S v Phillips (SS65/2014) [2018] ZAWCHC 116 (11 September 2018)

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[2018] ZAWCHC 116
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S v Phillips (SS65/2014) [2018] ZAWCHC 116 (11 September 2018)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION, CAPE
TOWN)
Case
No:  SS65/2014
In
the matter between:
THE
STATE
and
TAARIQ
PHILLIPS

Accused
JUDGMENT –
10 & 11 SEPTEMBER 2018
BOZALEK
J
[1]
The
accused was arraigned before Court on 9 October 2015 on three charges
all arising out of an incident on 1 January 2014 at or
near Le Bac
Estate, Paarl. On count 1 of the amended indictment it was alleged
that the accused had sexually penetrated one, S
C (who was also
referred to as […]) by penetrating her vaginally with his
penis or an object unknown to the State without
her consent or under
circumstances when the complainant was unable to give such consent. A
further allegation was that the provisions
of Act 105 of 1997 were
applicable and the minimum sentence of life imprisonment must be
imposed in that the crime is mentioned
in part I of Schedule 2 and
further in that the victim was raped more than once and secondly, it
involved the infliction of grievous
bodily harm.
[2]
On
count 2 the accused was charged with committing a further act of
sexual penetration of S C by similarly penetrating her anally
without
her consent or under circumstances when she was unable to give such
consent. On the same grounds it was alleged that the
provisions of
Act 105 of 1997 were applicable and a minimum sentence of life
imprisonment.
[3]
On
count 3 it was alleged that the accused had unlawfully and
intentionally killed S C by strangling her or inflicting upon her

violence unknown to the State. It was similarly alleged that the
provisions of Act 105 of 1997 were applicable and a minimum sentence

of life imprisonment in that the deceased’s death was caused by
the accused in committing the crime of rape.
[4]
The
accused, who was legally represented throughout his trial, pleaded
not guilty to all three charges. He proffered a written plea
but in
it simply denied having raped or assaulted the deceased at the time
and place in question without offering any further explanation
as to
what transpired between himself and the deceased. Later during the
trial the accused made certain admissions in terms of
sec 220 of Act
51 of 1977 admitting only the identity of the deceased, that Dr DK
Abrahams performed a medico-legal post-mortem
examination on the body
of the deceased on 3 January 2014 and that on 13 January 2014 a Dr AA
Pather performed a medical examination
on the accused and collected
from him a sample for DNA comparison. Despite having been arraigned
for trial in late 2015 the matter
only commenced on 19 March 2018.
There were numerous intervening postponements at the instance of the
accused including postponements
for several months whilst the accused
unsuccessfully sought to hold the State to an alleged plea bargain
from which it had allegedly
reneged. Those civil proceedings were
heard by another Judge and beyond the above description the details
remain unknown to this
Court.
[5]
The
trial ran for a total of 29 days including argument.
Background
and evidence led
[6]
The
background to this matter is accurately reflected in the State’s
summary of substantial facts which states that during
the evening of
31 December 2013 the deceased, S C, the accused and several friends
attended a so-called rave party at Le Bac Estate,
Paarl. They all
stayed in tents located close to one another. At that time the
deceased and the accused were in a romantic relationship.
[7]
During
the course of the evening the accused and some of his friends took
drugs which the accused had bought earlier at the venue
and then
proceeded to the dance floor. Shortly thereafter the deceased started
feeling unwell and was taken to the tent she shared
with the accused.
The friends returned to the dance floor and the accused and deceased
remained alone in the tent.
[8]
Approximately
an hour or more later the accused called for assistance and the
deceased was observed in the tent, naked and apparently
experiencing
a fit. The accused was with the deceased at all times. Medical
attendants treated the deceased on the scene whereafter
she was taken
to Paarl hospital. After intensive treatment she passed away some 18
hours later. The deceased never regained consciousness.
[9]
The
State’s case, based largely on medical and circumstantial
evidence, is that the accused manually strangled the deceased
in the
course of raping her in the tent, both vaginally and anally. A
further important element of the State’s case, based
on
toxicology reports, was that the deceased did not ingest any drugs
and therefore this played no role in her death.
[10]
The
case for the accused, apart from a general denial of the charges, and
although admitting that he was with the deceased at all
material
times is that the deceased ingested LSD and MDMA
(‘ecstasy’
),
that the combined effect of these drugs was the cause of the
deceased’s death, that he had no sexual relations with the

deceased at the material time and that any injuries to her sexual
organs were self-inflicted.
[11]
In
seeking to prove its case against the accused the State led evidence
in five main areas; firstly, the evidence of the friends
of the
accused and the deceased who attended the rave party with them;
secondly, the evidence of various paramedics who treated
the deceased
on the scene as well as the evidence of medical personnel who treated
the deceased at Paarl Hospital, and; thirdly,
the evidence of two
forensic pathologists, namely, Dr Abrahams who conducted the
post-mortem examination on the deceased and Professor
L Martin who
offered a second opinion on Dr Abrahams’ findings. Fourthly,
the State led the evidence of specialist pharmacologists
and a
technician regarding the toxicology reports relating to the deceased
and, finally, the evidence of a number of police officers
involved in
the investigation into the deceased’s death.
[12]
On
behalf of the accused the evidence of a forensic pathologist, Dr S
Naidoo, was led challenging the finding of Dr Abrahams and
Professor
Martin as well as the evidence of a further two persons who attended
the rave party in the company of the accused and
the deceased. The
accused did not testify.
[13]
Further
evidence heard related to a trial-within-a-trial held regarding the
admissibility of an exculpatory witness statement made
by the accused
to a police officer shortly after the incident which led to a ruling
declaring the statement admissible.
[14]
Amongst
the principal issues which fall to be determined in this matter are
whether the deceased ingested drugs that night and what
effect they
may have had on her death and whether the accused had sexual
relations with the deceased that night.
[15]
I
propose to summarise the evidence given by all the witnesses, bearing
in mind particularly the abovementioned issues.
Mrs
M D
[16]
Mrs
D, the mother of the deceased, testified that her daughter, then a 21
year old law student, had lived with her. She had been
dating the
accused for some three years and they appeared to have a good
relationship. Judging from the things that her daughter
told her the
accused seemed to care about the deceased. The accused came across as
responsible, decent and polite and therefore
Mrs D trusted him. In
late December 2014 S told her that she was going to the rave party at
Le Bac Estate in Paarl with the accused
and would stay there for two
nights, camping out. S took a two person tent from the house as well
as sleeping bags, towels and
rugs. She left after midday on 31
December 2013 and was due to return on 2 January 2014. Mrs D next
heard from her daughter when
the latter messaged her after reaching
Paarl telling her it was very hot there. She sent S a message around
11pm but there was
no response and she does not know if S received
the message. At about 3am on 1 January she received a call from the
accused who
told her that ‘
we
have a bit of a situation here’
and that he was at Paarl Medi-Clinic. When she asked the accused what
was wrong a nursing sister took the phone from him and told
her that
her daughter was in ICU on a ventilator and suggested that she get to
Paarl as soon as possible. Mrs D asked what was
wrong and was told
that there had been an ‘
overdose’
arising from drugs. She was shocked to be told that drugs were
involved. After making arrangements she arrived at the hospital
after
4am. Whilst sitting waiting she heard conversations in the background
about a naked girl being admitted and the police being
called because
she appeared to have been sexually assaulted. She thought this could
not possibly be her daughter. Eventually Dr
Franklin, the specialist
who was treating S, took her to her daughter who was on a ventilator.
He explained to her the medical
problems and left her to spend some
time with her daughter which she did but could get no response from
her. She met some police
officials who told her they were concerned
about the situation since things did not look ‘
right’
.
When she saw the accused in the hospital passage she remonstrated
with him for them having taken drugs and he agreed that this
had been
stupid. The police official had then approached the accused for a
statement who then requested that Mrs D stay with him
with the result
that she heard the first part of his statement. It was to the effect
that he and S had taken drugs, she had not
been feeling well and they
had gone back to the tent. She did not recall anything in his
statement beyond that point. At a later
stage Mrs D was told that her
daughter’s condition was worsening and that she stood more
chance of dying than living. She
was also told that tears had been
found in S’s vagina. At some point the accused told her that he
was going back to the camp
site to pack all their luggage and
thereafter he transported it back to Cape Town. Asked what the
accused’s demeanour was
Mrs D stated that there was a coldness
and a hardness in him that she had never seen before. At about 6pm
that day she had a further
discussion with the accused who told her
that he had told her the truth and added that when he and S were in
the tent she began
behaving strangely. She said that she was feeling
hot, wanted to take her clothes off and was feeling sexually excited.
Further
that she had rolled around ‘
touching
herself’
.
According to the accused this was when S started feeling sick and
when he decided to call the paramedics. Mrs D asked the accused

whether he had ever left S alone and he said no he was with her all
the time including when the paramedics were treating her. Mrs
D asked
the accused if they had sex and he said no. The accused told her that
her daughter’s strange behaviour was so strong
that she had
even scratched him and he lifted his t-shirt to show her a scratch on
the left of his stomach. Mrs D testified that
her daughter was not
physically strong and that she often spoke about how strong the
accused was, at least compared to her. When
Mrs D told the accused
that something was not right and that her daughter was fighting for
her life his response was a very nonchalant
‘
Okay’
as if it was no surprise to him. Her daughter’s condition
worsened through the day and her heart rate started dropping after

she underwent dialysis. Eventually the nurses told her that her
daughter was going.
[17]
When
she unpacked her daughter’s luggage and clothing after her
death she saw brown stains on some items of clothing which
she
thought were blood and handed these to the investigating officer. Mrs
D also looked at photos on her daughter’s phone
apparently
taken on the day of her death and in one identified her daughter and
the accused apparently taken at Le Bac Estate that
day. She stated
that several of the items of clothing the deceased was wearing in the
picture that day did not come back including
a bikini bottom.
Sharisha had been a healthy person apart from the occasional
infection or allergy and her eczema which would flare
up in spring.
[18]
Regarding
the photo she stated that since it was dark she inferred that it was
taken after 8:30pm on 31 December 2013 and therefore
that her
daughter was still well at that stage.
[19]
Mrs
D was cross-examined about the photos of her daughter before Court
and others. In response to a query from the Court the accused’s

counsel advised that it was admitted that the photo in question was
one of the deceased and the accused but that he was unable
to state
whether it was taken at Le Bac Estate that night or at some other
rave event. Mrs D was also questioned about the relationship
between
the couple and said that she believed it was an intimate relationship
and that her daughter was in love with the accused.
She had not
thought that it was an abusive relationship and certainly her
daughter had said nothing of the sort. She was also asked
questions
about the various medications that her daughter used to control her
eczema and antibiotics she had used for a possible
bladder infection
and confirmed that her daughter had been taking the pill as a
contraceptive. Regarding the accused’s demeanour
Mrs D conceded
it was possible that he was exhausted as a result of not having slept
the previous night. She explained that she
was shocked when she heard
that drugs had been involved in her daughter’s death because as
far as she was concerned her daughter
did not take drugs. Finally, it
was put to Mrs D that the accused denied that he had assaulted or
murdered the deceased or that
he raped her.
Evaluation
[20]
Mrs
D was a very good witness, never stating more than she knew or
believed and choosing her words with care. I accept her evidence

without reservation.
Mr
Pallo Manuel
[21]
Mr
Manuel attended the rave party at Le Bac Estate and knew both the
accused and the deceased as acquaintances. At the time he was
a
sports science student at UWC and had taken level 1 and level 2 first
aid classes. He arrived at Le Bac Estate between 4 and
5 that
afternoon and met the accused and the deceased there. He set up his
tent and identified it in photo G1 as being just next
to the tent
occupied by the accused and the deceased. He, his brother and Kyle
Inglis went to the dance floor and stayed there
until the midnight
countdown. He does not recall spending any time with the accused or
the deceased. The witness drank 4 to 5 double
brandy’s and coke
that night and as a result was a bit tipsy but not drunk. He is a
regular drinker.  No one in his
group took drugs that night.
Sometime after midnight he went to his tent to change because he was
feeling hot and sweaty. At the
tent he heard what sounded like people
having sex in the tent next to his. He testified that he knew it was
the accused and the
deceased’s tent as it was next to his.
There was no lighting so it was dark. In the tent he used his
cellphone for light.
He described the noises he heard as moaning and
groaning from a male and a female and he assumed that these people
were having
sex. He was in his tent for a relatively short period of
time just to change, approximately 10 minutes. The moaning and the
groaning
continued throughout that period. He went back to the dance
floor and after a while he received a phone call to go back to his
tent which he did with Kyle. Upon reaching the tents he heard someone
shouting ‘
get
the paramedics, get the paramedics’
.
He ran to the paramedics’ tent and told them five or six times
that an ambulance and paramedics were needed. He was told
that
someone had already been sent and he returned to the site to where
the tents were. When he got there he saw that the accused
and the
deceased’s tent was now open and paramedics were inside over
the deceased’s body. She was lying on her back
and it looked as
if she was convulsing. Her body was moving up and down as she gasped
for air. The witness also described the deceased’s
movements as
arching. She was naked on top but had something over her lower body.
He was asked to assist in placing the deceased
on a stretcher and he
stepped into the tent and assisted in getting a stretcher board
underneath her. He, one other person and
the paramedics then
proceeded to take her to the paramedics’ tent. He observed the
paramedics proceeding to hold the deceased
down to see if they could
find a vein to hook her up to a drip. It was necessary to restrain
the deceased because she was convulsing
at the time. They placed flat
hands on her shoulders. The paramedics tried numerous times
unsuccessfully to find a vein until eventually
they found one in her
foot. The witness remained there until external paramedics arrived
and put the deceased into an ambulance.
He did see the accused at the
paramedics’ tent and then saw him walk away. However, he was
not focussed on the accused. By
this time the witness had sobered up.
From the time that he first saw the deceased in the tent till she was
loaded into the ambulance
she sustained no injuries that he was aware
of. He had never seen the accused again.
[22]
In
cross-examination the witness stated that the paramedics’ tent
was about 150m away from the tent that the deceased occupied.
Earlier
when he had heard the noises which sounded like people having sex he
heard no cry or shout for help nor any sound of assault
so he told no
one about the incident. The witness estimated that the paramedics
were with the deceased in her tent for about 15
to 20 minutes and
that in between her arrival at the paramedics’ tent and the
arrival of the ambulance some 45 minutes to
an hour passed during
which time the paramedics were busy with her. He estimated that
approximately an hour passed between him
leaving his tent after
changing and getting a phone call to go back to the tent. However, he
was not looking closely at the time
on his watch at that stage.
Evaluation
[23]
Mr
Manuel came across as a witness who had a reasonable recall of
events. His evidence was not challenged in any material respects
and
there is no reason not to accept it.
Kyle
Inglis
[24]
The
witness was also a student at UWC in December 2013 studying sports
and exercise and was friendly with Mr Pallo Manuel. He too
had
attended two first aid courses. He knew the accused since they had
been childhood friends, lived in houses close to each other
and had
gone to the same primary school and high school. They rekindled their
friendship at university. The witness also knew the
deceased i.e. the
accused’s girlfriend and he socialised with them on a regular
basis. Mr Inglis also attended the rave party
at Le Bac Estate
arriving there just before 9pm on 31 December 2013 together with the
deceased’s cousin, Vanika Lalloo. When
they arrived everything
had been set up for them i.e. the tent. He was greeted with a drink
and began socialising and relaxing
with other members of their party.
The witness recalled there being two dance floors which were 300m to
400m apart. The deceased
and the accused were not at his dance floor.
During the night he had drunk more beers and more vodka. The witness
described himself
as having had ‘
enough
to drink’
but stated that he felt responsible at the time and ‘
of
good mind’
.
He took no other drugs that night. After the countdown to midnight he
got a message to state that there was something happening
at the camp
site and himself and Pallo Manuel went back to the tented area. There
they saw that the accused’s tent was open
and inside a
paramedic was kneeling next to the deceased who was on her side in
the recovery position. The deceased was convulsing,
having a fit. She
was shaking quite vigorously and foaming at the mouth at the same
time. The idea was to get the paramedics to
attend to the deceased
but they seemed to be waiting forever for the paramedics. The witness
left the tent to see where the paramedics
were and as he did so he
came upon Pallo Manuel coming back with two or more paramedics and a
stretcher. He assisted the paramedics
in getting the deceased onto
the stretcher and shortly thereafter she was taken to the paramedics’
tent. In that tent she
was put down onto a trolley or table and then
he and Pallo Manuel moved away to allow the paramedics to do what
they could. From
about 10 meters away they could see that the
deceased was still convulsing and was on her back. Sometime
thereafter the paramedics
moved her into an ambulance on site which
then left for hospital. The deceased did not sustain any injury that
he was aware of
in the time that he was with her or in her presence.
The accused then sought him out and said that they needed to also go
to the
hospital. He and the accused followed the ambulance to Paarl
Medi-Clinic in the deceased’s vehicle. The accused was frantic

and worried and was ‘
quite
shaky’
.
The witness tried to speak to the accused but got nothing out of him.
The witness spent some three to four hours at the hospital
in the
chapel area near the ICU and outside. He recalled that sometime after
6am that morning he and the accused drove back to
Le Bac Estate but
he had no further conversation with the accused and they did not
discuss any details of the incident. At the
site the police arrived
with a sniffer dog and commenced their investigation. Mr Inglis was
asked if the accused ever told him
what had happened and his answer
was no. They never had that conversation not at that time nor any
time thereafter. Asked if he
had remained friends with the accused he
says he never went back to the accused’s parents place and he
and the accused no
longer have a ‘
practising
friendship’
.
[25]
Under
cross-examination he confirmed that the paramedics had initially
tried to find a vein without success to hook the deceased
up to a
drip. The paramedics’ tent was an open gazebo.
Evaluation
[26]
Mr
Inglis appeared to be a credible and honest witness. He was not
challenged in cross-examination and I accept his account of what

happened without qualification.
[27]
On
25 April 2018, during the trial, it was put on record by the State
that the accused had, at his insistence, been given all medical
aid
statements relating to the deceased and her medical file which had
been obtained by way of a sec 205 subpoena. Further admissions
were
made by the defence in terms of sec 220 of Act 51 of 1977 allowing
for the admission of certain photographs taken of the deceased
at
Paarl Medi-Clinic on 2 January 2014 and photographs of the tent at Le
Bac Estate on 1 January 2014. It was also admitted that
a biological
sample was taken from the accused in June 2014 for DNA comparison and
properly treated.
Mr
Riaan Martin
[28]
Mr
Martin testified that he knew the accused through his aunt, Lameez
Martin, whose boyfriend, Rafiq Wagiet was the accused’s
cousin.
In December 2013 he, Riaan Martin was 20 years of age and his aunt,
Lameez Martin, was 23 years of age. He had attended
the rave event at
Le Bac Estate together with his girlfriend, Jade Grey. They arrived
there at 1 or 2 pm on 31 December 2013, set
up the tent and met the
accused and the deceased an hour or two later. They all then went for
a swim in the nearby dam. He and
Jade went back to their tent, got
alcohol and then went to the dance floor. He drank quite a lot that
evening and would describe
his condition as drunk but he could still
remember what had happened. Shortly before 12pm that night he and
Lameez had seen the
deceased and the accused sitting on the edge of
the dance floor near the toilets. They went up to them and S said
that she was
getting cold and wanted to go back to the tent. S needed
assistance so Jade Grey and another person helped her get up and walk
by having the deceased place her arms around their shoulders. To the
witness the deceased appeared drunk and she was barely able
to walk.
He was asked if an explanation was given for the deceased’s
condition and his answer was that the accused told them
that they had
taken drugs. They all proceeded to the accused’s tent. At that
stage the deceased had no visible injuries and
he does not think that
she sustained any injuries up to the time that she got to the tent.
[29]
The
accused and the deceased went into their tent and zipped it up. The
witness and Jade Grey then went to their tent to get some
further
refreshments and went back to the dance floor. The witness testified
that this was just after 12pm because when they were
at the tent with
the accused and the deceased they heard the whole New Year’s
Eve ‘
commotion’
i.e. the countdown. The deceased had no visible injuries when she
went in to the tent with the accused.
[30]
A
few hours later he and Jade came back to the tent and saw a commotion
outside. According to the witness this was probably some
two hours
later. They stood there and could see into the tent where the
deceased was lying naked. The accused was in and out trying
to help.
The witness saw the accused a few hours later when the accused
returned from the hospital and all that the witness can
remember is
that the accused said he was not able to see the deceased at the
hospital.
[31]
Under
cross-examination the witness stated that when he and Jade first saw
the deceased at or near the toilets at the side of the
dance floor
she clearly did not look well. Her head was resting on her arms and
her knees. When he asked the accused what was wrong
the latter said
that they had taken ‘
acid’
.
He repeated that the deceased had looked ‘
drunk’
to him and was not her normal self that night.
Evaluation
[32]
Mr
Martin appeared to be an honest witness but he was clearly quite
strongly under the influence of alcohol on the night in question
and
could not remember a great deal of what took place. I have no reason,
however, to doubt the general thrust of his evidence.
Ms
Vanika Lalloo
[33]
Ms
Lalloo testified that she and the deceased were cousins and that they
had regularly socialised during 2013. She also knew the
accused who
was the deceased’s boyfriend at the time. According to the
witness the deceased and the accused appeared to have
a very good
relationship and it did not seem to her as if there was any problem
between them. She had also attended the rave party
at Le Bac Estate
arriving there at 7:30pm on 31 December 2013 together with Kyle
Inglis. When they arrived all the tents had been
pitched and they met
up with the other members of the party who included the deceased and
the accused. Everyone was chatting and
the deceased was applying a
bindi (a black dot on her forehead between her eyes) as part of her
Hindu culture. They all wore luminous
head bands so as to be able to
see each other. She identified the photograph Exhibit J1 as showing
the deceased, the accused and
Lameez Martin and as having been taken
that night. This was the photograph which the defence would not admit
as having been taken
that night. After a while the witness, the
deceased and the accused went off to buy LSD and MDMA (ecstasy). They
had agreed to
do so in a discussion held beforehand. Prior to that
evening the witness had heard of LSD and MDMA but had not taken such
drugs.
The three of them walked through the camp site to the dance
floor where the accused went up to a man with a moon bag and
purchased
the drugs. At the time the witness was 19 years of age and
she and S stood at a distance of about 15m from the accused while he

made the purchase so she could not hear the conversation. The witness
was not sure how much money she paid towards the transaction
but it
was about R150 to R170 for her portion of the drugs. It was the
accused who told her how much money she had to contribute
towards the
drugs. The LSD purchase turned out to be small square pieces of
papers about 5mm across in a larger sheet which was
perforated and
from which you tore off individual squares. The accused bought one
sheet which was white and on which each square
was a different
pattern or picture. The MDMA was a transparent capsule with creamy
powder inside. The witness stated that she could
not state for
certain that these drugs were LSD and MDMA but that she believed they
were.
[34]
After
the accused had purchased the drugs the three of them returned to the
tents whereafter the deceased and herself walked to
the food stalls.
The deceased was in a very good mood, very happy and excited to be at
the rave event. They returned to the tent
where the same group of
friends were and the witness took her LSD sitting in front of the
tent. She obtained her square of LSD
from the deceased who was
holding the sheet and from which she, the witness, tore a square off.
By this time some pieces had already
been torn off the sheet. The
witness put the piece of cardboard in her mouth and soon afterwards
her tongue began to feel numb
but apart from this she felt no other
effects. She handed the sheet of LSD back to the deceased but did not
see what she did with
it. She did not physically see the deceased
herself ingesting the LSD. After sometime they all left to go to the
dance floor by
which time it was around 10:30pm. Prior to this at the
tent she had only specifically seen the accused taking LSD but she
was not
focussing on anyone in particular and was just enjoying the
environment. When they left for the dance floor the deceased seemed

okay but when they stopped at the bathroom/toilet the deceased said
that she was feeling sick and her tummy was sore. The toilets
were
just before one reached the dance floor. Five of them stopped at the
toilets where ‘
they’
took the MDMA or at least she did. She got the MDMA from the accused.
The plan had been that they were going to take it there at
that time.
The accused handed her a capsule but she did not see him handing a
capsule to anyone else. She did not actually see
anyone else swallow
a capsule. At the dance floor the accused and the deceased went to
sit at the side of the dance floor because
the deceased was not
feeling well. The witness, however, began dancing and continued doing
so until 12am. The effect of the MDMA
was to make her feel more
energetic and want to dance. After she went off to the dance floor
she did not see what happened to the
deceased and the accused. At
some point during the night she sustained an injury to her foot when
a barricade near the front of
the stage shifted onto her foot. She
went to the paramedic tent to get assistance and whilst she was
sitting on a bench there icing
her foot she saw someone carried in on
a stretcher but did not know at that stage that it was the deceased.
She saw Kyle Inglis
and other people around the stretcher and he then
told her that it was the deceased. The accused was also present. At
some point
she saw froth coming from the deceased’s mouth and
her eyes rolling around, opening and shutting. The deceased was
treated
by paramedics at the tent and eventually taken away in an
ambulance.
[35]
The
following morning she saw the accused at the camp site near the
tents. He and Kyle stated that they had to pack up and that
they were
leaving after the police had checked out the accused’s tent.
The witness had a conversation with the accused. He
showed her a
scratch on his stomach and told her that the deceased wanted to have
sex with him but that he did not want to because
she was acting
strangely. It was in the process of her wanting to have sex with the
accused that she scratched him. The witness
asked the accused how the
deceased was and he told her that it appeared that she had been
raped. She then asked him if they had
had sex and he replied that
they had not and that the last time they had done so was before
Christmas.
[36]
The
witness was intensely cross-examined particularly in relation to two
statements which she made to the police. The chief purpose
of the
cross-examination appeared to be to portray the witness as having
changed her evidence from having told the police that
the deceased
had taken drugs to now denying this in her viva voce evidence. This
cross-examination was misguided. The witness readily
admitted that
she told the police that the deceased had taken drugs. She explained
her evidence in the witness box as being as
a result of the
prosecutor having pointed out to her in consultation that if she had
not specifically witnessed the deceased taking
either what they
believed was LSD and MDMA she could not testify that the deceased had
taken these drugs.
[37]
The
witness was asked whether she had heard of ‘
candy
flipping’
and ‘
hippy
flipping’
and replied that all she knew was that this referred to taking these
drugs together in a certain sequence and timing. Referring
to her
statement to the police that the deceased had taken drugs she
explained that she realised that this was based upon a ‘
false
assumption’
.
On response to a question from the Court she clarified that the
taking of the LSD and MDMA was done openly. She testified that

neither she nor S had actually used the toilet when they stopped to
take the MDMA and when the deceased had said she was not feeling

well. She had assumed that the accused and the deceased had taken
MDMA there but she did not herself witness this. The plan had
been
that they would take the MDMA when they approached the dance floor.
About half an hour after taking that MDMA the witness
had felt the
effects, namely, that she had more energy. She recalled that it had
been the accused, the deceased, Jade Grey and
Riaan Martin who sat at
the side of the dance floor when she went off to dance. When she saw
the deceased on a stretcher much later
she had gone into a complete
state of shock. The witness had also been at the hospital and seen
the deceased’s mother but
had not spoken to her until some four
days after the funeral. She was referred to her first statement to
the police, Exhibit AA
and confirmed that she had stated therein that
they had all taken drugs. At the time she had believed this to be the
case until
her ‘
false
assumption’
had been pointed out to her.
[38]
The
witness was also cross-examined at length about why many of the
details in her evidence did not appear in either of her statements
to
the police and she was taxed with discrepancies between her evidence
and the statements. Eventually it was put to her that the
reason for
these discrepancies was that her evidence was, in respects, a recent
fabrication, most notably that she was now lying
when she testified
that she did not see the deceased take LSD and MDMA. It was put to
her that the accused would testify that although
the three of them
were together each one of them had separately bought their own drugs.
The witness denied this proposition stating
that what took place was
as she described it.
[39]
In
re-examination the witness stated that she had no reason to give
false testimony. In response to a question from the Court the
witness
stated that the deceased never gave her any reason to believe that
she was
not
going to take LSD and MDMA. When she was asked whether she would be
surprised if she learnt that the deceased had not taken these
drugs
she stated that she would agree with this proposition as far as the
LSD is concerned but would be hesitant about the MDMA
because she
said that at the point that that drug was taken the deceased was not
feeling well.
Evaluation
[40]
Ms
Lalloo presented as an intelligent witness and was more than a match
for the intense cross-examination to which she was subjected.
Her
explanation for ‘
changing’
her evidence from stating that the accused took drugs to stating that
she could not vouch for this was entirely credible, namely,
that she
had not personally seen the deceased doing so and in that sense her
prior evidence was based upon a false assumption.
This does not
detract, however, from the main thrust of her evidence which is that
all the people in her group, including the deceased,
planned to take
the two drugs in sequence. Any criticism of her evidence on the basis
that she was being untruthful regarding this
aspect is without
foundation. Ms Lalloo was a good witness whose evidence stood up to
intense cross-examination and I have no qualms
in accepting her
testimony.
[41]
The
State’s evidence established that two paramedics employed by
the event organiser first attended upon the deceased in her
tent.
They were Mr Eugene Le Roux and a Ms Laurika Grunder. However,
neither of these witnesses could be traced and thus their
names did
not appear on the witness list nor were they ever found and called.
Counsel for the defence sought to make much
of this implying, at the
least, that the evidence of Eugene Le Roux would have a cast a
different complexion on matters. In this
regard counsel repeatedly
asserted in argument that he had asked counsel for the State to
admit, by agreement, the content of a
statement made to the police by
the said Eugene Le Roux but that she had refused. In argument counsel
for the State advised that
she was now willing to place the statement
of Mr Le Roux before the Court by agreement on the basis that its
contents were correct.
However, when defence counsel was asked to
agree to this on behalf of the accused, he took an instruction and
declined the offer.
It goes without saying that this refusal
underlined that any argument to the effect that the State was seeking
to withhold the
evidence of Eugene Le Roux because it was
unfavourable to the State’s case was to put it at its lowest,
disingenuous.
[42]
The
State was, however, able to locate and call as witness two paramedics
who treated the deceased at Le Bac Estate, namely, Mr
Barry Barling
who treated the deceased in the paramedic tent and Ms Shawreza Gail
Mackier who treated the deceased in the ambulance
and accompanied her
to Paarl Medi-Clinic.
Mr
Barry Barling
[43]
Mr
Barling testified that he had qualified as an Advanced Life Support
Paramedic by completing a Bachelor of Health Sciences Paramedic

