colonel Otto testified that nothing had
gone wrong with the 216 samples of this case as the analyses were
done in isolation or
separately. In terms of the SOPs samples from a
case should be separated with samples from other cases and should not
follow each
other on work lists. Dr Olckers testified that one
hundred and sixteen (116) samples in this case had been done together
with other
samples from the same case on one work list. In other
words, they followed each other on work lists (see Exhibit “AAA9”).
[481]
Lieutenant Colonel Otto testified that
isolation had been done as the tubes were not open and they were
opened one at a time. Contamination
could not have occurred. The
purpose of the SOPs stated in Exhibit “AAA9” was to
prevent contamination, and the SOPs
were in place to get a reliable
result. No contamination from any analyst was picked up. Although the
SOPs were good laboratory
practice that had to prevail, not following
a SOP did not invalidate a sample. At the end of the day, the SOPs
served as guidelines
for a good reason but was not embodied in
legislation or legal rules, nor was it inflexible. It is like a user
manual. During cross-examination
of Lieutenant Colonel Otto, Defence
counsel never disputed the fact that no cross-contamination took
place. No requests for the
actual samples or the DNA extractions were
made by the Defence. The samples and extractions are still available
for testing.
[482]
Dr Olckers confirmed that there were other
samples in certain lanes between the samples from the current case.
The work lists were
created by the Star Lab program written to comply
with the ISO guide, ie that every second lane had to be used for a
specific case.
Despite the logistical challenges posed by so many
samples that had to be analysed within a reasonable time, one could
not compromise
the process. The last samples were done in December
2016. The samples in this case were done together with other samples
from other
cases.
[483]
Lieutenant Colonel Otto testified that it
was possible that some two samples of the 216 samples would end up on
the same shortlist.
The samples contained the DNA of five family
members. The tubes were not open and there were spaces between them,
therefore she
disagreed that cross-contamination could have taken
place and that the results should be invalidated. The samples were
still available
for retesting on different batches, but no request
had been made by anybody to retest the samples.
[484]
Dr Olckers testified that in paragraph 2.5
batch 852 of Exhibit “AAA9”, Exhibit 119 stains 1, 2, 3,
5, 6, 8 and 19 were
identified as RUDI’s. The socks were
included in the same batch. So, a sample containing no DNA could be
cross-contaminated
as to contain DNA. If the profiles of other
samples or other cases were different, one would pick up
cross-contamination. One could
not prove contamination if the
profiles were identical.
[485]
Dr Olckers referred to an example where
possible contamination could have occurred. On page 4/4 of Exhibit
“AAA9”, batch
1188, the sample shorts stain 75 followed
the sample shorts stain 69 on lane 15 and 16. Stain 69 was a mix of
the Accused and RUDI
and stain 75 was RUDI. The electropherogram
(EPG) reported 16:17:18 at the D3 locus. Lieutenant Colonel Otto did
not look at the
quantitative data; she reported 16:18 and said there
appeared to be stutter peaks. The genotype of RUDI was 16:18 and that
of the
Accused 17:18. The 17th allele was not labelled, so Lieutenant
Colonel Otto excluded the profile of the Accused. There was a
low-level
picture of the Accused too at this locus. The stochastic
range effects were present. Dr Olckers could not say that
contamination
had indeed taken place but said it might have been
low-level contamination.
[486]
Dr Olckers conceded that the FSL did not
mix up reference samples with the crime scene samples or samples of a
suspect. Dr Olckers
said the laboratory still operated in
contravention of the SOPs in this regard. The samples should be
separated with samples of
other cases to prevent contamination. She
could not point out an instance where actual contamination did take
place.
[487]
Dr Olckers testified that forty (40)
samples with less than one nanogram (1 ng) of input DNA that had been
analysed were not in
accordance to the SOPs (see Exhibits “AAA7”
and “AAA7a”). SOP BIO0017P determines that the amount of
DNA
to be amplified using the AmpFLSTR Profiler Plus PCR
Amplification Kit should be between one and two point five nanograms
(1 –
2.5 ng) unless the sample is highly degraded. If the DNA
amount is too small and below the threshold, it is not always true
that
there would be no result. It could cause what is called
stochastic
effects and it meant that the DNA result might no longer hold true.
[488]
The affected results are those of:
(i) the reference
sample of MARTIN (blood);
(ii) socks “119”
– stains 2, 3, 5, 6 and 8 (blood from RUDI);
(iii) shorts “120”
– stains 1, 3, 5, 6, 9, 11, 14, 15, 19, 23, 25, 29, 31, 37, 38,
40, 45, 46, 47, 53, 54, 55,
68, 69, 72, 75, 82 and 84 (blood from
RUDI, MARTIN and the Accused; TERESA was excluded by Dr Olckers);
(iv) nail scrapings
Left hand – Accused (epithelial cells: mixture of RUDI and the
Accused; TERESA was excluded by Dr Olckers);
(v) handle of the
knife (epithelial cells: mixture with RUDI’s profile);
(vi) swab “96”
(blood on the wall in the passage: mixture of RUDI and MARTIN);
(vii) duvet “139” –
C1(3), C2(3) and C4(2) (RUDI’s DNA).
[489]
Dr Olckers said that the forensic evidence
should be ignored when the input DNA is below the threshold and less
than 1 ng for the
purposes of crime detection. She said it was
debatable whether such an approach would hamper the detection of
crime. Asked whether
she was not proposing an unrealistic standard
for the 21st century, the witness conceded that it was a stringent
test but said
it was not proposed by her but by the ISO guide. One
could not look only at the end result but also at the process
preceding the
result and conclusion. When asked why science should be
ignored if it leads to a result with some degree of certainty, Dr
Olckers
testified that she could only stand for what is in the
scientific text. She also criticised the seven-point fingerprint
system
although she conceded that she is not a fingerprint expert.
[490]
State counsel pointed out that the FSL is a
forensic laboratory, not a research laboratory with perfect samples.
There are not always
optimal samples at a crime scene. The Crime
Index stated that 0.001 ng per microlitre could be used. Dr Olckers
conceded that crime
samples were more challenging and said 0.02 ng
could be used. Furthermore, State counsel put it to the witness that
L
ieutenan
t
Colonel Otto testified that they had no problem finding DNA in the
samples. Dr Olckers responded that the answer found was not

necessarily valid; science worked with a standard. However, she could
not say the results were wrong or false. Importantly, Dr
Olckers
conceded that one could not get different profiles even if less DNA
was used. The results were merely technically invalid.
[491]
The Court noted that the user’s
manual for the PCR Amplification Kit states that the kit components
have been used successfully
to type samples containing less than 1 ng
of DNA. Individual laboratories may find it useful to determine an
appropriate minimum
peak height threshold based on their own results
using low amounts of input DNA.
[492]
Lieutenant Colonel Otto testified that
their cut-off point is 0.05 ng per ml, as stated on page 1, paragraph
1(b)(ii), of the SOP
manual, Exhibit “AAA7”. The PCR
needs a little bit of DNA. The FSL obtained good results in this case
and could still
accept the samples. It might not be the optimum
situation, but the amount of DNA was sufficient. The FSL did not
struggle to get
full DNA profiles. The results were of excellent
quality and the lesser amounts did not change the validity of the
results.
[493]
During cross-examination of Lieutenant
Colonel Otto, Adv Combrink indicated that it was the Defence case
that the samples should
be ignored. Lieutenant Colonel Otto disagreed
with the statement and testified that the prerequisites for the
analysis of DNA were
set out in the SOPs but stressed that the FSL
dealt with forensic samples and not clear blood. They could not
ignore samples with
a DNA input below 0.05 ng. The Amplification PCR
system could deal with any amount of DNA, and as long as the other
processes complied
with the standards, they could do an
interpretation. The reason for a cut-off point for the DNA
concentration was that one could
get an allele fallout (ie, start
losing alleles) if the concentration were below the recommended range
for input DNA. It could
be dangerous to work with less than the
recommended range of input DNA, but that does not mean that the
result would be invalid.
[494]
The amount of DNA was more relevant in old
techniques used, not in the PCR system. The PCR system prefers a
lesser amount of input
DNA. The 40 samples had been loaded with less
than 1 ng, but the results were valid and reliable. One should look
at the peak heights
rather than the cut-off values. Should the DNA be
degraded to an extent, there would be no result. Lieutenant Colonel
Otto testified
that quality rather than quantity was important,
regarding the issue of input DNA concentration. The FSL definitely
found sufficient
alleles to have made a reliable and valid profile.
[495]
In respect of paragraph 2, Exhibit “AAA7”,
Lieutenant Colonel Otto testified that she thought there were other
samples
apart from the 40 samples which had more than 1 ng of input
DNA pertaining to those specific exhibits. For example, there was a

blood sample and a Touch DNA sample pertaining to the handle of the
knife. Defence counsel indicated that it was not disputing
that less
than 1 ng of DNA could be used to obtain a DNA result: getting a
result was not important but following the SOPs was.
[496]
According to Dr Olckers the analysis of the
printed electropherogram (EPG) data indicated that foreign
unexplained peaks were present
in three of the samples that could not
be associated with members of the Van Breda family or that could be
identified as obvious
artefacts (see Exhibits “AAA11”,
“AAA12” and “AAA13”). Exhibit “AAA11”
deals with
the profile for the grey duvet, Exhibit “138”,
stain 4. Exhibit “AAA12” deals with the analysis of
MARTIN’s
fingernail. Lieutenant Colonel Otto testified that if
the peak was an allele it was an allele of MARTIN’s
fingernails. She
included RUDI only even though the sample was of
MARTIN’s nails. Lieutenant Colonel Otto said the FSL were not
allowed to
interpret a partial profile; only a full profile with 10
markers would do. The sample in Exhibit “AAA13” was taken
from a wooden bench on the top floor.
[497]
Dr Olckers testified that it was critical
that she, Dr Olckers, did not say that she found foreign alleles,
only foreign peaks.
State counsel questioned the purpose of
mentioning the foreign peaks if it was not alleles. Dr Olckers
responded that the foreign
peaks present in the profiles were not
mentioned in Lieutenant Colonel Otto’s report ie, the foreign
peak at the position
of the 22 allele at the FGA locus. Dr Olckers
said there could be a low-level mixture present in the samples. She
testified that
she could not be sure what it was; the possibility was
there of its being an allele. As to what the consequence of these
foreign
peaks were to this case, Dr Olckers merely reiterated that a
peak could be a low-level allele but added that she could not say
that it was indeed an allele. Adv Galloway put it to the witness that
that was the very reason why Lieutenant Colonel Otto said
she could
not comment on the peaks. Dr Olckers testified that she agreed with
Lieutenant Colonel Otto: a peak could be an allele
only if it was
high enough to be scored by the system. However, it was highly
relevant that there was something that could not
be explained. Any
uncertainty attached to a result should be reported.
[498]
Dr
Olckers used low-resolution black-and-white copies of the EPGs and
not coloured copies as had been requested. She used a ruler
to check
the results. The witness conceded that the resolution of colour
copies was much better but said she could not get it.
She also
conceded that the resolution of the black-and-white copies was not so
good and that it was very difficult to work from
them. She had to put
the copies over a light box and used a ruler to decide what it was.
Adv Galloway
confronted the witness, accusing her of manipulating unclear data.
Dr
Olckers denied the statement and said she stated the uncertainty of
the measurements made by her. State counsel put it to Dr
Olckers that
the peak, with reference to the duvet belonging to the Accused, was
not labelled by the gene mapper and that the system
could not tell
whether it was an allele but that the witness was willing to make a
call with less assistance. Dr Olckers responded
that it was
definitely a foreign peak. The foreign peak could not be explained.
Neither the witness nor Lieutenant Colonel Otto
could state what it
was.
[499]
To summarise, Lieutenant Colonel Otto
conceded that the foreign peaks pertaining to Exhibits “AAA11”
– “AAA13”
could have been a stutter or allele. A
stutter is an acceptable artefact that they get during the process.
It is an enzyme-related
artefact. Dr Olckers agreed but said that an
analyst could interfere with the gene mapper. In line with the
literature, one had
to be very careful before making a call or
interpreting the peaks (see Exhibit “EEE6”). Dr Olckers
agreed that one
had to be as sure as one could. She confirmed that
she was not saying that she read a full profile into the peak; she
could not
say that it was indeed a profile. She made an inconclusive
and neutral statement. She brought it up because that was how the
scientific
processes worked. One had to report everything and the
uncertainty of measurements should be addressed. Dr Olckers insisted
that
the interpretation had an alternative explanation that was not
reported even though it was unsafe to do so.
[500]
Even if foreign peaks were found at the
crime scene, it is not necessarily surprising. The Van Breda family
probably received guests
from time to time and had domestic workers
on the premises. The Accused testified that he did not hurt or wound
the attacker. Lieutenant
Colonel Otto also explained the Locard
principle, namely that every touch leaves a trace. She testified that
a person wearing full
PPE (Personal Protective Equipment) like gloves
and a balaclava would not leave a trace on the crime scene. The crime
scene may
leave a trace on the person, but the person would not leave
a trace. Therefore, the presence of possible peaks is of no great
significance.
[501]
Laundry door swab “63” was
tested as an additional sample, according to Lieutenant Colonel Otto.
The sample tested positive
for blood at the preliminary level, but no
DNA could be found. The result could have been a false positive
testing for blood; it
could have been tomato sauce, for example, or
it could have been blood from meat. Lieutenant Colonel Otto testified
that if one
can extract DNA is the blood must be human blood: one is
able to pick up only human DNA through the FSL’s processes.
Dr
Olckers could not dispute that swab 63, the droplet on the laundry
door, did not contain human DNA, but that it could be animal
blood.
[502]
Lieutenant Colonel Otto confirmed that hair
DNA analysis was done as Lieutenant Colonel Stewart testified but
that not enough DNA
could be obtained from the hair.
[503]
During cross-examination of Dr Olckers, Adv
Galloway
referred to an article published in 2013, with the witness as
co-author, on the Evidential Value of DNA Evidence and Training.
The
witness conceded that the evidential value of DNA evidence is
important. State counsel wanted to know why Lieutenant Colonel
Otto
was taken to task during cross-examination about which samples were
made available for analysis. If the context or the evidential
value
was important, why was she taken to task for applying the principle
to decide which samples to analyse? Dr Olckers responded
that she did
say the evidential value was important during the preparation of the
case. She testified that she did not make the
strategy but only
advised counsel.
[504]
Defence counsel also challenged the
functionality of the FSL by referring to the SOPs pertaining to
Personal Protective Equipment
(PPE) worn by personnel of the
laboratory. The objective of PPE is to prevent contamination of
exhibits. Exhibit “AAA8”,
including a photograph of a
duvet, Exhibit “138”, was used by Defence counsel to show
that the process was in contravention
of the SOPs. Adv Combrink
pointed out that one of the personnel in one of the photographs was
not wearing foot covers. Lieutenant
Colonel Otto said evidence
recovery (ER) personnel had to follow the SOPs but the SOPs did not
make provision for the VIC section.
It was not Warrant Officer Nel or
Captain Joubert in the photograph. She did not know who the person
was; it might be the person
taking photographs. Only analysts and
persons entering the laboratory had to wear PPE when handling the
exhibits and evidence.
The photographs did not give a complete
picture of the circumstances under which the photographs were taken.
Lieutenant Colonel
Otto said there was no contamination, no DNA of
the personnel could be picked up.
[505]
During the Defence case Dr Olckers was
questioned about the extent to which a person without proper footwear
compromises the veracity
of the result. She could not comment on the
likelihood of such a person’s affecting the DNA result or the
finding of the
FSL. Defence counsel then made the concession that
Exhibit “AAA8” was only a sideshow and indicated that the
Defence
was not relying on the photographs. Defence counsel is
entitled to challenge the State case but has to do so within
reasonable
limits. Defence counsel should refrain from employing
“sideshows” merely used to cloud the issues; it is not in
the
interest of justice to do so.
[506]
In summary, Dr Olckers testified that if
the SOPs were not followed the results were scientifically invalid in
terms of both the
FSL and the ISO guide standards. The results were
wrong and cannot be relied upon.
[507]
Dr Olckers identified the twenty-three (23)
samples that she considered to be scientifically valid. Exhibit
“EEE12”
was handed in by Defence counsel as the list of
23 samples considered to be valid. The witness indicated the
following samples
as being scientifically valid:
(i) reference
sample of TERESA;
(ii) reference
sample of RUDI;
(iii) cigarette
butts 45, 46 and 47 (Accused’s DNA);
(iv) the duvet cover - 139 belonging
to RUDI; samples C1 and (2) – C2(1) – RUDI’s DNA;
C2(2) – RUDI’s
DNA; C3(1) and C3(2) – RUDI’s
DNA; C4(1) – RUDI’s DNA; and C1(1) – RUDI and
MARTIN’s DNA;
(The abovementioned samples were
mentioned in Lieutenant Colonel Otto’s affidavits dated 15
April 2015 and 27 August 2015.)
(v) the axe swabs
6(a), 6(c), 6(d) and 6(g) – RUDI’s DNA; 6(h) –
TERESA and RUDI’s DNA; and 6(f) –
RUDI and MARTIN’s
DNA;
(vi) shorts, Exhibit “120”
– stains 85; 87 and 90 (the Accused’s DNA);
(The abovementioned samples were
mentioned in Lieutenant Colonel Otto’s affidavit dated 02
December 2015.)
(vii) swab WC12/0033/2015 –
Fingernail swabbing Right hand of MARTIN: (PA00878447), sample ID
C15020421CE (RUDI’s DNA
could be read into the sample); and
(The abovementioned sample was
mentioned in Lieutenant Colonel Otto’s affidavit dated 15 April
2015.)
(viii) shorts, Exhibit “120”
– stain 48 (RUDI’s DNA).
(The abovementioned sample was
mentioned in Lieutenant Colonel Otto’s affidavit dated 29 May
2015.)
[508]
Dr Olckers conceded that she had never done
a proficiency or efficiency test, internal, external or
international. So, she was not
tested in respect of aspects involved
in the current case.
[509]
Dr Olckers was not an impressive witness.
She had to be asked continuously to answer questions more
pertinently. She was reluctant
to make concessions where it was
appropriate to do so and insisted on a formalistic, academic
approach. Dr Olckers tended to give
vague answers without answering
questions posed to her, properly and directly. At the end of the day
the accuracy of results is
all that matters. Dr Olckers conceded that
she had no experience in a forensic laboratory. The witness had only
an academic background
in a laboratory and ran courses.
[510]
Dr Olckers stated that she had been invited
to testify in the forensic science field and to evaluate scientific
forensic evidence
or assist Defence counsel during cross-examination
in a few criminal matters (see paragraphs 18.1 and 18.2, Exhibit
“EEE,
Annexure AO1”). In
S v
Orrie
, the judgement delivered on 14
October 2004, similar to the current matter, she had requested
“voluminous” files of
documents regarding the entire
paper trail, the results and the chain of evidence, which resulted in
11 laboratory personnel testifying
with regard to the process over 10
court days. The criticism levelled by the witness was that the FSL
culture was such that the
Court could not rely on the results.
Similar criticism against the process of the laboratory was levelled
in the current case.
It resulted in the witness’s concluding
only that the “culture of the laboratory could not be relied
upon”. In
the
Orrie
matter the State expert conceded a few instances of non-compliance
but stated that the accuracy of the results was not affected.
No
evidence to the contrary was presented. The Court declined to accept
Dr Olckers’s challenge in the
Orrie
matter. On page 16 of the judgement the Court said her criticism was
formalistic in nature and did not touch on the accuracy of
the
results. Dr Olckers said the same issues regarding the process were
applicable, eg samples that followed each other and forms
that were
not signed. The Court in the
Orrie
matter regarded the issues as mere administrative errors.
[511]
It was
put to Dr Olckers that the defence requested documents from the FSL
in respect of the paper trail and SOPs against which
the processes of
the FSL were tested. The witness confirmed that the paper trail and
SOPs allowed her to verify certain aspects
of the DNA testing
.
Dr
Olckers testified that she requested SOPs in previous cases, but Adv
Galloway referred her to the judgment in a previous case,
S
v Rapagadie
,
Case 33/2010, an appeal judgement delivered on 24 February 2012, in
which it was questioned that she only asked for paper trails
and not
the SOPs. It was only after the judgement that she had asked for
SOPs.
State counsel put it to the
witness that she had questioned Lieutenant Colonel Otto’s
results in that case without establishing
the relevant SOPs. Dr
Olckers conceded that she had possibly not received the SOPs in that
matter.
She
explained that as time progressed more documents and discovery were
requested because of the development of science. She has
learnt that
ISO 17025 was not enough and she had to look at the standards of the
laboratory too.
Dr Olckers was
criticised by the Court in
S v Rapagadie
(2010 case). On page 8 of the judgement her lack of practical
experience and of statistical knowledge was criticised. In the
present
matter Adv Galloway pointed out that Dr Olckers still has
very little practical experience. Dr Olckers said she trained other
scientists
how to do the analysis but she once again conceded that
she had no experience in a forensic laboratory.
[512]
Upon a request for all the samples from
Defence counsel in September 2016, approximately 3000 pages of
forensic evidence including
SOPs were handed to them by SAPS in the
current matter. It was an umbrella request. Lieutenant Colonel Otto
reported on the first
two affidavits and furnished the Defence
counsel with the affidavits, the paper trail, preliminary notes,
tests, all the raw data
(negative and positive controls) and records.
The FSL received an additional request for the SOPs. Thereafter the
FSL also received
a third and fourth request as above in respect of
the third and fourth affidavits. No request for the actual samples
and DNA extractions
were made. (The samples and extractions are still
available.) It is an international guideline to keep the samples and
DNA extractions.
[513]
Dr Olckers compiled her final report,
Exhibit “EEE”, only after Lieutenant Colonel Otto
testified.
Dr
Olckers said a summary report regarding aspects not complying with
SOPs was sent to Defence counsel prior to her report, Exhibit
“EEE”,
dated 06 October 2017, and before she heard the testimony of State
witnesses. It was not intended for the court.
The report handed in as
evidence was compiled after that.
She
initially created a document to assist Defence counsel with their
cross-examination and then Lieutenant Colonel Otto testified
and
explained certain aspects. These aspects were not included in her
initial report. Dr Olckers confirmed that the report referred
to
Lieutenant Colonel Otto’s testimony but said that the opinion
and findings contained in her initial report had not changed.
[514]
The
witness confirmed that she asked for a paper trail of samples
Lieutenant Colonel Otto reported on in her four reports. She did
not
ask for the paper trail of the samples not reported on but that had
been submitted for analysis. The witness was tasked to
verify whether
samples reported on were valid. The Defence asked for documentation
in respect of 151 samples that the FSL wanted
the Court to take
notice of.
[515]
Of great importance is the following: even
though the Defence team had access to the DNA samples taken at the
crime scene, they
opted not to retest them. The witness advised
counsel in this regard. She did not know why they did not request
retesting. Dr Olckers
said retesting the samples was not part of her
mandate. Although the Defence does not have to prove anything, it
would have been
the simplest of exercises to retest a few random
samples to test the validity of the results effectively.
[516]
It is also true that Defence counsel is
entitled to test the State’s case but there should be a limit
to fishing expeditions
with sideshows. In this matter the accuracy of
the results was not shown to be incorrect. Dr Olckers’s role
and evidence
amounted to an administrative audit of the processes
involved in the DNA analysis. Dr Olckers testified that the results
of the
samples mentioned above were scientifically invalid, in other
words technically invalid, because SOPs were not followed strictly.

She could not categorically state that the results were inaccurate.
The Court is mindful of the distinction between the judicial
and the
scientific measure of proof. The scientific measure of proof would be
the ascertainment of scientific certainty, whereas
the judicial
measure of proof would be the assessment of probability. Speculation
and possibilities cannot distract from the evidential
value of the
results reported on in the absence of proof of the inaccuracy of
those results.
[517]
Defence counsel submitted that it is
important to distinguish between evidence that merely places the
Accused at the scene and evidence
that identifies him as the attacker
of his family. Defence counsel argued that it is equally important to
have regard to what the
State’s forensic investigation did not
yield. Furthermore, it was argued that Captain Joubert’s
evidence would be meaningless
without the DNA results.
[518]
In the Court’s view, it cannot be
argued that the bloodstain pattern analysis done by Captain Joubert
would be meaningless
without the DNA results. Defence counsel made
the concession during cross-examination of Captain Joubert that the
chance that the
stains on the Accused’s clothing are not blood
where a DNA result was obtained is so slim that it can be
disregarded. The
presence or absence of blood or stains on the
clothing and body of the Accused, irrespective of whom it emanated
from, the casting
off of bloodstains against the wall above the
staircase, and the presence or absence of a drip trail are all
important factors
to consider.
The relevance of the bloodstain
patterns and the DNA results
[519]
Captain Joubert attended the crime scene
for the detection and identification of possible blood and bloodstain
patterns at 14h00
on 27 January 2015. During 27 – 30 January
2015 he marked the identified bloodstain patterns at the crime scene
and documented
the stains and patterns by means of photographs and
sketches with measurements. He asked Warrant Officer Hitchcock to
document
the identified bloodstains and patterns and to collect
samples of the identified bloodstains. Captain Joubert made certain
assumptions
when compiling his report, Exhibit “DDD1”,
including the following:
(i) all
reddish/brown fluid and staining at the scene had the appearance,
behaviour and context consistent with blood; and
(ii) all the bloodstains were
deposited contemporaneously with (occurred at the same time as) the
events surrounding the incident.
[520]
Some of Captain Joubert’s relevant
interpretations regarding the stains identified include the
following:
(1) Randomly distributed blood drops
on the carpet in front of the staircase leading to the bedrooms were
identified. They were
probably created by blood dripping from the
first floor onto the carpet.
(2) Spatter on the kitchen door, an
elliptical stain – it was not possible to find the deposition
mechanism responsible for
the spatter. No DNA could be obtained from
that sample.
(3) A random blood spatter stain on
TERESA van Breda’s right leg. Another blood spatter on the
buttocks of TERESA, circular
in shape, dripping from a moving object
in this area.
(4) Spatter stain on the front aspect
of the cabinet in the passage. It was classified as an impact spatter
pattern, probably as
a result of force applied to a blood source.
(5) Non-spatter on the front of the
cabinet in the passage on the top landing. It could be described as
irregular in shape and with
no recognisable swipe pattern. It was
probably created between a bloodstained object and the surface. MARLI
was the donor.
(6) Spatter on the tile floor in front
of the boys’ room with an elliptical shape. It was classified
as impact spatter. It
was probably caused by force applied, of
something travelling through the air and resulting in impact.
(7) Spatter was found on the first
bedroom door.
(8) Headboard spatter suggests
possible impact. It was created by force applied to a blood source
which resulted in the spatter
of small droplets.
(9) Spatter against the bedroom wall,
probably caused by a bloody object, was present. Spatter on the
bedroom wall was possibly
caused by projection.
(10) Spatter was found on the wall
next to RUDI with an elliptical shape. It was an impact spatter
pattern. Force was probably applied
to the blood source on the bed,
creating an impact spatter pattern. The donor was RUDI.
(11) RUDI’s bloodstain was found
on the bedroom carpet between the boys’ beds. It was a swipe
stain indicating movement
of an object over the carpet surface (the
stain was marked as “B19”).
(12) Non-spatter bloodstains were
found on the floor of RUDI and the Accused’s bedroom. It was
complex spatter and blood clots
were present in the bloodstains. RUDI
was the donor.
(13) Spatter stains on the staircase
wall were linear and probably caused by a blood-bearing object
striking the staircase wall.
RUDI was the donor of the stains. Only
one sample was obtained from the top of the bloodstain pattern and
not representative samples
from the entire bloodstain pattern. RUDI
and MARTIN were the donors of spatter bloodstains against the
passageway wall next to
the window. The bloodstains suggest
projection or alternatively impact.
(14) Spatter stains on the wall
adjacent to the door frame of the boys’ bedroom were found. The
witness could not define the
mechanism responsible for the
deposition. The stains suggest impact or projection. TERESA was the
donor of the stains.
(15) Spatter bloodstain was observed
on the boys’ bedroom door. The bloodstain suggests projection
or alternatively impact.
RUDI was the donor of the bloodstain.
(16) Spatter bloodstains on the shelf
in the passageway were classified as cessation cast-off. Projection
was the possible deposition
mechanism. The stains were probably
created as a result of an object in motion. MARLI was the donor of
the stains.
(17) Non-spatter bloodstains on the
side of RUDI’s bed, lateral movement visible, classified as
swipe stains. It was created
as result of contact between a
bloodstained hand and the side of the bed. RUDI was the donor of the
bloodstains.
(18) Spatter bloodstains were
identified on the wall in the boys’ bedroom. The stains suggest
impact. RUDI was the donor of
these bloodstains.
(19) A blood clot was observed on the
knife under RUDI van Breda’s bed and a blood clot was observed
on the side of RUDI van
Breda’s bed.
(20) Two spatter bloodstains were
observed against the adjacent house’s wall near the security
gate. The bloodstains suggested
impact or alternatively drip. The
donor of the one bloodstain was RUDI.
(21) A void was observed on the
Accused’s bed, an absence of spatter in an otherwise continuous
bloodstained area. It was
most probably created by the presence of an
intervening object which was removed after the bloodshedding events.
[521]
The Accused testified that he was dressed
in his grey sleeping shorts with boxers underneath and a pair of
socks.
[522]
The grey shorts belonging to the Accused,
Exhibit “120”, had multiple spatter bloodstains on the
front. On the frontal
aspect of the grey shorts sixty-seven (67)
spatter bloodstains were identified and documented. The spatter
bloodstains suggest
impact as the possible deposition mechanism and
were probably created as a result of force applied to the blood
source(s), like
a wound(s). Thirty-two (32) of the spatter stains
belonged to RUDI, nine (9) to the Accused and five (5) to MARTIN. Two
(2) of
the stains were mixed samples with respectively TERESA and
RUDI and TERESA, RUDI and the Accused as the possible donors (which
should be only RUDI and the Accused). None of the stains originated
from MARLI.
[523]
The spatter bloodstains indicated full
penetration of the fabric knit by the blood during deposition.
Fourteen (14) transfer bloodstains
were identified on the grey
shorts, suggesting object(s) contaminated with blood came into
contact with the grey shorts. A blood
clot on the grey shorts was
most likely created by contact between the blood source and grey
shorts. No DNA could be extracted
from the blood clot sample. Three
(3) non-spatter contact stains emanating from RUDI were on the
Accused’s shorts and two
(2) non-spatter stains from the
Accused were on the frontal part of the shorts. There were also
possible urine stains on the grey
shorts, as can be seen in
photographs 182 and 183, Annexure C, Exhibit “DDD1”.
[524]
Seventeen (17) spatter bloodstains were
identified on the Accused’s socks, Exhibit “119”.
Nine (9) stains originated
from RUDI, one (1) from MARTIN, on the
side of one of the socks, one (1) from TERESA, near the toe part of
one of the socks, and
two (2) from the Accused. The stains were on
top, on the side and one at the rear part of the pair of socks. Four
(4) stains were
unidentified. The spatter bloodstains are indicative
of impact as the possible deposition mechanism, resulting from force
applied
to the blood source(s), like a wound(s). The spatter
bloodstains indicated full penetration of the fabric knit by the
blood during
deposition. There was also a transfer stain on the sock,
suggesting the sock was in contact with the MARTIN’s blood.
[525]
Captain Joubert’s conclusions and
summary of the bloodstains with regards to the crime scene are
contained in paragraph 37,
Exhibit “DDD1”. The following
relevant aspects were
inter alia
his conclusions.
(1) There were a number of stains that
were most likely made by EMS personnel.
(2) The bloodstain pattern suggests
that RUDI was dragged or moved from his bed onto and over the carpet
between the two beds towards
the wooden floor. The bloodstain pattern
suggests that RUDI was moved through the pool of blood, which
resulted in the creation
of swipe and wipe patterns.
(3) The duvet from the Accused’s
bed was removed after the bloodshedding events.
(4) RUDI’s blood had time to
clot before he was moved, time passed before his upper body on his
bed was disturbed. The bloodstain
pattern further suggests that RUDI
was also stationary for a period of time on the bedroom floor, as a
pool of blood was created.
(5) Spatter on the frontal aspect
suggest the grey shorts were in close proximity to RUDI and MARTIN
when force was applied to the
blood source of those victims. The
bloodstains further suggest that the grey short was facing the blood
sources when force was
applied to the blood sources of the victims
RUDI and MARTIN. The bloodstain documented as Exhibit “120-87”
contained
a blood clot, which suggest an object contaminated with
clotted blood made contact with the short, which resulted in the
transfer
of blood (see photograph 176, Annexure C, Exhibit “DDD1”).
The grey short was exposed to multiple bloodshedding events
during
the incident, taking into consideration the different DNA profiles
obtained from the bloodstained samples collected from
the shorts, and
the location of these bloodstains, including the transfer
bloodstains.
(6) The spatter bloodstains on the
white socks showed that the socks were in close proximity to blood
sources originating from TERESA
and RUDI. The spatter at the back of
the white sock suggests that the wearer’s foot was positioned
in a manner which exposed
the area to a bloodshedding event (see
photograph 11, Annexure D, Exhibit “DDD1”). The pair of
white socks were exposed
to multiple bloodshedding events during the
incident, taking into consideration the different DNA profiles
obtained from the bloodstain
samples collected from the socks, and
the location of the spatter bloodstains.
(7) There was no disturbance of
bloodstains on the handle part of the axe.
[526]
The spatter bloodstains observed on the
wall of the adjacent house was most probably created when force was
applied to the blood
source of RUDI on his bed. Blood drops were
dispersed through the air, travelled through the blinds and open
window, creating the
spatter bloodstains against the wall of the
adjacent house. The stains at points “B34” and “B35”
could
also have been created by an object contaminated with RUDI’s
blood, when the object was in close proximity of the wall and
above
the bloodstains, created during the movement of the object, which
resulted in the blood being released from the object and
impacting
with the wall in the passageway.
[527]
With reference to the relative positions of
the victims and attacker during the incident, Captain Joubert
documented and testified
to the following.
(1) According to the Accused’s
statement he was standing in the slightly opened bathroom door at
point “CS23”
in photographs 103 – 110, Annexure P,
Exhibit “DDD2”, with a view of the bedroom. During his
testimony the Accused
indicated that he was standing in the vicinity
of the corner of the room near the bathroom in the square between the
balcony and
the bathroom. State counsel put it to the Accused that in
his police statement he said that he remained in the bathroom and in
his plea explanation he also created the impression that he remained
in the bathroom. The Accused replied that it was not his intention.