degree in 2010 at Victoria University in Australia. He also had
various other short course qualifications in the field and was

currently a medical student at Wits in his third year of study. He
was at the rave event at Le Bac Estate in 2013/2014 as one of
the
event organisers with stipulated responsibilities. There had been
paramedics in attendance but none with advanced life support

qualifications. He had been employed by the event organiser, Fourth
Dimension, with a general portfolio but had kept in mind that
he
might be needed for his paramedical services although he was not
employed for these as such. He had a recollection of what had
taken
place in relation to the incident involving the deceased although no
witness statement had been taken from him. Sometime
after 1am on 1
January 2014 he heard reports of someone having seizures in the
camping area. He fetched his advanced life support
paramedic
equipment from his vehicle and went to wait for the patient at the
paramedics’ tent. When she arrived he observed
that she was
having continuous seizures. He started to treat her and attempted to
establish an IV line (intravenous access) but
was unable to do so. It
was dark, the patient was having seizures and her veins appeared to
be peripherally shut down. The only
light available was from one or
two torches. He administered an injection into the muscle of a 5mg
dose of anti-convulsion medication
named diazepam but it did not have
the desired effect. He attempted to gain IV access through the
external jugular i.e. at the
side of the patient’s neck and the
femoral artery in the groin area. This was unsuccessful but
eventually he was able to
gain access through the patient’s
right arm. He then administered a further 5 mg dose of diazepam
through the drip which
he had set up. After sometime, approximately
20 to 30 minutes, the convulsions stopped. During treatment they had
also put an oxygen
mask on the patient’s face, covered her with
blankets, put her in the lateral position to keep her airway open and
monitored
her. He could not recall whether the patient had an airway
inserted into her mouth when she arrived in the paramedic tent for
treatment.
[44]
He
had been assisted by basic ambulance assistants and some first
aiders. One assistant was Eugene Le Roux who had been part of
his
team but who he had not met then or since. He, the witness, was in
essence a volunteer in treating the deceased.
[45]
The
witness had been preparing to intubate the deceased and he had
administered some medication to facilitate this, namely, 5 mg
of
morphine. Morphine causes deep sedation and suppresses the gag reflex
in a patient. When the Metro ambulance arrived the patient
was moved
into it where there was more light. He handed the patient over to the
Metro paramedic (Ms Shawreza Gail Mackier) and
she intubated the
patient. Whilst under his care the patient suffered no injuries.
[46]
Mr
Barling testified that later that same morning he had completed a
patient’s report form the headings of which referred
to
incident details, a primary survey of the patient, a history, a
secondary examination, crew details, vital signs, treatment,
fluids
and medications and details of the handover. That document is Exhibit
O. Having regard to the patient report form and Mr
Barling’s
evidence the following emerges. It was 1:25am when the witness heard
the first report of the incident and 1:45am
when the patient arrived
at the paramedic tent. The ambulance left for Paarl Medi-Clinic with
the patient at 3:20am. As far as
the patient’s history is
concerned some of her friends reported that she had taken drugs. She
had been administered oxygen
and peripheral pulses were felt but a
super ventricular tachycardia (racing heart rate) was detected. The
patient’s history
on the form reads ‘
patient
was carried to medical tent on spine board, patient is status
epileptic, patient is covered by towels (was found naked);
patient’s
friends said patient consumed acid, MDMA and alcohol’
and,
further, that the ‘
patient
was found lying naked in the camping area convulsing after consuming
drugs and alcohol’
.
He had recorded that the patient was warm to the touch, that she
presented with secretions from the mouth and trismus (clenched
jaw);
her pupils were dilated and unresponsive to light and that her airway
was clear bilaterally. He recorded that there were
no other
abnormalities detected on the body but that the examination was
carried out in a poorly lit environment. He had recorded
as the
patient’s vital signs a high heart rate, low blood pressure and
a Glascow coma score of 3 out of 15. He had also administered
further
midazolam for a suspected methamphetamine overdose.
[47]
The
witness testified further that he had previously treated
approximately 20 drug overdose cases. Treatment depended on the drug

taken. Convulsions and a super ventricular tachycardia can be signs
of an amphetamine overdose under which umbrella MDMA falls.
By the
time he handed the patient over to the Metro ambulance services she
was in a sedated state and convulsions had stopped.
Mr Barling
confirmed that Exhibits 1 and 2 before the Court were examples of the
oropharyngeal airway (an ‘OPA’), a
curved tube of hard
plastic about 5 inches long with a mouth piece which is inserted into
the patient’s mouth to facilitate
breathing and an intubation
device. It was his normal practice to insert an OPA but he cannot
recall if he did in the instant case.
He testified that if he had
done so it would have been after the patient’s seizures had
ended. He had inserted such OPA’s
many times, never causing
injury.
[48]
Under
cross-examination the witness stated that it was unlikely that the
OPA had already been inserted in the patient when she was
brought to
him since she had trismus (clenched jaw) and it would have been
impossible to insert the airway if this was the case.
He testified
that as a paramedic if you found the teeth clenched in an unconscious
patient you would not go any further. The witness
was not
cross-examined at any length. In re-examination he stated that some
of the paramedics present had assisted him to place
the patient in a
lateral position and that this was before her seizures had stopped.
This would involve touching of the shoulders,
hips and feet but would
not amount to very much force and was unlikely to cause any bruising.
The airway would have been inserted
once the seizures had stopped and
would not have been inserted if trismus was present. In response to
the Court’s question
Mr Barling advised that normal training
was that if you cannot insert the airway easily you do not try and
push it in.
Evaluation
[49]
Mr
Barling was a very good witness, clear thinking and obviously very
well trained and professional. His evidence was not challenged
in any
material respect and I accept it without qualification.
Mr
Sebastian Driessen
[50]
Mr
Driessen is an appointed safety officer working for a firm of health
and safety consultants who were involved in the preparation
for the
rave party at Le Bac Estate in Paarl in December 2013/January 2014.
He testified that only persons over the age of 18 years
were
permitted to attend the event and that all vehicles entering the
premises were stopped and searched, with alcohol being removed
and
recorded in a register for later collection. Alcohol was sold at the
event, however. He testified further that it was possible
to smuggle
in drugs and that this occurs at all such events. A private events
company, Fourth Dimension, arranged the rave event.
Mr Driessen
testified that he was a trained paramedic although not presently
registered as such. He had attended a school for paramedic
training
in Johannesburg and in Cape Town, six month courses and had been a
registered paramedic for nine years.
[51]
At
about 1am on 1 January 2014 he received a radio message to attend at
the paramedics’ tent. When he arrived there he heard
on the
radio system that security were seeking medical assistance at the
central camping area. At that point a man that he identified
as the
accused arrived at the paramedics’ tent asking assistance at
his tent because his girlfriend was not feeling well.
The witness
ascertained from security that this ill person was one and the same
person. Mr Driessen testified that this person’s
demeanour was
one of concern and that he wanted people to hurry up and come to the
tent. He also appeared to be under the influence
of alcohol but not
excessively so. The two paramedics on duty, Eugene Le Roux and
Laurika Grunder, left with their equipment and
a stretcher for the
tent where the patient was. Mr Driessen remained at the paramedics’
tent until he heard on the radio
that Le Roux wanted a female
security guard present because the patient was naked and was having
convulsions. Mr Driessen then
proceeded to the tent to assist which
was about 120m away. There he saw the deceased lying on the tent
floor having convulsions.
She was put on the trauma board stretcher
and secured thereto with six harness points so that she could not
fall off. This was
after she had been wrapped in a towel. She was
then taken to the paramedics’ tent where she was transferred to
their bed
and the two paramedics continued treating her. The patient
had a further convulsion and was turned on her side whereafter her
airway
was cleared out by a hand sweep of her mouth. The witness saw
liquid and blood in the patient’s mouth. At some point the
patient’s female friends and one, Pallo or Pablo, came in and
stood around while the patient was treated. At some point the

accused’s demeanour had changed radically. He suddenly said
‘
sorry
baby, sorry baby’
and he became aggressive and emotional whereas previously he had been
calm. The person whom the witness had referred to as Pallo
stood up
and took the accused outside. The accused came back into the tent and
tried to light up a cigarette and was told that
this was not a good
idea because the paramedics were getting ready to administer oxygen
to the patient. Two security guards tried
to control the situation
and removed him from the tent. Mr Driessen asked two female friends
of the patient for the latter’s
personal and medical aid
details so that they could trace her parents and when they could get
no information from them this was
sought from the accused but he too
could not help. The dilemma of the paramedics was that they had no
idea whether the patient
was being treated for any pre-existing
condition or whether she was on any medication.
[52]
At
one stage while Mr Driessen and Eugene Le Roux were standing
alongside the accused the latter said that he had been having sex

with the patient and then she had ‘
conked
out’
on him. Pallo’s words upon hearing this were ‘
Ny
bra, can’t be’
.
Prior to this the witness and a senior paramedic (presumably Mr
Barling) had called for an ambulance. When the Metro ambulance

arrived the deceased was transferred to it where she obtained further
treatment and was put in a stable condition before she could
be
transported to hospital. This treatment involved inserting a drip and
administering oxygen. The patient had sustained no injuries
while she
was in his presence. The following day he had seen the accused at the
camp site and observed the police who had wanted
to see the accused’s
tent and had walked through the whole area inspecting it.
[53]
Under
cross-examination Mr Driessen confirmed that he had made a statement
to the police. This he had done by explaining orally
what happened
and then writing out his own statement which he had signed. He
testified that he remembered the incident involving
the patient well
and that the patient’s friends had suspected that it was a drug
overdose and that there was talk that the
patient had taken MDMA. In
his statement he made reference to a ‘
large
male’
whom he first encountered when that person presented at the medical
tent asking for assistance. The witness insisted that this
person was
the accused notwithstanding that he had not identified him as such in
his written statement and notwithstanding the
further suggestion that
this was, in all probability Mr Pallo Manuel who stood 6 ft 8 inches
tall as opposed to the accused who
is of a normal height. It was put
to the witness the accused would testify that it was not him who came
to the paramedics tent
to ask for assistance but that he had asked
others to do so and that Mr Pallo Manuel had done so. The witness
insisted that he
could not have made a mistake in this regard. The
witness resisted suggestions that the patient could have sustained
bruises or
abrasions on any parts of her body as a result of her
convulsions which he saw her experience or as a result of being
moved. He
testified that when the accused spoke about the deceased
‘
conking
out’
,
the witness, Mr Eugene Le Roux and Mr Pallo Manuel were present. The
witness was taxed at length with his statement not being
the same as
the evidence which he gave in the witness box insofar as the former
lacked the detail given in his viva voce evidence.
[54]
It
was put to the witness on behalf of the accused that he denied saying
anything such as ‘
sorry
baby’
but the witness stuck to his evidence in this regard. It was also put
on behalf of the accused that he denied saying that he had
had sex
with the deceased and that she ‘
conked
out’
.
Again the witness stuck to his evidence in this regard.
Evaluation
[55]
Mr
Driessen was a somewhat curtly spoken and dogmatic witness. He was
clearly mistaken about the identity of the person who first
arrived
at the paramedics tent since that was obviously Mr Pallo Manuel and
not the accused. Apart from this aspect and notwithstanding
these
traits the witness was credible with a good recollection of what had
happened some four and a half years previously.
Ms
Shawreza Gail Mackier
[56]
Ms
Mackier testified that in 2014 she had been employed by the Metro
ambulance services as a paramedic. She had qualified as an
advanced
paramedic in 2009 and presently had 14 years experience in total as a
paramedic. She recalled the incident involving the
deceased at Le Bac
Estate. One of Metro’s ambulances had been called to the scene
and she had been called out later following
a report that the patient
was suffering from convulsions. She drove to Le Bac Estate in a
response vehicle and found that the patient
was already in the
ambulance on her arrival. She was told of the background and
evaluated the patient for consciousness. She later
filled in the form
recording her treatment etc. which is Exhibit R. She first
investigated the patient’s airway to check
that she was
breathing and decided that she had to be administered oxygen. To do
this the patient had to be intubated which involves
inserting a
plastic tube down the patient’s throat. She took out the
airway, (an example of which is Exhibit 1) which was
already in the
patient’s mouth and then, using a laryngoscope, inserted the
intubation tube. This is done by opening the
patient’s mouth
and using the extended blade of the laryngoscope to move the tongue
to one side so that the intubation tube
can be inserted down the
throat through the V of the vocal cords to just beyond them. The
laryngoscope has a light at the end of
the blade which turns on when
the blade is extended. The patient was already sedated when Ms
Mackier performed this procedure and
there was therefore not
resistance from her and no problem in opening her mouth. In order to
perform this procedure the paramedic
sits in the ambulance on a seat
behind the patient’s head and tilts it backwards so that the
mouth is facing up. The witness
stated she had an independent
recollection of performing the procedure. Once the intubation tube
was inserted it was secured to
the patient by putting a stretch
bandage around it and over the patient’s head. The patient was
then intubated using an ambubag
which pumped oxygen by hand into her
lungs every five seconds or so. The patient was also breathing of her
own accord. During this
whole process the patient did not sustain any
injuries. The witness testified that by that time she had been
performing similar
procedures for some five years approximately twice
a week. During the time she treated the patient and took her to
hospital the
patient never regained consciousness. Nor did any
accident take place and therefore the patient sustained no further
injuries on
the journey.
[57]
At
Paarl Medi-Clinic they were directed straight to the ICU and she
handed the patient over to the doctor and the sisters present.
Having
regard to the form, Exhibit R, the witness testified that the patient
had presented with status epilepticus after reportedly
taking LSD and
some other ‘
uppers’
.
On examination, the patient had fixed dilated pupils and a heart rate
of 160 beats per minute. Ms Mackier testified that she got
the
information about the drug ingestion from the accused. She recorded
that the patient’s skin had been hot to the touch
although her
temperature was not recorded. Her total score for alertness, verbal
ability, pain and responsiveness put her as a
‘
red’
case i.e. a patient in the most serious condition. The patient had
been covered by a towel but when the witness took this off she
was
naked save for pants around her thighs. She noted two bruises on the
patient’s pelvis and recorded these in her notes.
The patient’s
heart rate had been very high throughout and she had a very low
systolic blood pressure. She had scored only
3 or 2T on the Glascow
coma scale and had been sedated with dormicum. Ms Mackier testified
that convulsions and secretions from
the mouth were consistent with a
drug overdose. She stated that if the patient was experiencing
trismus one would not force the
mouth open. Further in this regard,
the witness stated that paramedics are trained to do the patient no
harm and that they would
never force someone’s mouth open. She
resisted the accused’s counsel’s attempt to concede that
the patient’s
mouth might have been forced open to insert an
airway. If trismus was present the first treatment would be to try
and stop the
convulsions by giving the appropriate medication to get
the body relaxed.
Evaluation
[58]
Ms
Mackier was a good witness with a clear recollection of what had
taken place and was clearly an experienced paramedic. I accept
her
evidence without qualification.
Nurse
Mariette Troskie
[59]
Nurse
Troskie testified that she was a registered nurse employed by Paarl
Medi-Clinic in the ICU. She had been on duty on 1 January
2014 when a
Metro ambulance arrived at about 3:25am bringing the deceased with a
recent history of a drug overdose. The patient
was transferred to a
bed and coupled to various life support machines although she had
already been intubated. Work began in taking
the patient’s
blood tests and assessing her. The specialist on duty was Dr Craig
Franklin who was called in from home to
deal with her. Dr Bartleman
was the casualty officer on duty. Nurse Troskie was part of the team
working with the patient until
her shift ended at 7am that morning.
She saw the accused present but he was mostly in conversation with Dr
Franklin although she
heard some of the explanations which he gave.
[60]
Nurse
Troskie testified that whilst they were initially assessing the
patient and wanted to insert a catheter she observed that
things were
‘
not
right’
with the deceased’s private parts. That area was very wet and
it looked as if something had ‘
happened
there’
.
They also found two large bruises on the patient’s hips and
scrape marks on both of her knees. The patient had been wearing

nothing but oversized short pants. After observing these disturbing
signs she had contacted the sisters in casualty who told them
to do
nothing further and notify the police. Dr Franklin had asked the
accused if he had had sex with the deceased and his answer
was no. A
woman detective or detectives had arrived with a rape kit and Dr
Franklin had asked Dr Bartleman to come and do the examination
and
take the swabs. The witness was present when Dr Bartleman did this
which involved taking three vaginal swabs but nothing rectally.
After
this rape kit had been administered the nursing staff went on to
clean the patient including the vaginal area and insert
a catheter.
The patient was not further injured by the nursing staff. Nurse
Troskie observed later that the patient was bleeding
from a needle
prick mark at her neck, her left hip bone bruise became much more
distinct and there appeared to be bruise marks
on her breasts. These
injuries were not caused by the hospital staff. As the patient’s
condition deteriorated she began to
bleed. She herself heard no
explanation from the accused for the injuries on the patient. Her
colleague during treatment had been
Sister Julene Bam.
[61]
Under
cross-examination the witness explained that samples for blood tests
were taken by the insertion of a needle into a port which
had already
been established. The pathologist staff would come and collect these
blood samples which are marked and put in a packet.
Dr Bartleman’s
investigation had followed after Dr Franklin’s initial
investigation. The witness had been present throughout.
Evaluation
[62]
Nurse
Troskie was a good witness whose evidence was not challenged.
Sister
Julene Bam
[63]
Sister
Bam testified that she was a registered nursing sister with 15 years’
experience and on 1 January 2014 was on duty
at Paarl Medi-Clinic
with Nurse Troskie when the patient was brought in by a Metro
ambulance at 3:25am. Her condition was unstable
and she was naked
apart from a pair of oversized short pants. The patient was Nurse
Troskie’s and thus it was the witness’
responsibility to
obtain particulars from the patient’s friend, namely, the
accused. She asked him for medical aid details
and contact numbers
for the patient’s parents and he gave her a telephone number
for the patient’s mother. The witness
then asked the accused
whether he knew what had happened to the patient. He told her that
the patient had taken ‘
acid
and LSD’
and that this was the first time she had done so. He said further
that the patient had begun to feel hot and had taken off her
clothes.
The witness asked the accused about the scrapes on the patient’s
knees and he said that she had fallen over tent
pegs or tent poles.
The witness had noticed scratch marks on the patient’s knees.
She asked the accused where the patient’s
clothes were and he
said he had them in the rucksack on his back. The patient had
sustained no further injuries from the staff
at Paarl Medi-Clinic.
[64]
Under
cross-examination it was put to the witness that in her statement she
had said that she had been told that the patient was
‘
onvas
op haar voete en geval het’
.
It was further put that the accused would testify that he had said
nothing about tent pegs or tent poles. The witness remained
resolute
that the accused had said what she had testified to.
Evaluation
[65]
Sister
Bam was a very good witness whose evidence was largely unchallenged
and must be accepted.
Dr
Emmerentia Bartleman
[66]
Dr
Bartleman testified that she qualified as a doctor in 1998 and began
working in a practise at Paarl Medi-Clinic in approximately
2012. She
had also been a district surgeon in Jamestown between 1996 and 1997.
Her work at Paarl Medi-Clinic was done on a roster
basis and she had
been on duty on 1 January 2014 when she was requested by an ICU
sister to see a patient there. When she first
saw the patient she was
being transferred from the ambulance onto a bed in ICU. She noticed
that there were marks on the patient’s
knees and also on her
hips, anterior. She was unclothed but covered. Dr Bartleman did not
do a full investigation since the physician
in charge, Dr Franklin,
had asked her to investigate only for possible sexual abuse. She had
not been experienced in this field
and did little of that whilst at
Paarl Medi-Clinic. After examining the patient she filled in the J88
form, Exhibit S, where her
main findings were that the patient had
bruised area on both pelvic rami, anterior measuring approximately
2cm². She had bruised
and scarred areas 1cm² on both knees.
There were puncture wounds on her anterior neck and left lower
abdomen. The patient
was unconscious. Her clitoris and the frenulum
of her clitoris were normal but blood stained. Her urethral orifice
was blood stained.
Her labia majora were normal with slight bloody
discharge visible. She made the same finding in respect of the labia
minora. There
were tears inside the vagina and the fossa navicularus
was normal but with a bloody discharge. The cervix was bruised with a
bloody
discharge and there was a bloody discharge at the perineum.
She concluded that the injuries and tears may be an indication of
sexual
intercourse. On anal examination she found that there was
blood on the skin but conducted no detailed examination.
[67]
In
a contemporaneous sketch she marked two tears within the patient’s
vagina. Dr Bartleman testified that she did not do a
pregnancy test
and also did not do a thorough test on the patient’s anus
because, for one thing she had used up all of the
swabs in the test
kit supplied by the police. There were no visible tears on the
outside of the anus. Dr Franklin was anxious to
resume his treatment
of the patient so he chased Dr Bartleman a little to complete her
examination. Of the three swabs she took
one was a sample from inside
the vagina, one on the outside near the labia and one on the
perineum. She did not go very deep with
these swabs. The patient’s
body temperature had not seemed warm or feverish to her. She
completed her examination by 5am.
She wasted no time in doing so
because the patient needed medical attention urgently. She had been
hooked up to a ventilator. Dr
Bartleman repeated that she had not
done a full anal examination and her conclusion reflected that she
had vaginal intercourse
in mind. She conceded that her finding was
consistent with consensual intercourse.
[68]
On
behalf of the accused it was put to her that the tears in the vagina
could have been caused by masturbation to which the witness
responded
that she did not think any woman would injure herself in this manner
if she was in her sound senses since the purpose
of masturbation is
pleasure. Pressed on this point the witness stated she had no
training in masturbation.
[69]
In
response to the Court’s question Dr Bartleman stated that
before the incident in question she had never done a previous
sexual
examination as required by the J88 report form. She added that she
did only the most limited anal examination because she
did not want
to injure the patient.
Evaluation
[70]
Dr
Bartleman was a very good witness whose evidence can be accepted
without qualification.
Dr
Craig Franklin
[71]
Dr
Franklin qualified as a medical doctor in 1998 and as a specialist
physician in 2004. He testified that he spent eight years
working at
a hospital in Pretoria and the past five years working at Medi-Clinic
in Paarl. He was the treating doctor to the deceased
on 1 January
2014. He was called from home and arrived at the hospital at about
4:30am after the patient had been admitted by the
casualty officer.
Dr Franklin handed up a report, Exhibit G, which comprised notes
which he kept contemporaneously on his cellphone
or his computer and
to which he added later. In his report he recorded that according to
the accused the patient had taken one
dose of LSD and at least one
MDMA capsule. She said she felt hot then started ‘
rolling
around on the ground’
and was taken to the tent. There she allegedly said she felt turned
on and took all her clothes off. Previously she had fallen
a few
times on the way to the tent. She then started repeating things and
the accused called the medics. According to the accused
the patient
and he did not have sexual intercourse and she was never left alone.
Dr Franklin recorded that prior to her admission
she had had a
hypoglycaemic spell and was given glucose and Ringers. On examination
her blood pressure was 117/67 and her pulse
was 145 beats per minute.
He observed two bruises on the patient’s pelvis and knees, a
small puncture mark in the neck and
above the pubic rim.
Neurologically the patient gave no response but was intubated. She
showed decreased doll’s eye movement
and extension withdrawal
more in keeping with the type of convulsions. Dr Franklin recorded
his working diagnosis of the patient
as having a possible LSD and
ecstasy related overdose or intoxication along with alcohol. He
recorded further, that there were
signs of possible sexual
intercourse with bruises and a tear in the vagina suggestive of this.
He recorded that the vaginal examination
had been performed by Dr
Bartleman. He further recorded the present problems as being a
decreased level of consciousness, acidosis,
an episode of convulsions
and features still suggestive of this, hyperkalaemia and possible
rhabdomyolysis. He noted that the patient
seemed to be develop a
bleeding tendency inasmuch as she was bleeding from all puncture
sites and also renal failure.
[72]
In
his evidence Dr Franklin explained that hypoglycaemic indicates low
blood glucose, that Ringers is the fluid which is replaced
into the
body through a drip. He explained that a doll’s eye movement is
when you turn the head of the patient from side
to side and the eyes
follow the head rather than looking straight ahead and that is an
indication of brain death. Testing her motor
signs Dr Franklin had
initially concluded that she did not show any brain stem damage. The
initial main problem Dr Franklin faced
was that the patient was very
acidotic which, if is not reversed, can lead to death of the cells
and the development of multi organ
failure. Hyperkalaemia indicates
very high potassium levels in the blood whilst rhabdomyolysis is
muscle breakdown. Dr Franklin
testified that he did not consider
anything other than a drug overdose because that was the only history
that he had received.
As mentioned he noted a bleeding tendency
developing and also signs of renal failure. One of the earliest tests
done on the patient
was a five test on her urine sample the result of
which was that it showed positive for opioids, a sedative. His
interpretation
was that this result reflected the medication which
she had received from paramedic’s prior to her admission,
namely, diazepam,
morphine and midazolam/dormicum all of which are
pain medications or sedatives. On the history he received he would
have expected
the LSD and/or MDMA to show on the tests but it did
not. Dr Franklin was asked what the cause of the bleeding disorder
was which
the patient suffered and his answer was that many things
can cause this disorder, referred to as DIC i.e. disseminated
intravascular
coagulation, including the ingestion of drugs and
shock. He added that it was almost irrelevant as to what caused the
disorder.
In lay terms DIC is a clotting cascade that goes haywire so
at one and the same time you can be using up all your clotting agents

and therefore you are bleeding and clotting at the same time or
over-bleeding and over-clotting. It is very difficult to correct
this
imbalance. The presence of the DIC in the patient was evident by the
facts of her physical bleeding, her abnormal level of
fibrinogens and
her blood platelet levels. By 12:30pm the patient’s acidosis
was worsening. Dr Franklin was consulting with
a coagulation
specialist through the day. By 6pm he was very happy to record that
her bleeding had miraculously improved. The patient
was also put on
dialysis so that her kidneys’ functions could be taken over but
this was a difficult exercise since her blood
pressure was low. By
22h00 the patient was in dire straits. Her abdomen was distended
which suggested that there was excess fluid
or bowel necrosis through
lack of oxygen. However, the patient was never a candidate for
surgery because she was too weak. At around
24h00 the patient’s
heart just stopped beating and she died. The overall damage to her
organs was just too great. Amongst
some of the contemporaneous or
semi-contemporaneous observations that Dr Franklin made were:
08:35
patient ‘
still fitting’
and ‘
bleeding
from everywhere’
12:30
patient now developing full blown DIC.
The
acidosis is also worsening.
Unable
to get arterial line inserted.
18:00
the bleeding has miraculously improved.
Stopped
bleeding and HB and platelets all normalised.
‘
the
acidosis is still a problem and on relatively high dosages of
imotropes’.
22:00
patient was started on dialysis because the DIC was cleared up but
the acidosis was still present.
‘
neurologically’
never
woke up and still in coma.
24:00
patient developed bradycardia and passed away.
[73]
At
the bottom of his initial notes Dr Franklin recorded under the
heading ‘
Final
Diagnosis’
‘
Picture
suggestive of LSD overdose with all the (associated) complications
especially coma and the coagulation defects which is
well described.
Possible sexual intercourse/rape cannot be excluded.’
[74]
Follow
up notes that Dr Franklin recorded on 7 January 2014 included the
comment that a CT of the brain had been taken which had
proved to be
‘
normal’
‘
specifically
no intracranial haemorrhage identified’
.
He also recorded ‘
Need
forensic assessment. The one thing I would like them to also look at
is the small puncture wound on the anterior aspect of
the neck that I
could never explain and with which she came in’
.
[75]
On
7 January 2014 Dr Franklin recorded in his report some of the scan
reports and ‘
follow
up notes from new information … and thinking back’
.
Here he recorded:
‘
1.
The patient did develop progressive organ failure with the bleeding
tendency that worsened during the day as can be seen on the
bloods
and this is probably also the reason why the bruises became so
prominent;
2.
The boyfriend was orientated and calm while giving me the history and
did not seem intoxicated or even perturbed by what happened;
3.
I never introduced anything into the anus. I never examined the anus
as part of sexual assault because in my mind this was done
by the
casualty officer and police before I could start treating patient
…
5.
The bruising on the body became more pronounced during the day most
likely related to the DIC and the area surrounding the neck
area was
more prominent;
6.
I fixated the ET tube and did not insert it and never caused trauma
to the facial area of the mouth. She did have an airway inserted
in
the mouth to prevent the tube from being bitten that was placed by
the ambulance personnel and removed by me when we moved to
the
ventilator
…
8.
The fact that she might have been sexually and physically assaulted
etc. was not on the foreground of my mind during the day
because in
my mind there were more serious problems that were life threatening
that is why I did not look for associated problems
e.g. assault,
bruising etc. Once again this was according to me part of her
assessment done by the police and casualty officer
initially and not
part of my duty at that time.
…
10.
The sisters only inserted the urinary catheter after the vaginal
examination was done by the police and casualty officer.
11.
Neurologically it is difficult to say how bad the extent of the
problem was but she did have decerebrate picture and doll’s
eye
movement was abnormal although she still had some pupillary movements
present initially. The problem is that she was in a severe
metabolic
state and many other metabolic problems so needed to correct
everything before saying she is brain dead but my impression
was that
there was some serious problems and that is why we also scanned her
brain looking for haemorrhage etc. The fitting (convulsion)
also
complicated the neurological assessment.
…
13.
She was never left alone during the time that she was alive in the
ICU and constantly under one on one ICU care. We never caused
any
serious physical trauma that was not part of normal medical
treatment. I never saw her alone and the nursing staff was always