The Accused testified that he was sure that he stood in that corner
in the bedroom. He said there was not enough space to stay
in the
bathroom and be able to see what was going on in the bedroom. He
remembered remaining in that specific corner in the bedroom
until the
attacker left the room. Captain Joubert testified that some spatter
on the shorts was less than a millimetre across.
Smaller drops,
because of their mass, do not travel as far as larger drops. Captain
Joubert testified that nothing in the plea
explanation, Exhibit “J”,
would have a significant effect on his view in respect of the
bloodstain analysis.
(2) According to
Captain Joubert the Accused was standing next to RUDI’s bed
when the victim was attacked on his bed at point
“CS24”
in photograph 103, Annexure P, Exhibit “DDD2”. RUDI was
attacked on his bed whilst lying on his
stomach, with his head facing
the adjacent wall, with reference to “CS25” in
photographs 103 – 106, Annexure
P, Exhibit “DDD2”.
The witness testified that his opinion was supported by the
following:
(i) The impact
spatter patterns at points “B16” and “B18”
originated from an area on RUDI’s bed;
(ii) The cast-off
pattern, impact/projected bloodstains at point “B17”,
originated from an area in the vicinity of the
bed;
(iii) Injuries,
horizontal linear lacerations, sustained to the back of RUDI’s
head;
(iv) The injury
sustained to the victim’s left pinkie might be due to his
reaction to the blows to his head;
(v) The injuries
sustained by RUDI suggested that he was surprised, asleep or unaware.
(3) MARTIN was most
probably attending to his son, RUDI, on the bed, when he was attacked
by the attacker on RUDI’s bed, with
reference to point “CS26”
in photographs 104 – 106, Annexure P, Exhibit “DDD2”.
The witness testified
that his opinion was supported by the
following:
(i) Injuries,
horizontal linear lacerations, sustained to the back of MARTIN’s
head, neck and back;
(ii) Injuries
sustained and the absence of defensive wounds to the hands, forearms,
upper arms or frontal aspect of MARTIN’s
body indicate that
MARTIN did not have time to react to the attack;
(iii) The final
position of MARTIN suggested that the victim entered the bed area
from the left, near the table area.
(4) The attacker
was standing in the vicinity of RUDI’s bed when MARTIN was
attacked on RUDI’s bed. Three (3) possible
areas were
identified next to RUDI’s bed, with reference to “CS27”,
“CS28” and “CS29”
in photographs 104 –
106, Annexure P, Exhibit “DDD2”. The witness testified
that his opinion was supported by
the following:
(i) The impact
spatter patterns at points “B16” and “B18”
originated from an area on the bed;
(ii) The cast-off
pattern, impact/projected bloodstains at point “B17”,
originated from an area in the vicinity of the
bed;
(iii) The spatter
bloodstains on the grey duvet, Exhibit “139”;
(iv) Injuries,
horizontal linear lacerations, sustained to the back of MARTIN’s
head, neck and back.
(5) TERESA was most
probably attacked in the doorway of the first bedroom (with reference
to “CS30” in photographs 107
– 110, Annexure P,
Exhibit “DDD2”, also with reference to “CS31”
in photographs 109 and 110, Annexure
P, Exhibit “DDD2”).
Captain Joubert testified that his opinion was supported by the
following:
(i)
The impact/projected spatter at points
“B15” and “B25” – “B27”
were most probably created
by an object (or by objects) in motion, or
when an object (or objects) in motion came to an abrupt halt, which
resulted in droplets
being released/projected from the object(s).
TERESA was the donor of the impact/projected spatter at point “B27”;
(ii) Injuries
sustained by TERESA, vertical linear lacerations sustained to the
right side of her head;
(iii) The injury, a
defensive wound, suggested that the victim was most probably facing
her attacker when the injuries were sustained;
(iv) The area where
TERESA was found in the passageway on the first floor, in close
proximity to the bedroom door, and the absence
of any blood trail or
bloodstain patterns in other areas belonging to TERESA within the
crime scene.
[528]
MARLI sustained her injuries during the
confrontation with the attacker, most likely in the same area as
TERESA. The only bloodstains
documented at the crime scene associated
with MARLI are at points “B12”, “B14” and
“B30”, in
close proximity to where MARLI was found by the
police.
[529]
MARLI sustained one laceration to her left
lower arm, which might suggest a defensive position when sustaining
the injury. The injury
also might suggest that she had time to react
to the assailant’s attack.
[530]
Captain Joubert’s conclusions and a
summary of the report are contained in paragraph 29, page 25/30,
Exhibit “DDD2”:
(1) The bloodstains and bloodstain
patterns observed do not support the sequence of events presented by
the Accused in his statement;
(2) The events involving the knife,
Exhibit “1”, presented by the Accused in his statement
are inconsistent with the
events identified through bloodstain
pattern analysis and the law of superposition (see photograph 58,
Annexure K, Exhibit “DDD2”
and Image 1, Annexure K,
Exhibit “DDD2”);
(3) Events pertaining to the grey
duvet belonging to the Accused, marked Exhibit “138”,
were identified, suggesting
movement and interaction with the
environment before the grey duvet was left in its final position (see
Image 2, Annexure R, Exhibit
“DDD2”);
(4) The victims were attacked in a
short period of time after which a time lapse occurred and the victim
RUDI was moved/dragged
from the bed and handled in front of the two
beds in the bedroom. Thereafter the grey duvet, marked Exhibit “138”,
was placed/thrown adjacent RUDI;
(5) During the incident the knife,
Exhibit “1” and the grey duvet, Exhibit “138”,
were in contact, after
the knife was in contact with RUDI’s
blood (see Image 3, Annexure R, Exhibit “DDD2”);
(6) There is no indication or evidence
identified suggesting that the victim RUDI was mobile after
sustaining his injuries;
(7) The events surrounding the
confrontation, pursuing the suspect, falling and fainting on the
staircase, as presented by the Accused
in his statement are
inconsistent with the flow patterns identified on his chest and left
arm. The flow patterns suggested minimal
to no movement of the upper
chest and left arm of the Accused, after he sustained his injuries;
(8) Bloodstains and bloodstain
patterns were identified (“S33”, “S34” and
the blood in the shower) in areas
which were not entered by the
Accused, which was inconsistent with the events/actions presented by
the Accused in his statement.
(9) The position of the Accused during
the events within his bedroom was inconsistent and not supported by
the bloodstains (spatter
bloodstains) observed and documented on the
grey shorts, marked Exhibit “120”, and the pair of white
socks, Exhibit
“119”, which he had on during the
incident. The spatter bloodstains observed and documented placed the
Accused in close
proximity to blood sources of RUDI, MARTIN and
TERESA when force was applied to those blood sources.
(10) The evidence did not support the
actions/events described in the Accused’s statement. Captain
Joubert indicated that
he could not rule out the possibility of
staging. Captain Joubert explained that staging was the alteration or
creation of evidence
to direct the investigation away from the
perpetrator.
[531]
Captain Joubert stated in paragraph
27.1.2.2, page 22/30, Exhibit “DDD2” that TERESA’s
bloodstains were on the
door frame of the first bedroom. TERESA was
attacked in the entrance to the room or just outside the door.
Captain Joubert testified
that if the Accused was still in the
bedroom and he could not see TERESA when she was attacked, the
spatter on his socks and shorts
did not support the version of the
Accused. According to the Accused, he did not see TERESA when she was
attacked. In paragraphs
10.11 and 37.4, Exhibit “DDD1”,
the witness stated that the impact spatter pattern observed at point
B11 was most probably
created when force was applied to a blood
source of the victim TERESA near the floor in front of the cupboard
in the passageway.
By no means would spatter travel that far, around
the bedroom wall and be deposited on him. Captain Joubert said TERESA
van Breda’s
blood would not have been able to travel from the
passage into the bedroom where the Accused claimed to have stood.
Captain Joubert
believed TERESA had been in the Accused’s view.
According to the Accused, neither MARLI nor TERESA obstructed the
doorway
and he apparently did not step into blood in pursuit of the
attacker.
[532]
TERESA’s blood was found on top of
the toe of the Accused’s sock. It was a single-profile stain
and not a mixture-profile
stain. The Accused testified that he saw
blood on the vertical side of the top landing, dripping down, which
could possibly explain
TERESA’s blood on his sock. Mr
Koegenberg testified that blood came down like a waterfall, most
likely onto the carpet at
the bottom of the stairs, only when
TERESA’s body was moved. The Accused testified that he took
care not to step into blood
when he fetched his cigarettes from his
shoes.
[533]
A document indicating the absence of
spatter in the bloodstain pattern analysis in the area of the
bathroom in the first bedroom
was handed in as Exhibit “DDD4”
(1- 8). A document indicating the absence of spatter on the body of
the Accused was
handed in as Exhibit “DDD5” (1- 9). A
document indicating the victims’ blood distribution on the
clothing of
the Accused (Exhibits “119” and “120”)
was handed in as Exhibit “DDD6” (1- 6).
[534]
Captain Joubert confirmed that there were
nineteen (19) spots on the shorts, Exhibit “120”, for
which he did not have
DNA result and that were not necessarily blood
spots. Therefore it is unknown who the donor of the nineteen spots
was. It is also
unknown who the donor of seven (7) contact
non-spatter stains on the Accused’s shorts was. Lastly, it is
unknown from whom
six (6) non-spatter drip stains on the fontal part
of the shorts emanated. The Accused testified that he never wounded
the attacker,
so no blood emanated from the attacker.
[535]
Spatter on the Accused’s shorts
showed that the Accused was next to the bed, according to Captain
Joubert. The witness testified
that the position of the Accused on
his version was not consistent with the spatter on his grey shorts
and white socks. The blood
of the victims was mixed and projected
onto the shorts.
[536]
Defence counsel argued that the Accused
maintained from the outset that he was in close proximity to RUDI and
MARTIN when the bloodshedding
events occurred, hence the blood
spatter on his shorts. Counsel argued that this evidence does not
warrant an inference that the
Accused was the attacker as the only
reasonable inference. This statement by Defence counsel is incorrect.
The Accused said in
his statement to the police that he remained in
the bathroom during the attack. Since the start of the trial the
Accused’s
version was that he was in the corner of the room, in
the vicinity of the bathroom. However, there was no spatter on the
bathroom
door or on the wall either side of the bathroom door.
Captain Joubert testified that one would have expected blood spatter
in that
area as blood was deposited on the Accused’s shorts.
During cross-examination the Accused conceded that one would expect
blood spatter on the surrounding wall and door.
[537]
Captain Joubert testified that there was
blood spatter mainly on the shorts and socks of the Accused. If the
Accused was in the
vicinity of the spatter or in close proximity to
the attacker, RUDI and MARTIN, one would have expected blood spatter
on his body
as well, not only on the shorts and socks, regardless of
whether he was closer to the bathroom in the room or further away.
Captain
Joubert said it was a possibility that the Accused cleaned
himself, given that the blood was limited to the Accused’s
shorts
and socks.
[538]
Defence counsel argued that the narrative
of the Accused as to his whereabouts when the attack took place was
later corroborated
when the DNA test results were received. It was
argued that it was unlikely that his fabrication fitted perfectly
with the DNA
results, received months later. The Accused’s
version did not fit in as submitted by counsel. His initial narrative
as to
his position when the attacks took place was different: his
version in this regard was changed when the trial started and after

the DNA results were known. Secondly, TERESA’s DNA in a mixture
result was also found on his shorts, not only the DNA of
RUDI and
MARTIN.
[539]
Adv Botha referred to Exhibit “DDD1,
Annexure D”, photographs 8, 9 and 11, the bloodstains on the
socks of the Accused.
Bloodstain 13 in photograph 11, the left heel
of the Accused’ foot – in other words, the rear part of
the sock –
was classified as an impact spatter stain. Captain
Joubert conceded that if the Accused was not the attacker, it was
possible that
he was facing away from the attack in the light of the
impact spatter stain at the back of his socks. Captain Joubert then
testified,
with regard to the blood spatter on the rear part of the
Accused’ sock, that it was possible that a right-handed person
could
have swung the axe, with his left toe touching the ground and
with the rear part of his foot facing to the front, a similar action

to that of a golfer. The attacker did not necessarily stand
flat-footed in front of a victim when attacking the victims.
Therefore
it is not impossible for the impact spatter to have made
contact with the left heel of the Accused’s sock as submitted
by
Defence counsel. Captain Joubert testified that it was a scene
with a lot of dynamics and, in the case of a single spatter on the

rear part of the sock, a clear inference could not be made. It could
be an impact spatter, a projection or the Accused could have
been
facing away from the victim. RUDI’s blood on the axe could have
dripped onto the heel of the sock when the Accused swung
the axe to
execute another blow or when he struggled with an unknown assailant.
There were too many variables to exclude one scenario
or another.
[540]
Stain 83 on the frontal part of the grey
shorts, towards the elastic part of the shorts, as can be seen in
photograph 171, Annexure
C, Exhibit “DDD1”, was a
non-spatter stain which was classified as saturation with a flow
pattern. The witness testified
that it was consistent with the injury
to the stomach of the Accused, the injury being the cutting referred
to in paragraph 19.4.1,
Exhibit “DDD1”. The witness
agreed that it was probably the Accused’s own blood on Exhibit
“120-83”.
The witness confirmed that bloodstain 83 could
have caused the transfer stain on the stairs more or less where the
Accused was
allegedly lying as can be seen in Exhibit “NN5”.
The Accused said that he regained consciousness on the stairs where

the transfer pattern was seen. Captain Joubert conceded that the
blood on the shorts could have caused that.
[541]
Captain Joubert testified that the test in
the shower showed a poor reaction. He did not want to decrease the
possibility of a DNA
profile by continuing to spray the shower with
Blue Star. The Accused said he did not touch anyone in the house
after the incident.
Captain Joubert testified that the Accused’s
version was inconsistent with the blood evidence. It was put to the
witness
that the number of profiles read into the sample collected
from the shower could only be two DNA profiles instead of three.
Captain
Joubert said he accepted that the Accused and RUDI both
utilised the shower but said, despite Lieutenant Colonel Otto’s
concession
in this regard, the mixture profiles in the shower were
blood most probably coming from an object – for example, an
axe.
The Accused testified that the blood could be from shaving in
the shower. Precious Munqongani testified that she did not clean the

boys’ bathroom on Monday, 26 January 2015. The last time she
cleaned it was on the previous Friday. Blood appears to be more

resistant to cleaning products, according to Lieutenant Colonel Otto.
[542]
The blood spatters found on the wall of the
adjacent property on the outside, right across the window of the
boys’ bedroom,
can be seen in Exhibit “A535”. The
blood splatters on the wall were found 2.9 meters away from the gate,
as can be
seen in Exhibit “A86 - 91”. Captain Joubert
said the wind might have played a role in the directionality of the
stains
on the outside wall near the security gate. He conceded that
the flight path of two droplets from RUDI changed, given their
eventual
point of impact on the wall. That was the reason why he had
made a note about the wind. Impact spatter would have allowed for
enough
energy for the droplets to go through the window and outside.
The wind direction was from the front backwards to explain the angle

of the droplets against the wall. It could also have been caused by
someone walking past or towards the side gate and that the
blood had
dripped. As mentioned before, no corresponding drip trail was found
inside or outside the house.
[543]
Defence counsel argued that the Accused had
maintained from the outset that there was more than one attacker in
the house that particular
morning, hence the absence of MARLI’s
blood on the axe and on his clothes. This statement is once again not
correct. A second
attacker was not mentioned from the outset, neither
in his statement to the police nor to Captain Steyn at the scene. The
possibility
that a second axe had been used was proffered only during
the trial, after the DNA results were known. The Accused mentioned in

general terms to Ms Philander that three adults and a teenage girl
had been attacked with an axe, during the emergency call. The
Court
makes no adverse finding with regard to the information of an axe
being used in the attack on MARLI due to the general terms
of the
statement. The Court has already dealt with the submission regarding
the absence of MARLI’s blood/DNA earlier in this
judgement.
[544]
Whether the bloodstain pattern analysis and
DNA results merely place the Accused at the scene or identify him as
the attacker, it
is significant that nothing in the forensic evidence
categorically excludes the Accused as the attacker.
The relevance of the impact
marks at the crime scene
[545]
Captain Candice Heloise Brown has been
stationed at the ballistics section of the Forensics Science
Laboratory in Plattekloof since
2004. She received training in
various components of ballistics. On 28 January 2015 at 09h30 she
visited the crime scene to examine
certain impact marks. The witness
compiled a report dated 20 February 2015 which was handed in as
Exhibit “YY”. The
scope of the forensic examination was
crime scene examination, reconstruction and scene photography.
[546]
She observed the following inside the
house:
(i) one piece of painted cement lying
on the floor at the front entrance doorway area, marked “A”;
(ii) one impact mark with damage,
consistent with that caused by a controlled, sharp-edged tool
movement, into the right-hand side
wall edge, adjacent to the front
entrance doorway area, marked “B”;
(iii) one piece of painted cement
lying on the staircase (6th stair), marked “C”;
(iv) an impact mark with damage,
consistent with that caused by a controlled, sharp-edged tool
movement, into the eastern side wall,
just above the staircase rail,
marked “D”;
(v) powder particles, consistent with
the appearance of cement powder particles from the impact and damage
marked “D”
on the staircase rail, underneath the impact
and damage to the eastern wall mentioned above;
(vi) a piece of tile fragment lying on
the staircase (12th stair), consistent with the appearance of the
tiles on the staircase
floor, marked “E”;
(vii) impact damage and powder
particles, consistent with breakage damage, to a tile on the
staircase (17th stair), marked “F”;
(viii) impact damage and powder
particles consistent with that caused by a sharp-edged tool movement,
into the tiled area, entering
into the first bedroom from the
staircase on the left, marked “G”;
(ix) one piece of tile fragment,
consistent with the appearance of the tiles on the staircase floor
and entrance tiles to the bedroom,
lying in the debris mentioned in
point (viii) above, marked “G”; and
(x) one impact mark and damage,
consistent with that caused by a possible uncontrolled impact mark,
to the left side wall of the
entrance area into the first bedroom,
marked “H”.
[547]
Captain Brown physically matched the pieces
of painted cement “A” and “B” and “C”
and “D”.
She found that the breakage patterns of “A”
physically matched the breakage patterns of “B” and was
once
part of the wall edge structure. The witness also matched a
piece of tile fragment “E” with the damage marked “F”

and “G” as well as the piece of tile fragment into the
damages marked “G”. She drafted her first report
without
the axe or the knife.
[548]
On 26 and 27 February 2015 Captain Brown
revisited the scene and took Exhibits “1” and “2”
with her to do
further examinations on impact marks “B”,
“D”, “F”, “G” and “H”.
She
felt it was necessary to draft a second report because on the
first occasion, she did not have the weapons with her to match or

examine them physically. The second report was compiled by the
witness and handed in as Exhibit “YY1”. The scope of
the
forensic examination comprised physical matching, crime scene
examination, reconstruction, scene photography, and microscopic

individualisation of tool marks.
[549]
The Court will refer only to the most
relevant findings of Captain Brown’s examination:
(1) None of the marks was produced by
the knife.
(2) She physically matched the axe to
the impact marks with damage and found that the sharp-edged markings
could possibly have been
produced by the axe. ***
(3) Furthermore, she matched the axe
to the impact mark damage to the left side wall of the entrance area
into the first bedroom,
marked “H”, and found that the
uncontrolled mark could possibly had been produced by the blunt
back/rear part of the
axe, or front part, but no sharp-edged
characteristic markings had been produced, such as striation or
indentation marks. If a
blow is hard, the wall would have a spatter
effect with dust but not fragments. It would indicate that more force
had been used.
She did not see any striation or indentation marks on
“H”. She also did not find any big pieces of cement. She
testified
that she identified the mark as uncontrolled because no
direction could be established.
To determine whether it was an
uncontrolled impact mark, she looked at it in its entirety – ie
where the mark presented itself
on the edge of two adjacent walls,
there was no certainty of direction, it was characterised as a free
mark with no restraint,
there was no force applied and no proper
course of the marks could be followed and lastly, as in ballistic
terminology, no striation
(a mark would be characterised by a sliding
motion of a tool against an object) and no indented marks were
observed. Captain Brown
testified that she could not say that the
mark was definitely caused by the axe or not.
[550]
The damage marked “F” was a
chip or breakage damage to a tile on the 17th stair. During
cross-examination Captain Brown
conceded that the damage marked “F”
was possibly caused by a gurney or scoop. The prime possibilities
were the axe
and the gurney. She also conceded that the sharp edges
of a scoop could have caused the marks in the house entrance, marked
“B”.
A chip on the cement at the entrance to the first
bedroom was marked “G”. A bit of cement debris was
visible on the
floor on Exhibit “YY6”. Defence counsel
pointed out that in Exhibit “YY6(3)” rubble was lying on
dry blood
that preceded the rubble. Captain Brown testified that it
was possible that the use of the axe could be excluded, but it was
also
possible that the damage predated the incident but that more
damage was caused afterwards. She testified that any sharp-edged
object
could have caused the damage, including a scoop.
[551]
Of particular relevance are her findings
pertaining to the impact mark above the staircase rail, marked “D”.
The sharp-edged
markings of the impact mark with damage just above
the staircase rail, marked “D”, could possibly have been
produced
by the axe in an upright, angled manner. No other cement
pieces that had broken off from this area during the blow were
observed
on the stair case, rail or floor. The impact mark “D”
referred to in paragraph 5 of Exhibit “YY” was caused
by
a sharp-edged tool. This impact mark had the characteristics of a
sharp-edged tool.
[552]
The witness also took photographs handed in
as Exhibit “YY2”.
[553]
Figure 1.1 was the impact mark, marked “B”,
adjacent to the front entrance doorway and the right-hand area in the
front
entrance hall. Captain Brown testified that when she physically
matched the axe to the impact damage marked “B” she
could
not determine whether the axe was definitely the cause of such marks.
[554]
Figures 12 – 16 showed impact damage,
marked “D”, on the eastern side wall, of a sharp-edged
tool movement above
the staircase rail inside the house. Figures 17.1
– 20 of Exhibit “YY2” were close-up photographs
with the top
edge of the axe placed into the mark. She came to the
conclusion of a sharp-edged tool movement after looking at the mark
in its
entirety, ie where the mark was on the eastern side wall above
the staircase rail inside the house; the impact and its surrounding

damage; the length, width and depth of the mark; where on the wall
the impact mark was situated; the characteristics of the damage
and
the impact; the certainty of direction. The wall was painted and it
had plaster. Captain Brown noted that the brick behind
the plaster
was exposed. She noticed that the impact mark had a beginning and an
end; she looked at striated marks and indentations.
Force had been
applied and mark was characterised as sharp-edged tool impact and
damage.
[555]
Figures 22 – 25 in Exhibit “YY2”
were photographs of the impact mark “H” on the wall when
one comes
into the first bedroom upstairs. Figures 26 – 28
reflected the same mark with the top part of the axe to the impact
mark.
Figures 29 – 31 were photographs of the same mark with
the butt or the rear, blunt part of the axe to the impact mark.
[556]
Pertaining to the crucial question whether
the axe could have been thrown to make impact mark “D”,
according to the
Accused’s version (see paragraph 36, page 10,
Exhibit “J”), Captain Brown testified as follows.
[557]
Exhibit “1” was not a throwing
axe. There was actually such a sport. The axe could land on four
areas, namely the butt,
the head, the sharp edge or the handle. If
one were to throw the axe, you would have a one-quarter chance of the
axe landing on
the sharp edge or on any of the other areas. The brick
behind the plastered area was exposed inside the impact mark. The
impact
was deep and therefore the brick was exposed.  So
basically, the impact mark would have to move beyond the 10 mm to 15
mm
layer of plaster required in terms of SANBS (SA building
standards) to expose the brick. Any object flying through the air
decelerates
in velocity and speed. Taking into consideration Newton’s
laws of motion, one would definitely expect an object that has weight

and is flying through the air to make such a mark were it to land on
the sharp-edged side. So, the version contained in the plea

explanation is possible but highly unlikely. The witness confirmed
that variables play a role, ie the strength of the person, how
far
away the person was, etcetera.
[558]
Captain Brown photographed the powder
particles on the staircase rail at the bottom of the impact and
damage mark. They were the
only particles that could be found on the
landing; no similar pieces of cement to fit into that impact mark
could be found underneath
the landing. The witness said that, when
looking at the impact damage and observing the area lower down of the
mark, and by characterising
the impact and damage and referring to
Newton’s laws, this was what would happen when a greater impact
force effect would
cause an object to spatter in the particles as
found – in other words, when a very hard blow was executed on a
wall. The
blow was of such a nature that it was of a greater force or
impact where the particles spattered into minute objects or
particles.
[559]
Vaporised pieces could be seen on the lower
and higher part of the railing in Figures 21 and 22, Exhibit “YY2”,
respectively.
Captain Brown said the debris or piece of painted
cement, marked “C”, lying on the 6th step, could fit into
the wall
at the staircase. She tried to match “C” into
the damage marked “D”, but the piece was too small. The
witness
confirmed that she could see something lying in the
photograph “A56”, but she could not say what it was. In
the photographs
Exhibit “YY7 (2 – 3)”, one could
see a piece lying at the bottom left of the staircase, marked with a
red dot.
Captain Brown said it looked like a bit of concrete with a
bit of blood on it. She said she did not process that piece by
fitting
it into “D” but would have considered it had she
known about it. Defence counsel suggested that, had the witness had

all the missing damaged parts, it would have been easier to do a
reconstruction. Captain Brown agreed but said that she looked
at the
area downstairs in the proximity of the damage marked “D”
but could not find anything.
[560]
Referring to Figure 20 of Exhibit “YY2”,
Captain Brown conceded that she would have had a clearer picture if
she had
had the constituent parts to fit into the damage marked “D”.
However, she said the markings in themselves were casted;
there were
not enough markings to individualise it with the axe as the tool
used. Striation indicated movement or a dragged mark:
in other words,
one could see the start and the end of the mark. Striation marks gave
one direction but did not show how the instrument
was turned when
used.
[561]
Captain Brown pointed out that two damaged
sides could be seen in Figure 17(1) of Exhibit “YY2” and
that Figure 20 was
a picture of the damage on the right-hand side of
Figure 17(1). The left-hand side was exposed and the impact was on
the right-hand
side. The witness conceded that the damage was broader
than the blade of the axe and said the blade could move in the space.
She
said that, taking into account that it was a plastered surface,
the sides were not homogeneous and certain pieces would break out.
[562]
Captain Brown explained that she based her
conclusion that it was highly unlikely that the axe could have been
thrown to cause the
damage on the entirety of mark “D”,
the substrate, where it was, what the component of the substrate was,
and the length,
width and depth of the mark, and the impact in its
entirety, certainty of direction, the force applied, vaporised
particles, the
plaster which was cut through to expose the brick, the
course of the marks as well as the beginning and the end of the
markings
that could be found. She referred to Newton’s laws and
inter alia
stated
that for every action or force in nature there was an equal and
opposite reaction.
[563]
Captain Brown said she was not provided
with the initial statement of the Accused; she heard about the
statement when she testified.
She conceded that she did not use any
form of calculation but said her conclusion was not a “thumb
suck”; it was based
on laws. She also did not do any
experiments. The witness conceded that she did not apply a formula
and mathematics to make such
an assertion; she knew only the weight
of the axe and nothing else. The witness also conceded that one
needed to hit against the
wall and determine the breakage of the
wall. If one knew the counteraction of the wall, one could do
scientific calculations. She
testified that one part of the wall
could be harder than another.
[564]
Regarding the issue of different types of
brick, Captain Brown said that there were standard building
regulations in South Africa.
She confirmed that she did not take a
sample of the wall. Defence counsel pointed out that the witness
actually knew nothing about
the wall and how it would have reacted
and accordingly she could not arrive at a true assertion or opinion
that the axe could not
have been thrown. Defence counsel insisted
that her conclusion was not scientifically calculated. Captain Brown
said she took Newton’s
laws and all the other aspects into
consideration. Her conclusion was consistent with her experience. She
had done ballistics for
the past 13 – 14 years and, by looking
at characteristics, she maintained that it was possible, but highly
unlikely, that
the axe had been thrown.
[565]
Defence counsel also said the witness
assumed velocity and breakage and challenged her opinion  that a
quarter chance of the
axe hitting the wall with the sharp edge as
highly unlikely. Captain Brown replied that it was not a throwing axe
and the part
she had matched into the wall was the blade part.
Therefore the damage was caused by the blade part. She took into
account all
the characteristics of the mark and that the axe had a
25% chance of landing on its blade when it was thrown. Captain Brown
conceded
that if the axe landed on its blade, and it had the
velocity, it could cause that damage.
[566]
With reference to paragraph 37.18, Exhibit
“DDD1”, and the bloodstain at point B24 above the
staircase on the wall,
Captain Joubert said he took measurements and
the entire bloodstain was 622 mm in length. He testified that the
bloodstain pattern
at point B24 was most probably created by an
object in motion and under the control of the handler, which resulted
in the creation
of the cast-off pattern observed. A cast-off pattern
is a pattern of stains created when blood is flung or projected from
an object
that is in motion or suddenly stops moving. An object
covered with blood struck the wall at point “B24”. The
object
came to an abrupt halt and cessation cast-off was created at
the bottom of the bloodstain pattern at point “B24” (see

paragraph 37.18, Exhibit “DDD1”). A cessation cast-off
pattern is a bloodstain pattern resulting from blood drops released

from an object by its rapid deceleration.
[567]
Captain Joubert was asked to comment on the
version of the Accused regarding the throwing of the axe (see also
paragraph 27.1.4.1,
page 24, Exhibit “DDD2”). The
mechanism of a thrown axe is an instrument in motion and it would
release spatter from
the axe. One would have expected to find
cast-off patterns with elliptical shapes higher on the wall than what
the witness observed.
The witness said that when an axe rotates one
would expect blood drops with an elliptical shape.
[568]
There was enough blood on the axe to create
a blood spatter pattern, as can be seen in Exhibit “A120”,
where the long
trail of blood below the hole or damage in the wall is
visible. Hair was even found in the trail of blood. The axe might
have been
thrown to stage the scene. The bloodstain pattern at point
“B24”, cast-off pattern with cessation cast-off, did not

support the Accused’s version of throwing the axe. The pattern
identified was created by an object under the control of the
handler.
Captain Joubert also would have expected a longer and higher casting
off of bloodstains against the wall in the case of
an uncontrolled
impact and throwing of the axe, as stated above, reaching as high as
the ceiling. Defence counsel submitted that
objective evidence
refutes the opinion of Captain Joubert completely. Thecast-off
pattern that was created in the boys’ room
by controlled hits
of the axe was substantially longer, going up to the ceiling. This
argument does not take into account the difference
in space and
distance when a controlled action was performed in the boys’
room in a confined space and the larger area above
the staircase.
[569]
During cross-examination Caption Joubert
was asked whether he was saying the throwing scenario was impossible.
He responded that
in his experience and in the light of experiments
done during courses, where different types of weapons were used, the
axe was
definitely not thrown, looking at the characteristics. It was
put to him that according to a Defence expert, Mr Steyl, too little

was known to come to that conclusion. Captain Joubert disagreed and
said that in experiments different forces and volumes of blood
were
used. He said temperature also affects blood results. Captain Joubert
conceded that he did not do any experiments in this
regard.
[570]
Captain Brown dealt with the damage that
was found on the axe indicating that it was used on the scene.
[571]
She based her opinion on her years of
experience in the ballistics field and she fitted the axe into the
damage marked “D”.
She did not do other practical
experiments with the axe and the wall which might affect the weight
of her evidence. The Court notes
that the mark in the wall is rather
straight and not at an angle of some sort. A controlled action with
an axe will probably create
more straight or linear marks than would
throwing an axe. The victims’ wounds, inflicted with controlled
blows with the axe,
present with similar straight lines.
[572]
Captain Brown’s opinion is also
supported by the evidence of Captain Joubert. It is regrettable that
none of the experts did
any experiments to determine whether the axe
had been thrown. However, Captain Joubert testified that he asked
about the position
of the Accused after the attacker had fled, but he
was informed that the representative of the Accused did not provide
co-operation.
He did similar thowing experiments with different
weapons in the past. The Accused was also not sure where he stood
when he allegedly
threw the axe, which makes an accurate scientific
assessment more complicated.
[573]
No expert evidence to the contrary was
presented by the Defence with regard to the axe being thrown although
it was put to the witness
that the Defence ballistics expert
simulated the axe-throwing. It was submitted on behalf of the Accused
that the quality of the
expert evidence on behalf of the State was so
poor given the absence of a scientific process or scientific
experiments, that it
was not necessary to present any countervailing
evidence other than the Accused’s own direct evidence.
Hair analysis
[574]
Lieutenant Colonel Henry Stewart is
employed at the Forensic Science Laboratory as a forensic analyst and
hair comparison analyst.
He has attended a few courses pertaining to
hair analysis. The results of Lieutenant Colonel Stewart’s
analysis are contained
in paragraph 4 of his affidavit in terms of
section 212 of the CPA, handed in as Exhibit “HH”. The
witness indicated
that his affidavit in respect of paragraph 4.4 was
incorrect: it should read paragraphs 3.5 – 3.9 instead of 3.1 –
3.10.
[575]
Lieutenant Colonel Stewart received sealed
hair samples of the case file (Van Breda crime scene/matter) in
envelopes pertaining
to LAB 44081/15 from the Administration
component of the Forensic Science Laboratory. He testified that the
samples had not been
tampered with when he received them. He
initially testified that he attempted not to establish the identity
of the donors of the
hair with his original examination. It was only
when he had been subpoenaed to testify in court that he established
the identity
of the donors. Defence counsel challenged this,
referring to internal police email instructions. Lieutenant Colonel
Stewart eventually
conceded that he knew who the suspect was.
[576]
He made use of a macroscopic and
microscopic process, as can be seen in a “Hair Comparison
Checklist”, handed in and
marked Exhibit “HH1”. The
witness testified that he made use of a table that was used worldwide
for comparison, to
compare the reference samples with the other
samples. The reference hair samples of the Van Breda family were in
sealed envelopes
marked 14DAA47. He did not have samples from other
persons to compare them to the crime scene samples.
[577]
Sample 4793 (taken from the Accused) showed
a resemblance to the hair found on MARLI’s T-shirt and in
MARLI’s hand (ie,
the samples mentioned in paragraph 3.5,
marked as Exhibit “J-1”, and paragraph 3.7, marked
as  Exhibit “I”).
[578]
The hair found in MARLI’s hand,
showing a resemblance to that of the Accused, was intertwined with
MARLI’s fingers,
as can be seen in Exhibit “J4 and J7”.
It fitted in with the Locard principle, in that the hair had to be
removed forcibly
in a closed hand. To put it in a different way, the
hair could not be transferred into a clutched hand without being
forcibly removed.
However, the witnesss could not exclude the
possibility that the hair was transferred from clutching an object,
such as a pillow,
prior to sedation. If a person was moving his/her
hands around prior to sedation, the hair could have been picked up
and could
have become entangled if there was contact between the
person’s hand and the object. There are lots of ways to
transfer hair.
[579]
Lieutenant Colonel Stewart testified that
he conducted microscopic examinations of the hair. He confirmed that
the hair of the Accused
(D21) was light hair and that the hair on
MARLI’s underwear (panties) and T-shirt was also characterised
as light in colour.
Lieutenant Colonel Stewart found that the
Accused’s hair sample showed a resemblance to the hair found on
MARLI’s T-shirt.
The witness found medium hair on MARLI’s
T-shirt. The Accused’s hair was classified as fine. Lieutenant
Colonel Stewart
conceded that the hair found on the T-shirt was
unknown.
[580]
The most relevant part of the testimony of
Lieutenant Colonel Stewart can be summarised as follows.
[581]
He conceded that the hair found on MARLI’s
hand could have ended up in her palm in various ways, not only
through force.
[582]
The hair found in Exhibit “I”
(being longer than 200 mm”) is much longer than the hair of the
Accused in the photographs
Exhibit “C”.  The Accused
is therefore excluded as the donor of the hair. Given
inter
alia
the objective evidence in
photographs of the Accused on the morning of the incident – he
had short hair at the time –
the chances are nil that the hairs
in MARLI’s hand and on her T-shirt and panties originated from
the Accused that particular
morning.
[583]
In hair comparisons it was not prescribed
how many points of similarities were needed for the conclusion to be
reliable. On the
question of how the accuracy of the hair findings
was confirmed objectively, Lieutenant Colonel Stewart responded that
his findings
were peer-reviewed. Hair analysis on its own is regarded
as associative evidence to give a final picture, according to
Lieutenant
Colonel Stewart. Some of the reference hair samples in
paragraph 4 of Exhibit “HH” only showed a resemblance to
hair
samples on the crime scene, nothing more. Hair analysis is used
to exclude, not to identify, somebody. It works in a negative way:

the first goal is to exclude hair from a known donor.
[584]
No evidence exists on which the Court can
satisfy itself of the reliability of Lieutenant Colonel Stewart’s
disputed findings.
In the present case the Court finds that the
inferences made by Lieutenant Colonel Stewart cannot be relied upon,
given the problems
pointed out and concessions made by him during his
testimony. Just by looking at the photographs taken that morning of
the Accused
and MARLI’s hand, it is clear that it could not be
the Accused’s hair that is visible in MARLI’s hand,
unless
the Accused had cut his hair between the murders and the
arrival of the police (see Exhibit “HH3”). No such
evidence
of a hair cut was presented. The hair might have come from a
pillow or other object, previously used by the Accused, when the
paramedics
attended to MARLI.
[585]
State counsel conceded that the evidence
with regard to the analysis of hair found on the scene and in MARLI’s
hand ought
not to be accepted by the Court, as the analysis of hair
samples is an uncertain science and subjective. A number of problems
are
evident from the expert evidence of the witness. It is not
necessary to deal with them in the light of the State’s
concession.
Shoe prints at the crime scene
[586]
Warrant Officer Hitchcock identified
certain relevant bloody shoe prints from several prints inside and
outside the house. Captain
Danie van der Westhuizen, a forensic
fieldworker and shoe print analyst stationed at the Provincial Crime
Scene Investigation Unit,
guided and advised Warrant Officer
Hitchcock and other officials on how to document the shoe prints and
on what would be relevant.
He also identified the different patterns
of shoe prints when he walked through the crime scene. Captain Van
der Westhuizen looked
at the class and characteristics of the shoes
of persons attending and prints found at the crime scene. He matched
the patterns
and sizes of the shoes. Thereafter he sought to identify
any damage on the sole of a shoe. When a shoe comes into contact with
the surface it leaves certain characteristics.
[587]
Thirty-eight (38) bloody shoe prints were
collected from the crime scene, of which thirty-six (36) prints from
six (6) different
pairs were confirmed as belonging to officials who
had responded to the murders that day. Captain Van der Westhuizen
received nine
(9) pairs of shoes from the investigating officer.
Seven (7) statements in terms of section 213 of the CPA, dealing with
the footwear
of the officers at the scene that were handed to the
Forensic Unit of Worcester, were handed in by the State (see Exhibits
“BBB4”
– “BBB10”). No statement from
Captain Mattheus in this regard was handed in. It is common cause
that Constable
Matho was deceased. The conclusions drawn by the
witness after the comparison between the scene marks and the soles of
the shoes
are contained in Exhibit “XX”.
[588]
Captain Van der Westhuizen could not say in
respect of all the corresponding prints that it absolutely belonged
to the same shoe.
When there were three or four shoes with the same
pattern, he would rather be careful and say the comparison was
inconclusive.
The terminology “inconclusive” means that
the class characteristics did not always correspond with the size.
There
could be an explanation for this. He then described comparison
as inconclusive. Eight (8) shoe prints were found to be inconclusive.

During cross-examination the witness conceded that some of the prints
that were found to be inconclusive by him were possibly made
by the
shoe belonging to Constable Matho.
[589]
Captain Van der Westhuizen testified that
the remaining two (2) prints, found in the en-suite bathroom of the
first bedroom, where
MARTIN and RUDI van Breda’s bodies were
found, were not considered by him to be shoe prints. This is of
significance in that
RUDI’s single DNA profile could be read
into the bloody prints not identified as shoe prints, namely prints
“S33”
and “S34” (see Exhibit “A339 -
344”). If either of the prints was not a shoe print, the
version of the
Accused about what transpired that particular night
would be cast into doubt. The two marks were documented as shoe
prints by Warrant
Officer Hitchcock and Warrant Officer Hanekom, as
can be seen in Exhibits “A339” and “A341”,
but it was
not significant in the opinion of Captain Van der
Westhuizen. The shoe prints looked markedly different.
[590]
The witness conceded that one of the two
prints could possibly be labelled as a shoe print, namely the print
marked “S34”
that was found in the entrance of the
en-suite bathroom of the first bedroom. It was put to Captain Van der
Westhuizen that Mr
Steyl, the Defence expert, agreed that print “S33”
did not contain enough information to confirm that it was a shoe

print. However, it was put to the witness that print “S33”
was possibly made by a shoe belonging to Constable Matho.
Captain Van
der Westhuizen disagreed and said one could not determine that it was
a shoe print because the pattern was not clear.
There was no
significant pattern on print “S33”. He conceded that it
was so because of the uneven surface. The Court
concludes that the
Accused must enjoy the benefit of doubt in this regard and makes no
adverse finding against him in the light
of the position of the
prints in relation to each other.
[591]
No prints with different patterns to the
ones marked out by the police, were found. No prints matching a
fashionable brand were
found at the scene. There were two (2) bloody
shoe prints of what one would wear as a casual shoe or a jean shoe,
belonging to
Constable Matho. Of significance is that no unexplained
or foreign shoe prints were found at the bloody scene, and certainly
not
en route to the back kitchen door from upstairs.
[592]
The uncontested testimony of Sergeant
Kleynhans was that there were no bloody footprints on the stairs upon
his arrival, as can
be seen in photographs 124 and 125, Exhibit “A”.
[593]
Christiaan Koegenberg confirmed that the
prints on the scene had to be the bloody footsteps of the emergency
personnel, as can be
seen in the photograph album, Exhibit “A”,
when they were assisting the injured MARLI.
[594]
The Accused testified that he did not go to
the first floor again, after going downstairs in pursuit of the
fleeing attacker. He
lost consciousness on the stairs after passing
the first landing of the stairs. According to the Accused he had
socks on during
and after the commission of the crimes. A pair of
shoes with presumably bloodstains can be seen at the bottom of the
staircase.
During cross-examination it was put to Sergeant Kleynhans
that the shoes belonged to the Accused and that the Accused hid a
packet
of cigarettes in one of the shoes behind the staircase.
Furthermore, it was put to Sergeant Kleynhans that the Accused put
the
shoes at the bottom of the stairs before the arrival of the
police. Sergeant Kleynhans agreed that the blood on the carpet fell

on to the carpet from above. However, he could not say whether there
was blood on the carpet upon his arrival.
[595]
The Accused testified that only one packet
of cigarettes was hidden in his shoe that particular night. He said
he kept both shoes
at the bottom of the stairs to go for a walk with
Sasha. The Accused testified that the shoes had been standing at the
bottom of
the stairs for a few days which testimony appears to be in
conflict with his instructions to his counsel. He said the bloody
spots
on his shoes were presumably from the blood dripping from
upstairs, as could be seen on the carpet next to the shoes (see
Exhibits
“A20”, “A23” – “A26”).
The Accused said there was a pool of blood at the bottom of the

stairs. When asked by State counsel whether he had stepped into the
blood, the Accused said he deliberately tried to avoid the
blood pool
when he grabbed his cigarettes. He said he stepped around the pool of
blood and never stepped into the blood. The soles
of the Accused’s
shoes and the bottom of his socks were not tested for blood or DNA.
[596]
Captain Joubert said he did not examine the
bottom of the Accused’s socks because there would have been
blood on the floor
and the Accused would have stepped on it. The
witness said he just observed dark stains that could be dirt or
blood. During cross-examination
Captain Joubert agreed that the
loafers would have covered the top part of the foot of the socks, so
it could be excluded that
the Accused had worn the shoes during the
commission of the crimes. The soles of the shoes were never examined
by any witness,
so no inference can be made about the possibility of
the Accused’s wearing the shoes after the commission of the
crimes.
It certainly seems odd that no shoe prints or footprints
other than the officials’ shoe prints, a bloody trail or
Sasha’s
paw prints could be found on the stairs and especially
on the ground floor of the house given the bloodiness of the crime
scene.
However, the Court will not speculate in this regard.
Fingerprints at the crime scene
[597]
Sergeant Jonathan Oliphant, stationed at
the Local Criminal Record Centre (LCRC) in Beaufort West, has had
experience with fingerprint
identification since 2006. Defence
counsel admitted that Sergeant Oliphant was an expert in his field.
During 27 – 31 January
2015, he was at [...] G. Street, [...]
Estate, to investigate the crime scene for fingerprints.
[598]
Irrespective of formal admissions, the
evidential value of the fingerprints must be considered by the Court.
It is highly desirable
that the expert explain, at least in an
affidavit in terms of section 212(4)(a) of the CPA, the nature of the
similarities between
the prints and state on what the opinion is
based. The State should take care that ample evidence is presented
for the Court to
satisfy itself that the expert’s opinion is
reliable.
[599]
In the present case the nature of the
similarities, the quality and the age of the fingerprints were not
explained in an affidavit
or during Sergeant Oliphant’s
viva
voce
testimony. No formal admissions in
terms of section 220 of the CPA were made in this regard. Defence
counsel merely indicated that
the findings of the witness could be
admitted. The Court will evaluate the evidential value of the
fingerprints and assess the
reliability of the expert evidence.
[600]
Sergeant Oliphant found fifty-three (53)
fingerprints in total. He distinguished between usable, unusable and
negative fingerprints.
In the case of unusable prints all seven
points required by the Court to identify a print were not available.
One could still identify
a person, though. He compared the usable
prints with the known prints furnished to him. He had the prints of
the Accused and the
rest of the family as well as from the domestic
workers and the gardener, Tulani Gurya. A copy of the correspondence
between the
Investigation team and the LCRC containing an Elimination
Report was handed in as Exhibit “MM”. On page 2 of the
report
the names of fifteen persons who had been arrested for crimes
committed at [...] Estate appeared. None of the fifteen persons could