present.
[76]
Dr
Franklin initially stated that the CT scan of the patient’s
brain was taken at 19:41 but after reviewing his notes etc.
he
testified it made more sense that it would have been done much
earlier at 9:00am and other records bore this out. The purpose
of the
CT scan was to exclude major pathology such as a large bleed or a
tumour. Dr Franklin emphasised that there was a limit
to what can be
observed with a CT scan as opposed to an MRI. He used the analogy
that a CT scan is like looking at the moon through
binoculars whereas
an MRI is equivalent to using the Hubble telescope. Dr Franklin
testified further that a CT scan won’t
necessarily show a
pathology early on so that a negative CT scan does not necessarily
mean the brain is normal. He testified that
it was a waste of time to
use a CT scan to try and pick up small bleeds.
[77]
Dr
Franklin went through the results of various tests conducted by Path
Care which he used during his treatment of the patient.
He was
challenged by the defence counsel as to the accuracy of such tests
inasmuch each test result contains a standard clause
that the results
may not be used for medico-legal purposes. Dr Franklin explained that
doctors have to trust the results and that
they could rely on them as
being 99.9% accurate.
[78]
Dr
Franklin explained that as regards the further notes he added on 7
January 2014 that he had had some interaction with the state
forensic
pathologist and was asked to answer various questions regarding why
certain bruises were not initially seen on the patient.
He had
realised that something more might come of the matter after this
interaction. Dr Franklin emphasised that sexual assault
is not one of
his areas of expertise. He mentioned that he was also asked,
presumably by the pathologist, if he had considered
whether the
patient’s hypoxia could have come from another source such as
strangulation. Dr Franklin stated that he had no
history other than
the one which he received but that without any additional information
what he observed would have fitted in
with hypoxic damage. Finally,
Dr Franklin was asked in chief whether manual strangulation would fit
in with the picture which he
saw and treated and his answer was that
one can have full blown DIC and convulsions and develop multi-organ
failure after such
an insult to the body. In this context his answer
was ‘
definitely’
.
[79]
Under
cross-examination it was put to the witness that he had seemed
hesitant when he gave the last abovementioned reply. His response
was
to state that he only hesitated because he realised that his answer
could implicate someone. I pause to observe that this was
the clear
impression that I obtained of his answer and certainly not that he
was uncertain in his reply. The accused’s counsel
put to him
that the ‘
final
diagnosis’
which he recorded in his report (‘
picture
suggestive of LSD overdose with all the associated complications …’
)
was a final and conclusive statement of fact but Dr Franklin
clarified that this was no more than a working diagnosis. He was
also
challenged about his expertise in the field of haematology. Dr
Franklin conceded that he is not a haematologist but stated
that as a
physician he was not unqualified to speak about haematological
aspects.
[80]
It
was further put to Dr Franklin that the forensic pathologist to be
called by the defence, Dr Naidoo, would testify that there
is no case
in history of strangulation causing the medical picture with which
the patient presented, namely, DIC and acidosis.
Dr Franklin
responded that in part that DIC can easily be caused by many things.
It was also put to him that strangulation could
never have caused the
sustained global hypoxia seen in the patient. His answer was that he
was not an expert in strangulation.
Another area where Dr Franklin
was cross-examined at length was in regard to the issue of whether
the patient ever had hyperthermia.
Dr Franklin was resistant to this
notion since he did not observe any signs of hyperthermia and by
definition did not treat the
patient for such a condition. He
eventually found, in the hospital notes, the recordals for the
patient’s temperature through
the day and they were
consistently around the 36.6 degrees centigrade level, namely, a
normal temperature. He did concede that
the patient was in a state of
peripheral shutdown and her blood pressure eventually developed into
hypotension. Various symptoms
experienced in patients who ingested
‘
ecstasy’
(MDMA) as recorded in scientific articles were put to him and he
conceded that there were considerable similarities with the patient

in several of these cases. It was put to him that Dr Naidoo would
testify of a case in Durban where the deceased died of hyperthermia

induced DIC after taking ecstasy. In short Dr Franklin firmly
rejected the suggestion that the patient had hyperthermia upon or

after her admission to hospital although he conceded that she did
show two of the other signs of hyperthermia, namely, a high heart

rate and low arterial pressure.
[81]
Dealing
again with the Path Care test results he emphasised that they were
completely reliable and were analytically conducted.
When asked about
the accuracy of drugs tests following a time lapse between the intake
of drugs and the testing he agreed that
this could have an effect but
deferred to chemical pathologists or a pharmacologist in this field.
Dr Franklin conceded that the
patient could have suffered from
hyperthermia prior to her admission. He testified that he was
familiar with the concept of taking
LSD and MDMA at specified
intervals so as to heighten their combined effect, apparently known
as ‘
candy
flipping’
.
[82]
Dr
Franklin was also cross-examined at length about the CT scan that was
taken of the patient’s brain and it was put to him
that if
there had been a head injury as contended for by the State’s
forensic pathologist, Dr Abrahams, then it should have
been evident
on the CT scan. Dr Franklin testified that the CT scan was an
imperfect instrument for picking up such injuries and
that the
findings of extensive brain swelling and traumatic subarachnoid
haemorrhages bilaterally noted by Dr Abrahams could either
have been
missed by the CT scan because of its imprecision or perhaps could not
have developed sufficiently by the time the scan
was taken.
When it was put to him that the absence of any injury on the CT scan
is consistent with there being no such injury
his response was to ask
how then were the injuries caused. Dr Franklin did testify, however,
that the DIC pathology can cause spontaneous
bleeding i.e. without
trauma. Reverting to the question of the visibility of bruises and
injuries Dr Franklin stated that they
initially only noted the
bruises on the pelvis and the knees and it was only later, after the
development of full bodied DIC, that
other marks or bruises became
visible. It was put to Dr Franklin that the CT scan was the ‘
modality
of choice for head injuries and better even than an MRI’
.
The witness disagreed firmly with this proposition stating that the
CT scan was better for large bleeds than for micro bleeds.
Questioned
about the puncture mark in the patient’s throat which he could
not explain Dr Franklin stated that only a very
brave paramedic would
make an incision in the patient’s throat. He confirmed the
opinion he had expressed earlier, namely,
that hypoxic brain damage
can cause DIC. It was put to Dr Franklin that Dr Naidoo would testify
that hypoxic brain damage can cause
coagulopathy but usually only
with a severe head injury combined with poly trauma to other parts of
the body such as seen in motor
vehicle accidents or severe falls. The
witness stated that he agreed that there did not appear to be
literature of a patient undergoing
asphyxiation which causes full
blown DIC but added that he was not a strangulation nor a DIC expert.
‘
DIC
is difficult’
he testified.
[83]
In
re-examination Dr Franklin that if he had the toxicology reports from
external labs available when he wrote his ‘
final
diagnosis’
i.e. which reports indicated no presence of LSD or MDMA, he would not
subscribe to his diagnosis again. He was again referred to
the
medical journal articles discussing cases of hyperthermia after
ingestion of MDMA and agreed that one common element therein
was that
all had showed positive MDMA toxicology reports or readings. Dr
Franklin expressed scepticism of the notion that the patient
could
have suffered hyperthermia prior to her admission. He was unable to
explain the absence of any trace of MDMA in the tests
or LSD for that
matter.
[84]
In
response to the Court’s questions he stated that he generally
regards the Path Care test results as 99.9% accurate. Significantly,

he was sceptical of Dr Abrahams’ evidence regarding injuries to
the patient’s mouth and spoke of the possibility of
the DIC
magnifying the results of trauma to the mouth possibly caused by the
paramedics inserting the airway endotracheal tube.
He found, however,
it much more difficult to explain the neck injuries away.
Evaluation
[85]
Dr
Franklin was an excellent and completely objective witness who gave
considered and careful evidence in answer to questions put
to him. At
no stage did he make exaggerated or unsubstantiated claims and was
quick to point out when questions were putting him
in an area in
which he lacked expertise. As previously mentioned, the one instance
of hesitation in his evidence was clearly attributable
to his taking
care and realising the implications of any answer he might give
rather than to uncertainty in his mind.
Dr
Deidre Abrahams
[86]
Dr
Abrahams is the head of the clinical unit in Forensic Pathology
services in Paarl. She is registered with the Health Professions

Council of South Africa as a medical doctor and a forensic
pathologist. Dr Abrahams testified that she obtained her medical
degree
in the Netherlands in 1992, her diploma in Forensic Medicine
and Pathology in 1997 and had been a specialist in that field since

2003. She began working in the field of Forensic Pathology in 1995
and in 2003 she became the clinical head at Paarl. Dr Abrahams

conducted the post-mortem examination on the deceased on 3 January
2014. She prepared a very detailed report and amongst the chief

findings she made were:
1.
Evidence
of manual strangulation with multi-focal haemorrhages in the muscles
and soft tissues of the neck;
2.
…
petechial
haemorrhages of the upper eyelids and sub-conjunctival haemorrhages
bilaterally;
3.
Sub-pleural
petechial haemorrhages of the lungs with congestion of the lungs;
4.
Brain
swelling with contusions and traumatic subarachnoid haemorrhage;
5.
Evidence
of forceful and external airway occlusion with contusion and
laceration of the upper and lower lips and contusion of the
inner
cheeks;
6.
Evidence
of forceful vaginal and anal penetration, ante-mortem;
7.
Evidence
of blunt trauma to the torso and extremities;
8.
…
9.
Evidence
of oedema of the body and organs with early autolytic changes.
[87]
In
her report Dr Abrahams concluded as result of her observations that
the cause or causes of death were ‘
consistent
with manual strangulation. Drugs may have played a contributory
role’
.
The report goes on to set out in detail her post-mortem findings and
observations of the body. Dr Abrahams noted that there was
a
post-mortem drugs screen positive for opioids and benzodiazepine,
that extensive photographs of the patient pre and post dissection

were taken and that ante-mortem bloods and urine had been submitted
for drug testing at Path Care and at the forensic toxicological

laboratory. Dr Abrahams also prepared two detailed diagrams, one
showing the various injuries and bruises and marks found on the
body
and another depicting the injuries to the patient’s vagina and
anus. On 15 May 2015 Dr Abrahams deposed to an affidavit
entitled
‘
Response
regarding the case of S D (the deceased)’
.
The affidavit is a detailed document containing Dr Abrahams’
comments on the cause of death and numerous observations on
the
treatment which the patient underwent at Paarl Medi-Clinic dealing
also with the results of blood and urine tests by Path Care
and other
external laboratories. Amongst the findings recorded in the affidavit
are the following:
‘
16.
Based on the examination of my autopsy report, the Path Care
Laboratory results and the medical records I conclude that the
cause
of death remains consistent with manual strangulation.
The
consequences were asphyxia with global hypoxia renal and liver
failure.
This
leads to metabolic acidosis and coagulopathy
…
The
injuries of the mouth and neck are consistent with external pressure
to the peri oral area with injuries of the inside of the
mouth and
lips.
These
are not consistent with paramedics attempting to intubate the
patient.
The
injuries to the neck are consistent with forceful pressure to the
neck consistent with manual strangulation.
They
are not in keeping with attempted intubation or resuscitation. With
forceful vaginal and anal penetration and pressure to the
neck and
peri oral area, consent cannot be assumed to have been given.
There
is evidence of brain swelling with contusion and traumatic
subarachnoid haemorrhage.
Brain
swelling is in keeping with hypoxia due to the manual strangulation
…
There
is no clear evidence of a toxic substance which may have caused the
death on its own.
I
concluded in my autopsy report: that a substance may have played a
contributory role.
Cocaine
taken several hours or days prior to death should be at a toxic level
to cause the seizures and hyperthermia and other neurological
changes
noted on the scene by the ambulance or paramedic staff.
Based
on the examination of my autopsy report, the Path Care laboratory
results and the medical records (I) conclude that the cause
of death
remains: Consistent with manual strangulation and the consequences
thereof.
There
is no clear evidence that substances played a role.’
Dr
Abrahams stated that she received the report of Dr C Franklin,
medical records and the lab results prior to the autopsy. The
report
with retrospective notes of Dr Franklin was given after autopsy.
[88]
Before
dealing with Dr Abrahams’ viva voce evidence I shall set out
some of the more detailed findings made by her in her
initial
post-mortem report. There were numerous needle prick marks on the
patient’s elbow, left wrist, right wrist and neck,
the groin,
foot, left lower abdomen and left hand. Apart from the haemorrhages
in the upper and lower eyelids there was a curved
abrasion high on
the right cheek bone and a linear abrasion, a laceration on the right
and left lower lips at the inner aspect,
contusion and swelling of
the upper lip and on the inner aspect of the upper and lower lips.
These injuries, Dr Abrahams noted,
were consistent was forceful
pressure to the mouth from externally. There were contusions on the
right chest, left chest, arms,
abrasions on the right and left elbows
and numerous other contusions on the arms, left lower abdomen and
right and left hip.
[89]
Dealing
with the sexual organs and the anus Dr Abrahams noted the following:
1.
Extensive
swelling of the labia majora and clitoral hood and labia minora;
2.
A
tear at the inferior aspect of the clitoral hood at 12 o’clock
of ±10mm, ante-mortem;
3.
Circumferential
rubbing friction abrasion of the labia minora and inner aspect of
labia majora, inner aspect of labia minora in
a round the clock from
0 to 24 hours with loss of skin, redness and blood tinged fluid on
the surface;
4.
Tear
at 6 o’clock at the vagina of 5 to 6mm from posterior
fourchette through fossa navicularis. There was blood tinged fluid

oozing from the tear.
5.
There
was a loss of skin and redness and swelling from outside the labia
minora and along the inner aspect of the vagina to depth
of ±70mm.
There was blood tinged fluid on the surface;
6.
There
was blood tinged fluid and creamy light coloured fluid in the vagina
with a few sand grains high in the vagina at and around
the cervix.
This, Dr Abrahams noted, was consistent with seminal fluid mixed with
blood.
7.
The
cervix was round and closed with a contusion on the 4 o’clock
to 6 o’clock surface.
8.
The
perineum appeared intact but swollen.
9.
All
these injuries, Dr Abrahams noted, were consistent with forceful,
non-consensual ante-mortal vaginal sexual penetration.
[90]
On
examination of the anus Dr Abrahams found wounds similarly consistent
with forceful, non-consensual ante-mortal sexual penetration
and in
particular the following:
1.
Surrounding
the anus and from the external surface and along the inner surface
over 35mm x 40mm there was contusion with rubbing
friction peri-anal
and anal abrasion with swelling and redness and loss of skin over a
distance of ±70mm into the anal canal
at, above and below the
level of the dentate line. Photographs taken on incision showed
significantly large soft tissue haemorrhage;
2.
At
the 6 o’clock position of the anus there was a tear of ±5mm
which extended slightly into the perineum and with blood
tinged fluid
present;
3.
There
was blood tinged fluid and minimal clear fluid in the anus;
[91]
In
respect of each of these findings in respect of the vagina and the
anus not all of the photographs are as clear as others but,
at least
to the layman’s eyes, many of the injuries which Dr Abrahams
reported on appear to be borne out. The photographs
are not only of
the patient’s vagina and anus in situ but Dr Abrahams also
performed dissections in this area. Further observations
made Dr
Abrahams were as follows:
Skull
The
scalp was swollen over the vertex and shows extensive subcutaneous
haematoma from the frontal scalp over the vertex and smaller

haematomas confluent at occipital scalp. This was consistent with
blunt trauma. There were no skull or skull base fractures.
Intracranial
contents
There
was extensive brain swelling, right and left inferior temporal lobar
contusions effaced lateral ventricles and traumatic subarachnoid

haemorrhages were noted bilaterally.
The
Neck structures
A
bloodless field neck dissection was done and there was diffuse and
extensive swelling with soft tissue haemorrhage and intra-muscular

haemorrhage at the right and left sternomastoid muscles and other
muscles up and around the thyroid gland. Other haemorrhages were

present but there was no fracture of the hyoid or thyroid although
there was haemorrhage around the horns of the thyroid and hyoid

cartilage. These injuries were consistent with manual strangulation
with pressure to the neck.
[92]
Dr
Abrahams testified that in her opinion the contusions inside the
deceased’s lips were a result of quite severe pressure
from
outside such as to force a person not to speak or cry out, using
hands or a pillow. Its duration would be more than an instant
and
could be several minutes. There was also indications of a lot of
pressure from fingers or hands thereby producing the contusions
to
the chest and arm areas. There was evidence of gripping and pulling
marks on the patient’s lower arm and abrasions marks
on both
arms not consistent with medical treatment. There were large
contusions on the sides of the hips consistent with force
on the hip
area as if the patient was penetrated sexually lying on her sides.
Tears in genitalia occur where there is forceful
penetration,
unlubricated and unwilling. In her view it looked like severe and
forceful pressure which would be very painful. The
mechanism in
forceful penetration is that the skin is rubbed and abraded, it
starts to swell and then starts to ooze blood and
blood tinged fluid.
In her opinion this would not be a onetime penetration but repetitive
forceful penetration, most likely a penis.
[93]
In
Dr Abrahams’ opinion the sand grains found in the vagina were
likely to have come about through forceful penile penetration
and
contact with sandy areas. According to her this fitted in with
non-cooperative penetration. Shown photos of the tent Dr Abrahams

testified that if the incident took place there it would fit in with
the scenario which she sketched. The witness testified that
the
swelling of the anus would be as a result of repeated forceful
insertion and would be extremely painful. The depth of the abrasion

found would be consistent with the length of an erect penis. The
abrasions found on the patient’s knees would be consistent
with
forceful sexual penetration both ‘
normal’
i.e. vaginal penetration and anal penetration. Dr Abrahams expressed
the view that the head injuries could be the result of the
head being
banged on the ground or abraded when the patient was in a position on
her knees. The injuries to the skull and the haematoma
would be a
result of multiple blunt trauma and more than one blow.
Intracranial
contents
[94]
Dr
Abrahams testified that herniation is swelling of the brain caused by
hypoxic injury as a result of a lack of oxygenated blood
supply to
the brain. She testified that this could result as a result of
pressure being applied to the neck area for a period as
little as
three minutes and up to five minutes. She stated that convulsions
alone would not cause contusions in the brain. She
stated further
that the difficulties which the paramedics had finding her vein would
be due to extreme hypoxic occlusion which
leads to a lack of
perfusion to the tissue and this leads to the shutting down of the
vascular system in order to preserve a supply
of oxygenated blood to
the brain.
The
alleged strangulation
[95]
Dr
Abrahams testified that the strangulation could have occurred from
the front or behind the patient while she was on her knees
that one
hand would be sufficient to supply the pressure. She stated that a
fracture of the hyoid or thyroid bone is not as prevalent
in young
persons where those structures are cartilaginous. So even if they
were subjected to severe pressure they would not necessarily
fracture
but might just haemorrhage around those structures. The presence of
the opioids and benzodiazepine in the blood and urine
tests was
consistent with the medication which would have been used by the
paramedics and the doctors to sedate the patient and
treat her
seizures.
[96]
Dr
Abrahams testified that her initial report, Exhibit H, with the
external laboratory toxicology results was placed in front of
her and
she was asked to comment finally on the cause of death.
[97]
In
cross-examination Dr Abrahams testified that, amongst other reasons,
she prepared her second report because she then had access
to all the
reports from Path Care and those from the external forensic chemistry
laboratories. Based on those reports she concluded
that the cause of
death remained consistent with manual strangulation and eliminated
the possibility of drugs playing any role
in the patient’s
death. The external testing involved having the initial samples taken
by Path Care in the Paarl Medi-Clinic
and the post-mortem blood
sample taken by her tested by the State’s forensic laboratory.
It was put to Dr Abrahams that her
initial report at least referred
to a ‘
history
of mixed drug intake’
but
Dr Abrahams insisted that those findings had to be confirmed and were
no more than allegations. She was taken through a range
of documents
emanating from the paramedics and the ambulance personnel and
hospital personnel making references to diagnoses of
drug overdose
but Dr Abrahams’ attitude remained the same, namely, that
allegations of drug ingestion had to be objectively
proven. Dr
Abrahams testified that she took her own blood sample from the
deceased during the autopsy and had this subjected to
testing for
drugs. It was put to her that Dr Naidoo had calculated that a total
of more than six litres of fluid had been administered
to the
deceased post admission but Dr Abrahams was of the view that this was
an overestimate of the fluids administered to the
patient. Dr
Abrahams testified that she never received the docket, only the
photographs of the scene and was briefed at the autopsy
of the
circumstances surrounding the patient’s death, namely,
attendance at the rave party, that the patient had been alone
in the
tent with the accused and that he reported that he never had sex with
the deceased nor left her alone and further that the
patient
allegedly masturbated herself. It was put to Dr Abrahams that the
patient had passed dark coloured urine and that this
was a result of
rhabdomyolysis i.e. skeletal muscle breakdown due to hyperthermia.
However Dr Abrahams stated that dark urine might
simply be
hyper-concentrated urine mixed with blood from her vaginal injuries.
The witness was also taxed with the proposition
put to Dr Franklin
regarding the CT scan. She too, however, adopted the point of view
that a ‘
normal
or negative CT scan’
did not necessarily reflect an absence of brain injuries. She
testified that she had seen many such scans which did not show injury

which nevertheless was evident on autopsy.
[98]
In
answer to a question from the Court it emerged that Dr Abrahams’
conclusions as to the cause of death were based, in no
small part,
upon the assumption that the deceased took no drugs as there was no
toxicological proof of this. She was further asked
what her position
would be should it be found that the deceased might well have taken
such drugs and her answer was that this would
depend on what drugs
she took and the quantity.  Dr Abrahams’ conceded that the
question of what drugs someone had taken
and the possible effect
thereof is a specialist subject within the province of a
pharmacologist.
[99]
Dr
Abrahams’ noted that there were some 24 needle prick marks on
the deceased. Questioned about her theory that the marks
on the
inside of the deceased’s mouth were caused by external force in
an attempt at strangulation, Dr Abrahams stated that
this was the
only inference which could be drawn. It was put to her that the
injuries on the inside of the mouth could have been
caused when the
intubation tube was inserted through the use of a laryngoscope or
when the airway was inserted. Dr Abrahams replied
that this was
unlikely not least because at that stage the bleeding tendency (DIC)
had not manifested. In advancing her view that
the mouth injuries
were a result of external ‘
forceful
pressure’
Dr Abrahams stated that during forceful vaginal or anal penetration
the deceased would have cried out and would have tried to escape
from
those positions.
[100]
It
was also put to Dr Abrahams that the 32 or so hours which passed
between the patient’s death and her post-mortem autopsy
could
have affected her findings. Dr Abrahams confirmed that decomposition
starts from the moment of death and that the patient’s
body was
in an unrefrigerated state for some 12 hours. She confirmed her view
namely that the deceased had been manually strangled
which caused her
to become hypoxic and led to the damage to the brain and the other
organs of the body. The witness stated that
in 99% of cases such as
the present the victim would die immediately but the deceased may
have survived for some time because of
her youth. In her view the
strangulation would have cut off oxygen to the brain causing global
hypoxia thus effecting all the body’s
organs. It was further
put to her that Dr Naidoo would testify that a strangulation would
not cause a clotting disorder, brain
disorder nor global hypoxia. It
would further be advanced on behalf of the accused that the global
hypoxia was a result of the
DIC and not the brain injury. Dr Abrahams
stated that she did not agree with the reversal of the theory namely
that the DIC was
the cause of global hypoxia rather than vice versa,
the position for which she advocated.
[101]
It
was put to her that the injuries to the patient’s mouth could
have been caused by the paramedics but Dr Abrahams responded
that
none of the paramedics’ notes speak of any difficulty in
intubating the patient. It was also put that Dr Abrahams’

theory of strangulation flew in the face of the clear CT scan and the
absence of fractures to the hyoid and thyroid bones. Dr Abrahams

conceded that there were no such fractures but stated that there was
severe haemorrhages around the horns of those bones and that
at the
age of 21 years the patient did not need to show fractures of those
bones to have been strangled.
[102]
In
summary it was put to Dr Abrahams that the various injuries to the
patient’s body did not support her strangulation theory

inasmuch as:
1.
a
diffuse swelling of the patient’s neck was explained by
resuscitation attempts by the paramedics;
2.
her
body was in an early stage of decomposition and bloating;
3.
the
patient was administered ‘
massive’
amounts of fluid;
4.
the
neck is a tough compartment which will manifest any swelling as a
result of bleeding but which would have been caused by coagulation

and not strangulation; and
5.
there
was no similar case to be found in the medical literature.
[103]
Dr
Abrahams’ comments were, respectively, that the paramedics
could not have caused the haemorrhages she recorded and no attempt
to
resuscitate would have caused such injuries. Secondly, decomposition
would cause some bloating but not haemorrhaging; thirdly,
the patient
received limited fluids only some 200ml on the scene and less than 6
litres including the period of hospital treatment;
fourthly, the neck
can swell to accommodate haemorrhage and, fifthly, the coagulopathy
disorder only came later in the patient’s
demise.
[104]
It
was also put to Dr Abrahams that many of the injuries she noted,
except for the abrasions were consistent with the treatment
that the
paramedics gave the patient. Dr Abrahams disagreed stating this was
most unlikely and making the point that the paramedics
wold not fight
with someone who was convulsing, rather try to calm her down or
sedate her. It was also put to Dr Abrahams that
the deceased fell to
the ground and rolled around on the ground in the tent. As regards
the bruising to the patient’s sides
and on the hips, it was put
to her that these were either medical restraint injuries or because
the deceased fell to the ground.
Dr Abrahams responded that the
injuries were quite severe and did not fit in with a fall or
paramedic inflicted injuries.
[105]
As
regards injuries to the genitalia it was put to Dr Abrahams that
another likely explanation for them was generalised bloating
of the
genitalia following the heavy administration of fluids and the DIC
bleeding into the area. Her response was to state that
these injuries
must be seen in the context of the other tears and abrasion injuries
found. It was also put to her that another
reasonable explanation for
the injuries involving skin loss could be skin detachment as a result
of early decomposition. Dr Abrahams
denied that there were any
‘
decomposition
injuries’
.
[106]
It
was put that Dr Naidoo would testify that female masturbation
involves the insertion of fingers into the vagina which can produce

tears at 6o’clock and 12o’clock. The accused, would if
necessary, testify that the deceased was sexually aroused and
in the
tent she had vigorously fingered herself. Dr Abrahams again rejected
the notion that the injuries to the genitalia could
be attributed to
decomposition explaining that a body does not tear in decomposition.
She was also extremely sceptical regarding
the masturbation
explanation stating it would be extremely painful to self-inflict the
friction abrasion injuries and tears. She
added that the general
picture did not fit with the extent or depth of the injuries and if
masturbation had been taking place it
would be lubricated. Instead
there was a lack of lubrication which explains the injuries. Dr
Abrahams added that some injuries
went right up to the cervix. She
disputed that skin slippage would account for any of the injuries and
referred to para 3 of her
initial report dealing with secondary
post-mortem changes where she recorded as follows:
‘
There
is evidence of secondary autolytic changes with bloating of the body
and marbling with no skin slippage’.
[107]
Dr
Abrahams confirmed that she had done block dissections vaginally and
peri-anally so as to get a much better picture.
[108]
Dr
Abrahams was also questioned at some length about the presence of
sand grains high up in the patient’s/deceased’s
vagina
and it was put that a plausible explanation was that this could have
been as a result of intercourse on the ground or that
the deceased
had transported these sand grains into her vagina when masturbating.
Her comment on the latter was that this was highly
improbable since
the grains reached or were found around the cervix and sand grains
cant ‘
jump
up’
.
[109]
The
accused’s counsel put to Dr Abrahams that the same theory of
decomposition and skin slippage could explain the anal injuries
and
further that the vaginal and anal ‘
tears’
found could be caused by masturbation and constipation respectively.
Dr Abrahams replied that these were very unlikely explanations
and
furthermore that she saw bloating but no skin slippage.  As far
as constipation was concerned she stated that such tears
would be
internal whereas the tears she found were on the outside. The notion
that the anal injuries were caused by masturbation
was very unlikely
as this would be very painful. There was an area of friction
abrasions surrounding the anus.
[110]
It
was further put to her that Dr Bartleman’s J88 examination
revealed nothing untoward in the anal area. Dr Abrahams stated
she
could understand this since Dr Bartleman’s anal examination was
superficial as the patient needed immediate and extensive
care to try
and save her life. She added that such injuries could also show up
more clearly at a later stage. It was put to Dr
Abrahams that the
deceased might have sustained the knee and elbow abrasions as a
result of falling and inasmuch as there were
injuries on all sides of
the patient’s body. It was further put that the accused would
deny that any fluid found in the deceased
was deposited by him. Dr
Abrahams testified that on smell and examination it seemed like
seminal fluid. Asked why she did not take
a sample her response was
that swabs had already been taken by Dr Bartleman in the J88 process.
She conceded that the DNA testing
had proved negative. The fullest
account of the accused’s version of events was put to Dr
Abrahams and was as follows:
He
and the deceased had taken LSD and MDMA earlier that evening together
with others. The drugs were bought from an unknown person
and taken
in combination: first the LSD and about half an hour later the MDMA.
It became evident that they were adversely affecting
the deceased.
Later in the evening the deceased began to feel unwell on the dance
floor. She sat down complained of not feeling
well and stated that
she wanted to go back to the tent. At this stage she could not stand
on her own. She had to be assisted by
the accused and by Jade Grey
and Riaan Martin who helped her to stand after she tried to do so but
fell onto her knees. They then
supported her and walked to the tent
but at times her knees buckled and she subsided to the ground. Riaan
Martin and Jade left
after they had assisted the deceased to the
tent. The accused and the deceased went into the tent, with the
accused thinking that
the deceased would rest and let the effects of
the drugs wear off. However, in the tent the deceased expressed that
she was sexually
aroused, removed her clothing and insisted that they
have sex. The accused refused. The deceased was in a state he had
never seen
her in before in their relationship. She did strange
things whilst on the ground she rubbed herself and inserted her
fingers into
her vagina. The accused tried to calm her down but she
started to shake and then began having fits. The accused panicked,
became
very worried and screamed for assistance from friends camping
around them. Before he went for help he put short pants onto the
deceased. Some of his friends arrived. He was in a frantic state and
the deceased was on the ground convulsing. After the paramedics