be linked to the prints on the crime scene. Prints of James
Reade-Jahn were found on the boot of one of the motor vehicles. No

prints or hits of a possible suspect were found.
[601]
The inside and outside of the house as well
as the boundary wall were checked for prints, with the naked eye and
a special light.
Sergeant Oliphant also sprayed a chemical which
would give a brown/purple colour if there was a fingerprint. No
prints or proof
of activity were found on the wall. He searched for
prints in the morning and afternoon and twice the following day. If a
person
touched the walls, it would have left a mark because of sweat
left behind. The possibility that a gloved person climbed over wall

could not be excluded. No prints were found on the black side-gate
next to the house.
[602]
Two
unidentified prints were found on the patio door of the first
bedroom. Another two unidentified prints were found on the outside
of
the door frame of the bathroom inside the room where the deceased
males had been found (the first bedroom). The Accused never
alleged
that the attacker was near the patio door in the room or en-suite
bathroom. Other prints were also found which were not
identified,
including on the table in the kitchen. In the kitchen, an
unidentified palm print was found. Sergeant Oliphant conceded
that it
could be considered a fresh print, as the domestic worker had
presumably cleaned the Monday before the murders. Precious
Munqongani
testified that she had not found the time to clean the en-suite
bathroom of the first bedroom that particular Monday. It is difficult

to conclude that the entire house was cleaned properly the day before
the incident and therefore that all prints found were left
after she
had cleaned. Prints were also find on bottles inside the cabinet
which prints did not belong to the family. A number
of unidentified
prints were found on the motor vehicle. The fingerprints of the
domestic worker and the responding police officer
were not found by
Sergeant Oliphant at the scene.
[603]
Of significance is the fact that the
unidentified prints originated from several persons and not just one
person, which possibly
could explain the number of unidentified
prints. In this matter the alleged intruder wore gloves, so one would
not expect to find
his fingerprints at the scene. If the intruder had
indeed been accompanied by a second person the latter probably would
have worn
gloves as well, taking into consideration the dress code
modus operandi of the perpetrators.
[604]
Sergeant Oliphant collected the axe and the
knife from the scene and examined them for fingerprints. No
fingerprints could be found
on the axe. It is possible to get
fingerprints on wood, depending on the surface, but it is not unusual
not to find any. The tests
performed to identify fingerprints had no
effect on other further forensic tests.
[605]
Defence counsel confronted Sergeant
Oliphant with the version of the State, namely that the Accused had
touched the axe and attacked
people with it for a period of time. If
the Accused had handled it, one would have expected to find a print.
The witness furnished
an explanation pertaining to protective gear
that could have been worn. The witness also testified that if
fingerprints were wiped
off they would not be found even if the
person handled the axe over a long period of time. The bottom line is
that the Accused
himself admitted handling the axe without protective
gear during the altercation with the alleged intruder and when he
threw the
axe at the alleged intruder. Despite this admission, no
fingerprints of the Accused were found on the axe.
[606]
Sergeant Oliphant testified that three
prints were found on the knife, Exhibit “2”, of which two
were unidentifiable.
The right thumbprint of the Accused was found on
the blade, 5 – 6 cm from the tip of the knife. The print
pointed towards
the handle of the knife; if the knife point points
down, the thumbprint point up. An enlargement of the blade of the
knife was
handed in as Exhibit “MM1”. Two smeared
unidentified prints were found. The identifiable print on the tip of
the blade
belonging to the Accused was actually a double print and it
was indicated with circles by the witness.
[607]
In this matter the Accused admitted from
the outset that he had handled the knife after an altercation with an
alleged intruder.
The findings of the expert pertaining to the prints
on the knife are uncontested. Therefore the issue of the reliability
of the
prints, even in the absence of an explanation or clarification
by the expert, can be accepted. The evidential value of the evidence

needs to be approached with caution because of the lack of an
explanation of the age of the identifiable and unidentifiable prints.
[608]
Defence counsel demonstrated a person
holding the axe and knife simultaneously, the blade of the axe facing
towards him and the
knife held at the blade, also pointing towards
him. Asked whether this demonstration fit the print on the blade of
the knife, Sergeant
Oliphant responded that he could not speculate.
Nowhere in his plea explanation or testimony had the Accused said
that he touched
the blade of the knife during the altercation with
the alleged assailant. The Accused testified that, after being
stabbed, he pulled
the knife out of his side immediately and dropped
it somewhere on the floor, he did not know exactly where. He said the
knife was
stuck in his body for less than a second. The Accused said
he removed the knife from his side with his right hand, which was
holding
the axe. During the testimony of Captain Joubert it was put
to him that the Accused pulled the knife from his side with his thumb

towards the handle and dropped it. Captain Joubert testified that
this was possible.
[609]
The Accused was asked to explain how the
knife ended up partially under RUDI’s bed. The Accused offered
two explanations,
namely that the knife could have bounced there when
he dropped it or that it could have been pushed there by RUDI when he
was moving
around. In the light of the probabilities the explanation
given by the Accused does seem to be possible but not necessarily
plausible.
[610]
Prof Dempers and Dr Tiemensma were of the
opinion that it was unlikely that the knife would have been stuck in
the Accused’s
body if the Accused was moving around.
[611]
The position of the Accused and the
attackers had to be taken into account, ie they were struggling
allegedly in the vicinity of
the bottom of the beds, with the Accused
facing towards the wall near the door (see the position of the beds
in Exhibit “A190
- 191”). The Accused was stabbed in his
left side, in other words the other side of his body further away
from than the side
where the knife ended up. If he had dropped the
knife immediately on his left side, it is virtually impossible for
the knife to
have bounced from there onto a thick carpet and
underneath the bed (see the position of the knife in Exhibit “A205
- 208”).
If the Accused dropped the knife on the right side of
his body, it probably would have fallen onto the thick carpet, which
makes
it unlikely that the knife would have bounced from the thick
carpet to underneath the bed, with only the blade sticking out. The

Accused agreed that there was not a big gap between the base of the
bed and the floor.
[612]
The other scenario is that RUDI pushed the
knife under the bed in the process of moving around. RUDI’s
DNA, possibly blood,
was found on the blade of the knife and a
mixture result with his Touch DNA was found on the handle of the
knife. RUDI’s
Touch DNA could have been transferred onto the
knife in an innocent manner before the incident. No evidence was
presented to canvass
this scenario and the effect of a gloved hand
handling the knife after the Touch DNA had been transferred onto the
knife in an
innocent manner. There may be many explanations for the
presence of RUDI’s DNA on the knife and the Court cannot
speculate
on them.
[613]
Captain Joubert was of the opinion that
RUDI could have been dragged from the bed. He said he could not say
that the scene was staged,
but he did not have any explanation for
the movement of RUDI and the duvet (Exhibit 138). Dr Anthony
testified that RUDI might
still have been able to move, depending on
his level of consciousness, or could have been moved by someone else
from the bed to
a different location. The Accused suggested that RUDI
probably moved from the bed on his own volition, or, less likely,
that the
attacker came back and moved him off the bed without leaving
a trace. The latter is a far-fetched scenario, on the Accused’s

own admission.
[614]
Captain Joubert testified that an imprint
left on the duvet, from the Accused’s bed, is similar to the
size and shape of the
blade of the knife. The same duvet ended up on
the floor, almost rolled up against the wall, on top of blood. The
Accused offered
the suggestion that the knife could have ended up on
the duvet and then been flung onto the ground, when the duvet was
pulled off
the bed, and pushed by RUDI underneath the bed. The
Accused never testified that the knife was at any stage on his bed,
and the
suggestion cannot be regarded as a plausible explanation.
Other possibilities for the imprint on the duvet were proffered by Mr

Steyl, the Defence ballistics expert. Mr Steyl was not called by the
Defence to explain a different alternative for the imprint
on the
duvet cover.
[615]
Dr Du Trevou testified that RUDI would have
had limited movement. He presumed that the blow to the head with the
axe would have
rendered RUDI unconscious, and then he could have
recovered a level of consciousness and it was possible that he was
able to move.
RUDI would have been able to make purposeful movement,
but the witness did not know to what extent. The witness confirmed
that
he saw the crime scene photographs of the bed on which RUDI had
been attacked. Dr Du Trevou said that, taking into account the amount

of blood on RUDI’s bed, RUDI would have become weaker, as the
brain was dependent on blood. There was a lot of blood on RUDI’s

bed and RUDI lay on the bed for quite some time. The head wounds bled
profusely and RUDI would have been in a state of concussion.
[616]
The witness was confronted by State counsel
with Dr Perumal’s opinion to the effect that RUDI would have
been able to make
significant movements, whilst the witness spoke of
limited movement. Dr Perumal did not testify, and his opinion is
therefore of
no evidential value unless it is confirmed by a credible
witness. Dr Du Trevou testified that RUDI would have been able to
crawl
but not to stand or walk. He was asked whether RUDI would have
been able, with limited movement, to move from the bed, between the

two beds, and to the bottom end of the other bed, on the floor (see
Exhibits “A188” – “A191”). Dr
Du Trevou
agreed that moving the duvet from the Accused’s bed to the
floor next to the wall, on top of the blood, would have
been a
goal-directed movement. He confirmed that, depending on RUDI’s
dizziness and state of consciousness, of which the
witness had no
evidence, it was only a theoretical possibility that RUDI could have
moved the duvet.
[617]
Dr Anthony was cautious about RUDI’s
movements. She indicated that she was not a blood spatter expert and
that she could not
comment on paragraph 6.5 of Dr Perumal’s
report, Exhibit “QQ”, dealing with RUDI’s movement
in the light
of the multiple smear patterns. She merely confirmed
that there had to be movement by RUDI after the injuries, if the DNA
analysis
was correct, and that therefore she could not disagree with
the contents of paragraph 6.5 of the report.
[618]
Lots of movement and activity are
attributed to RUDI after he had been injured, which cannot be
verified with any certainty or likelihood.
It is possible that he did
not even move by himself to the floor, to the position where he was
found.
[619]
Holding onto the axe and removing the knife
with  the same hand involves an awkward manoeuvre. It is more
natural and possibly
easier to pull out the knife by the handle
rather than by the blade.
[620]
Another scenario could be that the Accused
pushed the knife underneath the bed himself. That would explain his
fingerprints where
they were found on the blade.
[621]
There are far too many possibilities and
insufficient evidence for the Court to make an inference regarding
the fingerprints and
the position of the knife.
[622]
The bottom line is that it is unlikely that
the intruder would have left fingerprints with gloved hands. Only the
Accused’s
thumbprint and RUDI’s DNA were found on the
knife . If there was no intruder, the knife could possibly have been
used in
a fight by members of the Van Breda family amongst themselves
at some stage during the course of the evening or night, or simply
by
the Accused,
inter alia
,
to stage his wounds and the scene. Prof Dempers testified that, save
for the wounds on THERESA’s right thumb and on the
fingers of
RUDI’s left hand (which could all be consistent with defensive
wounds), all the defects or wounds appeared to
be large in length and
to have penetrated quite deeply into the tissue. Defensive wounds
made with an axe would look different.
Prof Dempers said that RUDI
sustained a small incised defensive wound to his finger, with
reference to the post-mortem report Exhibit
“L”. The
witness was not sure what object caused it. In the case of an axe he
would expect a gaping wound. With reference
to the post-mortem report
Exhibit “N”, Theresa had a small 2 cm incised wound. The
witness would not expect it to be
so small if it had been caused by
an axe but said that the wound was not impossible.
The number of intruders
[623]
It is the Accused’s version that more
than one intruder entered the Van Breda residence that particular
night. The number
of intruders, the description of the intruder(s)
and the motive of a possible intruder need to be scrutinised.
[624]
Janine Philander testified that the Accused
mentioned one attacker to her but that he did say that “they”
(with reference
to the perpetrators) ran away after the attack. The
role of any other possible perpetrator was not described during the
call, which
seems reasonable to the Court in the circumstances. It
could be that he indeed meant that more than one perpetrator invaded
their
family home, or he could have been making a general reference
to the perpetrators responsible for the crimes when he said “they”

ran away.
[625]
The Accused alleged in his plea explanation
that he heard the angry voices of more than one person somewhere else
in the house after
the attacker had fled out of the bedroom on the
first floor. It sounded as though the persons were speaking Afrikaans
(see paragraph
34, Exhibit “J”). He said that he did not
know how many persons had been in the house, but there must have been
at
least two intruders. Surprisingly, this very important piece of
information about the number of intruders was not contained in his

statement to the police, Exhibit “SS”. The Accused only
mentioned one attacker or intruder in his statement to the
police. It
can be accepted that the police would have questioned the Accused
about the number and identifying features of the perpetrators

responsible for the crimes.
[626]
The Accused stated in his plea explanation
that the statement to the police contained some inaccuracies and did
not contain all
the detailed information that he had conveyed to the
officers. The circumstances under which the statement had been taken
could
not be described as ideal. However, as to the contents of the
statement, the Accused did not allege in his plea explanation that
he
had been told what to say by any police officer. He merely complained
about being pressed for specifics about certain aspects
that he was
not confident about (see paragraph 58 – 61, Exhibit “J”).
[627]
The Accused testified in his
evidence-in-chief that he did mention to Colonel Beneke that there
was more than one intruder. When
asked by his counsel why he did not
tell Sergeant Malan to rectify his statement before signing it, the
Accused explained that
he did not feel like it after having retold
the story of a very traumatic experience several times by that point.
The police were
still gathering information to catch the perpetrators
at that point. The Accused seems to be an intelligent person and must
have
realised the importance of information about the offenders.
During cross-examination the Accused advanced another reason for the

absence of this information in his statement. He said he specifically
mentioned the second attacker or intruder but did not notice
the
omission of reference to the second intruder when he read and signed
the statement. He spoke at length about the two intruders
and said he
did not know why the police left it out. The Accused said he was
surprised it was not in his statement. He did tell
the police about
the second attacker or intruder, so he accepted that they knew about
the second attacker.
[628]
While it is true that differences between
his plea explanation and statement could be expected and explained
due to the traumatic
circumstances, the issue of the intruder(s) goes
to the crux of the matter. It is inconceivable that the police would
have left
out the allegation of a second intruder in the statement if
the Accused had told them about it. It certainly cannot be described

as a minor discrepancy. The Accused also contradicted himself about
the reason for the omission.
[629]
Captain Nicholas Steyn was informed about
only one suspect who was wearing a balaclava and gloves. The Accused
did not mention a
second intruder to him during the interview at the
crime scene.
Description of the attacker(s)
[630]
According to his plea explanation the
Accused thought that the attacker was a Black person (see paragraph
52, Exhibit “J”).
The Accused further alleged that the
attacker was dressed in dark clothes and wore gloves and a
balaclava-type mask (see paragraph
25, Exhibit “J”). In
his statement to the police the Accused described the attacker as a
strong, well-built person
1.86 meters tall. The Accused stated that
the attacker wore dark jeans, a black jumbo jersey, black gloves and
a homemade dark
grey mask. He said he would recognise the eyes and
voice of the attacker (see paragraph 11, Exhibit “SS”).
He gave
a similar description of the attacker’s clothing during
his testimony, except for the jeans.
[631]
The Accused testified that the police asked
whether he knew the race of the intruders when they took him from the
scene to the District
Surgeon. According to the Accused
he said he could see only one intruder. He thought it was a Black
guy, but he could not be sure.
The
Accused testified that he saw only the attacker’s eyes.
[632]
During cross-examination the Accused
testified that he thought it was a Black man because he noticed a
very deep contrast between
the whites of the attacker’s eyes
and the skin around his eyes. In other words, he based his assumption
on the skin colouring
around the attacker’s eyes. The Accused
testified that Black could mean Coloured as well, as opposed to
White, because the
word Coloured is not used overseas. When it was
pointed out by State counsel that some White people are also rather
dark-skinned,
the Accused agreed. When asked why he did not tell the
police that he had seen too little of the attacker’s face or
features
to determine his race, the Accused responded that he
actually did. He said he was told to choose a race despite being
unsure because
Colonel Beneke was unhappy with his description. Later
he said it was not strictly true that he could identify solely on the
basis
of his eyes and voice. However, he told the police that those
are the only two things that he possibly could use to identify the

intruder.
[633]
The
Accused testified that he heard two angry voices after the attacker
had left the room. He inferred that they were Afrikaans-speaking

because of the harsh tones but said he could not be sure because he
did not hear the words they used. During cross-examination
he
testified that he would say that the words of the two intruders were
most likely Afrikaans but that a person speaking angrily
in English
or other language could create the same harsh tones. He said the two
voices he heard were of a similar type but had
distinct intonations.
The Accused did not see two intruders in the house.
[634]
At some
point during cross-examination the Accused surprisingly testified
that he saw one person at a time in the bedroom and that
it was the
same person, as far as he could recall. In his statement the Accused
said that the same person came back into the room
and started to
attack him. He never created the impression that there was more than
one or a different attacker in the bedroom
before cross-examination
took place. State counsel confronted the Accused and asked him why he
tried to create the impression that
it might have been two different
attackers in the bedroom. The Accused responded that he heard the
voice of someone else in the
house later on. However, the Accused
confirmed that he saw one attacker only. He also confirmed that it
was the same attacker who
executed blows to the head area of his
family members with the same weapon.
[635]
During cross-examination the Accused
conceded that he gave a very stereotyped description of the attacker
who executed the attack
and that it boiled down to an unknown Black
man wearing a balaclava and gloves. The Accused agreed with the
statement of his own
counsel that no one would be able to trace the
attacker based on his description. The Accused explained that he did
not have a
lot to go on.
[636]
The description of the attacker furnished
by the Accused did not contain outstanding or distinctive facial or
other features except
for the build of the assailant. Sergeant
Appollis confirmed that the Accused described the body build and
height of the alleged
suspect to the police. He said one would be
surprised at how a suspect could be found with minimal information,
even a suspect
dressed in a balaclava and gloves, especially in the
Jamestown area where people talk to one another. The alleged suspect
was a
tall person. The police attempted to trace the perpetrator by
exploring various avenues – for example, through Crime
Intelligence,
the newspapers, informants and other sources –
but received no information. This aspect supports the notion that the
Accused
was not considered a suspect at the time of his deposing to a
statement to the police.
The Accused as a witness and his
version
The Accused’s version at the
scene
[637]
Captain Nicholas Steyn from the Detective
branch in Stellenbosch was tasked with establishing the Accused’s
version of the
events. The Accused was not a suspect at the time and
was treated as a victim, according to Sergeant Kleynhans, Dr Albertse
and
Sergeant Malan. The Accused told his version of the events whilst
he was sitting in the ambulance at the crime scene and without

Captain Steyn questioning him. The Accused communicated with the
witness in English. He told the witness that he had been in the

toilet in the early hours of the morning when he heard noises. He
looked through a gap in the toilet door and saw someone attacking
his
brother RUDI. The Accused said that he shouted and then his father
came into the room and the assailant attacked his father.
His mother
and sister came in and the suspect attacked them too.
[638]
During cross-examination Captain Steyn
testified that it was possible that he had misunderstood the Accused
that the Accused’s
mother and sister were attacked inside the
bedroom instead of outside the bedroom. The Accused then confronted
the suspect and
took the axe from him. The suspect stabbed the
Accused in his side with a knife. He chased the suspect from the room
and down the
stairs. He threw the axe at the suspect but missed and
hit the wall. The suspect ran out the back door and the Accused
returned
to the stairs, where he saw his mother and sister lying on
the landing and then fainted. When he regained consciousness he
googled
the police emergency number because he did not have the
number on him. He contacted the police. Captain Steyn conceded that
it
was possible that the Accused had said he googled an emergency
number and not a police number. The Accused said he could not
remember
how long he was unconscious.
[639]
The photographs of the Accused in Exhibit
“C” shows how Captain Steyn observed the Accused in the
ambulance. The Accused
was quiet and calm and told the witness what
had happened. Captain Steyn agreed that the Accused was severely
traumatised.
Statement by the Accused to the
police and the trial-within-a-trial
[640]
After the visit to the District Surgeon,
the Accused was taken to the detective offices in Stellenbosch for a
further interview.
He deposed to a statement pertaining to the
events, Exhibit “SS”, at approximately 15h52. Thereafter
the Accused left
the detective offices with friends or family. The
statement, taken by Detective Sergeant (at the time, Constable)
Clinton Malan,
was allowed after a trial-within-a-trial to determine
the admissibility of the contents of the statement. The Court
indicated that
the reasons would be given at the end of the trial.
Trial within a trial
[641]
The trial within a trial relates to the
admissibility of a statement made by the Accused prior to his arrest.
It was made to Sergeant
Clinton Malan (Malan). The admissibility of
the said statement was contested on the basis that the Accused’s
constitutional
rights were violated in that he was a suspect and, as
such, enjoyed the protection of section 35 of the Constitution or, at
the
very least, of the Judges’ Rules.
[642]
Counsel for the Accused suggested that the
manner in which the Accused was treated prior to the taking of the
statement supports
the notion that he was a suspect at the time the
statement was made. The State argues that the Accused was not a
suspect at the
time.
[643]
The evidence at the trial within a trial
was restricted to that of Malan and the only defence witness, a Mr
Andre du Toit (Du Toit).
It was further agreed between the parties
that the evidence of Dr Van Zyl and Dr Albertse would be incorporated
in the trial within
a trial.
[644]
The onus is on the State to prove the
admissibility of the statement which the Defence later handed up in
evidence as Exhibit “SS”.
[645]
The content of the statement is essentially
the same as the Accused’s version in his plea explanation. It
is not a confession
and does not contain any admissions. It is a
witness statement which describes the sequence of events at the time
of the commission
of the crimes.
[646]
At the material time the Accused was one of
the two surviving members of the family but the only person in a
position to assist
the police to identify the assailant who had
attacked him and his family that night.
[647]
At the time there was no incriminating
evidence against the Accused and, quite patently, when making the
statement he was not an
arrested, a detained or an accused person.
[648]
The contents of the statement are not, in
effect, disputed. The Accused does not suggest the statement was
taken under duress or
made involuntarily. It seems that he fully
co-operated with the police. The statement itself, Exhibit “SS”,
was ostensibly
handed up in evidence for the purpose of attacking
Malan’s credibility. The principal attack levelled against him
was that
he did not record the statement using the words of the
Accused. The Accused was unhappy with the spelling mistakes and
grammatical
errors. Malan’s mother tongue is Afrikaans and it
seems that he typed what he understood the Accused, an
English-speaking
person, to be saying.
[649]
It was not suggested by Defence counsel
that Malan did not record the version given by the Accused. The
language and grammatical
errors do not in any way affect Malan’s
credibility adversely or at all. When signing the statement the
Accused did not object
to the details or content of the statement. In
other words, it was not alleged that the content of the statement
does not emanate
from the Accused.
[650]
It was put to Malan, that the Accused was
told by Colonel Beneke that he (Colonel Beneke) did not believe this
“bullshit”
story. If that is true, Colonel Beneke at best
started the interview with a high degree of insensitivity. It is
unlikely that Colonel
Beneke could have come to this conclusion so
soon after attending the crime scene. In any event, the allegation is
not supported
by any evidence and, of course, the Accused did not
testify to this effect.
[651]
With regard to determining whether the
Accused was a suspect, the only really relevant evidence is that of
Malan.
[652]
Du Toit, the sole witness for the Accused,
could not be of any assistance to the Court in deciding this issue.
Du Toit, in fact,
does not take the matter any further other than
confirming by inference that the Accused was allowed contact with his
family and
friends, received items from them, and was freely allowed
to leave. Nothing said to him by the police officials implied that
the
Accused was detained or a suspect.
[653]
Malan was criticised by Defence counsel for
apparently inconsequential matters such as inaccurate or vague
entries in his pocket
book, details of time and other related
matters. Malan was not involved in the investigation of this matter,
save for accompanying
the Accused to the District Surgeon and taking
his statement. He would not have had an undue interest in the matter
and, in my
view, was a good and reliable witness in respect of the
material aspects to which he testified.
[654]
Malan’s testimony is referred to in
the following paragraphs.
[655]
The Accused was a victim who had survived
an attack on his family, was treated in an ambulance and then taken
to Dr Albertse to
record his injuries as a victim of crime. The
latter is in fact standard police practice.
[656]
The police were eager to take his statement
as he was at that stage the only source of information regarding
possible suspects in
what was quite obviously a very serious violent
crime.
[657]
The questioning of the Accused, and his
statement, were to determine what precisely had happened, in order
for the police to trace
the suspects. The Accused did not indicate
that he was unwilling to talk to the police and there was no evidence
incriminating
the Accused in the commission of the crimes or placing
him in a position to provide an explanation.
[658]
The Accused was calm and able to give a
coherent account of how the family was attacked.
[659]
The Accused read the electronic version and
was satisfied with what had been recorded.
[660]
The Accused was thereafter free to leave
with his family.
[661]
The Accused failed to testify or lead any
evidence to gainsay what Malan had stated during his testimony.
[662]
It was reasonable for the police to seek to
finalise the formalities and obtain information about the events, at
the earliest possible
opportunity, from the only available
eyewitness.
[663]
There was no onus on the Accused to testify
or prove anything. However, his failure to testify is a factor to be
taken into account,
as there is no evidence to rebut the material
aspects of the State’s case. There is no evidence before Court
to find that
the Accused was viewed as a suspect at the time when he
was initially interviewed and the statement recorded.
[664]
In the circumstances the Court finds that
the statement made by the Accused was made by him as a witness and
not as a suspect.
[665]
In any event, the degree of prejudice, if
any, against the Accused in admitting the evidence is negligible in
that most of the evidence
is already before the Court either in the
plea explanation or in the verbal statement given by the Accused at
the scene to Captain
Steyn. Moreover, it does not contain admissions
or a confession.
[666]
In the light of the peculiar circumstances
of this case, public interest would dictate the admission of the
evidence, as the police
were faced with a serious violent crime and
the Accused was the only source of information which could lead to
the culprits being
traced. The statement marked “SS” was
accordingly admitted into evidence.
[667]
State counsel submitted that the Court’s
ruling on the admissibility of the statement, Exhibit “SS”,
can be confirmed,
as no evidence giving cause to revisit the
interlocutory decision after the trial-within-a-trial was presented.
Defence counsel
did not argue to the contrary. Sergeant Malan was
merely described as a poor witness who did not want to make obvious
concessions
regarding the manner in which the statement was taken
down.
The discrepancies between the
plea explanation of the Accused, his statement to the police and his
testimony in Court
[668]
It was argued that the Accused’s
version remains in essence the same, but there seem to be differences
on some aspects. Defence
counsel argued that the Accused was in a
post-ictal state when he deposed to his statement. This possibility
is not based on reliable
evidence but on an uncertain backdated
diagnosis by Dr Butler, who did not examine the Accused at the time
or perform tests to
confirm his diagnosis. Furthermore, it was
submitted that the few discrepancies between the Accused’s
police statement and
his later versions in his plea explanation and
evidence in Court can be explained and accounted for by his physical
and mental
state, which was compounded by the method and manner in
which his statement was taken down by the police. Therefore the
statement
cannot be used as a reliable comparative device for the
purpose of incriminating the Accused.
[669]
State counsel submitted that at the time of
his deposing to Exhibit “SS” the Accused had no insight
into the forensic
evidence (ie, the forensic pathology reports, the
DNA results, the bloodstain analysis and the crime scene
investigations). The
State submitted that it is quite apparent that
the Accused amended his version as an afterthought to explain the
incriminating
evidence obtained during the investigation.
[670]
The nature, number and importance of the
discrepancies need to be scrutinised by the Court to determine what
weight can be attached
to them and to the arguments of counsel.
[671]
The Accused testified that Colonel Beneke
instructed Sergeant Malan to write down the Accused’s version
and type it out.  Colonel
Beneke said that the Accused could
leave the police station once it was typed. Sergeant Malan did not
ask the Accused questions
when he typed the statement. Sergeant Malan
offered the Accused the opportunity to read through the statement to
see if he was
satisfied with the contents. The Accused scanned
through the statement on the computer and said that it could be
printed. There
were grammatical and spelling errors in the statement
and it was not a verbatim version. He signed it because he wanted to
leave
and retelling the story was very traumatising. During the
interview at the police station the Accused asked whether he should
have
a lawyer present. He said he did not know that the statement was
going to be used against him. It can be argued that if the Accused

was under the impression that he was regarded as a suspect he could
have refused to depose to an affidavit without a lawyer’s
being
present.
[672]
The Accused said the police did not deprive
him of food intentionally and he was not starving at the time. He did
eat a sandwich
and flavoured yoghurt when he was brought food. The
police also did not intentionally deprive him of sleep. He said he
was willing
to work with the police and gave them as much information
as possible to catch the killer. He absolutely wanted to work with
the
police. The Accused testified that at the time he did not think
that the police actions were irregular. He testified that certain

aspects in Exhibit “SS” were incorrect but said that he
signed it because he could go home. The Accused said he was
not
thinking clearly at the time.
[673]
If he had had legal advice, he would have
understood the situation he was in better. He said he would not have
changed anything
of what he had said to the police. The document
would just have been more accurate. The Accused said the statement is
not his version
given to the police; the wording in Exhibit “SS”
is inaccurate. The Accused said he was not suggesting that the police

made up lies but the version is the statement was not the words he
used. He said the wording was wrong and, from that, unfair
conclusions could be drawn. If his Attorney had been there she could
have worded the statement correctly. He said his complaint
was about
the wording, not the content, of the statement. The Accused conceded
that the information contained in the statement
did emanate from him
in one way or another.
[674]
During his testimony the Accused conceded
that there were discrepancies between his plea explanation (Exhibit
“J”) and
his statement to the police, dated 27 January
2015 at 15h52 (Exhibit “SS”).
[675]
The Accused indicated in his plea
explanation that the gist of what was written down in Exhibit “SS”
is correct but
stated that the statement does contain some
inaccuracies and does not contain all the detailed information he
conveyed to the police
officers. The Accused explained that, although
his statement was not correct in all aspects, he did not want to sit
around correcting
the police officers and reliving the trauma of the
night before with another retelling of what had happened. The Accused
claimed
that he is severely prejudiced by the fact that he is held to
each and every word in his statement, under the circumstances.
[676]
During cross-examination the Accused
conceded that he had signed an incorrect statement but said that if
he had known it was going
to be used in court he would not have
signed it. There should be no distinction in the mind of the deponent
between a statement
to the police and court proceedings, as far as
telling the truth is concerned. In effect the Accused conceded that
he was prepared
to compromise the truth under oath for reasons of his
own. Furthermore, the Accused said that he would not have changed
anything
of what he had said to the police, only that the document
would have been more accurate. He said he was not suggesting that the

police put words in his mouth or that they made up lies, he was
merely suggesting that he did not use the words in the statement
and
cannot be held accountable for the exact wording of the statement. It
is true that police statements are not perfect. All depends
on the
essence of the statement. Apart from spelling and grammar mistakes,
the police had to be aware of the importance of the
accuracy of the
contents of the statement of probably the only eyewitness. It is not
a matter of holding the Accused accountable
for the exact wording but
for important factual inconsistencies in the sequence of events.
[677]
State counsel canvassed the statement with
the Accused.
[678]
The Accused stated in his police statement
that he had no major arguments with his family members. The Accused
testified that there
was no argument amongst the family members on 26
January 2015. During his testimony the Accused also denied having any
serious
arguments with his family. In his plea explanation it is
merely stated that there was nothing out of the ordinary the evening
before
the attack. According to his plea explanation they were a
fairly close-knit family. They enjoyed doing things together. The
Accused’s
version in this regard has remained the same since
the attack.
[679]
Before dinner, at about 18h30, according to
the statement, the Accused and MARTIN enjoyed a bottle of red wine in
the living room.
In his statement the Accused mentioned that he also
had a whisky and a rum and coke during the course of the evening.
[680]
The Accused testified that the reference to
the whisky was incorrect in paragraph 2 of Exhibit “SS”.
He could not recall
having whisky. The Accused testified that he made
it clear to the police that he could not be sure. When the police
suggested to
him that he had some whisky, he said he probably had a
whisky. He denied drinking rum and coke and said it was not true.
Then again
the Accused said he could not remember whether he had the
rum and coke, but Colonel Beneke pushed him and he agreed, although
he
knew he was wrong. He said he was overwhelmed by the authorities.
Later, during cross-examination, the Accused said that when the

officers put this consumption of alcohol to him, he could not deny
it.
[681]
Two wine glasses and a glass normally used
to drink whisky with can be seen on the dining-room table in Exhibit
“A382 - 386”.
[682]
In his plea explanation the Accused said
that MARTIN, RUDI and he watched television while TERESA prepared
dinner. According to
his statement MARTIN and the Accused drank two
glasses of red wine each and RUDI went for a run outside.
[683]
When confronted with the contradiction
regarding RUDI’s presence in his statement, the Accused said it
was simply not his
words; he was never sure whether RUDI went for a
run. However, during his evidence-in-chief the Accused testified that
RUDI went
for a run on the estate while denying during
cross-examination having said so to the police. Thus not only is
there a contradiction
between his statement and plea explanation but
the Accused also contradicted himself during his testimony.
[684]
In his statement the Accused said the
family had dinner at 19h15 in the dining room and finished dinner at
about 20h00. The Accused
did not mention times in his plea
explanation.
[685]
He testified that he could not be sure of
the time they had dinner, specified as being 19h15 to 20h00. He said
the times were not
given by him as definite times: it was approximate
times. The Accused could not recall what time they finished dinner.
They usually
enjoyed dinner at about 19h30 and it would last about
thirty (30) to forty-five (45) minutes.
[686]
After dinner MARTIN, RUDI, MARLI and the
Accused watched television, according to his statement. In his plea
explanation the Accused
said that MARTIN, RUDI and himself watched
Star Trek 2
after dinner. During his testimony the Accused denied having included
MARLI. He told the police which family members watched television
on
a typical evening. The State submitted that the failure to mention in
his statement that he specifically watched the movie
Star
Trek 2
that evening was done to explain
the argument that Ms Op’t Hoff overheard.
[687]
The Accused testified that his father did
some work at the dining-room table after dinner and that RUDI and
himself watched television
on the evening of 26 January 2017. The
Accused testified that he later watched
Star
Trek 2
on their new hi-fi system
together with MARTIN and RUDI. He could not recall what time they
started watching and said MARTIN first
did some work before they
watched the film. Adv Galloway confronted the Accused with the fact
that he did not mention in his statement
or plea explanation that his
father worked on a laptop at the dining-room table after dinner.
[688]
State counsel suggested that his father
working on a laptop after dinner, was mentioned in his testimony to
fit in with the timeline
between dinner and watching television.
Furthermore, it was submitted that this was done to accord with the
time frame in Ms Op’t
Hoff’s evidence. The Accused said
his father’s working on his laptop was not important at the
time of the drawing up
of the plea explanation. He found it relevant
to mention this new piece of evidence only during his testimony. The
Accused said
he was never sure exactly what time they started
watching the movie. During cross-examination of Ms Op’t Hoff it
was suggested
by Defence Counsel that the movie was two hours long
and was what Ms Op’t Hoff had heard between 22h00 and midnight
on the
night of the murders. The Accused conceded that if they
watched a movie after dinner at about 20h00 his version would not
make
sense without the newly introduced evidence to the effect that
Ms Op’t Hoff could have heard the movie soundtrack only at

22h00 and not at 20h00.
[689]
A closed laptop and open documents could be
seen on the dining-room table in the photographs in “A51”
and “A52”.
In the photograph in Exhibit “A53”
an open book with only a few notes at the top of the page and a piece
of paper can
be seen. In the study in Exhibits “A97” and
“A99” an open laptop, documents with glasses on top of
them,
a used cup and a glass of water can be seen. It appears that
somebody worked in the study, possibly at some stage before the
attack,
during the night of the murders.
[690]
The cupboard doors and drawers in the study
were open in the photographs in Exhibits “A397 - 399 and A401 -
402”. They
could have been opened by an intruder or by the
Accused himself or somebody who had worked in the study the previous
night and
left the doors open, before or after dinner. No Touch DNA
could be found on the cupboard doors in the study. MARTIN or another
family member possibly left the cupboard doors open and retired to
bed without closing them, seemingly contrary to the general tidy

appearance of the ground floor and of the contents of the cupboard
and drawers in the study. An intruder could have looked for
valuables
or something, but the contents of the cupboard were not in disarray
and no obvious valuables were removed from the study.
The same
applies to the drawers, with the documents neatly put away. The third
possibility is that the Accused opened the cupboards
himself after
the murders, possibly in an attempt to stage the scene.
[691]
The Accused could not recall whether his
father did some work before dinner or only after dinner.
[692]
In the Accused’s plea explanation the
impression was created that MARTIN, RUDI and the Accused went to bed
after the movie,
at the same time, which would have been
approximately midnight. In his statement the Accused said MARLI and
his father went to
bed at about 21h00, then RUDI and he went to bed
two hours later at 23h00.
[693]
The Accused testified that he did say to
Colonel Beneke that not everyone went to sleep at the same time. The
Accused told Colonel
Beneke about how the times generally occurred;
the times were not a specific recollection of that particular
evening. During cross-examination
the Accused explained that MARLI
and TERESA would have gone to bed at about 21h00, his father would
usually work a bit later and
RUDI and the Accused would be watching
television and be the last two awake. It does not explain why the
Accused said in his statement
that his father also went to bed at
21h00, given that he usually worked later than that. When confronted
with the times given regarding
that specific evening, the Accused
said the time were based on normal evenings. However, in court he was
sure about what happened
that evening before the attack. It is
difficult to understand how the Accused could have forgotten that the
males in the family
watched a DVD and went to bed at the same time,
rather late.
[694]
In his plea explanation the Accused said he
watched an animated show called
One
Piece
later, went to the bathroom at
some point to move his bowels and played games on his cell phone
whilst in the bathroom. In his
statement the Accused stated that he
watched
One Piece
on his laptop until 03h00 and then listened to music on his cell
phone. He then went to the bathroom with his phone in his pocket.
[695]
The Accused testified that he watched an
animated show called
One Piece
on his laptop for a couple of hours. At some point the Accused
listened to music on his phone in his bed, using his earphones.
The
Accused took his phone with him to the bathroom to play games whilst
sitting on the toilet.
[696]
The Court accepts that his plea explanation
was not necessarily a comprehensive account of minor details of the
events, although
it was very detailed. The fact that the Accused did
not mention, for example, listening to music in his plea explanation
is of
no significance.
[697]
The Accused said in his statement that he
closed the bathroom door behind him while he was inside the bathroom.
He opened the door
slightly after he had heard the noise from their
room. In his plea explanation he said that the bathroom door was only
partially
closed. He testified that the bathroom door was slightly
ajar. He opened the bathroom door to investigate the sounds that he
heard.
[698]
The Accused testified that he could not
recall where he was physically when he shouted for help or making a
noise after he had exited
the bathroom and whilst RUDI was being
attacked. The Accused said he was inferring that he was between the
bottom end of his bed
and the bathroom door. He also could not recall
whether he remained stationary. Adv Galloway put it to the Accused
that in his
police statement he said that he opened the bathroom door
slightly and remained in the bathroom, too afraid to go out. In his
statement
the Accused said that he went out of the bathroom after he
had heard his mother and the attacker had left the room. In his plea