arrived they tried to calm the deceased and ‘
get things into
her’
but they struggled to do so. After sometime they
placed her on a stretcher and took her to the paramedics’ tent.
The deceased
was still convulsing. There the paramedics struggled to
get needles and ‘
things’
into her. At some point
the paramedics asked for a wet towel. An ambulance arrived and the
deceased was placed inside and taken
to Paarl Medi-Clinic. He and
Kyle Inglis followed. At Paarl Medi-Clinic ICU he spoke to medical
personnel including Dr Franklin.
He also spoke to certain police
officials and gave a statement to one such official. The further
events of the day were described.
[111]
It
was also put that the accused had never raped, assaulted or strangled
the deceased on 31 December 2013 or 1 January 2014, that
they were in
a loving relationship and that he had no reason to do so or to cause
her any harm. Dr Abrahams was then asked to comment
on this lengthy
account from a medical point of view. She stated that all the
temperatures taken of the patient showed no hyperthermia
and all the
drug tests showed no presence of amphetamines. All the blood samples
were analysed and reanalysed and nothing was found
besides the
substances that formed part of the medical treatment the deceased
received. Consequently Dr Abrahams was of the view
that drugs played
no role in the deceased’s death. There was also no evidence of
any sexually stimulated or hyper-stimulated
state in the patient. She
maintained her opinion that the cause of death was strangulation and
that drugs played no role.
[112]
In
re-examination Dr Abrahams was asked whether she was aware of the
patient’s DIC pathology when she drew up her first report
and
her response was that she had been aware since inter alia she had Dr
Franklin’s report. Asked why there was no specific
reference in
her first report to the DIC pathology Dr Abrahams’ reply was
lengthy but vague.
Professor
Lorna Martin
[113]
Professor
Martin has an MBCHB acquired in 1989, a diploma in forensic medicine,
a Masters in Forensic Pathology and a fellowship
in Forensic
Pathology from the Medical Colleges of South Africa in 2011. She has
19 years of experience as a forensic pathologist
and before that also
did clinical work as a district surgeon.
[114]
Professor
Martin was asked by the State to give a second opinion on the subject
matter of Dr Abrahams’ post-mortem report.
To do so she read
all the relevant reports and documentation. She explained that she is
the clinical department head for Forensic
Pathology services for the
Metropolitan and Southern Cape Area and also head of the department
of Forensic Pathology at UCT. Dr
Abrahams is a regional pathologist
in charge of the Paarl area and supervises other pathologists. Dr
Abrahams does not report to
her although she (Professor Martin) is
her superior on the relevant organogram. Professor Martin prepared a
report (Exhibit W)
the contents whereof she confirmed. Amongst the
documents she considered were Dr Abrahams’ two reports, Dr
Naidoo’s
medico-legal opinion, Dr Franklin’s report, the
Path Care results, the report of Professor Peter Smith and the report
of
the forensic chemistry laboratory.
[115]
She
set out the background to the case and then expressed her overall
opinion, namely, that the injuries as recorded as external
findings
at autopsy were due to blunt force trauma consistent with manual
strangulation, compression/closure of the mouth and forceful
genital
and anal penetration. She added that the injuries to the patient’s
anus, chest, abdomen, legs were also consistent
with blunt force
trauma/application of force and could have been caused by grabbing or
holding down. The injuries to the elbows
and knees could have been
sustained if the deceased was on all fours. In further comments
Professor Martin referred to the coagulopathy
which developed in the
deceased as a result of the ‘
global
hypoxia injury’
sustained and the multi organ failure that developed. She noted that
there was no pharmacological/toxicological evidence to suggest
that a
drug had initiated the confused, depressed neurological state, the
convulsions nor the metabolic acidosis or DIC (renal
and hepatic
failure). She further noted that Dr Abrahams was aware of the medical
history and specifically the treatment at Paarl
Medi-Clinic before
she performed the autopsy. Professor Martin added that she had never
seen such injuries to the mouth, lips or
cheeks being caused by
health care personnel when inserting an oropharyngeal airway or
suctioning secretions. Similarly she had
never seen such injuries to
the neck region - by insertion of an endotracheal tube – or to
the genitalia – by insertion
of a urinary catheter. She noted
that all of the above medical interventions were administered to the
deceased well before the
onset of the DIC in the patient. She did not
believe that the genital and anal injuries could have been
self-inflicted by the deceased’s
fingers. She noted that a
friction abrasion (rubbing abrasion) is a common term in forensic
pathology nomenclature; further that
there was no evidence of the
deceased being hyperthermic. She noted that in Dr Abrahams’
second report she had had access
to all the medical records including
the ICU chart and nursing notes whereas Dr Naidoo did not appear to
have that information
when he compiled his report dated 22 April
2015. Further she noted that Dr Abrahams was a forensic pathologist
whose focus was
on the documentation of injuries whereas Drs Franklin
and Bartleman were not such specialists.
[116]
In
conclusion Professor Martin’s opinion was that the cause of the
patient’s death was due to strangulation and the
consequences
thereof and that the injuries to the genitalia and the anus were due
to forceful penetration.
[117]
In
viva voce evidence she was asked to comment on the lengthy version
which had been put to Dr Abrahams whilst Professor Martin
was present
in court. Amongst her comments was that she did not believe that
constipation and masturbation could account for some
of the injuries
to the patient’s private parts since the injuries to the anus
were quite severe and would have caused ‘
exquisite
pain’
.
She noted that there was no evidence at all of any drug ingestion in
all the samples tested. As far as she was concerned the rest
of the
evidence showing the clinical picture accords with strangulation
rather than the ingestion of drugs. She did agree that
the DIC could
have played a role in accentuating the bleeding and therefore the
injuries and that DIC can also lead to spontaneous
haemorrhaging.
Asked how severe the patient’s injuries were Professor Martin
stated one must look at the overall pattern
and in doing so she saw
the injuries as being severe i.e. the amount of force used. She sees
the injuries as emanating from neck
strangulation and also others as
a result of a multiple interactions with someone being assaulted. She
added that the deceased
could also have been penetrated from behind.
[118]
Professor
Martin testified that she attended a roundtable meeting with several
other experts involved in the case recording the
various areas of
agreement and disagreement. This signed minute was handed up as
Exhibit F and records that there were four principal
issues
discussed, namely:
1.
The
evidential value of the results of toxicological testing;
2.
The
verification of lesions described as injuries;
3.
The
evidence of sexual injury and
4.
The
medical cause of death.
[119]
As
to the first topic i.e. the toxicological analyses, it was agreed
that the results did not identify any toxic drug or compound
the
effects of which could have caused or contributed to the death. It
was further agreed that a group of drugs, amphetamines,
which could
cause a clinical state of hyperthermia, rhabdomyolysis, bleeding
disorder and acidosis were not found in the deceased
after three
different laboratory processes. The area of disagreement was whether
drug intoxication was a cause or contribution
to the patient’s
death. In this regard Dr Naidoo was of the view that a negative
result on the drug test done did not entirely
rule out causation by
drug intoxication and that the laboratory analysis were not fully
comprehensive in respect of the range of
substances. The State’s
expert disagreed in this latter regard as MDMA and amphetamines were
tested for and no test can ever
be comprehensive in the sense that it
tests for new (as yet unknown) agents.
[120]
As
regards the verification of injuries it was agreed that the injuries
reported on the deceased looked much worse than they actually
were
due to the bleeding disorder that developed but that they had been
present before the onset of the bleeding disorder. The
areas of
disagreement under this heading were the specific causation of the
injuries. The State’s pathologist (Professor
Martin) believed
that the injuries were inflicted on the deceased before her death and
that the resuscitation procedures did not
contribute to her injuries
described on her neck. The defence’s pathologist was of the
view that the injury appearances were
created by the following
combination:
1.
injuries
to the knees, the hips and genitals when the patient was in a
disturbed and agitated state at the incident site and as
a result of
resuscitation procedures; and
2.
the
same intensified or magnified by the effects of the DIC.
[121]
Regarding
evidence of sexual penetration there was agreement that the finding
of ‘
rape’
was not within the ambit of the medical examiner and the question was
rather whether there was evidence of sexual penetration by
the
demonstration of genital lesions, whether consensual or not. The area
of disagreement was that the State’s pathologist
believed that,
based on the J88 and autopsy findings, there was evidence of vaginal
injuries and the only explanation therefor
was sexual penetration
whereas the defence expert considered that the genital appearances
could be explained by self-infliction,
its appearances enhanced by
the DIC.
[122]
Finally,
regarding the medical cause of death there was agreement that the
terminal pathophysiological mechanisms of death were
a generalised
hypoxia, multiple organ failure, severe acidosis and severe bleeding
disorder (although the latter was reversed by
treatment). The area of
disagreement was as to the underlying primary cause of death. The
State’s pathologist believed that
this was manual strangulation
which produced hypoxic damage to the brain and other organs leading
to the coagulopathy and multiple
organ failure and inasmuch as it
could not be found that drug toxicity was a contributory cause. The
defence pathologist considered
that a ‘
systemic’
insult was suffered to cause multiple organ damage and it could not
be conclusively shown that drug toxicity could be excluded
from
causation. He considered further that the neck findings were more
easily explained by resuscitation intensified in its appearance
by
the bleeding disorder; further that the state of multiple organ
failure and coagulopathy was highly unlikely to be produced
from
strangulation alone.
[123]
In
her evidence Professor Martin testified that the bruising on the
patient’s hips were unlikely to have been caused by
convulsions/rolling
around but rather by blunt force trauma i.e.
being hit or the body hitting something. Similarly she saw the
internal mouth contusions
and lacerations as being caused by pressure
from outside and did not believe that paramedics would have caused
them. As regards
the neck injuries she considered that the absence of
finger marks were not conclusive because a forearm could have been
used in
a choke hold. She stated that how long such pressure could
have been applied would depend upon strength but could be up to eight

minutes. She testified that it was a case of attempted strangulation
and that she knew of only two such cases, one where the person

eventually died and the other where the victim survived. In her view
the cause of death is what starts the sequence or cascade
of events
leading to the eventual death. It could start with local hypoxia i.e.
to the brain and then spread globally to when the
brain shuts down
and the other organs shut down as well. In her view the convulsions
caused by damage to the brain following the
attempted strangulation.
[124]
In
cross-examination the witness resisted the notion that the deceased
may have been suffering from hyperthermia at any stage basing
this on
the observations made and notably the temperatures recorded. Asked if
her opinion as to cause of death would change if
the Court would find
that the deceased took drugs her reply in essence was that it would
take evidence of the deceased taking a
lot of drugs for her to change
her opinion. The issue of rhabdomyolysis was raised with her and she
agreed that the patient was
treated for a breakdown of muscle tissue
but stated that there were various causes for such a condition
including systemic assault
and hypoxic insult
.
[125]
Regarding
injuries to the patient’s lips and mouth Professor Martin
considered that medical intervention was not a plausible
explanation
for these injuries even taking into account the role of the DIC. In
this regard she noted that the patient was only
intubated by the
Metro ambulance paramedic when she was already in deep sedation. She
conceded the small possibility of some trauma
being caused when the
patient was first treated but does not think it could have caused the
lip damage. Professor Martin testified
that she had seen more than
2000 cases of rape since she commenced practising as a doctor in
1999; she had conducted more than
12 000 autopsies and supervised
more than 20 000. She had never previously seen such injuries caused
by paramedics or medical staff.
[126]
Dealing
with the alleged strangulation, the witness accepted that there were
no specific contusions to the neck such as finger marks
but pointed
to the contusion haematoma around the two bones as being indicative
of blunt force trauma. She speculated that the
forearm could have
been used although she did not discount the use of hands. Professor
Martin again expressed agreement with a
finding that there was blunt
force trauma to the patient’s head and testified that a CT scan
would not necessarily show such
injuries at 9am on 1 January 2014.
When it was put to Professor Martin that the genital and anal
injuries were explained by heightened
sexual arousal, masturbation,
constipation and DIC the witness first set out her considerable
experience dealing with rape cases,
her academic writing on the
subject and her supervision of studies in the area before expressing
her opinion that these injuries
were caused by blunt force trauma and
could not have been caused by the factors advanced on behalf of the
accused. Her reasons
were the severity of the injuries inter alia the
abrasion to the anus being 7cm in depth and the lacerations to the
genitalia.
She herself had never seen injuries to that extent caused
by masturbation or constipation. The witness noted that women deliver

babies without incurring lacerations and similarly men have sex with
men without anal lacerations. Her view was not affected by
the fact
that there was no positive DNA results. In re-examination the witness
expanded upon this stating that if a DNA result
is positive it is
significant but that if it is negative it is not so significant since
it is an eliminatory mechanism. The depositor
may have been a
non-secretor, there may have been a physical barrier or the sampling
technique could be hit and miss. Regarding
Dr Abrahams’
evidence, strongly criticised on behalf of the accused, that the
fluid she found in the patient’s vagina
had the appearance of
seminal fluid, Professor Abrahams testified that such evidence was
routinely given before sophisticated methods
of testing fluids were
widely available.
Ms
Nokwanda Mbonambi
[127]
Ms
Mbonambi testified that she was employed as an analyst at the
forensic chemistry laboratory run by the Department of Health in

Woodstock. She had a national diploma in analytical chemistry and had
worked at the lab since 2012 as a forensic analyst. She confirmed
an
affidavit she had made stating that she received certain blood
samples from the forensic pathology service in Paarl on 10 January

2014 in a sealed polystyrene container which she analysed and found
therein traces of acetaminophen, diazepam and midazolam. These

samples had been kept in an access controlled area until their
analysis on 20 March 2014. Access controlled refers inter alia to
the
fridges in the laboratory which are kept at between 4 and 8 degrees
centigrade. The witness testified that the machines which
she used to
test the samples were very sensitive; further that she used a
sequence of two machines to test and picked up the results
only in
the second and more sensitive machine. Finally, she testified that if
there had been any traces of MDMA and LSD at the
very least the
second machine would have picked this up.
[128]
In
cross-examination Ms Mbonambi stated that MDMA and LSD were part of
the library of drugs for which she tested using a high performance

liquid chromatograph. The witness gave clear evidence which was not
materially challenged and which can be accepted.
Professor
Marc Blockman
[129]
Professor
Blockman is a specialist pharmacologist and a professor at the
department of internal medicine in the division of chemical

pharmacology at Groote Schuur and UCT. He holds the degrees of MBCHB
and Bachelor of Pharmacy and is a fellow of the College of

Pharmacologists. He testified that Professor Peter Smith, a scientist
in the division of chemical pathology had sought his opinion
on drug
levels in certain Path Care samples which had also been retested by
his laboratory in relation to the demise of the deceased.
Professor
Blockman compiled a report in which he set out the documents to which
he had regard including certain pharmacological
results, a blood
alcohol report, Dr Abrahams’ report and Dr Franklin’s
report. He also attended the joint meeting of
experts on 9 June 2017.
[130]
Professor
Blockman confirmed his report in which he set out the history of the
matter and which noted inter alia that the laboratory
samples did not
reveal the presence of either LSD or MDMA. He noted that the referral
confirmatory laboratory (Professor Smith’s
laboratory) itself
could not establish LSD or MDMA presence. He expressed the opinion
that if the deceased had taken LSD or MDMA
at 22:30 the drugs or
their metabolites would have been expected to be found in blood or
urine samples taken at around 4:30 the
following day although the
dose taken would obviously play a role. He stated further the fact
that neither of these drugs were
detected in either blood or urine
means that ‘
there
is no objective evidence that they were actually taken by the
deceased’
.
Professor Blockman stated that a moderate dose of LSD would
significantly alter one’s state of consciousness characterised

by a stimulation of affect, altered psychological functioning and
perceptual changes such as illusions and pseudo hallucinations.
A
moderate dose of LSD within a few hours after ingestion results in
plasma and urine concentrations. The average time for determination

of LSD in blood specimens is estimated to be 6 to 12 hours and 2 to 4
days in urine specimens.
[131]
Regarding
MDMA it is structurally related to amphetamines and causes an
elevation of mood and increased energy. It also increased
the desire
to interact and bond with other people due to an outflow of oxytocin.
Hyperpyrexia resulting in rhabdomyolysis or heat
stroke has occurred
due to serotonin syndrome or enhanced physical activity without
recognising clinical clues such as overexertion,
warm temperatures
and dehydration. Professor Blockman testified that as an extension of
the desired bonding and enhanced socialisation
effects of MDMA,
people may make choices about whether to engage in sex that they
would not have otherwise. He testified that there
is limited
experience with treating MDMA induced adverse events and generally
the therapies usually employed to treat the general
disorder are
used. He testified that the finding of trace cocaine metabolites i.e.
the breakdown products of cocaine by the referral
confirmatory
laboratory may reflect that cocaine was taken days before. However,
the result must be treated with extreme caution
and the deceased may
never have taken cocaine at any time. Professor Blockman stated that
he was comfortable that his trace metabolite
finding played no role
in the death of the deceased. He commented that the suggestion by the
accused that the deceased may have
taken LSD and MDMA does not
explain the physical trauma found by the forensic pathologist i.e.
manual strangulation. Professor
Blockman concluded that in his
opinion no medicines led to the deceased’s death and he was
unsure as to whether any of the
drugs referred to were in fact
ingested as laboratory assessment had proved negative.
[132]
In
viva voce evidence Professor Blockman was referred to the joint
minute of experts and in particular Dr Naidoo’s assertion
that
the laboratory analyses were not fully comprehensive in respect of
the range of substances so that could be tested to account
for the
clinical picture. Professor Blockman disagreed strongly stating that
it was not true since the test included MDMA and LSD
and no test
could be said to be non-comprehensive if you are testing for a new
substance i.e. one which has not been detected before.
[133]
Professor
Blockman testified that MDMA is usually in tablet form with an E
inscribed on it. He was referred to various academic
articles
produced by the defence in support of their theory that the patient
suffered from hyperthermia. Professor Blockman observed
that notable
features in those cases were that each patient suffered from
hyperpyrexia i.e. a temperature of more than 40 degrees
and traces of
MDMA were found in their blood samples, characteristics not present
in the deceased’s case.
[134]
In
cross-examination Professor Blockman stated that the ingestion of
fluids can play a role in the detection of drugs, that the
effect of
drugs on individuals can vary and that in combination drugs can have
an enhanced or different effect. It was put to him
that the fact that
the drug tests were negative for MDMA and LSD did not itself signify
these drugs were not ingested for the following
reasons: the expert
witnesses were not present, they played no role in the treatment of
the deceased and there would be evidence
that the deceased took these
drugs. Professor Blockman stated that he cannot completely exclude
the possibility that the deceased
took these drugs. He stated that
rhabdomyolysis is not inconsistent with a drug overdose. The
accused’s factual version was
put to him and he was asked
whether he still maintained his opinion and he confirmed that he did.
[135]
In
re-examination Professor Blockman made the point that for a drug to
cause death it has to be in the blood stream. He confirmed
that it
would be very unusual to have a case of hyperpyrexia where the
patient would have a temperature above 40 which then goes
down to a
normal temperature in hospital. The theory of the patient causing
injuries to herself by masturbation, under the influence
of the drug
was put to Professor Blockman and he stated that he had never heard
of any such case. He added that something which
had worried was the
suggestion that the patient was unable to walk to the tent but once
in there was seemingly overwhelmed by strong
sexual impulses and
masturbated herself fiercely.
[136]
Professor
Blockman was a very good witness and clearly is a highly qualified
pharmacologist. In his core area i.e. pharmacology,
his evidence was
not seriously challenged and must be accepted.
Professor
Peter Smith
[137]
Professor
Smith has a PhD in Biochemistry and directed the therapeutic drugs
monitoring lab at Groote Schuur from 1992 to 2017 when
he retired. He
also directed the mass spectrometry unit at UCT and was director of
the clinical pharmacology unit from 2000 to
2017.  LC mass
spectrometry is a high performance liquid chromatograph and is a very
sensitive means of detecting drugs which
looks at the time when an
agent appears in the test, its mass and its fragmentation pattern. It
is extremely rare for all three
of these identifying features to be
replicated i.e. producing an error. This process is different to
toxicology analysis using
immuno assay which is less sophisticated
but widely used in commercial laboratories such as Path Care and at
Groote Schuur. The
liquid chromatography process is expensive but
would also have been used at the Woodstock police forensic
laboratory. Professor
Smith’s laboratory at Groote Schuur is a
referral lab for Path Care and provides a more sophisticated testing
service for
certain samples which are delivered by Path Care using
the mass spectrometry machine. Samples are delivered by Path Care by
courier
for testing about once weekly.
[138]
In
the present case they received a sample involving two blood samples
and a small urine sample from Path Care on 6 January 2014
which the
lab duly analysed using the LCMSMS method. The result showed clear
traces of diazepam, midazolam and another agent also
known as
paracetamol. Also found was an antihistamine. The latter two agents
were found in the urine. Also found therein was morphine,
codeine and
cocaine metabolites. Because of the low level of cocaine found either
the deceased did not ingest the substance or
took it some good few
days before the incident. Professor Smith stated that if the deceased
had taken LSD or MDMA the evening before
her death it should have
been picked up on testing.  The qualification he added was that
it was dependant on whether the amounts
she took were very small. He
handed the samples in question back to Sgt Sias on 9 May 2014. When
it was put to him that these samples
were kept at room temperature
overnight in Paarl before being tested by the police laboratory
Professor Smith observed that most
drugs are quite tough and he would
not expect to see any adverse effects or a big difference in the
second testing results. Professor
Smith also confirmed a report by
himself, Exhibit MM, in which he set out his evidence and his
conclusion that there was no objective
evidence that the deceased had
taken LSD or MDMA at 22:30 since the drugs or their metabolites would
be expected to be found in
her blood or urine and in samples taken at
04:30 the following day.
[139]
In
cross-examination Professor Smith testified that the testing process
in his laboratory would not pick up a very new ‘
designer’
drug for which the computer is not programmed. The result could be
influenced by the amounts of fluids ingested by the person but
this
would have to be correlated with the creatinine levels in the blood
and see whether it was influential.
[140]
Professor
Smith was a completely credible witness within his field of
expertise.
Lieutenant
Colonel Marissa Gordon
[141]
Lt
Colonel Gordon testified that in January 2014 she was stationed at
the Paarl Family violence, child protection and sexual offences
unit
(‘
the
FCS unit’
).
She commenced duty at 7am that day and a Sgt Morrison reported to her
that she had received a charge of serious indecent assault
and that
the complainant was at Medi-Clinic in Paarl. The witness and two
colleagues proceeded to the hospital at about 8:30am
and were told by
medical staff that the deceased had sustained serious injuries, in
particular bleeding on the brain. She obtained
the accused’s
telephone number and called him telling him that she was on her way
to Le Bac Estate and that he must not break
down his tent. She and
her colleagues arrived at the estate at about 9:30am where she met
the accused and they proceeded to his
tent. Upon enquiry the accused
told her that he had bought two pills, one LSD and one MDMA and had
given the LSD pill to the deceased
to take which was the first time
she had done this. She then began to take off her clothes because she
wanted to have sex with
him. With the help of two of his friends,
Riaan Martin and Jade Grey he got her back to the tent. Outside the
tent the deceased
began to vomit and when he took her into the tent
she began to roll on the ground, again wanting to have sex with him
and taking
off her clothes although he again refused. According to
the accused the deceased then began to speak in a confused manner.
She
asked him whether he had stayed with her the whole time and he
replied yes. The accused told the witness that the deceased could
not
breathe properly after a while. Her body became limp. He took her to
the paramedics who made an incision in her throat so that
she could
breathe and from there the paramedics took her to hospital. Lt
Colonel Gordon had asked the accused whether he had had
sex with the
deceased and his reply was no and that they could take a blood
sample. The witness then went to the paramedic who
treated the
deceased but whose name she could not remember. He told her that when
the deceased was brought to him she was already
unconscious and that
was why the incision had been made.
[142]
Lt
Colonel Gordon was cross examined at some length during which it
emerged that her recall of detail and her knowledge of police

procedure was quite poor. Nonetheless the material elements of her
evidence were not challenged and can be accepted. These elements
were
confirmed in a semi-contemporaneous note which she kept and in which
she recorded ‘
the
victim took one LSD tablet and one MD tablet’
and the further phrase ‘
mentioned
she threw up and rolled on the ground’
.
Lt Colonel Gordon was subjected to a quite lengthy cross-examination
during which it became clear that she did not have a very
good
recollection of the details of the events in question.
Sgt
Ronel Morrison
[143]
In
2013/2014 Sgt Morrison was employed by SAPS and had 17 years’
service. She was stationed at the FCS unit in Paarl and Lt
Colonel
Gordon was her superior. She left the SAPS in 2016. On 1 January 2014
at about 3:45am she received a telephone call to
the effect that she
must proceed to the Paarl Medi-Clinic ICU which she did accompanied
by two colleagues. The patient/complainant,
(the deceased), was
unknown to her and was unconscious and connected to various life
support machines. The doctor told them that
she had come in as an
overdose patient and explained that it was a possible rape case. He
asked for a crime rape kit and said that
he was not comfortable doing
the examination and asked a woman colleague, presumably Dr Bartleman,
to undertake the examination.
Dr Bartleman applied the kit and took
the swabs but not in their presence although the samples were sealed
before them. Sgt Morrison
then went to the cafeteria to find the
accused and she and a colleague began to take a statement from him.
[144]
When
the State sought to hand up the statement an objection was taken on
behalf of the accused, namely that it was inadmissible
because it was
taken as a witness statement and then used against the accused. A
trial within a trial commenced at that point.
The issue in the trial
within a trial was broadly the question of whether the accused was a
suspect or a witness and, if the former,
should he not have received
warnings before a statement was taken from him. The accused’s
counsel advised that the contents
of the statement were not in
dispute, just its admissibility, and that it does not contain
admissions, confessions or incriminating
material. In fact, according
to counsel, the contents were entirely consistent with the accused’s
defence. The State prosecutor
advised that she wished to prove the
statement merely for the purposes of a possible cross-examination of
the accused.
[145]
Sgt
Morrison testified that she regarded the accused as a witness, that
they had just begun their investigation and that she had
to proceed
some way before they could start thinking of a suspect. She was not
even in a position at that stage to say whether
an offence had been
committed i.e. before the sexual kit and examination had been
completed. She stated that she asked the accused
to give his account
as they sat together in the cafeteria after explaining to him that
they needed his witness statement so that
they could know in which
direction to go. The accused agreed and whilst they were busy the
patient’s mother arrived. The
accused told the deceased’s
mother that he was very sorry for what had happened and the mother
asked whether she could sit
with them while the statement was being
taken. The accused agreed to this. The witness began to take down the
accused’s statement
but he interrupted her and said could they
go outside because he wanted to smoke. The witness acceded to this
request and sat in
her car taking the statement whilst the accused
stood outside smoking. The witness testified that the offence they
were investigating
was the overdose and an alleged rape. She took the
statement from the accused because he had been with the deceased
throughout.
Sgt Morrison stated that she was the investigating
officer in the matter for no more than a day and a half before she
handed it
over to another police officer. The accused smoked
incessantly, seemed nervous and was walking around all the time while
she took
his statement. She stated that if she had regarded the
accused as a suspect she would have read him his rights beforehand.
It was
put to her that her telling him not to disappear before she
had viewed the camp site indicated that she viewed him as a suspect.

The witness denied this stating that in any rape case the scene has
to be pointed out by someone so that photos can be taken and
bodily
fluids searched for. She testified that the accused had many
opportunities to say if he was not comfortable making the statement.

Later she had attended at the camp site where a photographer had
taken photographs and a police dog had been used to sniff for
bodily
fluids. Sgt Morrison testified that the accused read the statement
which she took from him himself and pronounced himself
satisfied. She
was taken through the statement and corrected some of the more
obvious errors.
[146]
Sgt
Morrison was a good and credible witness and there is no reason to
disbelieve any of her evidence.
Sgt
Terence Sias
[147]
Sgt
Sias was stationed at the SAPS detective branch at Paarl and was part
of the investigating team. He testified that two dockets
were opened,
one a rape charge and the other an inquest case. After the autopsy
the inquest was changed to a murder docket. It
was sent to the DPP
for guidance and instructions and in October 2014 they received
instructions to arrest the accused. Sgt Sias
testified that the
accused only became such months into the investigation and after the
DPP had become involved in the case. Sgt
Sias also gave evidence that
he collected the deceased’s blood samples from the Groote
Schuur laboratory, brought them back
to the Paarl police station
where they were stored overnight and thereafter delivered them to the
Woodstock Forensic laboratory.
Samples were marked Ms S D. Refreshing
his memory from his statement he gave the sample number. Sgt Sias
also testified that he
made considerable efforts to find the
paramedic, Mr Eugene Le Roux, but could not trace him even after
using social media. He confirmed
that the police dog brought onto the
scene on 1 January 2014 found no positive signs i.e. bodily fluids.
Ruling
pursuant to the trial within a trial
[148]
At
the conclusion of the trial within a trial I ruled that the witness
statement made by the accused was admissible and it was entered
into
the record. I undertook to give reasons at a later stage and these
are annexed to this judgment as Annexure A and form part
of this
judgment.
The
accused’s case
[149]
The
accused called an expert witness, Dr Segaran Naidoo, and two
witnesses, Ms Lameez Martin and Ms Jade Grey in that sequence
although I will set out the evidence of the factual witnesses first.
The accused did not testify in his own defence.
Ms
Lameez Martin
[150]
Ms
Martin testified that she knew the accused and the deceased and in
December 2013 was dating the accused’s cousin, Rafiq
Wagiet and
they would sometimes all four go out together. They were all members
of a party which went to the trance party at Le
Bac Estate on 31
December 2013. She arrived with four others that day at the venue
when they set up the tent and scouted around.
Thereafter they all
went, including the deceased and the accused for a swim in a dam or a
river. She, Rafiq and one, Yugan, shared
a tent but she cannot say
where it was situated in relation to the accused’s tent. In the
evening the witness got hold of
some LSD and MDMA. She testified that
drugs were freely available at this event. This was at or near
someone’s tent and present
were the accused, the deceased,
Vanika Lalloo, Yugan and Rafiq Wagiet. They then took the LSD. The
witness testified that much
of the day or the night was a blur to her
and that she could not even remember the circumstances in which she
procured the drugs.
According to her the LSD is a small square which
you put in your mouth like paper. Following ingestion of the ‘
LSD’
the witness felt nauseous and was not feeling well at all. She was
dizzy and struggling somewhat to see properly and to walk. What

happened next was that someone needed the bathroom and they all went
in that direction. The witness still did not feel well and
she was
throwing up. Asked about the deceased’s condition she said she
was also not feeling well, she looked weak and the
accused was
helping her to walk. After the bathroom stop she went to the dance
floor with others because she thought dancing might
help. She does
not know when she used the MDMA but she must have done so because she
felt energetic. At the bathroom someone had
told her that the
deceased was not feeling well and they were going back to the tent.
It was the last she saw the accused and the
deceased until she saw
the latter at the emergency tent where she observed her having fits.
She went back to the dance floor and
can’t remember for how
long or much other detail of the rest of her stay at Le Bac Estate.
[151]
In
cross-examination the witness testified that she was 23 years old
when the incident took place and that was her first drug experience.

She identified Exhibit J as a picture of her that night with the
accused and the deceased and the other photograph as pictures
of
Rafiq and Yugan together with the deceased and the accused. She also
testified that she had bought the drugs she took herself.
The
witness’ evidence was replete with ‘
I
can’t remembers’
.
She recalls the MDMA as being in a capsule. Although she has no
memory of taking the MDMA capsule she felt very happy and had
high
energy levels. She remembers the colours and the movements of the
lights on a screen in a light show on the dance floor.
[152]
In
answer to the Court’s questions she stated she last saw the
accused and Rafiq Wagiet about four years ago. She was asked
why she
had not come voluntarily to court but had to be subpoenaed and her
reply was that she did not feel comfortable talking
about something
that she was embarrassed about.
[153]
Ms
Martin was a poor witness who could barely remember what happened on
the day in question. Her evidence had an artificial ring
to it almost
as if she had been programmed to say that she took LSD and MDMA and
conclude with the observation that no one should
take drugs, the
subliminal message being that the deceased died of a drug overdose.
Limited reliance can be placed on her evidence.
Jade
Grey
[154]
Ms
Grey is a final year Psychology student who in December 2013 had just
finished Matric. She attended the event at Le Bac Estate
with a party
including the accused and the deceased and accompanied by Riaan
Martin who is still her boyfriend.  She had attended
one such
festival previously and in her experience there is usually a drug
culture at such festivals although she does not use
drugs herself.
[155]
She
first met the deceased when she was in Grade 8 at school but only met
up with her again a few weeks before the festival. The
witness and
her party arrived at midday, pitched their tents and went for a swim
with the group. That evening she sat with the
deceased who brushed
her hair outside her tent and she seemed completely fine and normal.
Later she and Riaan went to the dance
floor leaving the deceased and
the accused still at the tents. She next saw them when she was on the
dance floor and noticed the
deceased and the accused at the toilet
some 120m – 150m away. When she made her way there she found
that the deceased did
not look herself and was completely different.
The deceased said she did not feel well and told the witness she felt
as if she
was melting. The witness tried to get her to stand up but
could not since her (the deceased’s) legs were like jelly and
she
could not stand on her own. The deceased said she wanted to go to
the tent which the witness said was not a good idea. The deceased

also said that she wanted to go to the tent and have sex with the
accused. The witness helped her to get back to her tent with
one of
the deceased’s arms draped over her shoulder and the other over
the accused’s shoulder. Riaan walked with them.
When they got
to the tent the deceased looked fine, she was calm and could walk.
The witness asked the deceased if she was okay
and she said she was
and Riaan and the witness went back to the dance floor where they
stayed for a couple of hours. They then
went back to the tent and at
that stage she saw that the deceased was having a seizure and was
foaming at the mouth. She was in
the tent, the entrance of which was
open, with the accused standing outside. Everything that happened
thereafter was a bit a blur.
Paramedics came and put the deceased on
a stretcher and took her to the paramedics’ tent next to the
dance floor. At that
tent she can recall that the paramedics were
trying to put a tube in the deceased’s mouth. Then the deceased
was put in an
ambulance and driven away. The witness testified that
she was quite traumatised by the event and that she never saw the
accused
or the deceased again thereafter.
[156]
In
cross-examination the witness stated that she seemed to recall
drinking vodka and that she had had quite a bit to drink having

started at about noon. It was put to her that Riaan Martin had said
that he was quite tipsy and that she was probably in the same

condition. Asked for more details about the deceased’s
condition near the bathroom the witness stated that she had tried
to
comfort the deceased and lift her up but she kept subsiding down (as
opposed to her falling) and that she was weak in her knees.
She would
fall back into the sitting position. She can’t say if the
deceased sustained any injuries. She also said that the
deceased was
cold and that she saw goosebumps on her arms. The witness estimated
that she was 15 to 20 minutes with the deceased.
She would not
describe her as confused but she did not seem herself then. In her
view she was under the influence of ‘
something’
.
Asked whether she was in a state to have sex with the accused her
answer was she did not think so. She does not recall the deceased

falling on her way back to the tent and could not recall if she
sustained any injuries. She confirmed that she made a statement
to
the police on 18 February 2014 after satisfying herself it was
correct. That statement was proved. In it she makes no reference
to
the deceased appearing to be better by the time she was taken back to
the tent. Nor is there any reference to the deceased telling
her that
she wanted to have sex with the accused. It also states that when the
witness came back to the tent after some time to
find the deceased
convulsing she had asked the accused what had happened and he told
her that the deceased had begun to have seizures.
She told him to
roll the deceased onto her side and put something in her mouth. The
deceased was completely naked.
[157]
In
cross-examination the witness also stated that when she first came
across the deceased ill at the tent her head was on her knees.
Asked
why she did not mention the sex aspect in her statement she says she
was scared at the time but could not give an explanation
as to why
she was scared about giving this information to the police. She also
said that she did not think it was a good idea that
the deceased be
in a small confined space i.e. the tent, in the condition in which
she was. She would agree with Riaan’s
evidence that the
deceased did not sustain any injury on the way back to the tent.
[158]
In
answer to the Court’s question she said that from the
deceased’s condition she had assumed that she had taken drugs.

She and Riaan left the deceased at her tent shortly after midnight
and spent about two hours on the dance floor before coming back.
[159]
Ms
Grey was a reasonably credible witness although it appeared that she
may have been strongly under the influence of alcohol that
night. It
is notable furthermore that the witness was unable to explain why she
did not mention the aspect of the deceased allegedly
saying she
wanted to have sex with the accused when she had made no mention of
that to the police.
Dr
Segaran Naidoo
[160]
Dr
Naidoo has a MBCHB, a diploma in Forensic Medicine and a Masters in
Forensic Pathology. He is an independently employed specialist

forensic pathologist in private practice registered as such with the
HPCSA. He has 32 years of experience of forensic pathology,
25 years
of which were as a specialist and 18 years of which he was part of
the academic staff of the University of Kwa-Zulu Natal
and the last
eight of those years he was an associate Professor and head of the
department of Forensic Medicine.
[161]
Dr
Naidoo prepared a medico-legal opinion, Exhibit U, and confirmed its
contents in his evidence. Dr Naidoo specialises in death

investigation and injury analyses. For the last 16 years he has been
involved in training in sexual offences medicine. He testified
that
he was in the final stages of compiling of a court handbook for
lawyers regarding the anatomy of sexual offences medicine.
Sexual
offences/violence is one of his specialist focusses.
[162]
In
his report Dr Naidoo summarised the ‘
salient
facts’
in the case, one of which was that the deceased took LSD and
thereafter appeared to be ill and nauseous. It was not clear whether

the deceased had taken ecstasy but she became acutely ill. Dr Naidoo
listed observations he made from the autopsy photographs amongst
them
were that whilst in ICU the deceased showed early discolouration of
bruising of the subcutaneous tissues of the flank, thighs
and
ankles/feet, abrasions of the knee and needle puncture wounds of the
anterior abdominal wall and one on the neck anteriorly.
He observed
noticeable gross oedema (swelling) of the genitals. According to him
the autopsy images show engorgement of the genitalia
with a dark
discolouration of bruising accentuated by bloating and possible early
post-mortem damage. In addition he observed an
established ‘
marbling’
appearance of skin venous haemolytic changes at the shoulders, torso,
upper arms and thighs with dark discolouration and early
skin
slippage. These, he stated, were post-mortem changes. He observed
that the images of the dissected scalp and other portions
of the body
showed intense and large haemorrhages of the scalp, neck and
supra-sternal tissues and of the para-trachael, glottic
and
para-oesophagal soft tissue, lips and cheeks. In overview an
extensive haemorrhagic state was seen of the body.
[163]
In
his discussion Dr Naidoo noted that Dr Abrahams found multiple skin
and mucosal haemorrhages of inter alia the neck tissues,
eyelids and
conjunctivae, oral cavity and lips and of the torso and limbs as well
as of the ano-genital tissues in what she interpreted
as blunt
trauma. The injuries described in Dr Abrahams’ report were of a
much greater degree than those recorded by medical
staff at Paarl
Medi-clinic and herein lay the basis of the major discrepancy. Dr
Naidoo observed that it was highly unlikely that
Dr Abrahams was
fully informed of the clinical details of the deceased’s short
hospitalisation prior to the autopsy and therefore
he concluded that
the pathologist was unaware of the DIC diagnosis which, in his
opinion was largely the sole reason for the excessively
gross
appearance of bruising and bleeding. With such a major coagulopathy
together with the needle puncture wounds and medical
manipulation
during examination and treatment minor abrasions lead to
haematoma/bruise accumulation both internally as well as
on the skin
apart from the possibility of spontaneous haemorrhages that may occur
in such disorders.
[164]
In
that context, Dr Naidoo continued, the injuries seen by the
pathologist at autopsy appear grossly accentuated and extreme causing

(from the perspective of the uninformed pathologist) a concern
regarding their causation when in ignorance of the full background

medical history.
[165]
Dr
Naidoo also noted further additional concerns about Dr Abrahams’
report including the lack of any signs of digital application
of
force to the neck as well as localised haemorrhages in the
subcutaneous tissues, given the conclusion of manual strangulation.

The autopsy description of the diffuse and extensive bruising was
more in keeping with the emergency manipulation of medical care
and
in particular with emergency airway manipulation in the region of the
neck. The haemorrhages in this region were all ‘
very
possibly’
in keeping with spontaneous bruising in a coagulopathic state with or
without medical manipulation. In his view the conclusion
of
strangulation was both incorrect and a misguided diagnosis. Further,
Dr Naidoo reasoned, the above consideration should have
been kept in
mind when evaluating the appearances of the genital and anal lesions.
He ascribed the 10mm tear of the inferior edge
of the clitoral hood
as being quite possibly the site of the ‘
vaginal
biopsy’
referred to by Dr Franklin. I should observe that this consideration
fell away since it became common cause that no vaginal biopsy
was
taken. He took issue with the use of the phrase ‘
rubbing
friction’
by Dr Abrahams. Apparently relying on the witness statement made by
the accused, he expressed the view that the deceased’s

masturbation in the ‘
last
few minutes of her conscious state’
would cause the vaginal abrasion as well as the ‘
loss
of skin and redness’
of the labia minora and vagina and would show a gross and striking
appearance when actively having bled from the effects of the
bleeding
disorder. This would also apply to the tear at 6o’clock of 5 -
6mm at the vagina.
[166]
Dr
Naidoo expressed the view that the blood tinged fluid seen in the
vagina would be in keeping with coagulopathic bleeding from
the
mucosal lining and that the ‘
contusion’
of the cervix would be a manifestation of the same bleeding disorder.
Dr Naidoo stated that the sand grains high up in the vagina
were
explained by her rolling on the ground naked before she received
medical attention. He described Dr Abrahams’ description
of the
light coloured fluid as ‘
consistent
with seminal fluid mixed with blood’
as
not objective and quite misleading. Dr Naidoo discounted the anal
examination findings made by Dr Abrahams for reasons similar
to those
he used in discounting her findings in relation to the deceased’s
vaginal injuries. He regarded Dr Abrahams’
conclusions of
‘
forceful
non-consensual …’
sexual penetration as subjective and in flagrant disregard or
ignorance of the precept that consent (either its existence or the

lack thereof) can never be diagnosed or concluded by a pathologist at
autopsy. He expressed the further view that if Dr Abrahams
had been
aware of the clinical history of the bleeding disorder she would have
arrived at a correct and precise diagnosis of the
cause of the
various apparent injuries. Dr Naidoo expressed the further view that
the many areas of swelling found on the deceased
could well be
manifestations of ‘
increased
capillary permeability’
as a result of the coagulopathy and early multiple organ failure
combined with intravenous fluid administration.
[167]
Dealing
with the other brain findings that are ‘
consistent
with blunt trauma’
he expressed the view that the ‘
traumatic’
subarachnoid haemorrhages on both sides of the brain were typical and
classic manifestations of the bleeding disorder, as were
the scalp
haemorrhages. He expressed regret that there had not been a
‘
meticulous
fresh brain examination’
before a diagnosis based on the haemorrhages and contusions of the
brain. Finally, regarding the autopsy conclusion of strangulation
he
noted that a patient who has experienced strangulation living for
almost a day after such an incident is an extremely rare occurrence.

He further noted in this regard that asphyxial deaths are usually
sudden or abrupt deaths once the fatal limit of asphyxia or anoxia

has been reached, with rarely a brief period of survival.
Alternatively the patient survives completely with little sequelae.
[168]
Reverting
to the possibility of the deceased having been involved in sexual
intercourse before she died he noted that firstly, that
the
‘
injuries’
seen on the patient were well explained by him, that no male DNA was
identified in the sexual assault samples taken from the deceased
and
that the ‘
evidence
would suggest’
that sexual activity did not occur between the accused and the
deceased at least for the period of few days before she died.
[169]
Turning
to the toxicology tests he observed that the ‘
general
negativity of blood and urine results for illicit drugs in the
clinical and autopsy samples cannot be easily explained’
but
the excessive dilution of the specimen or ‘
other
interfering substances’
may cause ‘
false
negative results’
.
He also raised a question mark about the specificity and sensitivity
of testing.
[170]
Turning
to the cause of the deceased’s death Dr Naidoo ascribed this to
the severe coagulopathy and multiple organ failure
following the
consumption of LSD and MDMA. He noted that MDMA may also induce fatal
hyperthermia and trigger a DIC leading to the
body temperature
reaching levels above 40 degrees centigrade and leading to severe
systemic effects and death. Dr Naidoo summarised
his opinion as
follows: firstly, the cause of death was most likely related to drug
induced hyperthermia causing a severe coagulopathy
and multi organ
failure and systemic acidosis, leading directly to death. He noted
that the drugs alleged to have been taken are
well known causes of
the above. Secondly, the multiple skin and mucosal haemorrhages as
well as internal haemorrhages were not
traumatic lesions and could be
confidently explained by the bleeding disorder accentuated or
facilitated by medical and other interventions
or by spontaneous
bleeding. Thirdly, the genital and anal lesions may be explained on
the same basis, ‘
without
difficulty’
.
Fourthly, the factual evidence did not indicate recent sexual
activity at least several days before death and that there was no

physical evidence to suggest otherwise. Fifthly, the features of
head, scalp, brain and haemorrhages may also be explained by the

bleeding disorder and was not evidence of a head injury. Finally, the
‘
evidence’
of ‘
strangulation’
in the neck and associated structures was attributable to the
bleeding disorder. According to Dr Naidoo the deceased was thus not

strangled.
[171]
Dr
Naidoo confirmed that he was party to the joint minute drawn up
pursuant to the meeting of medical experts on 9 June 2017. Commenting

on the differences in the minute he expressed the view that the
deceased’s ‘
injuries’
could be explained on the basis of her rolling on the ground, being
restrained and the ‘
frantic
bid’
to insert an airway into her mouth. He was also of the view that the
injuries around the deceased’s mouth were magnified
by the
clotting disorder. He went so far as to state that it was impossible
that the deceased’s death could have occurred
from
strangulation and that it was ‘
only
explainable’
through
the mechanism of the illicit drugs. Dr Naidoo introduced some six
academic articles (Exhibit T) regarding the fatal results
of the
ingestion of MDMA into the record. These cases generally involved the
patient suffering from hyperthermia and leading onto
rhabdomyolysis
(muscle breakdown). However, as was pointed out by the State counsel
in cross-examination, most if not all of these
cases had as an
element the proven presence of MDMA upon testing and hyperthermia.
Possibly anticipating that there was no acceptable
evidence of
hyperthermia, Dr Naidoo testified that one can develop coagulopathy
without hyperthermia. In his evidence Dr Naidoo
testified that at
that time of autopsy skin slippage was present thus casting doubt on
whether the findings of abrasions and cuts
were not instances of skin
slippage. He stated that he could see this in certain photographs.
Even though he was not present at
the autopsy nor ever viewed the
body, Dr Naidoo took issue with Dr Abrahams’ specific finding
in paragraph 3 of her report
under the heading ‘
Secondary
post-mortem changes’
that there was evidence of secondary autolytic changes with bloating
of the body and marbling but ‘
with
no skin slippage’
.
He noted that Dr Abrahams had testified that she was aware of the
bleeding disorder but pointed out that she had not mentioned
it in
her first report. In this regard he stated that he would have
expected of a pathologist first to have mentioned the history
of the
bleeding disorder and that even in the absence of that history the
pathologist should have been alerted to the possible
bleeding
disorder because with so much bruising one would expect open wounds.
Dr Naidoo testified at some length as to how the
efforts of the
paramedics to insert an airway could have caused injuries to the
patient’s mouth and neck. He extended this
evidence to cover
the insertion of the endotracheal tube by the paramedic in the
ambulance using a laryngoscope. I must observe
that the difficulty in
this regard was that much of Dr Naidoo’s evidence was not based
on the evidence but on speculation
as to how they might have
conducted these exercises. He did, however, refer in this regard to
an article from a medical journal
cited by Professor Martin which
referred to ‘
(t)raumatic
intubations result in internal injuries of the deep musculature of
the larynx, often completely mimicking the injuries
of
strangulation’
.
Dr Naidoo disagreed with Dr Franklin’s evidence that the CT
scan is an exclusionary mechanism and does not reveal as much
as an
MRI. However it would appear that Dr Naidoo’s evidence was
based on what he had learnt from radiologists and not his
own
personal experience. Dr Naidoo conceded that if a condom had been
used in sexual intercourse there would be a minimal exchange
of DNA.
Dealing with the drug test Dr Naidoo repeated that the fact that no
traces of MDMA and LSD were found on testing did not
exclude the
possibility that they were used. He conceded that there was no easy
explanation for the absence of these drugs on testing.
As far as he
was concerned the deceased’s death was only explicable by a
drug overdose.
[172]
Dr
Naidoo also produced a supplementary report (Exhibit RR) in which he
posed various questions and answered them. Amongst his answers
were
that there was no other plausible cause for the patient’s death
other than drug use and it was the most likely possibility
for the
cause of the illness and death. Reasons for the negative laboratory
drug test were fluid administration and laboratory
error. He
considered that the clinical picture of the patient’s symptoms
were strikingly characteristic of an adverse reaction
to ingesting
MDMA. He expressed the view that it was highly likely that the
patient had suffered hyperthermia and rhabdomyolysis.
He further
expanded on his theory that neck injuries to the deceased had been
caused during attempts to resuscitate the patient
and that the
‘
diffuse
swelling of the neck’
described
by Dr Abrahams were as a result of intravenous fluids administered
and the DIC. He also repeated his evidence that the
pattern of neck
injury was not typical of strangulation. Relying on the negative CT
scan he asserted that there was no evidence
of a head injury. He
devoted several pages of his supplementary report to the question of
whether there was sexual penetration
of a the deceased the negative,
was based on the assumption that the accused only spent 30 minutes
with the deceased and that the
deceased was sexually aroused and
vigorously masturbated herself as well as the fact that no DNA
evidence was found in the swabs
administered by Dr Bartleman. He also
relied on apparent discrepancies between the findings of Dr Abrahams
and Dr Bartleman on
examination. Again, without any apparent
evidentiary foundation, he appeared to ascribe the tear in the
patient’s anus to
constipation. In a section headed ‘
Final
Notes
’
Dr Naidoo conceded that the autopsy process in the case was  a
detailed and extensive examination and dissection of the entire
body,
however he took issue with the correct interpretation and evaluation
of what was seen. He also expressed concern about the
use of the
words ‘
forceful’,
‘non-consensual’
and various other terms which Dr Abrahams used and which suggested
non-consensual penetrative sex and a strangulation. This language
he,
suggested, indicated ‘
a
lack of objectivity, neutrality and balance in expert testimony’
.
[173]
In
cross-examination Dr Naidoo conceded that his report was based on the
accused’s version but, he stated, this was only for
‘
guidance’
.
He went so far as to state that even if the accused had said he did
not know anything about the deceased taking drugs he, the
witness,
would still have maintained that the death was only explicable in
terms of a drug overdose. In the absence of the drugs
overdose
explanation Dr Naidoo would regard the deceased’s death as
‘
unexplained’
.
He conceded that Professor Martin’s experience in the field of
rape victims was extensive but was of the opinion that he
had as much
if not more experience than her. It was also put to him that as far
as could be determined the accused and the deceased
were alone in the
tent for at least one hour if not one and a half hours or one and
three quarter hours. It was also put to the
witness that there was
evidence from state witnesses that there had been at least noises of
sexual activity between the accused
and the deceased in the tent and
evidence from another witness (Driessen) that the accused had said
that night that he had been
having sex with the deceased when she
‘
conked
out’
.
This evidence clearly took Dr Naidoo by surprise yet he stated that
he would be surprised if there had been sexual intercourse
because
there was no DNA proof thereof. It was also put to him that Dr
Bartleman had in effect conceded that she did not do a very
good job
of the taking the swabs and Dr Naidoo seemed to accept that it may
have been inadequate.
[174]
Under
further questioning Dr Naidoo testified that he used the accused’s
statement to the police as ‘
guidance’
in his enquiry. Regarding his theory of hyperthermia it was put to
him that there were no such indication in the case of the deceased.

He nonetheless pointed out that there had been cases of MDMA without
hyperthermia and testified that rhabdomyolysis and DIC can
occur
independently of hyperthermia. It was pointed out to him that in the
medical journal articles that he himself had put up
or had put before
Court it seemed clear that in each case MDMA was found in the
toxicology results. This he was not able to dispute.
Dr Naidoo was
also taxed with the evidence that the patient’s temperature, at
least in hospital, was always in the area of
36.6, i.e. normal. Dr
Naidoo then testified that the patient’s hyperthermia might
have transformed into shock and her hyperthermia
had passed by the
time of her admission to hospital. He admits that this was largely a
speculative view.
[175]
In
his supplementary report Dr Naidoo described the clinical picture of
the deceased in the tent as being one of restlessness, agitation
and
bizarre behaviour
(‘rolling
around’
)
… visual disturbances (possible hallucinations), ‘
repeating
things’
(confusions/delirium)
and all this before the onset of convulsions and unconsciousness. It
was put to him by the Court that on this
description it would appear
to be a person who in colloquial terms was ‘
not
in their right mind’
,
a proposition with which he agreed. It was then put to him that such
a picture would have implications if it was found that person
had
engaged in sexual intercourse. He took the point agreeing that in
those circumstances one would have to ‘
question
there had been consent or whether consent could be properly given in
those circumstances’
.
[176]
Dr
Naidoo was questioned at length regarding the injuries to the
deceased’s neck and was eventually constrained to state that
he
could not exclude that there were no injuries on resuscitation.
Nonetheless he testified he was unable to see any pattern in
the
injuries indicating manual strangulation. On the subject of skin
slippage Dr Naidoo insisted that even though Dr Abrahams did
not see
it it was taking place. He clung to this evidence despite the
prosecutor referring to articles which suggest that skin
slippage
happens after only three days. It was pointed out to him that the two
state pathologists testified that there was no obvious
skin slippage.
His response was that there was ‘
subtle
skin slippage’
which they missed. It was put to Dr Naidoo that Dr Abrahams was an
experienced pathologist and was the only pathologist who saw
and
touched the patient and the skin. Dr Naidoo was referred to para 7 of
Dr Abrahams’ second report where she recorded that
according to
tests conducted at Paarl Medi-Clinic at 4:15am the patient was not
suffering from any clotting disorder.
Vaginal
and anal injuries
[177]
Dr
Naidoo expressed the opinion that what was referred to as the
extensive swelling of the labia majora, labia minora and clitoral

hood were the result of fluid infusion and decomposition of the body,
using as an example that the loose skin in the eyelid would
become
swollen. He had to concede however that the patient’s eyelids
do not look swollen in the photographs and nor did her
feet. It was
put to him that Dr Abrahams recorded only minor oedema of the eyes,
face and extremities in her autopsy report. The
witness was prepared
to accept that there was a tear of the clitoral hood as noted by Dr
Abrahams but stated that these were ‘
common’
in sexual intercourse. He conceded however that this could be a sign
of a lack of lubrication and that he could not exclude penile

penetration as causing this tear.  The witness was also asked
whether one would expect vigorous masturbation of someone who
is
apparently sick and nauseous. He conceded that this was difficult to
envisage but according to him it was MDMA induced (notwithstanding

the lack of any objective scientific evidence of MDMA ingested). The
prosecutor pointed out to Dr Naidoo that his arguments regarding