explanation the Accused created the same impression. In paragraph 24
of his plea explanation the Accused said he stood frozen and
could
not recall whether he remained in the same position but that he did
open the bathroom door. He never said that he went out
of the
bathroom before the attacker left the room for the first time. The
Accused responded that he did exit the bathroom and that
it was not
his intention to create the impression that he remained in the
bathroom until the attacker left the room.  The
Accused
explained that it was not his words in the police statement. He
denied having said to the police specifically that he was
scared to
leave the bathroom. He did not know where the police were getting
their words from and that the words written down in
the statement was
probably a mistranslation. He added that he was not saying that they
did it intentionally.
[699]
It was also put to Captain Joubert that the
Accused did leave the bathroom with regard to the issue of blood
spatter or the lack
thereof on the walls near the bathroom door.
State counsel asked whether the Accused was sure that he had stood in
that corner
in the bedroom. The Accused answered in the affirmative
and explained that he would not otherwise have been able to see what
was
going on in the bedroom.
[700]
It is a significant issue whether the
Accused remained in the bathroom, as stated in his statement, or
actually entered into the
boys’ room, as he testified. The
State submitted that the Accused’s version was tailored to
explain the blood spatter
on his clothing.
[701]
The Accused mentioned one intruder only in
his statement to the police. In his plea explanation the Accused
stated that he recalled
hearing what sounded like the angry voices of
more than one person, somewhere else in the house, after the attacker
had fled from
the bedroom.
[702]
The Accused testified that he definitely
mentioned to Colonel Beneke that there was more than one attacker.
The Court finds it is
unlikely that the police would not have
mentioned the second intruder in the statement if the Accused had
alerted them to that
intruder at the time. The Accused agreed that
the police gathered information from him to apprehend the
perpetrator(s). Captain
Steyn also never mentioned a second intruder
when he testified about the Accused’s version given at the
scene. It was not
put to Captain Steyn by Defence counsel that the
Accused said a second intruder was in the Van Breda house, although
other mistakes
of fact were pointed out. This aspect is a major
discrepancy that was not satisfactorily explained by the Accused.
[703]
In his police statement the Accused said
his father jumped on the attacker, whereafter the attacker assaulted
his father with the
axe. His father collapsed in the room where he
had been attacked. In his plea explanation the Accused said that upon
entering the
room his father moved onto the bed, over RUDI, towards
the attacker, who was on the opposite side of the bed. As his father
was
lunging towards the attacker, his father was struck with the axe
and went limp on the bed. He did not see his father move again.
[704]
The Accused struggled to explain his
father’s position during his testimony. Initially he testified
that his father was on
his way over the bed. He testified that his
father came onto RUDI’s bed as if he was going to make a rugby
tackle on the
attacker. The Accused said his father was trying to
attack the assailant and probably trying to protect RUDI. He denied
using the
words in the police statement but said the version written
down was the gist of what happened. Later, during cross-examination,

the Accused testified that his father actually never moved over RUDI;
he was struck before he was able to carry out that motion.
MARTIN was
not lying on top of RUDI; they were next to each other. A different
impression was created in the Accused’s police
statement and
plea explanation in this regard.
[705]
The State submitted that the rugby-tackle
version was to explain the findings of Dr Anthony and Captain Joubert
who were of the
view that MARTIN was attacked from behind and
unlikely to have been aware of the attack. It would have made more
sense for MARTIN
to have gone straight to the attacker in an attempt
to disarm him, rather than to put himself and the rest of his family
at risk
by falling over RUDI on the bed, with the axe-wielding
attacker next to the bed.
[706]
According to the Accused’s plea
explanation, the attacker was laughing whilst he attacked MARTIN. The
attacker was laughing
when he came at the Accused and was almost
unconcerned about his presence. The statement is silent in this
regard.
[707]
The Accused testified that
he
distinctly remembered hearing that the attacker laughed during the
attack on his father. Before the scuffle with the attacker,
the
attacker walked slowly towards the Accused and laughed again. He
testified that the attacker was also laughing when attacking
RUDI
after he had attacked his father. The Accused described it as a
high-pitched giggle. The attacker struck RUDI again and giggled
and
the Accused got the impression that the attacker had fun murdering
people.
[708]
The Accused said in his statement that he
could hear that the attacker was busy assaulting his mother in the
passage. In his plea
explanation the Accused said he could not recall
whether he heard any sounds of an attack on his mother outside his
room.
[709]
The Accused testified that he did not hear
sounds of an attack outside the boys’ room. He testified that
it did not really
make sense to him. The Accused testified that he
could not see what happened to his mother outside the bedroom and he
could not
recall hearing anything. During cross-examination State
counsel pointed out that according to paragraph 6 of his police
statement
he said he could hear his mother’s voice and the
attack on his mother and he then ventured out of the bathroom. The
Accused
merely replied that the statement was not his own words. Adv
Galloway said that in his plea explanation the Accused said he did

not hear anything. The Accused testified that it was an unanswered
question, he asked himself why he could not recall the sounds;
it
must have been similar sounds as the attack on the male persons. He
conceded that there had to be sounds with reference to the
attack on
his mother.
[710]
The Accused testified that either he did
not say to the police that he heard the attack on his mother or he
remembered it at that
point and could not recall it at the time of
his testimony. He conceded that it was not that the police added it
out of their own
accord. The same was possibly true about other
aspects he said to the police He was not of the opinion that the
police added it
out of their own initiative. The Accused said it made
sense that he did remember it at some point.
[711]
The State submitted his later version that
he did not hear the assault on his mother, explains his failure to
assist his mother
and set the scene for his later loss of
consciousness when he observed her and MARLI on the top floor.
[712]
According to his plea explanation, the
attacker came at the Accused again after disarming him and grabbing
the right forearm of
the hand in which the Accused was holding the
axe. At the same time, the attacker lifted his right hand and then
for the first
time the Accused saw he had a knife in his right hand.
According to the Accused he did not know where the attacker got the
knife
from.
[713]
In his statement the sequence of events
seemed to be different regarding the time that the Accused observed
the knife. When the
Accused managed to take the axe from the
attacker, he actually saw the attacker pulling out a knife, and then
the Accused grabbed
the attacker’s right arm with his left
hand. When confronted with the discrepancy, the Accused testified
that he did not
say at the police station from where the attacker got
the knife.
[714]
During his testimony a third version was
given by the Accused. The Accused said the attacker recovered fairly
quickly after being
disarmed, he stood up and came back at the
Accused with a knife in his right hand. He did not see where the
knife came from. The
Accused demonstrated how with his palm towards
him in a fist, with the blade coming out the bottom of his fisted
palm and his hand
raised across his torso. As they came together
again, the Accused raised the axe in his right hand and the attacker
raised his
right hand with the knife. The Accused therefore did not
see the knife for the first time when the attacker lifted his right
hand
as being portrayed in his plea explanation.
[715]
It was put to the Accused by State counsel
that in paragraph 7, Exhibit “SS”, he said that he
observed the attacker
pulling out a knife and that the Accused then
stepped back. The Accused responded it was not what he said. He just
said that the
attacker was about a step away from him, he did not say
that he stepped back.
[716]
In his plea explanation the Accused
described the fight between the attacker and him, and
inter
alia
alleged that the attacker cut,
slashed and stabbed at his chest and left arm; no mention was made of
his throat. The Accused struck
the right shoulder of the attacker
with the axe in an attempt to make the attacker let go of the knife.
The attacker stabbed the
Accused with the knife on his left side,
almost at the same time that the Accused struck the attacker with the
axe.
[717]
In his statement the Accused said the
attacker attacked him again, the Accused pulled the attacker to the
side of his body and the
attacker stabbed the Accused on the left
side of his body. Then he hit the attacker with the axe. In the
statement no mention was
made of the cutting, slashing and stabbing
at the chest and arm of the Accused, or his throat.
[718]
The Accused testified that the attacker
slashed at him with the knife constantly and was trying
to cut the Accused’s throat. The knife went downwards and the
Accused
was cut or scratched on his
chest during the struggle with the attacker. It happened several
times and the knife moved between them
several times.
[719]
State counsel submitted that it was rather
unusual that the Accused could choreograph the exact details in
respect of the fight
between him and the attacker. However, the
Accused was unable to give any information on the movement of feet
during the altercation.
The Court was referred to Dr Tiemensma’s
quotation from the textbook, Knights Forensic Pathology, page 154
regarding the
tendency to visualise a fight as a static confrontation
and in an attempt to reconstruct events, the assailant merely moved
his
arms as if the two participants were standing still. This is an
unrealistic interpretation as all fights are dynamic with constant

movement of the bodies and limbs of both parties. The State argued
that the detailed demonstration was to fit in with the evidence
of Dr
Tiemensma and Dr Dempers regarding the self-inflicted injuries.
[720]
State counsel argued that the Accused
version in his plea explanation and his subsequent testimony in Court
of TERESA and MARLI’s
position when he followed the attacker
from the boys’ room, was to explain why he did not stumble over
their bodies at that
point in time.
[721]
The Accused did not mention in his
statement seeing MARLI and his mother when exiting the boys’
room in pursuit of the attacker.
In his plea explanation the Accused
said he recalled having a glimpse of MARLI and his mother lying
immediately outside the bedroom
door on the top landing of the
stairs. Although he could not say what their exact position was, he
could definitely say that MARLI’s
feet was not in the same
place as on the photographs taken by Sergeant Kleynhans.
[722]
During cross-examination the Accused
testified that it was something that he would have told Colonel
Beneke. He said he was sure
MARLI’s feet was not in the doorway
based on the fact that it was not obstructed.
[723]
The Accused did not mention in Exhibit “SS”
that he heard RUDI making gurgling sounds and saw him moving on his
bed
after the attacker left the room, as he testified. In paragraph
34, 39 and 40 of his plea explanation the Accused stated that he
saw
RUDI moving around on his bed rather violently before he followed the
attacker and heard RUDI making gurgling sounds even after
regaining
consciousness on the stairs. The Accused also makes no mention of
this during the emergency call. State counsel argued
that this was an
afterthought to explain RUDI’s position and movement. The
Accused denied adding this information in his
plea explanation to
explain Captain Joubert’s opinion that RUDI was handled on the
scene.
[724]
The Accused unsuccessfully called the
emergency number twice from his mobile phone and then successfully
from the landline. The
first successful call to EMS was from the
landline at 07h12 on 27 January 2015 and before he tried to phone
Bianca on his mobile
phone at 07h20. He went on Google maps at 07h36
(see Exhibit “UU”).
[725]
According to his plea explanation he tried
to call Bianca again while being on the phone with the emergency
operator. In his statement
he said that he waited twenty (20) minutes
on the phone in the kitchen when he called the ambulance. Then he
tried to contact Bianca
again (for the second time after the first
unsuccessful attempt at 04h24), and he got through to the emergency
operator only thereafter.
[726]
In his plea explanation, paragraph 48,
Exhibit “J”, the Accused stated that he requested a
person that he noticed outside
the house to get help as far as he
could recall. He phoned the emergency services and approached a
person while waiting for the
ambulance. His statement is silent on
this important issue. The Accused testified that it was a female
person and he was under
the impression that it was a domestic worker
of a neighbour. It might have been Ms Opt’ Hoff’s
domestic worker (babysitter).
He said he was on the phone and did not
ascertain what happened to the person.
[727]
When confronted with the fact that it was
not mentioned in Exhibit “SS”, the Accused initially said
the process of the
trial had jogged a lot of his memory. Adv Galloway
said the Accused gave rather a lot of detail in his statement but he
did not
mention approaching a lady for help. Then the Accused
testified that he was fairly sure that he did mention it to the
police but
that they did not put it in his police statement. The
Accused also gave another different explanation that he did not deem
it necessary
to say to the police that the person was on the Estate
so that they could go and look for her.
[728]
During cross-examination the Accused
testified that he was willing to work with the police and gave them
as much as possible information
to catch the killer. It is highly
unlikely that the police would not have followed up this information
if the Accused did in fact
tell them about the lady in the street. It
is unknown under what circumstances a statement from a lady,
presumably Ms Op’t
Hoff’s domestic worker, was obtained
and what information was given to the police. The witness was not
called on behalf of
the Accused.
[729]
The Accused said in his statement that he
had smoked cigarettes in the kitchen after the emergency call whilst
waiting for the emergency
services. In his plea explanation and his
testimony the Accused said that he smoked the cigarettes at the
kitchen counter in an
attempt to remain calm whilst he was dialling
the emergency number on the cordless landline, and then got through
to the operator.
The State submitted the strange behaviour to smoke
instead of assisting his dying family, needed to be explained.
[730]
In his plea explanation and testimony the
Accused said that he looked at the emergency numbers on the fridge
door in the kitchen,
but the numbers did not appear to him to be of
any assistance. The statement to the police is silent in this regard.
[731]
The Accused testified that he considered
the numbers on the fridge and decided that he could do more by other
means. Calling the
security would have resulted in just doing more
explaining. He did not call the 24 hour emergency number because he
thought he
would be better off speaking directly to the people that
were going to help. The Accused confirmed that there was a hospital
number
and medical doctor or general practitioner with a 24 hour
emergency number on the list. The Accused testified that the headings

on the list were even in different colours so that one could scan
quickly through it. When being confronted with the fact that
there
were two 24 hour emergency numbers on the list, the Accused said he
thought that he could get an ambulance quicker. The Accused
agreed
that the security could have rushed to his assistance whilst the
ambulance had to come from a distance, in other words there
were
people closer that could have actually helped.
The Accused’s testimony
regarding his behaviour and other aspects during the events the night
of the murders
[732]
The family dog, Sasha, allegedly made no
noise to warn the members of the household when the intruders entered
the house. The Accused
gave a comprehensive plea explanation but
never mentioned the dog barking prior to the attack during that
particular night. No
statements were made on behalf of the Accused
that the dog barked and woke up some of the family members when the
alleged intruders
had entered the house prior to the attack. The
Accused testified that he did not know where Sasha was during the
incident. Christiaan
Koegenberg testified that upon arrival he saw
the Accused sitting outside the house together with a small dog. The
Accused testified
that the police brought the dog to him. No evidence
was presented by the State where the dog was found by the police.
[733]
The Accused testified that he could not
recall hearing Sasha barking before losing consciousness. According
to the Accused it would
be probable for her not to bark when there
were strangers in the house in the middle of the night. She would
bark at sounds that
she identified as something exciting for her.
[734]
Precious
Munqongani testified that
Sasha
slept where the Accused had slept. Her bed can be seen between the
two beds in the boys’ room in Exhibit “A205”.
In
his evidence-in-chief the Accused testified that Sasha normally would
either sleep upstairs in the boys’ room or downstairs
on a
little mat in the lounge (see Exhibit “A47”). The kitchen
door had a doggy door installed for Sasha to relieve
herself. There
were also beds for her in the study and MARLI’s room (see
Exhibit “A95 and 165”). On the photographs
in Exhibit “A”
it appears that one of her beds was at the bottom of the stairs and
in line with the entrance to the
study near the open cupboards. The
Accused said Sasha was a house dog that lived inside the house.
[735]
The Accused testified that Sasha was sickly at the time. She was on
medication for one week out of a month
and was disabled whilst on
medication. The Accused testified that Sasha would not really bark
during that time. According to the
Accused Sasha was not able to go
up and down the stairs by herself so they had to carry her up and
down the stairs. He then testified
that she was not that immobile
that she could not get around and get up the stairs; she just
struggled. The Accused said he could
not recall carrying Sasha
upstairs to the room the evening before the murders, so he presumed
she slept downstairs. Surprisingly
the Accused was not sure whether
Sasha was on medication that particular night. The incident happened
in the beginning of the week
so Sasha’s behaviour would
probably have been notably different if she had received her
medication that particular Monday.
[736]
The Accused testified that Sasha was completely deaf as well; it is
not clear whether it was in general
or during the time that she took
her medication. It does not make sense that she would hear the
doorbell, the phone ringing and
the metal from the side gate and bark
at that if she was completely deaf in general.
[737]
The Accused testified that the first thing he registered after he
regained consciousness, was seeing his
mother and MARLI at the top
landing. Thereafter the Accused testified that the first thing that
he recalled from the morning after
the murders, was hearing Sasha
barking at the phone that was ringing. The Accused testified that he
did not know which phone was
ringing because the only recorded
incoming call on his mobile phone and the land line was at 07h39 (see
Exhibit “UU”).
If Sasha was deaf only during the time
that she was on medication, she could not have been on medication
that particular night
because the Accused could hear her barking when
the phone was ringing after he regained consciousness that morning.
Even if she
was, she had to be aware of the intruders given the
position of her beds near the bottom of the stairs and in the study.
[738]
Ms Munqongani testified that the dog would bark for a short time upon
her arrival but it did not make a lot of noise. The
dog roamed the
house freely. According to the Accused Sasha would have barked at
Precious, whom she knew, and not at strange people
being in the house
in the middle of the night. She also would not have barked at strange
noises outside but she got very excited
when the phone and the
doorbell rang. She used to run around at the front door when the
doorbell rang. In one instance the Accused
testified that the dog did
not bark at Precious because she was scared of Precious. In another
instance he testified that Sasha
would bark at Precious because
Precious played with her as soon as she got there.
[739]
It seems to be unlikely that Sasha would not have barked at intruders
in the middle of the night as she barked upon Precious’
arrival
and at the metal sound from the side gate, if the intruder/s came via
that route. It is also unlikely that she would not
have barked during
the attack upstairs as it could not have been a quiet event in which
her owners were involved.
[740]
The Court dealt with the concession by the
Accused that it would be strange that the persons who planned to
enter the house and
attack the family, came unarmed or armed
inadequately that night. The Accused found it strange that the one
person who went upstairs
was also incidentally the same person who
was armed with both the knife and the axe that came from the house.
[741]
According to the Accused, the attacker
appeared to be unconcerned about his presence in the room. The
Accused testified that the
attacker had to be aware of his presence.
Not only did the attacker remain with his back turned to the Accused
whilst brutally
assaulting the other two male members of the family,
he also went out of the room to attend to a female person outside the
room
first. The Accused is a tall, well-built person with an
appearance of being physically strong. By leaving the Accused
unattended
like that and open himself to the risk of being
overpowered, the attacker’s behaviour seems to be peculiar. It
is also peculiar
that the attacker did not shout for assistance to
the other intruder(s) when he struggled with the Accused or when he
was disarmed
of the axe. Furthermore it is peculiar that the attacker
would approach the Accused with a knife after being disarmed of the
axe,
whilst the Accused was armed with an axe.
[742]
The Accused was too scared to help any
member of his family and only had an altercation with the intruder
when he was approached
by the intruder. Even when his father entered
the room and before MARTIN was incapacitated, the Accused did nothing
to help his
father overpowering the attacker in a relatively small
room. Despite his fear that prevented him from helping his family, he
was
brave enough to follow the intruder(s), even outside of the
house.
[743]
The position of the attacker is
significant; he was standing more or less between the two beds in the
room when he lodged the attack
on RUDI and MARTIN. The attacker
placed himself in a vulnerable position by cutting himself off from
the entrance to the room and
standing with his back towards the other
bed and bathroom whilst it was clear that another person slept in the
other bed. It would
have been much more logical to approach RUDI from
the other side of the bed.
[744]
RUDI’s father had to have a clear
view of the attacker from the entrance of the room (see Exhibit
“A187”). The
Accused agreed that his father could have
gone around the bed to possibly disarm the attacker and save his
entire family. The Accused
admitted that it might have also given him
the courage and opportunity to help his father overpowering the
attacker. Instead MARTIN
opted to fall over RUDI to protect him and
put himself at risk to be killed as an easy target and leave the rest
of his family
behind with an armed intruder in the house. If follows
logically that MARTIN’s actions would be understandable if the
attacker
was known to him and he did not expect to be attacked too.
If the attacker was unknown to him it follows logically that a person