consensual sexual intercourse were misplaced since the accused denied
any sexual intercourse on the night in question.
[178]
Examining
photographs of the vaginal and anal injuries identified by Dr
Abrahams, Dr Naidoo ascribed most of them to decompositional
change
and other natural processes. It was pointed out that little of this
had been challenged in Dr Abrahams’ evidence.
When it was put
to him that Dr Abrahams was an experienced pathologist who would be
making a fundamental error if she mistakenly
identified something
else as abrasions, Dr Naidoo had to concede that he would have to
accept Dr Abrahams’ observations of
an abrasion. Dr Naidoo
conceded that the injuries could have been caused by non-consensual
penile sexual penetration but as far
as he was concerned it was as
likely that they were self-inflicted. He conceded that such
self-inflicted masturbatory injuries
would be highly unusual but in
his view all the more possible if MDMA was used. He conceded that if
someone was masturbating one
would generally expect lubrication to
take place. Dr Naidoo also conceded that had the injuries been
inflicted by masturbation
it would be a painful process.
[179]
As
regards the sand grains found near the cervix Dr Naidoo suggested
that they could work their way up the vagina independently
but it was
more likely that they were deposited through an object i.e. fingers
or the penis. Regarding the anal injuries and in
particular the
‘
contusion
with rubbing friction peri-anal and anal abrasion with swelling and
redness and loss of skin over a distance of ±70mm
into the
anal canal’
identified by Dr Abrahams in para 21.1 of her report (Exhibit C), Dr
Naidoo stated that whilst it looked very convincing he had
seem
similar changes on decomposition. Again it was put to him that had Dr
Abrahams incorrectly identified this as an abrasion
as opposed to a
consequence of decomposition she would be committing a basic error.
Dr Naidoo conceded that if the injury was an
abrasion injury it could
have been caused by penile penetration. Regarding the tear at 6
o’clock position in the anus Dr
Naidoo conceded it was a tear
but described it as technically being at 12 o’clock in which
case he regarded it as an atypical
sexual injury. Dr Naidoo retreated
from this positon a little later. It was put to him by state counsel
that it would be argued
that the deceased was incapacitated in the
tent, possibly due to heat exhaustion and that the accused took
advantage of her and
raped her vaginally and anally and strangled
her. The witness’ response was that the deceased may have been
incapacitated
for various reasons but ‘
his
impression’
was that there was no evidence to suggest that she was strangled and
it did not look clear to him to be a question of rape. He
summed up
his opinion by stating that the only explanation he could see was a
drug induced death despite the negative toxicology
results.
[180]
In
re-examination the witness sought to explain the puncture wound in
the patient’s neck as being evidence of an attempt by
a
paramedic to establish an airway for the patient which, he speculated
would be done if the patient was cyanotic (blue) and convulsing.
The
Court raised with the witness the abrasions to the patient’s
knees seen in the photograph and Dr Naidoo had to concede
these but
sought to explain them in terms of the deceased banging into objects.
Analysis
and evaluation
The
principal submissions on behalf of the State and the Accused
[181]
At
the conclusion of the evidence the State argued for convictions on
all three counts. It contended that the Court should accept
the
evidence of Dr Abrahams, as supported by that of Professor Martin,
that the cause of death was manual strangulation which led
to hypoxia
and which in turn led to the bleeding disorder (the DIC) and
acidosis, the latter being the pathology which ultimately
led to the
deceased’s multi organ failure and death. It contended further
that the accused had manually strangled the deceased
in the course of
raping her both vaginally and anally. In regard to the role of drugs
in the deceased’s death, the State,
relying on the evidence of
Professors Blockman and Smith and other ancillary witnesses in this
regard, argued that it had been
clearly proven by means of
toxicological testing that the deceased had ingested no drugs and
specifically not LSD nor MDMA and
therefore that they played no role
in her death. It was further contended that there was clear evidence
of genital and anal injuries
which could not be explained away as the
effects of the bleeding disorder.
[182]
In
regard to all three counts the State relied on the evidence of
principally Dr Abrahams and Professor Martin of extensive bruising
on
the deceased’s body inter alia around the neck and on the hips,
to mention but a few, in support of its argument that
the deceased
had been raped by the accused and strangled or asphyxiated by the
accused during these acts. Reliance was also placed
on the mouth
injuries which the state pathologist found, as probably having been
caused by the accused attempting to silence the
deceased. As regards
the evidence from both state and defence witnesses indicating that
the deceased had voluntarily ingested either
LSD, MDMA or both, the
State argued that none of these witnesses could directly testify to
the deceased having taken any drugs.
A further cornerstone of the
State’s case was the accused’s failure to testify
notwithstanding what it contended was
on a strong prima facie case
against him. In this regard it was contended that the accused had put
no version before the Court
and that as a result much of his expert
witness’ evidence was built on sand and, furthermore, that the
argument made on his
behalf that his version was before the Court by
virtue of the witness statement which had been proven through the
trial within
a trial was misconceived.
[183]
The
accused sought an acquittal on all three counts. On his behalf it was
contended, notwithstanding the absence of scientific proof
in the
form of toxicological testing, that the deceased’s convulsions
and ensuing pathology was caused by drug ingestion.
In this regard
the accused relied on the evidence of various witnesses, and his
‘
version’
to the effect that LSD and MDMA had been purchased and ingested that
night by members of the party which included the accused and
the
deceased. The defence relied also on the initial diagnosis by Dr
Franklin and, to a much lesser extent, by Dr Abrahams, that
drug
ingestion played a role in the deceased’s death. Ultimately,
the defence sought to discredit the negative toxicological
tests of
the deceased’s urine and blood samples on the basis that the
State had failed to prove the necessary chain of evidence
proving
that the samples emanated from the deceased and were uncontaminated.
It also relied on the evidence of the various paramedics
who treated
the deceased as indicating that she had taken a drug ‘
overdose’
.
[184]
As
regards the extensive bruising found on the deceased post-mortem,
notably around the neck, hips and mouth, it was contended that
these
injuries were probably caused by the paramedics and persons who
attended on the deceased at Le Bac Estate and that in many
instances
they were exacerbated by the effects of the DIC which through
internal bleeding and spontaneous haemorrhaging magnified
the effects
of any pressure placed on parts of the deceased’s body. In
regard to the injuries to the deceased’s vagina
and anus it was
argued that these must have been caused when the deceased masturbated
herself in a state of heightened sexual excitement
in the tent, alone
with the accused, and the anal injuries by constipation. It argued
that these injuries were artificially magnified
or exacerbated by the
effects of the DIC and also by decomposition of the body prior to
post-mortem. It was argued that no adverse
inference could be drawn
from the fact that the accused had failed to testify since his
version was squarely before the Court in
the form of the sworn
statement which he made as a witness on the day of the deceased’s
death which had been proved by the
State and ruled admissible by the
Court.
The
issues
[185]
In
the general determination of whether the State has proved the charges
against the accused beyond reasonable doubt, two subsidiary
issues
loom large. The first was whether the deceased ingested drugs in the
hours before she fell into a state of unconsciousness
and, if so,
what role, if any, they played in her death. The second issue was
whether sexual intercourse took place between the
accused and the
deceased in the tent between midnight and sometime after 1am that
night. The difficulty in determining these issues
and, in general the
circumstances surrounding and leading up to the deceased’s
death, is the lack of direct evidence pertaining
to the ingestion of
drugs by the deceased and particularly what transpired in the tent
between approximately midnight and 1:30am
when the accused called for
medical assistance for the deceased who was in a state of
unconsciousness and convulsing. Only the
accused could give a
first-hand account in regard to these issues and he chose not to
testify.
Did
the deceased ingest drugs?
[186]
The
State led two types of evidence regarding the question of whether the
deceased ingested drugs on the day preceding her death.
There was the
evidence of various members of her party who attended the event at Le
Bac Estate notably Vanika Lalloo and, secondly,
the evidence of
various medical and technical personnel who arranged for or conducted
tests of samples of urine and blood from
the deceased. This chain of
witnesses began with Dr Franklin and Nurse Troskie, the forensic
analyst, Ms Mbonambi and extended
to Professors Smith and Blockman
who respectively supervised a retesting of the deceased’s blood
sample and offered an overall
opinion on the process and on the
question of whether the deceased ingested drugs.
[187]
As
I have indicated Professor Smith was a highly qualified medical
biological scientist and an excellent witness. He described the

highly sophisticated and sensitive LCS mass spectrometry test
performed on the deceased’s blood samples in the UCT
Pharmacology
laboratory by way of referral from Path Care. These
tests proved negative for LSD and MDMA but positive for diazepam,
midazolam
and various other agents which are not of a contentious
nature save for cocaine metabolites detected in the deceased’s
urine
sample. Professor Smith testified that the fact that neither of
these drugs was detected in either blood or urine meant that there

was ‘
no
objective evidence that they were actually taken by the deceased’
.
He noted that the original samples were taken at approximately 4:30am
on 1 January 2014.
[188]
Ms
Mbonambi’s evidence established that the self-same blood
sample, also subjected to the LSMSMS testing method, revealed
traces
of diazepam, midazolam and acetaminophen (paracetamol) but no trace
of LSD or MDMA. These results tallied completely with
those of
Professor Smith’s laboratory. Proceeding one further link down
the chain both these results tallied with the original
test on the
deceased’s urine done at Paarl Medi-Clinic through Path Care at
the instance of Dr Franklin. This was a five
part test, the only
result of which was to show positive for opioids i.e. sedatives which
correlated with the history of the patient
being administered
diazepam, morphine and midazolam by the paramedics. However, the
tests did not show MDMA or LSD. It appeared
to be common cause that
no blood test was ever positive for traces of alcohol.
[189]
The
absence of any trace of LSD or MDMA in the deceased’s urine and
blood test was completely at odds with one of the main
planks of the
defence case, namely that the patient’s condition and death was
ultimately attributable to the ingestion of
these drugs. Dr Naidoo
testified on more than one occasion that it was ‘
not
easy’
to explain these negative tests. In fact no plausible explanation for
this apparently anomalous result was ever proffered.  This
did
not mean no such possible explanations were not put up. In the first
place, and at a comparatively late stage of the trial,
it was
suggested that the blood samples which were retested by the state
laboratory and by the UCT laboratory were not those of
the deceased.
The grounds for this contention were that the State had failed to
provide adequate proof that the blood samples taken
from the deceased
were in fact those tested by Path Care and, in turn, that those
samples were adequately maintained and tested
thereafter by the UCT
laboratory and the State laboratory. In this regard it was also
suggested that the samples had not been properly
maintained so that
they did not degrade.
[190]
Little
was intimated of this challenge until a remark from the Court that
perhaps the only thing that might explain the negative
toxicology
results was that the wrong blood samples were retested. This was
developed into an argument that the State had failed
to lead
evidence, presumably from Path Care employees that they collected the
relevant samples from Nurse Troskie, that these were
the samples that
were tested, that these very samples were transmitted to the Groote
Schuur Laboratory i.e. every step of the chain.
In this regard some
reliance was placed on the procedures applicable to blood samples
taken from persons suspected of driving under
the influence of
alcohol in terms of the Road Traffic Act. That, however, is a
procedure specified by the relevant legislation,
including time
limits within which the blood sample may be taken.
[191]
In
the present case there was considerable evidence relating to how the
samples were kept, gathered and transmitted but certainly
not of
every step along the way. Nurse Troskie testified that when a patient
was admitted to Paarl Medi-Clinic, his/her personal
details are
captured on a computer and various stickers are printed out
containing this information. When blood and urine samples
are taken
and sent to Path Care, those stickers are then placed on the samples.
Professor Smith testified that he received a blood
and urine sample
from Path Care on 1 January 2014 with the name and date of birth of
the deceased. The confirmatory analysis was
performed in his
laboratory. He was later contacted by Dr Abrahams and requested to
hand the samples to Sgt Sias. In due course
he handed the blood
sample of the deceased to Sgt Sias. Sgt Sias, the investigating
officer testified that he received the sample
from Professor Smith,
booked it into the Paarl SAP13 overnight in accordance with procedure
and the following day booked out the
same sample and hand delivered
it to the Department of Health laboratory in Woodstock. The sample
was labelled with the name and
date of birth of the deceased. Ms
Mbonambi, the analyst at the Department of Health in Woodstock
testified that she received the
blood sample on 10 January 2014 and
conducted the analysis on 23 March 2014. The seal numbers referred to
in the evidence of Sgt
Sias and Ms Mbonambi and confirmed in their
respective affidavits, matched. The accused’s contention that
the chain evidence
was lacking involved no dissection of this
evidence, merely generalised statements. As I have mentioned the
challenge to the integrity
of the blood testing process was
opportunistic and was seized upon only well into the trial. There is
no suggestion in the joint
minute of the meeting of medical experts
that the integrity of the testing process was in doubt or was
disputed. Implicit in the
relevant portion of the minute is that the
correct blood sample i.e. the deceased’s, was tested. In other
sections of the
accused’s argument, for example that relating
to a trace of cocaine metabolite being found on testing, the blood
sample is
treated as unequivocally being one emanating from the
deceased.
[192]
There
was evidence that Path Care seek to avoid becoming involved in
litigation where their samples or testing process is in anyway

relevant. This accounts in part for the State’s failure to call
Path Care employees as witnesses to the ‘
chain’
within Paarl Medi-Clinic. On the other hand Nurse Troskie’s
evidence covers this area to an extent as well as the inference
that
Path Care will only take clearly marked samples of blood for analysis
since, if a strict protocol was not observed in this
regard, the
consequences for patients in the hospital are potentially
catastrophic. The evidence also indicated that, apart from
the one
night when the blood sample was stored in non-refrigerated conditions
at Paarl police station it was stored in appropriate
refrigerated
conditions. Professor Blockman testified that blood samples are
robust and that, in effect the period of non-refrigeration
of one day
would have no material effect on the quality of the sample. In the
circumstances I am satisfied that the State proved
the integrity of
the chain involved in the taking and maintaining and testing of the
deceased’s blood sample. Further I am
satisfied that it was the
deceased’s blood that was tested throughout the various stages
of the process and that the blood
sample was not degraded.
[193]
Even
if this evidence were not sufficient there is one final factor which
puts the matter beyond doubt. The results of the blood
tests
conducted by the Woodstock laboratory and Groote Schuur laboratory
both identified traces of the three substances, namely,
the
opioids/sedatives which in turn tallied with the substances which
were administered by the paramedics to sedate the patient
prior to
her admission to Paarl Medi-Clinic. This is a virtual guarantee that
it was the deceased’s blood sample that was
first tested by
Path Care in Paarl and then transmitted from Paarl to Cape Town for
two additional rounds of testing since the
chances of a third party’s
blood sample getting mixed up in the process but yet exhibiting this
test result must be minimal.
[194]
The
other challenges to the blood sample, albeit not vigorously pursued,
were that the deceased’s blood sample could have
been affected
by the over-administration of fluids to the patient or that she may
have ingested drugs which were not part of the
library for which the
two laboratories tested. The first reason is no more than a
theoretical possibility and there was no credible
evidence that the
deceased received such a large quantity of fluids that given the time
when the blood sample was taken, this would
have affected the
results. Secondly, as Professors Blockman and Smith pointed out, the
patient’s blood was tested for a full
and up to date list of
substances including LSD and MDMA and the test was not comprehensive
only in the sense that no process can
test for as yet unknown
substances.
[195]
However,
the fact that the scientific testing process produced no positive
results for LSD or MDMA is not the end of the matter
since regard
must also be had to other evidence that the deceased ingested
recreational drugs, namely, what was believed, at least
in lay terms,
to be LSD and MDMA. The clearest evidence came from Vanika Lalloo who
testified that, led by the accused, the three
of them i.e. herself
and the deceased as well planned that evening and specifically went
off to purchase LSD and MDMA with a view
to taking it in that
sequence, with an interval in between for maximum effect. In her
evidence Ms Lalloo testified that she took
the LSD that evening in
circumstances where she appeared to believe that the deceased and the
accused were following or had followed
suit. This belief was captured
in her statement to the police a few days after the deceased’s
death when she stated ‘
at
around about 22:30 we all took drugs LSD and MDM and went to the
dance floor together’
.
It is so that in her viva voce evidence the witness qualified her
statement by stating that she never saw the deceased actually
ingest
the LSD nor the MDMA. She explained, however, that she was making
this qualification only because in consultation the prosecutor
had
pointed out to her that if she could not testify to actually having
seen the deceased physically ingest the LSD or the MDMA
she could not
testify that the deceased had done so. Upon questioning from the
Court the witness stated that she would be surprised
to learn that
the deceased had not taken the LSD but perhaps less so regarding the
MDMA because at the point when the MDMA was
taken by the group the
deceased was not feeling well. I previously stated that Ms Lalloo was
a most credible witness and her evidence
is a strong indication that,
at the least, the deceased took the substance which the members of
the party believed was LSD and
quite probably a little later what
they believed was MDMA.
[196]
This
is not the only evidence of drug ingestion on the part of the
deceased since a number of witnesses testified that sometime
after
drugs were taken by members of the party the deceased began to fell
unwell, complained of feeling cold and had to be supported
by two
persons and taken back to the tent. Riaan Martin testified that,
although under the influence of alcohol at the time, he
came across
the accused and the deceased shortly before midnight at the edge of
the dance floor when the deceased complained of
being cold, looked
drunk and was barely able to walk. She was helped by two others to
make her way back to the tent. Lameez Martin,
although in certain key
respects a vague and unsatisfactory witness, confirmed that members
of the party, including the accused,
the deceased and herself took
LSD that night which had a deleterious physical effect upon her.
Although she could not recall taking
MDMA she believed she had
because she had felt so energetic. She too testified of the deceased
not feeling well by the time they
reached the dance floor, looking
weak and being helped to walk inter alia by the accused. Finally,
Jade Grey testified to encountering
the deceased near the dance floor
late that night and being told by her she did not feel well and that
she felt as if she was melting.
The deceased could not stand on her
own, wanted to go back to her tent had to be assisted to walk there.
[197]
All
this evidence, albeit of different quality, suggests that the
deceased took recreational drugs and suffered an adverse reaction

thereto. No other plausible explanation was advanced during the trial
either by the State or the defence for the deceased’s
condition
before she entered the tent at midnight. There was no suggestion that
the deceased consumed a significant amount of alcohol
and the blood
test for alcohol proved negative. At one stage counsel for the State
suggested that the deceased may have been suffering
from heat stroke
but this was not backed up by any evidence and was no more than a
speculative suggestion. There is thus, even
leaving out of account
the statement made by the accused to the police to the effect that
the deceased took LSD and MDMA and the
assertions made on behalf of
the accused to one or more witnesses to this effect, a considerable
body of evidence to suggest that
the deceased took one or more
recreational drugs quite possibly LSD and MDMA on the night in
question.
[198]
The
question which arises is how to marry that body of evidence with the
scientific evidence that no traces of any such drugs were
found on
testing. In my view the argument made by the State, namely that the
scientific evidence in effect trumps all other evidence,
cannot be
accepted. Even the experts who testified regarding drug testing
appeared to recognise that the scientific evidence was
not
dispositive of the question whether the deceased had taken drugs or
not. Professor Smith framed his conclusion as follows,
‘
the
fact that neither of these drugs was detected in either blood or
urine means that there is no objective evidence that they were

actually taken by the deceased’
and added in his evidence that the word ‘
objective’
is important. He also added the caveat that if the amount of drugs
taken was very small they would not necessarily be picked up
on
testing.
[199]
Similarly
Professor Blockman reported having no idea as to the size of the
doses that may or may not have been taken makes any inferences
‘
very
difficult’
.
He too used the formulation that negative testing for these drugs
meant that there was ‘
no
objective evidence’
that they were actually taken by the deceased and concluded that he
was ‘
unsure’
whether any of the medicines/drugs were in fact ingested. Professor
Blockman also stated that he could not completely exclude the

possibility that the deceased had taken the drugs in question and
added that the deceased’s inability to walk unaided at
one
stage, if alcohol were excluded, could be evidence of drugs
ingestion.
[200]
It
is also of some significance that Dr Franklin arrived at a working
diagnosis of a patient with ‘
possible
LSD and ecstasy related overdose’
albeit
based inter alia on the history of drug ingestion which he was given
by the accused. After the deceased’s death but
before he
received the toxicology reports he also recorded a ‘
final
diagnosis’
reading as follows ‘
picture
suggestive of LSD overdose with all the ass (ociated) complications
especially coma(?) and the coagulation defects which
is well
described’
.
Similarly Dr Abrahams after the full post-mortem and a detailed
report thereon concluded that ‘d
rugs
may have played a contributory role’
in
the cause of death.  This report was also written before Dr
Abrahams had received the toxicology reports.
[201]
Taking
this evidence as a whole I consider that at the very least the
reasonable possibility that the accused may have ingested
drugs,
either LSD or MDMA or both, and that these played some role in her
death cannot be excluded.
[202]
In
the light of this conclusion it is now appropriate to consider a
second subsidiary issue namely the scientific evidence regarding
the
cause of death. That evidence is marked by a sharp difference of
opinion between, on the one hand Dr Abrahams and Professor
Martin
and, on the other, Dr Naidoo. The former witnesses exclude the role
of drugs in the death of the deceased and ascribe it
to manual
strangulation whilst in essence Dr Naidoo expressed the opposite
opinion. This issues also involves an evaluation of
Dr Franklin’s
evidence who gave important evidence in this regard in his role as
the treating physician.
[203]
Before
doing so however it is appropriate to have regard to some of the
guiding principles followed by the Courts in relation to
the evidence
of expert witnesses. Some of these guiding principles were well
expressed in
Holtzhauzen
v Roodt
1997 (4) SA 766
(W) in the following terms:
‘
The
relevant principles applicable to the admissibility of expert opinion
evidence in this particular case appear to me to be as
follows:
Firstly,
the witness must be called to give evidence on matters calling for
specialised skill or knowledge. It is therefore necessary
for this
Court to determine whether the subject of the enquiry does raise
issues calling for specialised skill or knowledge. Evidence
of
opinion on matters which do not call for expertise is excluded
because it does not help the Court. At best, it is superfluous
and,
at worst, it could be a cause of confusion…
Second,
we are accustomed to receiving the evidence of psychologists and
psychiatrists,   particularly in our criminal
courts.
However, we should not elevate the expertise of the witness to such
heights that we lose sight of the Court's own capabilities
and
responsibilities. …
Third,
is that the witness must be a qualified expert. …
Fourth,
the facts upon which the expert opinion is based must be proved by
admissible evidence. These facts are either within the
personal
knowledge of the expert or on the basis of facts proved by others. If
the expert has observed them, then the expert must
testify as to
their existence:
“
The
duty of the expert is to furnish the Judge with the necessary
scientific criteria for testing the accuracy of the expert's
conclusions so as to enable the Judge or jury to form their own
independent judgment by the application of these criteria to the

facts proved in evidence.”
…
Fifth,
the guidance offered by the expert must be sufficiently relevant to
the matter in issue which is to be determined by the
Court. …
Finally,
opinion evidence must not usurp the function of the Court. The
witness is not permitted to give opinion on the legal or
the general
merits of the case. The evidence of the opinion of the expert should
not be tendered on the ultimate issue. The expert
must not be asked
or answer questions which the Court has to decide.’
[204]
To
this can be added a further important guiding principle, one which is
particularly appropriate to the present case, namely that
the expert
witness must be neutral i.e. unbiased. This requirement was expressed
as follows in
Stock
v Stock
1981 (3) SA 1280
(A) at 129 6E:
‘
If
he is to be helpful he must be neutral. The (opinion of an expert) is
of little value where he … is partisan and consistently

asserts the cause of the party who calls him.’
[205]
In
S
v Kotze
1994 (2) SACR 214
(O) 225I Lombard J relied heavily on the opinions
of experts – not only because they had advanced reasons in
support of their
conclusions but also because their opinions had the
‘
stempel
van objektiewe proffesionalisme’
cited
in (
Principles
of Evidence, Third Edition, Juta, Schwikkard
et al page 100).
[206]
The
cornerstone of the State’s case regarding the deceased’s
cause of death was the evidence of Dr Abrahams as expressed
inter
alia in her post-mortem report and conclusions. I have referred to
her conclusions in her initial report made prior to her
receiving the
toxicological analysis. After reviewing this toxicological analysis
Dr Abrahams filed a further report on 15 May
2014 when she reviewed
in great detail the medical treatment which the deceased received
from the paramedics and in Paarl Medi-Clinic
and concluded that the
cause of death remained consistent with manual strangulation. She
stated that the consequences of the strangulation
were asphyxia with
global hypoxia with hypoxic renal and liver failure which led to
metabolic acidosis and coagulopathy and her
formal conclusion read
that based on her examination of her autopsy report, the Path Care
laboratory results and the medical records
she concluded that the
cause of death remained as above stated. She added that there was no
clear evidence that toxic substances
(recreational drugs) played a
role in the death. In her initial report Dr Abrahams, under the
heading of ‘
neck
structures’
set out her detailed finding which led her to conclude that the death
was consistent with manual strangulation as a result of pressure
to
the neck. Amongst these were ‘
diffuse
and extensive swelling … at the right and left sternomastoid
muscle and other muscles up and around the thyroid gland
…
haemorrhages along the right and left jaw angles and anterior neck
below the chin, at the level of carotid sinus bodies
… and
posterior to the thyroid gland and to the trachea’
.
However, she noted no fractures of the hyoid or thyroid bone although
there were haemorrhages around the horns of these structures.
[207]
Dr
Abrahams testified of manual strangulation in not just one position
but in several possible positions including the holding of
the neck
in the crook of the arm from behind. Such pressure could also be
applied to the deceased from in front. She testified
that a fractured
hyoid or thyroid bone was not a necessary sign of attempted
strangulation and not always present in a young person
whose
structures are cartilaginous. Her evidence was that the attempted
strangulation would likely have taken place when the deceased
was
sexually assaulted or raped.
[208]
She
found that the injuries to the mouth were also consistent with
external pressure. These injuries she recorded as a laceration
of the
right and left lower lips at the inner aspect over a distance of
±20mm bilaterally up to the mouth corners with extensive

contusion and secondary swelling. This, she noted in her report, was
consistent with forceful pressure to the mouth with tooth
pressure
against lower lip and the lacerations and contusion to the lower and
upper lips due to the teeth. She expressed the further
view that
there was severe pressure to the neck area following which the
deceased would have become hypoxic i.e. a lack of oxygen
to the brain
and organs of the body which triggered the chain of events leading to
her death. The brain was injured and it could
not put the body’s
survival mechanisms back on track. Coming back to the bruises on the
inner aspect of the lips, Dr Abrahams
interpreted these as having
been caused by ‘
severe
pressure on the lips from outside, lips pressed against the teeth’
.
She testified this could be hand or manual strangulation or with a
pillow in an effort to silence the deceased. Not only did Dr
Abrahams
dispute that drugs could have played any role in the deceased’s
death she discounted any possibility that the injuries
and bruising
in the mouth and neck area could have been caused by attending
paramedics. Specifically she testified that the mouth
injuries
indicated pressure to the mouth as in closing it and not opening the
mouth.
[209]
In
her viva voce evidence and in her second report Dr Abrahams testified
that when she drew up her first report she was aware of
the fact that
the deceased had developed a severe DIC after her admission to Paarl
Medi-Clinic. She did not dispute that the DIC
would cause any
bruising on the patient to be greatly magnified and would also result
in spontaneous internal haemorrhaging although
this was definitely
not a centrepiece of her evidence. Notwithstanding this evidence and
the length and great detail of her first
post-mortem report there is
no indication at all in that report either that the patient developed
the DIC or that the implications
of that bleeding disorder were taken
into account by Dr Abrahams in reaching her conclusion that the cause
of death was consistent
with manual strangulation.
[210]
Dr
Naidoo was particularly critical of this aspect of Dr Abrahams’
report finding it extraordinary that this fact would not
at least
have been mentioned by a forensic pathologist in a post-mortem
report. In my view this criticism has considerable force.
Given the
extensive findings of bruising and bleeding, both internal and
external, which Dr Abrahams observed on the patient, and
her
conclusion that the cause of death was consistent with manual
strangulation it is very difficult to understand why she would
make
no reference to the DIC which the patient developed if she had indeed
been aware of this fact. One notes that the autopsy
was conducted on
3 January 2014 and Dr Abrahams’ affidavit embodying her
observations and conclusions was signed on 10 January
2014. Dr
Franklin’s final report or notes on his treatment of the
patient were only concluded on 7 January 2014 leaving but
a few days
for Dr Abrahams to have received these notes. It is of course
possible that his incomplete notes or report could have
reached Dr
Abrahams a little earlier. Unfortunately there was no detailed
evidence on how and when Dr Franklin’s reports
reached Dr
Abrahams. This leaves open the possibility that Dr Abrahams may not
have been aware of the bleeding disorder when she
drew up her initial
report or may have received the notes at a late stage and left her
already drafted report unaltered. I mention
these possibilities
conscious of the fact that Dr Abrahams testified that she was aware
of the DIC and had received Dr Franklin’s
notes prior to
completing her report but because her omission of any reference to
the bleeding disorder is in my view inexplicable.
[211]
At
the conclusion of her evidence Dr Abrahams was asked by the Court to
explain this omission but could give no meaningful or satisfactory

explanation. Dr Abrahams’ expertise and experience cannot be
doubted nor the meticulousness of her reports but what was worrying

was her tendency to be implacable in holding to the case theory or
conclusions she arrived at, notwithstanding a reasonable need,
on
occasion, to make concessions. Dr Abrahams’ expertise and
extensive experience was reflected both in her detailed reports
and
in her evidence before the Court, however the above criticism raises
the distinct possibility that Dr Abrahams may have become
wedded to a
view, and an interpretation of what she observed in this matter,
quite early on before she had a full appreciation
of the treatment
which the deceased underwent in Paarl Medi-Clinic and the conditions
which the deceased exhibited there; and furthermore
that she was
temperamentally disinclined to modify her initial interpretation of
the observations or the findings which she made.
[212]
This
criticism is not based solely on Dr Abrahams’ failure to
mention the deceased’s severe bleeding disorder in her
initial
post-mortem report. There were quite a number of other instances,
either in Dr Abrahams’ report or in her evidence,
where her
conclusions strayed beyond those normally proffered by a forensic
pathologist and into the domain of the fact finder.
So for example
Professor Abrahams spoke of ‘
forceful
sexual penetration’
rather
than injuries ‘
consistent
with forceful sexual penetration’
.
Dr Abrahams was reluctant to make any concessions which might favour
the accused even when this dealt with activities which she
could not
personally testify to such as whether the paramedics could have
inadvertently been responsible for some of the injuries
to the
patient’s mouth during resuscitation. I accept that Dr Abrahams
herself recognised (and testified) that her function
was to be
impartial and to assist the Court in its determinations. However, I
am left with the impression that Dr Abrahams may
have become too
wedded to what was referred to by the accused’s counsel as a
‘
theory’
of the case which may have unwittingly impeded her ability to testify
with the full measure of objectivity necessary for someone
in her
position. My observations in this regard must not be taken as
anything approaching a wholesale rejection of Dr Abrahams’

detailed and extensive evidence.
[213]
Dr
Franklin was both an excellent witness and, it would appear, an
experienced and competent physician. Both in his role as a private

physician and through the manner in which he gave his evidence it was
clear that Dr Franklin had no axe to grind in the matter
and was
particularly careful before giving answers which could have far
reaching consequences for someone such as the accused.
[214]
In
these circumstances his evidence regarding the possible underlying
cause of the deceased’s death must be given particular
weight.
As indicated earlier Dr Franklin’s ‘
final
diagnosis’
was that the picture was suggestive of a LSD overdose with all the
associated complications. In later remarks, in response to queries

from Dr Abrahams he emphasised that the bleeding tendency would have
been the reason why the bruises on the patient became so prominent
as
time passed. In this regard he wrote ‘
(t)he
bruising on the body became more pronounced during the day most
likely related to the DIC and the area surrounding the neck
area was
more prominent’
.
By the time he testified Dr Franklin had become aware of the negative
toxicology reports. He testified that if those toxicology
reports had
been available to him earlier his final diagnosis would not have been
‘
suggestive
of LSD overdose with the all the associated complications’
.
In response to being asked whether the pathology of the deceased
would fit in with asphyxia, Dr Franklin stated ‘
if
you present a scenario in front of me where a patient had
asphyxiation or a decreased oxygen perfusion to the body, you can
have full blown DIC, epilepsy – or not epilepsy –
convulsions, and develop multi organ failure. So, if the body is not

getting enough oxygen, it can also cause the picture’
.
He also quoted from a medical journal article as follows: ‘
Cerebral
ischemia – hypoxia induced intravascular coagulation and
autophagy. Together these results suggest that ischemia
–
hypoxia is a powerful stimulus for spontaneous coagulation, leading
to reperfusion deficit and autophagy lyosomal cell
death in the
brain’
.
Although Dr Franklin conceded the possibility that the deceased’s
pathologies could have been caused by manual strangulation
or
asphyxiation, he was clearly not prepared to make this his definitive
diagnosis, not least because he regarded that function
as falling
within the province of a forensic pathologist or some other fact
finding authority. This attitude was captured in his
evidence when he
stated ‘
if
you tell me afterwards that it could have been hypoxic brain damage
or hypoxia, yes
it
can fit in with that, but I don't have any other history’
.
[215]
When
Dr Franklin was asked again whether the deceased’s pathologies
were explicable on the basis of a hypoxic episode not
involving drugs
his reply was ‘
well,
it is abnormal for the amount of drugs that was used, and no test
positive for me to, in retrospect, afterwards, now try and
say it is
all drug related. But I don't know’
.
Later it was put to him that Dr Abrahams’ basic thesis was that
what happened to the patient was not as a result of drug
ingestion
but as a result of manual strangulation. Dr Franklin’s response
was that this scenario was ‘
definitely’
possible. As I understood Dr Franklin’s evidence he clearly
conceded the possibility of a non-drug induced cause of death
and
being the result of hypoxia caused by manual strangulation but then
he would only be making such a diagnosis if he had the
appropriate
prior history. In cross-examination he stated: ‘
and
I'm not saying it was strangulation, I'm just saying hypoxic damage
is one of the stuff that can look like that’
.
The issue in this case is of course whether there was such a prior
history or such a history can be inferred solely from
the medical
evidence and then as the only reasonable inference.
[216]
One
element of Dr Franklin’s evidence which cannot be overlooked
concerned the effects of the DIC. His evidence in regard
to the DIC
was that its magnifying and misleading effects in regard to areas of
bruising and bleeding on the patient could not
be underestimated. He
testified as follows:
‘
I
was asked by the pathologist whether we considered whether this
patient was strangulated or cause hypoxic damage, and whether
all the
bruises that she was shown to us post-mortem, where did it come from.
So ... the only way that I can explain the bruising,
how bad the
bruising is looking like, is because the DIC, the coagulation defect’
... ‘they showed me pictures of areas
of bruising, and asked
how did it get there. So I said I don't know, but its – and why
didn’t I see it initially? Because
we couldn’t see it
initially; she didn’t have – bruises doesn’t
develop immediately. And the extent of
the bruises was dramatic, in
my opinion, looking dramatic because she’s got a DIC. If you
just push somewhere then you will
find that she developed the
problem, but it won’t cause tears or lacerations. DIC will just
make everything look worse so
it becomes more pronounced’.
[217]
Dr
Franklin emphasised that he was not an expert on asphyxiation.
Firstly, his evidence was that a DIC can cause spontaneous bleeding

‘
almost
without minor trauma, with anything you can get spontaneous purpura
bleeding’
.
He testified that where there is an area where there is
damage/bruising ‘
it
will look worse’
‘
so
then you must go and look at the pattern perhaps’
.
Asked how one distinguishes between bruising which was caused by
trauma and is now coming into sharp relief and bruising which
is just
a spontaneous result of the DIC his response was that as a medical
physician, one needs a history. At a later stage he
testified
regarding the bruising on the inside of the patient’s mouth and
his explanation was along the following lines
‘
I
was shown the pictures and I personally think it is all – the
stuff that I could see in the mouth, can be explained with
the
coagulation defect that the patient has got, with an intubation, and
then an airway, that plastic thing that I explained.
...
and the patient fighting this thing, convulsing and biting’.
[218]
He
was then referred to the teeth indentations and responded
‘
Yes,
but this plastic thing is preventing your teeth from biting the tube,
and your lips end up under this thing. You bite your
lips, and its
going to look very bad with the DIC later on
...
we must keep in mind the DIC that’s making things look
different than what it’s supposed to be.
...
And I feel strongly about that.
So
you don't jump immediately to the explanation that there must have
been external trauma. This could have been as a result of
these –
this treatment that you refer to, and the insertion of those
implements into her mouth --- And the subsequent movement
in the
mouth, and the bite wound.
...
…
So
I'm sitting here unbiased, and we must be very careful to interpret
stuff like that before – I would like to make 100%
sure how
does this explain – this can look bad.'
[219]
Dr
Franklin also testified that if a patient is convulsing and having
difficulty breathing he/she will be pushed down in an effort
to
control them and get the airway in. He did state however that it was
unlikely that any medical personnel would compress a patient
around
his or her neck. Dr Franklin’s evidence regarding the secondary
effects of the DIC in relation to bruising and haemorrhaging
clearly
sound a cautionary warning not to over-interpret such bruising or
bleeding, a factor apparently overlooked by Dr Abrahams
at least in
her first report and given limited weight thereafter by herself.
[220]
Professor
Martin agreed with Dr Abrahams’ conclusions in all material
respects. It must be borne in mind however that she
did not observe
the autopsy or the deceased’s body and is in no better position
than any other informed forensic pathologist
to evaluate Dr Abrahams’
reports and findings. Professor Martin is a highly experienced
forensic pathologist with a particular
expertise in the field of
rape. She came across as a credible and experienced witness and one
who was prepared where appropriate
to make concessions. In her view
the cause of the deceased’s death was manual strangulation
which would have caused global
hypoxia and which, taken together with
the brain injury can lead to a DIC. She stated that she had never
seen such injuries to
the mouth, lips or cheeks being caused by
health care personnel nor such injuries to the neck. She noted that
all these interventions
were administered well before the onset of
the DIC. However, in this regard I note that one is talking only of a
matter of six
hours or so since by 8:30 medical personnel recorded
that the patient ‘
was
bleeding from everywhere’
.
Professor Martin agreed that the DIC could have played a role in
accentuating the bleeding and that it can involve spontaneous

haemorrhaging. Regarding the neck injuries and the strangulation
Professor Martin testified that the absence of finger marks around

the deceased’s neck was not conclusive because something else
such as a forearm or a chokehold could effect strangulation.
Asked
how long this would have to be it, she stated that could be up to
eight minutes. Other evidence heard was that one would
need at least
four minutes of constant pressure to produce a dire result. Professor
Martin was asked if her opinion regarding the
cause of death would
change if the Court found that the deceased took drugs and her reply
was similar to Dr Abrahams’ reply
to the same question, namely,
that much would depend on what quantity of drugs was taken. It was
put to Professor Martin that Dr
Franklin had conceded the possibility
of the patient having suffered hyperthermia prior to her admission to
hospital but Professor
Martin remained sceptical of this.
[221]
The
fourth and final major witness testifying regarding the cause of
death was the expert witness called by the accused, Dr Naidoo.
Dr
Naidoo did not attend at the autopsy nor perform his own post-mortem
examination. His opinions and conclusions were based on
his
evaluation of Dr Abrahams’ reports and evidence and on his own
experience. That comprised extensive experience as a forensic

pathologist but did not prevent Dr Naidoo from assuming an expertise
in matters going beyond that field. For example, he testified
at
length about the advantages and disadvantages of a CT scan, did not
hesitate to express opinions in the field of pharmacology
relating to
the effects of drugs allegedly ingested by the deceased and in the
field of haematology. He however could lay claim
to no qualifications
in these areas and in one instance explicitly stated that he had
‘
spoken
to or consulted with radiologists about a CT scan’
making
it quite clear that he was relying on the expertise of others. Whilst
accepting Dr Naidoo’s expertise in the field
of forensic
pathology he was in my view far too prone to offer authorative
opinions in fields in which he had no or limited expertise.
[222]
Dr
Naidoo’s opinions were clear and unwavering; the deceased must
have ingested LSD and MDMA, despite the absence of any toxicological

proof thereof since nothing else could have caused the pathologies
which she exhibited i.e. the DIC and acidosis which led eventually
to
multi organ failure and her death. The injuries on her body generally
and in particular around her neck and mouth would have
been caused by
a combination of her convulsing and rolling around on the ground,
being restrained, falling and medical resuscitation.
The injuries to
her vagina and anus would have been caused or were likely to have
been caused by masturbation and constipation
and were either
misdiagnosed or over described by Dr Abrahams apart from being
magnified by the DIC and through the process of
the body’s
decomposition.
[223]
Dr
Naidoo presented as an articulate and plausible witness at first
blush with an engaging manner. However during the course of
his
lengthy evidence and cross-examination it became clear that Dr Naidoo
was unwilling or unable to bring an impartial mind to
bear on the
evidence and on the issues which he addressed. He would only make
concessions if these were extracted from him and
on occasion having
made such concessions would later retract them. An example in point
was his initial concession that the deceased’s
clinical picture
was compatible with strangulation. Later during cross-examination Dr
Naidoo was asked the same question but on
this occasion stated that
he excluded compatibility with strangulation absolutely. When he was
referred to his earlier evidence
he simply denied ever having made
the concession, stating ‘
Oh
I would never have agreed to that’
which was simply not borne out by the record and untrue.
[224]
Another
major difficulty with Dr Naidoo’s evidence was that it was
heavily reliant on a version of events either conveyed
to him by the
accused or the accused’s legal representative or, at best, as
set out in the accused’s witness statement
to the police. As
will be discussed in greater length later, this was not evidence
which could be accepted as factually based or
even as evidence before
the Court in the ordinary sense. Moreover, Dr Naidoo was reluctant to
entertain or take into account evidence
which differed from the
version which he had been given. A case in point was his acceptance
that no sexual intercourse had taken
place but that the deceased had
masturbated herself. When it was put to him that the witnesses Manuel
and Driessen had given evidence
indicating sexual intercourse between
the deceased and the accused Dr Naidoo was, at least temporarily,
visibly taken aback. I
was left with the unfortunate but clear
impression that Dr Naidoo regarded his brief as to refute or at the
least cast doubt on
any medical evidence which tended to implicate
the accused. In doing so he obviously failed to meet one of the
primary requirements
for an expert witness i.e. that of impartiality
and a desire to assist the Court in arriving at an informed
evaluation of technical
medical issues. Dr Naidoo’s partiality
was evident from the inception of his evidence when he handed up a
list of medical
definitions already tilted towards his interpretation
of events and concluded with an analysis of his own evidence,
apparently
written by himself, which was handed up by accused’s
counsel in argument. This document is entitled
‘
Note
on concessions (Dr SR Naidoo’s testimony)
’
and deals with the salient issues in this matter recorded under the
headings ‘
Conceded’
and ‘
Retained’
,
setting out of those parts of Dr Naidoo’s initial evidence to
which he adhered and those areas where he made concessions.
Without
going into the proprietry of counsel handing up as part of his heads
of argument a note which has been drawn up by one
of his client’s
expert witnesses, the mere fact that Dr Naidoo was prepared to go to
these lengths illustrates in my view
his failure to maintain
professional impartiality in giving expert evidence before the Court.
[225]
That
said, these criticisms of Dr Naidoo’s evidence or his lack of
impartiality do not mean that his evidence can be discounted

wholesale. He raised legitimate criticisms regarding Dr Abrahams’
findings and overall conclusions as endorsed by Professor
Martin. The
first such an area was the role of the DIC in magnifying the bruising
caused by pressure to the deceased’s body.
One such area was
bruising to the deceased’s neck. Here Dr Naidoo’s opinion
was that the  injuries were not only
magnified but could well
have been or were caused by resuscitation attempts on the part of
paramedics or attempts at restraining
the convulsing patient. This
topic deserves closer attention. The deceased appeared to have been
treated by three different sets
of paramedics. In the first place
when she was in the tent the paramedics, Eugene Le Roux and Laurika
Grunder attended to her.
Thereafter she was treated in the paramedics
tent by Barry Barling who handed her over to Shawreza Mackier who
treated the deceased
in the ambulance and until she was handed over
to the personnel at Paarl Medi-Clinic. Both Barling and Mackier
testified and, as
I have indicated, were very good witnesses. What is
more they both appeared to have been very well trained and
experienced paramedics
who gave the deceased excellent care which
they described in some detail. Without going into detail, I am quite
satisfied that
neither Barling nor Mackier treated the deceased in
any way that could have inflicted significant injuries or bruising
around her
neck. Neither of them were responsible for the ‘
small
puncture wound on the anterior aspect of the deceased’s neck’
which
puzzled Dr Franklin and which he initially suggested should be
forensically investigated.
[226]
Unfortunately
neither Le Roux nor Grunder could be traced by the State in order to
give evidence. There is therefore a gap in the
evidence regarding the
paramedic treatment  of the deceased with the result that the
possibility cannot be excluded that when
those paramedics treated the
deceased they may have inadvertently caused bruising in and around
the area of  the deceased’s
neck. This is not a fanciful
possibility since any paramedic would first be concerned to ensure
that the patient was able to breathe.
At that stage, by all accounts,
the patient was convulsing and experiencing trismus, the condition in
which the jaw is locked and
quite possibly secreting from the mouth
at the same time. In these circumstances it is possible that the
paramedics who had initially
attended may have applied some force to
open the patient’s mouth and insert an airway or may have
applied pressure around
the neck in the course making an incision
there as an alternative airway. Support for this latter possibility
is to be found in
the evidence of Lt Colonel Gordon who was told by
the accused that the deceased could not breathe properly after a
while and that
her body became limp. The paramedics then made an
incision in her throat so that she could breathe and she was then
taken to hospital.
Gordon testified further that she went to the
paramedic whose name she could not recall and he told her that when
the deceased
was brought to him she was already unconscious and that
was why they made the incision. There was also evidence, of less
weight,
notably from Pallo Manuel that hands were placed on the
deceased when she was being treated to restrain her.
[227]
As
regards the mechanism of death by strangulation or asphyxiation, none
of the expert witnesses claimed any special expertise in
this area.
All appeared to concede that death following some 24 hours after
attempted strangulation would be an unusual if not
a rare occurrence.
Professor Martin was invited to place any medical journal articles
before the Court which she felt could shed
light on the phenomenon.
This led to the introduction of Exhibit OO, a journal article
entitled ‘
Unexpected
delayed death after manual strangulation:  need for careful
examination in the emergency room’
.
That article is not completely on point but states as follows in the
introduction:
‘
Manual
strangulation or throttling is a form of blunt neck trauma. The
victim suffers fatal pressure on the airways, blood vessels
and
nervous structure of the neck, which leads to anoxia, irreversible
brain damage and rapid death. Some victims of strangulation
survive
and several cases of delayed death after strangulation had been
reported in literature. A neck injury may not be recognised
in the
emergency room due to lack of visible external signs or mucosal
damage’
.
[228]
And
further ‘…
manual
strangulation causes asphyxia through compression of the neck. Death
may occur by combination of respiratory, circulatory
and neurological
factors. Survival after throttling is possible. Due to the static
nature of the compressive forces involved in
strangulation, victims
may present at casualty with deceptively minor signs and symptoms.
There may be few, if any clear external
signs of injury to the neck
skin’
.
Another articled entitled
‘
Case
Report. Delayed death after pressure on the neck: possible causal
mechanisms and implications for mode of death in strangulation’
concerned the case of a deeply unconscious convulsing adult female
admitted to hospital with signs of established hypoxic brain
damage.
Mechanical ventilation was instituted but her condition deteriorated
steadily and she died seven days later. The cause
of death was
certified to the Coroner as ‘
hypoxic
brain damage due to compression of the neck’
.
In the discussion the following is stated:
‘
As
was explained to the Court during the criminal proceedings,
irreversible brain damage can occur after a period of at least four

minutes unremitting deprivation of oxygenated blood supply. Such
deprivation may occur because either: a) there is occlusion of
the
arteries in the neck supplying blood to the brain, to which may be
added failure to oxygenate the blood due to occlusion of
the airway,
or b) the cerebral blood flow ceases because the heart stops’
.
[229]
Another
article referred to by the legal representatives on several occasions
was entitled
‘
Violence:
Recognition, Management and Prevention. A Review of 300 Attempted
Strangulation Cases by Dean A Hawley, MD, and others’
.
The following passage appears in the article:
‘
Medical
resuscitation, and organ procurement procedures, work against the
pathologist’s ability to detect fatal homicidal
neck injury. An
oxygen mask can leave abrasions on the mouth and nasal bridge. During
resuscitation, an airway tube is placed into
the mouth or nose, and
inserted into the esophagus or trachea, to establish a path through
which air can be forced under pressure
to the lungs. The usual airway
device is an oral endotracheal tube, but many varieties of hardware
exist. The skill of the rescue
staff, and the size and rigidity of
the victim dictate how much injury occurs during this intubation
procedure. Traumatic intubations
result in internal injuries of the
deep musculature of the larynx, often completely mimicking the
injuries of strangulation.’
[230]
Also
relevant in regard to the cause of the deceased’s death are the
similarities in the mechanisms of death induced by a
drugs overdose
and strangulation. Medical journal articles were handed up through Dr
Naidoo as Exhibit PP. The first is entitled
‘
Pathology
of deaths associated with “ecstasy” and “eve”
misuse’
by
CM Milroy and others. In a table dealing with seven such cases and
detailing the clinical data, toxicology and pathology of each
case,
common features were traces of MDMA or amphetamine on testing of
urine or blood, unconsciousness or convulsions and in one
case
cerebral hypoxia. Only two of the seven cases had documented
hyperthermia. When 29 volunteers took MDMA more serious complications

reported included hyperthermia, convulsions, other cardiac
arrhythmias, rhabdomyolysis, disseminated intravascular coagulation

(DIC), renal failure and cerebral haemorrhage. An extract reads:
‘
In
five of the cases reported here complications followed shortly after
ingestion. Four of these deaths seem to link directly to
the toxic
effects of MDMA and MDEA’.
[231]
A
further extract reads:
‘
Hyperthermia
may account for many of the changes seen in deaths from ring
substituted amphetamine misuse, although it is interesting
to note
that raised temperatures were only documented in two of our cases.
…
The
mechanism of damage in heatstroke is postulated to be caused by
circulatory collapse and hypoxic damage, possibly combined with

disseminated intravascular coagulopathy, which has been recorded in
heatstroke, and as a complication of MDMA and amphetamine ingestion.
…
These
changes provided further evidence that hyperthermia can cause death
following misuse of ring substituted amphetamines. Evidence
of
disseminated intravascular coagulopathy was also present in the
brain. These deaths may therefore be a complication of hyperthermia,

DIC and shock’.
[232]
The
article concludes: ‘
The
short term risks of “ecstasy” use are becoming
increasingly more apparent and questions must be asked about the
long
term effects on the brain, liver and heart considering the pathology
found in those who die’
.
[233]
As
has already been discussed, toxicology testing for MDMA and LSD
proved negative in the case of the deceased despite optimal
conditions for testing. Nor did Dr Franklin diagnose or treat the
patient for hyperthermia. He did, however, albeit sceptically,

concede the possibility of the patient having had hyperthermia prior
to her admission. This possibility is also not so remote that
it can
be completely discounted. Although no paramedic took the patient’s
temperature, Barling recorded the patient’s
temperature as
being ‘
warm’
whilst Mackier recorded the patient’s skin as being ‘
hot
to touch’
.
When she testified Mackier stated that the patient was ‘
vuurwarm’
when she attended to her. She recorded her temperature as level 2 and
if she had measured it as being over 40 degrees would have
placed it
at level 3 on a scale commencing at 0, presumably for normal.
[234]
Stepping
back from the medical evidence regard must be had to the overall
picture which commences with a 21 year old woman in good
health on
the night of 31 December 2013. At a time which is not clear but which
appears to have been sometime after 9pm she, the
accused and Vanika
Lalloo purchased what they believed to be LSD and MDMA in accordance
with their plans to take these drugs in
sequence and dance in the new
year. Members of the party, possibly including the deceased, first
took LSD and sometime later the
MDMA before proceeding to the dance
floor. After LSD was ingested the deceased begins to complain of
feeling unwell and is seen
sitting down with her head between her
legs. She complains she is feeling cold and wants to go to the tent.
She is reported as
appearing to be ‘
drunk’
and unable to walk. She had to be assisted by two others to get to
her tent. She goes into the tent with the accused. An hour or
at the
outer limit an hour and a half passes until the accused emerges
calling for medical assistance. At this point the patient
is
unconscious and convulsing. She never regains consciousness and dies
within 18 hours despite intensive medical treatment in
ICU. The
accused and the deceased are in what by all accounts an intimate
relationship and there is no indication of it being an
abusive one.
Whatever took place in the tent is now known only to the accused. The
evidence shows that the accused was the leading
figure in procuring
and dispensing the drugs and there must be little doubt that he
ingested what was said to be LSD and MDMA himself.
[235]
Against
this background one must consider whether the State succeeded in
proving beyond reasonable doubt that the deceased died
as a result of
manual strangulation at the hands of the accused. There is no direct
evidence of manual strangulation. The only
evidence is circumstantial
evidence of a medical nature. As was held in the oft quoted dictum
from
Rex
v Bl
om
1939 AD 188
at 202 – 203
there
are two cardinal rules of logic which cannot be ignored. These are,
firstly, that the inference sought to be drawn must be
consistent
with all the proved facts and, secondly, the proved facts should be
such that ‘
they
exclude every other reasonable inference from them save the one
sought to be drawn’
.
In these circumstances as was stated in the following
[1]
remarks of Davis AJA in
Rex
v De Villiers
:
‘
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 the 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’.
[236]
In
S
v Reddy and Others
1996
(2) SACR (1)(A)
,
also dealing with circumstantial evidence the following  was
stated:
‘
In
assessing circumstantial evidence one needs to be careful not to
approach such evidence upon a piecemeal basis and to subject
each
individual piece of evidence to a consideration of whether it
excludes the reasonable possibility that the explanation given
by an
accused is true. The evidence needs to be considered in its totality.
It is only then that one can apply the oft quoted dictum
in Rex v
Blom.
It
is equally trite that the State bears at all times the onus of
proving the accused’s guilt beyond reasonable doubt although,

as it was put in S v Ntsele
1998
(2) SACR 178
(SCA) ‘
nie
bo elke sweempie van twyfel nie’
.
[237]
In
performing the exercise of evaluating the evidence and determining
whether the State has discharged its onus a Court must approach
the
evidence holistically. See
S
v Van Aswegen
2001 SACR 97
(SCA) and
S
v Chabalala
2003 (1) SACR 134
(SCA) at 139H:
‘
The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,

having done so, to decide whether the balance weighs so heavily in
favour of the State so as to exclude any reasonable doubt about
the
accused’s guilt. The result may prove that one scrap of
evidence or one defect in the case for either party ... was decisive

but that can only be an
ex
post facto
determination
and a trial court (and counsel) should avoid the temptation to latch
onto one (apparently) obvious aspect without
assessing it in the
context of the full picture presented in evidence’.
[238]
Finally,
it must be borne in mind that an accused’s failure to testify
does not necessarily fill all gaps in the State’s
case. As was
stated by Holmes AJA (as he then was) in
S
v Khoza
1982
(3) SA 1019
(A) at 1043 C – E:
‘
The
fact that the appellant did not give evidence does not result in
proof beyond reasonable doubt that he murdered or attempted
to murder
the deceased. I say this because, before the absence of gainsaying
testimony from an accused can be said to carry the
day against him,
there must first be a prima facie case against him’
[239]
And
further:
‘
The
mere fact that the accused has been prosecuted, or shown to have
behaved suspiciously, does not make it necessary for him to
elect to
deny the charge under oath and his failure to testify cannot be
treated as an independent item of evidence capable of
curing the
deficiency in the prosecution’s case. Furthermore, in
considering what weight may be given to the accused’s
failure
to explain, it is important to consider whether an explanation could
reasonably have been expected. For example, if the
accused is shown
to have committed some act not ordinarily done except with a guilty
state of mind, it will normally be reasonable
to expect the accused
to explain why he did it and, in the absence of explanation, to draw
an inference of guilt – depending,
of course, on the quality of
evidence and the weight to be given to that evidence by a Court’.
[2]
[240]
Against
the above background and having regard to count 3 the charge of
murder the issue to be determined is whether the State has
succeeded
in proving beyond a reasonable doubt that the accused manually
strangled the deceased and it was this conduct which caused
her to
fall unconscious and, some 18 hours later, pass away. In my view even
taking into account the accused’s failure to
testify the State
has failed to discharge the onus which rests upon it. There is no
direct evidence that the accused manually strangled
the deceased and
the State must, perforce, rely on circumstantial evidence.
[241]
The
circumstantial evidence is largely of a medical nature. However that
evidence too is not clear for a number of reasons. Firstly,
there are
strong indications, notwithstanding the negative toxicology tests,
that the deceased ingested drugs and that these had
an adverse effect
upon her. In this regard the evidence of drug use and drug testing
cannot be looked at piecemeal but must be
considered holistically.
For that reason the negative drug testing cannot completely displace
or trump the evidence from other
sources that the accused, more
probably than not, ingested illicit drugs. Further in this regard,
the State has been unable to
advance any explanation, other than the
ingestion of drugs, for the condition in which the deceased fell
sometime between 9 or
10pm and midnight.
[242]
Notwithstanding
the negative toxicology results I certainly consider it more likely
than not that the deceased ingested LSD, MDMA
or both substances.
There was certainly a not inconsiderable body of evidence pointing in
this direction. Firstly, it was clear
from the evidence of Vanika
Lalloo that the general plan, spearheaded by the accused, was to
purchase MDMA and LSD and take it
in sequence to enhance its effect.
The evidence suggests furthermore that the deceased was a willing
participant in this plan and
that she took LSD as did Vanika Lalloo,
the accused and others outside the tent earlier in the night and,
very possibly, MDMA a
little later. An adverse reaction to MDMA would
be the most likely and plausible reason for the illness and confusion
which beset
the deceased not long afterwards and led to her being
assisted back to the tent, unable to walk. In this regard there was
no evidence
that the deceased had ingested anything else such as
alcohol in a quantity which would account for her suddenly being
incapacitated.
It was suggested on behalf of the State that what the
accused, the deceased and others who ingested the drugs believed to
have
been MDMA may have been some other substance. Although this was
a possibility it remains no more than that. Finally, both Jade Grey

and, to a lesser extent, Vanika Lalloo testified as to symptoms which
they experienced which appeared to be generally consistent
with those
reported to be experienced after the ingestion of MDMA.
[243]
A
further factor which weakens the State’s case is the nature of
the medical evidence upon which it relied and in particular
that of
Dr Abrahams. I draw a distinction here between the factual
post-mortem findings and observations made by Dr Abrahams and
her
interpretation thereof. In matters of interpretation Dr Abrahams’
evidence was certainly not beyond criticism for the
reasons I have
set out above, most notably her failure to mention a factor of
cardinal importance, the DIC and to record in her
first report that
this would present a distorted picture of the bruising and other
injuries. Secondly, as I have indicated, Dr
Abrahams appeared to wed
herself too closely to her ‘
theory
of the case’
namely that the deceased must have been manually strangled during an
extended rape. Thirdly, there was a lack of evidence regarding
the
mechanisms of death by strangulation and the likelihood of this
having been the cause of death.
[244]
Fourthly,
the evidence as to manual strangulation was in my view by no means
conclusive and bedevilled by the possibility, referred
to above, that
some of the neck injuries, both internal and external, could have
been caused during the attempted resuscitation
or treatment of the
deceased, particularly by the first paramedics attending on the scene
who the State was unable to call to testify.
[245]
For
all these and other reasons which I have set out earlier I consider
that the State has fallen short of proving beyond reasonable
doubt
that the deceased was manually strangled by the accused, thereby
causing her death or that he caused her death by inflicting
some
other form of violence upon her.
[246]
In
reaching this conclusion although I have made limited reference to
the medical evidence suggesting that the accused may have
raped the
deceased this does not mean that I have not taken it into account. It
must be borne in mind, moreover, that if the accused
sexually
assaulted the deceased in one or other manner, it does not
necessarily mean that he must therefore have caused her death
by
manual strangulation of by some or other means.
Counts
1 and 2
[247]
Under
counts 1 and 2 the accused was charged with sexually penetrating the
deceased vaginally and anally without her consent or
in circumstances
where she was unable to give such consent in contravention of sec 3
of Act 32 of 2007 i.e. raping the deceased.
The accused’s
defence was a denial of these charges and it was repeatedly asserted
on his behalf during the trial that he
denied having intercourse with
the deceased on the night in question.
[248]
Once
again much of the evidence which the State brought to bear on these
two counts was circumstantial and of a medical nature,
although not
exclusively so. The medical evidence consisted of the observations of
nursing staff at Paarl Medi-Clinic indicating
that the deceased may
have been sexually assaulted, Dr Bartleman’s examination of the
deceased following which she completed
a J88 form, Dr Abrahams’
post-mortem findings in particular her findings of the injuries to
the deceased’s body, most
notably to her vagina and anus. To Dr
Abrahams’ evidence must be added that of Professor Martin who
endorsed Dr Abrahams’
conclusion as to the likely cause of the
genital and anal injuries. In addition there was circumstantial
evidence from a number
of non-medical witnesses, namely, Pallo
Manuel, Sebastian Driessen, Vanika Lalloo and Mrs D, the deceased’s
mother. What
also has to be brought into account is the accused’s
statement to Sgt Morrison and what the accused told Lt Colonel Gordon