would rather attempt to disarm such an attacker to stop an ongoing
attack and prevent further attacks on the other occupants in
the
house.
[745]
Not
knowing how many people were in the house, made the Accused hesitate
before going after the attacker.
The
Accused allegedly followed the intruder down the staircase, lost his
footing and fell down the stairs. The Accused got up and
went out the
open back kitchen door only far enough to look down the side wall of
the house and went back inside the house.
[746]
The Accused stated in his plea explanation
that he heard angry voices somewhere else in the house after the
attacker fled from the
room (see paragraph 34, Exhibit “J”).
In his evidence-in-chief he testified that he heard the voices
immediately
after the attacker fled
from the room. It seems strange that the same scared person would at
that stage, just after realising there
were actually more intruders
in the house, bravely chase after the intruder(s), even if he was
armed with the axe. At that stage
he was uncertain as to the number
of other intruders inside the house and whether and how they were
armed. Furthermore, the Accused
disarmed himself by throwing the axe
after the attacker. He said hearing the voices made him very unsure
as to what was going on.
The Accused testified that he did not know
what his intention or motivation was when he followed the attacker.
He witnessed what
at least one of the intruders was capable of, but
still, he testified, he followed the attacker as it was “pretty
much of
an effort to flush them (the intruders) out of the house or
something”.
[747]
He said he thought he was under the
impression that the other intruders had also run out because the
attacker was fleeing. However,
he never actually saw anybody exiting
the house via the back door. The Accused conceded that the intruders
could still have been
in the study, he did not check the study or the
rest of the house when he came back into the house. The Accused
testified that
there were numerous other places in the house where
the intruders could have been. He said he was not thinking clearly as
he was
recovering from the trauma. The Court accepts that a person
would not always be thinking clearly when being exposed to such
trauma.
However, a basic human instinct is to secure your
environment, to protect yourself and other possibly surviving family
members.
[748]
During his evidence-in-chief the Accused
said he was not sure why he checked the back door. He went out the
back door to look down
the side of the house and did not see anyone
and went inside again. He did not call for help at that stage. There
was no reason
for not doing so, in hindsight he should have done
that. During cross-examination the Accused offered an explanation for
going
straight to the back door. The Accused testified that he
approached the kitchen door instinctively. He explained they always
kept
the back door open and said he did not give it a lot of thought.
Later he said that he could see through a window that the back
door
was standing wide open, that was why he went straight to the back
door. He explained that one could see through the window
when you
were descending the stairs and came to the end of the stairs.
[749]
In his statement, Exhibit “SS”,
the Accused stated that he “
assumed”
that the person went out the back door because they always left the
back door open every night, for the domestic worker to come
inside
the house. Once again the Accused denied that he put it that way and
said he did not say that he made that assumption; he
“
saw”
the back door was wide open. When State counsel confronted him with
the next sentence in his statement, Exhibit “SS”,
to the
effect that he went to the back door and “
discovered”
that it was standing open, the Accused indicated that it was true.
Both scenario’s proffered whether he saw the back door
open or
discovered it to be open, cannot be true.
[750]
The Accused left the kitchen door open
without locking it when he went back inside the house. Sergeant
Kleynhans found the back
door open upon his arrival, whether it was
wide open or slightly open. It is strange that the Accused did not
secure the house
as far as possible by at least locking the back door
as the criminals were at large, with at least one of them being a
ruthless
killer. The Accused in fact said in his statement to the
police that he went back inside the house because he was afraid to
follow
the assailant, and did not know what the assailant had on him
(see paragraph 8, Exhibit “SS”). Furthermore, it is odd

that such a ruthless killer ran away together with at least one other
perpetrator. Despite the fact that he had been disarmed,
there were
lots of other knives in the kitchen drawer. It probably would have
been easy for at least two perpetrators to overpower
the Accused and
kill him too. It seems odd that the killer would wipe out an entire
family and leave one person.
[751]
The Accused could not explain why he headed
back upstairs when he returned from the back door. He said he never
touched any of his
family members or disturbed the scene. He had his
phone with him downstairs as he was already busy googling when he
entered the
house again. He also attempted to phone Bianca. Therefore
there was no need to go upstairs unless he wanted to check on his
family.
However, he was unsure whether that was the reason for
heading upstairs. He was aware of the fact that at least one or two
of the
family members were still alive. Later after he regained
consciousness, the Accused turned back and went downstairs without
checking
on his family upstairs.
[752]
He
inter alia
phoned the emergency services from the
cordless landline phone. The Accused did not check on his family
during that time as he felt
he did the most he could. He thought that
he did not have the physical capacity to help his family at that
point. The duration
of the emergency call was exceptionally long. It
is strange that the Accused did not attempt to stop the blood flow
from, for instance
MARLI’s wounds. Instead he appeared to be
content to have this long conversation whilst every second could be
important to
save the lives of his family. The Accused testified that
he did not help or console his family members because he had been
taught
a bystander could do more damage than good. He also did not
think one of the neighbours could help because they were not medical

professionals. He conceded that he could have simply sat with his
family members to console them or made them more comfortable
even if
they were in their dying moments. The Accused displayed a peculiar
lack of empathy towards the victims during the incident.
Instead he
opted to phone his girlfriend several times, albeit unsuccessfully.
[753]
The Court is cautious and does not adopt an
armchair approach with regard to the Accused’s actions amidst
severe traumatic
circumstances. It is understandable that his actions
would probably fall short of the expected norm in some respects.
However,
his actions (or the lack thereof) could probably not all be
justified by the traumatic circumstances. The Accused seems to be an

intelligent person, he took action in a very controlled and unusual
manner. This illustrates that he certainly was capable of functioning

under the circumstances. If a person is able to function, whether he
was in a post-ictal state or not, such a person should also
be able
to instinctively display emotion and empathy.
Conclusion
[754]
The Court finds that no credible convincing
evidence exists to the effect that an intruder entered the estate and
the Van Breda
residence the night of the murders. Taking into account
the type of weapon, the number and nature of the injuries, the
perpetrator
had to have the intention to kill the victims in the form
of
dolus directus.
The
Court has no reason to reject the evidence of the State witnesses,
after weighing the merits and demerits of their evidence
unless
otherwise indicated. Their versions corroborated each other in
material aspects and are, in my view, reliable.
[755]
The Accused was singularly unimpressive as
a witness. Initially he appeared confident during his, quite
apparently, well-rehearsed
evidence-in-chief but was more
uncomfortable during cross-examination. His answers were vague on
difficult issues whereas he gave
a detailed version on other aspects.
He tended to adjust his answers very subtly and contradicted himself
in the process. His standard
answer to difficult questions
implicating him as the perpetrator, amounted often to uninformative
answers like “I should
have” without explaining the issue
at hand, sensibly and adequately.
[756]
Even if the Accused experienced a possible
generalised tonic-clonic epileptic seizure or other type of seizure
when losing consciousness
on the stairs, he was fully conscious and
responsible for his actions the period before the possible seizure
happened and therefore
he would have known what he was doing. It was
in any event not the Defence case that the Accused lacked criminal
capacity to commit
the crimes or failed to appreciate the
wrongfulness of his actions.
[757]
In conclusion, State Counsel argued that
all the possibilities advanced by the Defence, ought not to be
elevated to facts. Anything
is possible in the realm of ordinary
human experience. The following objective facts, however, establish
that the Accused was the
perpetrator as the only reasonable
inference:
(1) The victims lived in a security
Estate with no evidence of any unlawful entry to the Estate at the
time of the incident;
(2) Though not impenetrable, a
reasonably high degree of skill, knowledge of the layout of the
Estate and its security system and,
of course, some expertise and
planning was required to unlawfully enter the premises;
(3) Fortuitous unlawful entry was most
unlikely;
(4) No evidence typical of a house
robbery or break in, showing any intruder(s) having been inside the
house, is evident;
(5) Four of the five members of a
family were found brutally attacked in a similar fashion and left
(for) dead;
(6) The family members were all in
very close proximity in the sleeping quarters of the house;
(7) The Accused was left standing,
having lived through the events;
(8) The Accused presented with
injuries supposedly inflicted by the same attacker during the same
incident and in execution of the
same intent, yet markedly different
in nature and extent to that of the rest of the family;
(9) The evidence establishes
conclusively that some, if not all of his injuries, were
self-inflicted;
(10) The version the Accused provided
of how the incident occurred, is inconsistent with the objective
evidence found on the scene;
(11) The Accused amended material
aspects of his version upon becoming aware of the irreconcilability
of his version with material
aspects of the evidence.
[758]
Each piece of evidence on its own might not
be enough to establish the guilt of the Accused but the cumulative
effect of all the
pieces concludes the puzzle. This leads to only one
reasonable inference. This is true even if the Court is to ignore the
DNA evidence
or the statement the Accused made to the police.
[759]
The following dictum in R v De Villiers
1944 (A) 493 on pp. 508 – 509 is applicable and best
illustrates the evaluation of
the circumstantial evidence in this
matter best:
“
As stated
by Best, Evidence, 5th edition, sec 298; -
‘
Not to
speak of greater numbers; even two articles of circumstantial
evidence - though each taken by itself weighs but as a feather
- join
them together, you will find them pressing on the delinquent with the
weight of a milestone … It is of the utmost
importance to bear
in mind that, where a number of independent circumstances point to
the same conclusion the probability of the
justness of that
conclusion is not the sum of the simple probabilities of those
circumstances, but is the compound result of them.’
See also
Evans’
Pothier on Obligations (2.242), and Wills, Circumstantial Evidence
(7th ed., p 46). The Court must not take each circumstance
separately
and give the Accused the benefit of any reasonable doubt as to the
inference to be drawn from each one so taken. It
must carefully weigh
the cumulative effect of all of them together, and it is only after
it has done so that the Accused is entitled
to the benefit of any
reasonable doubt which it may have as to whether the inference of
guilt is the only inference which can reasonably
be drawn. To put the
matter in another way; the Crown must satisfy the Court, not that
each separate fact is inconsistent with
the innocence of the Accused,
but that the evidence as a whole is beyond reasonable doubt
inconsistent with such innocence.
[760]
With regard to Count 5, Defeating or
Obstructing the administration of justice, and the alleged staging of
the scene by the Accused
by inflicting injuries to his person and
hitting the axe into the wall above the staircase, the Court finds
that the Accused had
ample time during the 02h48 min period to tamper
with the scene portraying him to be a victim and to be consistent
with his innocence.
[761]
The Accused was the only person surviving a
brutal encounter with minor injuries with intimate knowledge of the
events. The Court
has no doubt that the injuries to the arm and chest
of the Accused, were self-inflicted injuries for the compelling
reasons advanced
by Dr Tiemensma and Prof Dempers. Except for the
Accused’s unconvincing testimony, no evidence to the contrary
by an expert
witness, or other, was presented on behalf of the
Accused to gainsay the evidence regarding the self-inflicted
injuries. The Court
has no reason to reject or not to accept the
evidence of the expert witnesses. It is not necessary for the Court
to embark on speculation
as to whether the larger stab wound to the
Accused’s abdomen was self-inflicted or not. The Court also
does not have to speculate
how these other wounds were inflicted,
especially if the Accused opted not to take the Court into his
confidence about the true
facts.
[762]
It is not necessary for the Court to make a
finding with regard to the evidence of Captain Brown and Captain
Joubert that the damage
to the wall above the staircase was caused by
the axe with a controlled action and that the axe was not thrown as
alleged by the
Accused. The Accused admitted that he handled the axe
at that stage and it was admitted by both Counsel for the State and
the Defence
that the mark was caused by the axe. The Accused admitted
that he caused the mark with the axe. No evidence exists that any of
the victims was attacked on the first landing. In the absence of an
intruder, the only reasonable inference is that he wanted to
mislead
the police and Court by fabricating the version that he threw the axe
at a fleeing intruder, whether the Accused threw
the axe at the wall
because he wanted to stage the scene, or whether he staged the scene
with a controlled action.
[763]
The Court makes no finding with regard to
the presumed blood in the corner of the shower floor, the knife under
RUDI’s bed,
the duvet cover on top of blood on the floor, or
the possibility of RUDI being dragged from the bed. Despite the
suspicious nature
of the evidence, staging and cleaning are not the
only reasonable inferences that can be made from the available
evidence. There
could be other explanations for it too.
[764]
Subsequent to the commission of the crimes,
the Accused intentionally inflicted injuries upon himself and told
the police that the
victims and he were attacked by an intruder in
order to mislead the police as to the true identity of the
perpetrator. Furthermore
the Accused intentionally wanted to mislead
the police and Court for the very same purpose as the reason for the
axe being thrown
or hit against the wall. The Accused deliberately
committed positive acts of obstruction and supplied the police with
false information
that the police acted upon by launching a search
for the alleged intruder. He must have known that the allegations
were false,
and must have been aware of the fact that it might
interfere with judicial proceedings which were to take place in the
future or
would at least hamper or forestall the investigation of the
crimes.
[765]
After carefully considering all the
evidence, the result is inescapable. It is the only possible
inference.
[766]
In the premises:
COUNT ONE
–
the MURDER of RUDI VAN BREDA
–
the Accused is found
GUILTY
;
COUNT TWO
–
the MURDER of MARTIN VAN BREDA
–
the Accused is found
GUILTY
;
COUNT THREE
–
the MURDER of TERESA VAN BREDA
–
the Accused is found
GUILTY
;
COUNT FOUR
–
the ATTEMPTED MURDER of MARLI VAN BREDA
–
the Accused is found
GUILTY
;
COUNT FIVE
–
DEFEATING OR OBSTRUCTING THE
ADMINISTRATION OF JUSTICE
- the
Accused is found
GUILTY
.
This judgment is the unanimous
decision of the Court.
……………………
DESAI,
ADJP
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE
TOWN)
CASE
NO
: SS17/2016
DATE
:
7 JUNE 2018
In
the matter between:
THE
STATE
and
HENRI
CHRISTO VAN BREDA
S E N T E N C E
DESAI,
J
[1]
Despite the horrific events underpinning
your convictions Mr van Breda the sentences I intend imposing must
be, and are, the product
of sober, unemotional and considered
deliberation.
[2]
You have axed to death three persons and
endeavoured to do so in respect of a fourth.  They were your
immediate family.
You have not told the Court what led to the
commission of these crimes.  Any attempt to ascribe a motive for
your conduct
would simply amount to speculation.
[3]
Mr
P Botha
,
appearing on your behalf, has simply and somewhat bluntly raised two
mitigating factors in your favour.  These are the only
two he
could raise; namely your young age and the fact that you have no
previous convictions. Both are indeed weighty factors which
militate
in your favour.
[4]
You were 20 years old when these offences
were committed, that was three years ago.  After matriculating
you enrolled at the
University of Melbourne in Australia to study
physics and on 27 January 2015, the date these crimes were committed,
you were considering
your options in life.  Your future was not
bleak. In fact it was bright.  You had a supportive family and,
more importantly,
they had the means to assist you in your future
endeavours and it seems to me that they would have done so.  I
accept the
fact that as a 20 year old you did not have the maturity,
understanding and life experience of an older person.  You in
fact
were on the cusp of entering adulthood.  I am acutely aware
that a long term of imprisonment will deny you the opportunity
and, I
should say, the privilege of growing old in an open society.
[5]
You have no previous convictions.
That means that you have not committed any known crimes in the past.
Put differently,
you have a clean record.  There is no
indication of a predisposition to commit acts of violence.  That
counts in your
favour.  It must count in your favour.
There are other factors in your favour which Mr
Botha
referred to fleetingly.  They are contained in the pre-sentence
report of Ms Irena Smit.  It appears that you have been

diagnosed with juvenile onset myoclonic epilepsy.  You are on
medication for this.  A general practitioner, a doctor
I
suppose, has also prescribed medication for depression and anxiety.
Regrettably the information with regard to these illnesses
are not
set out in any detail and we are not told what the impact of
incarceration will be on your health.
[6]
Although you have been convicted of serious
offences the murders and the attempted murder were committed at more
or less the same
time or within a short period.  The same set of
factors probably led to the commission of these crimes.  You
have not
told the Court what precipitated these events that night.
We know from an independent witness that there was an argument,
a
loud one, which persisted in your house for several hours.  At
best for you we can assume that the crimes were not committed
in a
vacuum but are the product of some disgruntlement in the family.
[7]
The brutality of the attacks upon your
parents and siblings is graphically portrayed in the post-mortem and
other reports.
They were attacks involving a high degree of
uncontrolled violence.  The victims were unarmed.  There is
no suggestion
to the contrary.  They faced an axe-wielding son
or brother, probably not expecting the worst.  The father,
Martin van
Breda, was probably heroic. He sustained sharp and blunt
trauma to the head and the central upper back regions of his body.

There was no evidence whatsoever indicating defensive wounds on his
body.  It means that he endeavoured to defend his son,
Rudi,
your brother, with his body.  He did not defend himself or
perhaps he did not expect that you would strike him.
[8]
Rudi van Breda also sustained sharp and
blunt trauma on his head and left lateral upper neck region.
The only indication of
defensive injuries was on his left little
finger or in that region.  Small attempts to defend himself.
[9]
Teresa van Breda, your mother, received
similar injuries. An incised wound on her distal right dorsal thumb
was suggestive of a
defensive wound, in other words she used her hand
to defend herself against an axe-wielding assailant.
[10]
Marli van Breda was the victim of a similar
type of attack, but fortunately in her case, though life-threatening
it was not fatal.
[11]
The victims who sustained deathly injuries
defended themselves, if at all, with their hands.  The
assailant, the Court has
found that it was you, launched with an axe
a savage and continuous attack upon your victims.  You survived
with inconsequential
injuries.  These attacks display a high
level of innate cruelty and an almost unprecedented degree of
disregard for the welfare
of one’s own family – one’s
parents and siblings.  Each murderous attack upon a family
member constitutes
a very serious crime, warranting the severest
penalty possible.
[12]
Viewing all these acts cumulatively they
must rank extremely high on the ladder of serious crime.
These are or were
premeditated murders and an attempted murder
involving serious consequences and no argument has been advanced,
perhaps nothing
could be advanced or anything said to mitigate its
impact.  Society expects violent crimes to be evaluated with
sufficient
seriousness and stringent penalties imposed.  In this
instance you have committed crimes with a high degree of unbridled
violence,
the violence directed against your own family, killing
three and causing serious harm to the fourth.  The weapon used
against
the deceased and the injured was an axe, the victims unarmed
and defenceless.  It was a cold-blooded murder.  The
violence
was excessive and gratuitous, it was intended to cause
maximum harm.  The three victims died with the wounds caused by
the
axe you wielded against them.  The fourth survived, albeit
with serious injuries.  The clear intent was to kill her as

well.
[13]
We have no explanation for what you did,
you have displayed no remorse, we have heard extensive evidence of
the consequences of
your conduct, the cruel consequences, yet we have
no explanation from you.  No substantial and compelling
circumstances have
been placed before us, there appear to be none.
Whatever the statutory minimum sentence regime the same severe
sentences
would in any event follow, and I say this with some regret,
as you are relatively young and with no previous convictions.

Your conduct warrants the severest possible penalty.  Society
expects no less.  The crimes warrant such a result and
your
circumstances, are not sufficiently compelling to come to any
different conclusions.
[14]
In the result:
On
COUNT
1
, the murder of Rudi van Breda
YOU
ARE SENTENCED TO LIFE IMPRISONMENT
;
On
COUNT
2
, the murder of Martin van Breda
YOU
ARE SENTENCED TO LIFE IMPRISONMENT
;
On
COUNT
3
, the murder of Teresa van Breda
YOU
ARE SENTENCED TO LIFE IMPRISONMENT
;
On
COUNT
4
, the attempted murder of Marli van
Breda
YOU ARE SENTENCED TO 15 (FIFTEEN)
YEARS IMPRISONMENT
;
On
COUNT
5
, obstructing the course of justice or
the administration of justice as set out in the charge sheet
YOU
ARE SENTENCED TO 12 (TWELVE) MONTHS IMPRISONMENT
.
[15]
In terms of Section 103(1) of Act 60 of
2000 a person is
ex lege
that is in operation of law automatically declared unfit to possess a
firearm.  The Court declines to determine otherwise,
in other
words you are declared unfit to possess a firearm.
DESAI,
ADJP