and the evidence of other police officials regarding attempts made to
ascertain whether sexual intercourse had taken place in the
tent
occupied by the accused and the deceased on the night in question.
Also relevant is evidence from members of accused and the
deceased’s
party as to the latter’s condition in the hours leading up to
midnight. Finally, regard has to be had to
Dr Naidoo’s evidence
regarding the post-mortem’s findings and conclusions in regard
to the vaginal and anal injuries
which, the State alleged, the
deceased suffered and other medical evidence.
[249]
Nurse
Troskie testified that when they wanted to place a catheter in the
patient they immediately saw that things were not ‘
right’
with the deceased’s private parts. It was very wet and it
looked as if something had ‘
happened
there’
.
She also found two large bruises on the patient’s hips and
scrape marks/abrasions on both of her knees. She and her colleague

were advised by the sisters in casualty to do nothing further and
notify the police. Dr Franklin then asked the accused if he had
had
sex with the deceased and his answer was no. Contact was made with
the police in order to obtain a rape kit and Dr Bartleman
was asked
to do the necessary examination.
[250]
Sister
Bam testified that the patient was naked when she arrived save for a
pair of large short pants. She asked the accused about
the scratch
marks on the patient’s knees and he told her that the patient
had fallen over tent pegs or poles. As I have indicated
there is no
reason to doubt the evidence given by either of these witnesses.
[251]
Dr
Bartleman testified that at the request of Dr Franklin she had
performed the examination on the deceased at approximately 5am
and
completed the J88 form and taken swabs from her. She did not do a
full investigation. Dr Franklin had asked her just to investigate
for
possible sexual abuse. She was not experienced in this procedure
since she had done little of this at Paarl Medi-Clinic and
although
she had been a district surgeon this was the first such examination
she had conducted. Her main clinical findings were
that there were
bruised areas on both of the patient’s rami, anterior,
measuring approximately 2cm². There were bruised
and scarred
areas measuring 1cm² on both knees there were puncture wounds on
her anterior neck and left lower abdomen. More
importantly she found
that the frenulum of her clitoris, her urethral orifice, her labia
majora and minora were normal but with
a bloody discharge visible.
Significantly she found tears in the vagina and a bloody discharge
and that the cervix was bruised.
In this regard she found that the
injuries and tears might be an indication of sexual intercourse.  Her
anal examination was
superficial and she noted only blood on the
skin. In her diagram she noted ‘
skuurtjies
binne vagina’
.
[252]
Dr
Bartleman testified she did not do a thorough test on the anus as she
used up all three swabs but there were visible tears on
the outside
of the anus. She added that Dr Franklin was anxious to carry on with
his treatment of the patient so he ‘
chased
her a little bit’
in
her examination. The one swab she took was in the vagina, one on the
outside near the labia and one on the perineum. When it
was put to
her that the tears to the vagina could have been caused by
masturbation she was sceptical saying that she did not think
that any
woman would injure herself in this manner if she was in her sound
senses. She testified that if the patient was menstruating
the blood
found in and around the vagina would be reconcilable therewith but
she received no history of menstruation.
Dr
Deidre Abrahams
[253]
Amongst
Dr Abrahams’ chief post-mortem findings were ‘
evidence
of forceful vaginal and anal penetration, ante mortem’
and ‘
evidence
of blunt trauma to the torso and extremities’
.
[254]
More
particularly she found:
1.
Extensive
swelling of the labia majora and clitoral hood and labia minora;
2.
A
tear at the inferior aspect of the clitoral hood measuring ±10mm;
3.
Circumferential
rubbing friction abrasion of the labia minora and inner aspect of
labia majora with loss of skin, redness and blood
tinged fluid on the
surface;
4.
A
tear at 6 o’clock at the vagina of 5 to 6mm from the posterior
fourchette through the fossa navicularis and blood tinged
fluid
oozing from the tear.
5.
There
was a loss of skin and redness and swelling from outside the labia
minora and along the inner aspect of the vagina to depth
of ±70mm.
There was blood tinged fluid on the surface;
6.
There
was blood tinged fluid and creamy light coloured fluid in the vagina
with a few sand grains high in the vagina at and around
the cervix
which was contused. She found the perineum to be swollen.
[255]
Regarding
the anal areas she found:
1.
Surrounding
the anus and into it along the inner surface over 35mm x 40mm
contusion with rubbing friction peri-anal and anal abrasion,
over a
distance of ±70mm into the anal canal with large soft tissue
haemorrhage;
2.
A
tear of ±5mm at the 6 o’clock position of the anus,
extending slightly into the perineum.
[256]
Dr
Abrahams also found minor abrasions of the knees.
[257]
As
indicated earlier Dr Abrahams ascribed the sand grains found high in
the vagina to be consistent with forceful penile penetration
and
contact with sandy areas. She testified that tears in the genitalia
occur when there is forceful penetration, unlubricated
and unwilling.
To her it appeared to be severe and forceful pressure which would be
very painful. With forceful penetration the
skin is rubbed and
abraded, it starts to swell and then to ooze blood and blood tinged
fluid. She found that the penetrations could
not be one time
penetrations but repetitive penetration. Dr Abrahams expressed the
view that the abrasions on the knees could be
consistent with sexual
penetration taking place with the deceased being on her knees. She
also testified that many of the bruises
on the patient’s body,
not least those on her pelvic rami would be consistent with the
deceased being moved into different
positions during the
non-consensual intercourse. Regarding the effects of decomposition in
her findings the witness confirmed that
the deceased’s body was
kept 12 hours in an unrefrigerated state before it was delivered to
the Paarl morgue.
[258]
In
cross-examination it was out to the witness that a likely explanation
for the swelling of the genitalia was the heavy administration
of
fluids and the DIC. Dr Abrahams responded that all the injuries to
the sexual organs must be seen in their full context i.e.
the tears
and the abrasion injuries found and she also disputed that the
abrasion injuries could be explained by skin loss as a
result of
early decomposition. It was further put that the injuries to the
vagina could be explained by the deceased having masturbated
herself
which could produce tears at 6 o’clock and 12 o’clock. Dr
Abrahams was similarly most sceptical of this and
said that the
process of masturbation inflicting such injuries would be very
painful. She added, furthermore, that the general
picture of
masturbation did not fit with the extent or depth of the injuries.
Furthermore, if the patient was masturbating one
would have expect
her to have been lubricated thus reducing the risk of tears and
injuries. Dr Abrahams pointed out that some of
the injuries extended
right up to the cervix. In response to a question from the Court she
testified that she observed no skin
slippage on the deceased’s
body during the post-mortem and this is confirmed in para 2 of her
report which describes the
state of the body on post-mortem and one
observation made is that there was ‘
no
skin slippage’
.
She explained that she had performed block dissections vaginally and
peri-anally in order to obtain a better picture of possible
injuries.
Regarding the presence of  the sand grains high in the vagina it
was put to her that this could also be the result
of intercourse on
the floor of the tent or through the deceased’s own hands when
masturbating. Dr Abrahams’ comment
was that it was highly
improbable as there was no evidence of masturbation and even if this
were the case it was highly improbable
that the sand grains would be
transported so high to around the cervix.
[259]
Regarding
the tears to the anal area it was put to the witness that these
injuries could be explained by decomposition, skin slippage
and
membrane detachment and furthermore that the ‘
tears
could be caused by constipation and masturbation’
.
Dr Abrahams’ response was that these were very unlikely
explanations and confirmed that she observed no skin slippage on

post-mortem. Constipation might cause tears internally whereas the
tears she found were external. Masturbation injuries were very

unlikely as this would cause great pain. She testified that she first
observed the injuries in the deceased’s private parts
before
she performed the block dissections.
[260]
Regarding
Dr Bartleman’s failure to find any injuries on anal examination
Dr Abrahams stated that she understood that Dr Bartleman
had only
done a superficial examination in that area because of the
circumstances then prevailing. An extended version was put
to Dr
Abrahams on behalf of the accused inter alia that the injuries to her
body might have been caused when she fell on the way
back to the
tent. Dr Abrahams was asked why she had not taken a sample of the
whitish fluid in the vagina which appeared to her
to be seminal fluid
and her response was that she understood that swabs had been taken by
Dr Bartleman in the J88 process.
[261]
As
previously stated Professor Martin agreed with the conclusions
expressed by Dr Abrahams in all material respects. In particular
she
agreed that the injuries as recorded by Dr Abrahams were due to blunt
force trauma, consistent with forceful genital and anal
penetration.
She expressed the view that the application of force could have been
caused by grabbing or holding down the deceased
and the injuries to
the elbows and knees could have been sustained when the deceased was
on all fours. She testified that she did
not believe that the genital
and anal injuries could have been by self-inflicted the deceased’s
fingers. In viva voce evidence
Professor Martin testified that she
did not believe that either masturbation or constipation could
account for the injuries to
the deceased’s private parts since
those to the anus were quite severe and both would involve
‘
exquisite’
pain.
[262]
Professor
Martin testified during cross-examination that she had seen more than
2000 cases of rape in her experience as a doctor
and conducted more
than 12000 autopsies. Drawing on this experience Professor Martin
gave as her opinion that the injuries to the
deceased were caused by
blunt force trauma and could not have been caused by masturbation and
constipation. Her reasons for this
conclusion included the severity
of the injuries inter alia the abrasion to the anus being 7cm deep
and the lacerations to the
genitalia. She has never previously seen
injuries to the extent of those to the deceased’s genitalia
caused by masturbation.
She pointed out that women have babies
without incurring lacerations. As I previously observed Professor
Martin was a very good
witness, prepared to make concessions where
necessary and, yet confident under cross-examination whilst adhering
to the main elements
of her evidence.
[263]
I
deal now with the evidence of the non-medical witnesses which could
be relevant to the charges of rape. Firstly, there was the
evidence
of Pallo Manuel. He testified that upon returning to his tent at
about midnight which was alongside that of the accused
and the
deceased he heard the sounds of what sounded like people having sex
in the neighbouring tent. He described the noises as
moaning and
groaning from a male and female and assumed that they were having
sex. This noise continued for the period that he
was in the tent to
change his clothing, approximately 10 minutes. This evidence was not
challenged in any way on behalf of the
accused during
cross-examination notwithstanding the repeated assertions made on his
behalf or by him after the incident denying
that he had sexual
intercourse with the deceased that night.
[264]
Mr
Sebastian Driessen testified that at some point whilst the deceased
was being treated at the paramedics tent the accused stated
that he
had been having sex with the deceased when she ‘
conked
out’
on him. This evidence
was
disputed in cross-examination but despite intense cross-examination
the witness stuck to his evidence in this regard.
[265]
Riaan
Martin testified that when he saw the deceased on the edge of the
dance floor near the toilets shortly before 12am she appeared
drunk
and was barely able to walk. He testified that at that stage the
deceased had no visible injuries and he did not think she
sustained
any injury up to the time that the deceased got to the tent, a trip
during which he accompanied her.
[266]
Vanika
Lalloo testified that the deceased complained of feeling sick after
taking the LSD and by the time they reached the toilets
on the way to
the dance floor. The deceased had fallen unconscious and was having
convulsions when the witness coincidentally went
to the paramedics’
tent much later that night. The next morning before the police
arrived she had a conversation with the
accused who showed her a
scratch on his stomach and told her that the deceased had wanted to
have sex with him but that he refused
because she was acting ‘
weird’
and in the process she had scratched him. When the witness asked the
accused how the deceased was he told her that it appeared
that she
had been raped. She asked the accused if they had had sex and his
reply was that they had not and that the last time they
had done so
was before Christmas. This evidence does not appear to have been
disputed by the accused in cross-examination.
[267]
The
deceased’s mother, Mrs D, testified that at about 6pm on 1
January 2014 at Paarl Medi-Clinic the accused had told her
that the
deceased had not felt well, that in the tent she had started behaving
strangely, was feeling hot, took off her clothes,
appeared to be
sexually excited and was rolling around touching herself and was on
her knees. Mrs D asked the accused directly
whether he and the
deceased had had sex and his answer was no and he also told her that
her daughter had even scratched him and
lifted his T-shirt to show a
scratch on his left hand side under his breastbone. Mrs D told the
accused that there was something
‘
not
right’
and that her daughter was fighting for her life. The accused’s
response was a very nonchalant ‘
okay’
,
as if he was not surprised. In cross-examination Mrs D testified that
she thought that the relationship between the deceased and
the
accused must have been an intimate one, that her daughter was in love
with the accused and she did not think it was an abusive
relationship
– at least her daughter had said nothing of this sort. Her
evidence regarding what the accused had said regarding
sexual
intercourse and the deceased’s sexual behaviour was not
disputed. It was simply put to the witness that the accused
denied
that he assaulted the deceased or raped the deceased on the night in
question.
[268]
Lt
Colonel Gordon testified that upon questioning the accused on 1
January 2014 he had told her that outside the tent the deceased
had
begun to vomit and then he took her into the tent where she began to
roll on the ground. She apparently wanted to have sex
with the
accused and took off her clothes but he refused. The accused told her
further that after a while the deceased could not
breathe properly
and her body became limp. In his notes Dr Franklin recorded that the
accused told him that they had never had
sexual intercourse and that
the deceased had never been left alone.
[269]
Sgt
Morrison testified that she took a witness statement from the accused
on the morning of 1 January 2014. That statement, held
admissible
after a trial within a trial, reads in part as follows:
‘
While
we were on the dance floor (close to the dance floor) we took LSD
drugs. S went to sit down for a while. I could see that
while she was
sitting she wanted to throw up, but nothing came out and it was only
winds. After that we took MDMA, also a drug.
Me and other two
friends, Riaan and Jade, helped me to took her out to get some fresh
air. Riaan and Jade left me and S at the
camp side (sic). I never
left her alone and was all the time with her. She was rolling in the
gras (sic) and she started to took
off her top. I told her no, not to
take off her clothing. After that we went back to the tent. We get
inside I zipped the tent
and open the window for air. Then she got un
dress and start rolling around and she said to me that she is so turn
on and she wanted
to have sex. I then told her no that we not going
to have sex. But then she inserted her finger into her vagina. She
was rubbing
all over her body with pressure. She kept telling me that
she wants sex. We didn’t had sex (sic). At some stage took crab

(sic) my arms also with force. She put her hands and kept it on her
face bagging (sic) me to have sex. She kept and inserted her

finger/fingers into her vagina.
Before
I call someone for help I took my pants which was lying close and
slip it on for her to cover her and then I called for help.
The
paramedics arrived and I followed them to the hospital. Everything
happened so fast and it was so scary because it was the
first time I
saw her like that. During our time of dating each other it was our
first time using drugs.’
[270]
Further
relevant evidence was that at some later stage the accused had agreed
to give a DNA sample but DNA testing for a match with
the deceased
had proved inconclusive. There was also evidence that during the
course of 1 January 2014 a Sgt Timmie had used a
police sniffer dog
to try and find any traces of bodily fluids, including semen, in and
around the tent occupied by the deceased
and the accused but without
success.
[271]
From
the side of the accused there was expert medical evidence from Dr
Naidoo regarding the post-mortem findings relating to genital
and
anal injuries as well as evidence from Lameez Martin and Jade Grey.
Martin testified that after members of the party took drugs
that
night S complained that she was not feeling well. She looked weak and
the accused had to help her to walk. She next saw the
deceased at the
paramedics’ tent undergoing treatment.
[272]
Jade
Grey testified that after members of the party took drugs the
deceased did not look herself. She was completely different.
She said
she did not feel well and told the witness she felt as if she was
‘
melting’
.
The witness tried to get her to stand up but she could not, her legs
being like jelly. The deceased said she wanted to go to the
tent. She
also told the witness that she wanted to have sex with her boyfriend.
The witness helped the deceased get back to the
tent being one of two
persons who supported her. At the tent she asked the deceased if she
was OK and she answered in the positive.
She next saw the deceased a
few hours later at the tent when she was convulsing. Under
cross-examination she stated that the deceased
kept subsiding as
opposed to falling and she was weak in her knees. She would fall back
into the sitting position. She could not
say if the deceased
sustained any injuries. Asked whether the deceased was in a condition
to have sex with the accused her answer
was that she did not think
so. She could not recall the deceased falling on the way to the tent
or sustaining injuries. As mentioned
previously the witness’
explanation for not mentioning in her witness statement to the police
that the deceased had said
she wanted sex was that she was scared to
do so. She could not however explain why she was scared to mention
this to the police.
In answer to a question from the Court the
witness stated that she and Riaan Martin had spent about two hours on
the dance floor
before coming back and finding the deceased naked in
the tent having convulsions.
[273]
In
his report Dr Naidoo first speculated that the 10mm tear of the
inferior edge of the deceased’s clitoral hood may well
have
been the site of the ‘
vaginal
biopsy’
referred to by Dr Franklin. He also ascribed the tears in the vagina
to ‘
the
accused’s candid statement’
that
the deceased had masturbated herself and he also ascribed the other
injuries in the vagina to masturbation together with the
effects of
the bleeding disorder. He ascribed the ‘
contusion’
of the cervix to the DIC. He sought to explain the sand grains in the
vagina on the basis of ‘
contamination’
as the deceased lay and rolled on the ground naked. He ascribed the
injuries to the anus as attributable to constipation, decomposition

and the DIC. Regarding the possibility of sexual intercourse he
pointed out that the ‘
injuries’
were well explained and that no male DNA was identified. In
conclusion he found that the genital and anal lesions found may
‘
without
difficulty’
be explained by the DIC and by reason of the factual evidence not
indicating recent sexual activity.
[274]
As
I have indicated in an earlier discussion Dr Naidoo was anything but
an impartial witness as indicated by his great reluctance
to accept,
initially at least even the possibility of sexual intercourse. His
evidence that the injuries to the genital and anal
areas were
exacerbated by the DIC cannot explain the tears in the vagina found
by both Dr Bartleman and Dr Abrahams nor can it
explain the tear
found in the anus. Dr Naidoo gave scant weight to the evidence of the
swelling in the genital area, the ‘
rubbing
friction abrasion … with lots of skin redness and blood tinged
fluid’.
Similarly he gave scant weight to the rubbing friction peri-anal and
anal abrasion with swelling and redness and loss
of skin over a
distance of ±70mm into the anal canal.
[275]
All
of the medical personnel called by the State to testify regarding the
vaginal and anal injuries i.e. Drs Bartleman, Abrahams
and Professor
Martin, were most sceptical of the explanation that the vaginal
injuries were caused by masturbation. One or more
of them pointed out
that it was most unlikely that the deceased would masturbate herself
to the point of causing tears which would
be most painful and
therefore counter intuitive to say the least. Even Dr Naidoo had to
concede that masturbation could hardly
account for the deceased’s
anal injuries and certainly not the internal anal injuries. Although
the DIC might well have accounted
for the blood tinged fluid found in
the area of the deceased’s vagina and anus there first had to
be injuries i.e. the tears
and abrasions, before such bleeding could
take place. For this reason these injuries stand on a different
footing to the bruising
found on various parts of the deceased’s
body or bleeding from needle marks. Similarly Dr Naidoo’s
explanation of sand
grains found deep in the deceased’s vagina
was equally strained, namely, that these would have reached there
through masturbation
and/or rolling around on the floor of the tent.
[276]
Professor
Martin and Dr Abrahams had extensive experience in the field of
examinations and autopsies in alleged rape cases, Professor
Martin
particularly so. By the time that they testified, at least, they were
well aware of the potentially misleading effects of
the DIC. Dr
Abrahams recorded her observations in meticulous detail, many of them
substantiated with photographs. On the other
hand I was left with the
distinct impression that Dr Naidoo saw his role as to cast doubt on
any observation or finding indicating
that sexual intercourse had
taken place between the deceased and the accused and to rather
bolster the account that had been given
to him as set out in the
accused’s statement.
[277]
The
evidence that sexual intercourse took place is not confined to
inferences drawn from the medical evidence although that evidence
has
considerable weight notwithstanding the lack of any positive DNA
testing.
[278]
There
is in addition the unchallenged evidence of Pallo Manuel that he
heard the sound of what appeared to be sexual intercourse
taking
place in the deceased and the accused’s tent shortly after
midnight. That evidence was undisputed and I accept it.
Then there is
the evidence of Mr Driessen as to the accused’s statement
whilst the deceased was being treated. Driessen had
no axe to grind
in the matter and the evidence which he gave in itself was not
indicative of rape since he was testifying merely
that the accused
said he was having sex with his girlfriend when she ‘
conked
out’
.
Driessen would have had no apparent reason to give such evidence if
it were false. The idiosyncrasy of the phrase used –
‘
conking
out’
– lent veracity to his account and his evidence in turn lent
support for the evidence given by Pallo Manuel. There are objective

indications of sexual intercourse having taken place. The deceased
was found naked save for a pair of shorts hurriedly put on her
by the
accused according to his witness statement. It is also significant
that the medical nursing staff immediately observed ‘
something
wrong’
in the area of the deceased’s vagina.
[279]
More
significantly, there is no direct evidence that the accused and the
deceased did
not
have sexual intercourse. Although the assertion that no sexual
intercourse took place was repeatedly asserted on behalf of the

accused in cross-examination and formed part of his witness
statement, the accused did not give this evidence and there is
therefore
no direct evidence at all either that no intercourse took
place or that the deceased masturbated herself.
[280]
At
this point I must deal with an argument raised by the defence that
the accused put his version fully before the Court by virtue
of his
witness statement having been declared admissible. The argument
proceeds that not only was the statement held to be admissible
after
a trial within a trial but that the State went on to prove the
contents of the statement through the evidence of Sgt Morrison.

Therefore the State had proven the contents of the statement with the
result that the accused’s version had been placed before
Court
and, by implication, had rendered it unnecessary for him to testify.
In these circumstances, it was contended, relying on
S
v Pamensky
1978 (3) SA 933
(E) 937 A – B, that:
‘…
there
was [is] therefore an explanation before the court which might
reasonably possibly be true and there was no obligation on
the
appellant [accused], in these particular circumstances, to confirm
that statement on oath.’
[281]
This
argument is fundamentally misconceived. In the first place counsel
for the State made it clear at all stages that the State
sought to
have the accused’s witness statement declared admissible solely
for the purposes of cross-examination of the accused
in the event he
should testify. At no stage did the State indicate, either expressly
or by implication, that by proving the statement
it was accepting the
truth of the contents thereof. Secondly,
S
v Pamensky
is entirely distinguishable on the facts. In that matter the
magistrate, in convicting the accused, had commented adversely on
the
fact that the appellant had not given evidence to establish his state
of mind at the time of the transaction. On appeal the
Court found
that the magistrate’s criticisms of the appellant’s
failure to give evidence would have been valid but
for the fact that
prior to the trial the appellant had handed the investigating officer
a written statement in which he explained
his alleged contravention
of the Exchange Control Regulations and why he had done it. The
investigating officer subsequently testified
that, based on his
investigations, the allegations made by the appellant in that
statement were true. Furthermore, the prosecutor
informed the Court
that the State did not dispute the basic facts as given by the
accused in the statement. The Appeal Court held
that the fact that
the State expressly and without qualification or reservation accepted
the truth of the appellant’s statement
meant that there was no
obligation on the appellant, in those particular circumstances, to
confirm that statement on oath.
[282]
In
the present matter there has never been any suggestion that the State
accepted the contents of the accused’s witness statement
as
correct. If it had there would have been no point in continuing with
the prosecution of the accused. Accordingly the argument
that no
inferences can be drawn from the accused’s ‘
silence’
and that his circumstances are therefore distinguishable from those
which applied in
S
v Boesak
,
is wholly misplaced. It goes without saying that propositions put to
state witnesses under cross-examination cannot be treated
as if they
amount to evidence placed by the accused before Court.
[3]
As was pointed out to the accused’s counsel in
cross-examination neither such propositions nor a witness statement
can be
subjected to cross-examination or tested unless the maker of
that statement, be it a witness or the accused, testifies.
[283]
As
stated previously there is no direct evidence from the accused that
no sexual intercourse took place. Nor is there any apparent
reason
why the accused did not give this evidence or, if this was not the
case, and he did have consensual intercourse with the
deceased, why
he did not testify to this effect. He was in a long term relationship
with the deceased and by all accounts it was
an intimate
relationship. If he had testified that he had had consensual sex with
the deceased there could have been no one who
could have testified
directly to the contrary.
[284]
When
one has regard to the accused’s statement, notwithstanding its
limited evidentiary value, it raises more questions than
answers. He
makes no reference in his statement to the scratch which he told Mrs
D and another witness had been inflicted on his
chest by the deceased
in her frantic efforts to have sex and his statement does not explain
the noises of sexual intercourse heard
by Pallo Manuel. Nor is there
any explanation as to what went on in the tent for at least one hour
and perhaps up to one and a
half hours. On a reading of the statement
it would appear that some five or ten minutes may have been taken up
with the deceased
begging him to have sex, masturbating herself
before falling into unconsciousness and convulsing. It was common
cause that the
accused and the deceased arrived back at the tent at
about midnight. Barling recorded the ‘
time
of the incident’
as
01:25 and himself as arriving at the scene at 01:45. Driessen
testified of arriving at the paramedics’ tent and someone

coming through and asking for assistance in relation to the incident
‘
after
1am’
.
It is clear therefore that the deceased and the accused spent at
least one hour in the tent before the alarm was raised. What
happened
in this one hour plus? In addition there was the evidence of Vanika
Lalloo that the following morning the accused told
her it appeared
that the deceased had been raped but that he had not had sex with
her. This evidence was not disputed but even
on its own terms it is
strange. Why did the accused not add to Lalloo that of course any
suggestion that she had been raped was
nonsense since he had been
with the deceased throughout the evening and alone with her in the
tent, had not had intercourse with
her and therefore there could be
no question of rape?
[285]
The
position is then that the deceased, although feeling ill, entered the
tent with the accused apparently uninjured. Certainly
there is no
suggestion at all that she had incurred any sexual injuries by this
stage. When medical help was called approximately
an hour and a half
later the deceased had sustained the injuries to her vagina and anus
which were meticulously described by Dr
Abrahams and which
immediately caused concern on the part of medical staff at Paarl
Medi-Clinic. There has been no suggestion that
any other person other
than the accused had any physical encounter with the deceased that
night which could have led to the injuries
which she sustained. In
these circumstances there are only two possibilities: either the
injuries were self-inflicted or they were
inflicted by the accused.
[286]
As
to the first possibility there is no direct evidence that the
injuries were self-inflicted or pre-existing. On the other hand
there
is other telling evidence that these injuries must have been
inflicted by the accused in the course of having sexual intercourse

with the deceased. Firstly, there is the undisputed evidence of Mr
Pallo Manuel that he heard, shortly after midnight the sounds
of
sexual intercourse coming from the tent occupied by the accused and
the deceased. Then there is Mr Driessen’s evidence
of the
accused explaining the deceased had ‘
conked
out’
while they were having sexual intercourse. That evidence is of course
disputed but stands uncontradicted by the accused. The only
evidence
of the deceased’s injuries being self-inflicted is second-hand
evidence emanating from the accused, namely, statements
he made the
next day to the effect that the deceased masturbated herself. These
‘
explanations’
do not account for the injuries to the deceased’s anus. It is
also very difficult to reconcile the evidence of the deceased
being
in an ill and semi-incapacitated state upon entering the tent with a
version of her suddenly recovering, aggressively demanding
sex and
when refused masturbating herself with such intensity that she
inflicted vaginal tears. As indicated above had these injuries
been
self-inflicted, it is difficult to understand why the accused was not
prepared to testify to this effect.
[287]
In
considering all the issues which arise in relation to counts 1 and 2
regard must be had to the significance of the failure of
the accused
to testify bearing in mind that he was the only person who could
testify as to what took place in the tent between
midnight on 31
December 2013 and the next hour or so afterwards.
[288]
In
S
v Boesak
2001 (1) SACR (CC) it was stated:
‘
The
right to remain silent has application at different stages of a
criminal prosecution. An arrested person is entitled to remain
silent
and may not be compelled to make any confession or admission that
could be used in evidence against that person. It arises
again at the
trial stage when an accused has the right to be presumed innocent, to
remain silent, and not to testify during the
proceedings. The fact
that an accused person is under no obligation to testify does not
mean that there are no consequences attaching
to a decision to remain
silent during the trial. If there is evidence calling for an answer,
and an accused person chooses to remain
silent in the face of such
evidence, a court may well be entitled to conclude that the evidence
is sufficient in the absence of
an explanation to prove the guilt of
the accused. Whether such a conclusion is justified will depend on
the weight of the evidence.
What is stated above is consistent with
the remarks of Madala J, writing for the Court, in
Osman
and Another v Attorney-General, Transvaal
,
when he said the following:
“
Our
legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a prima facie case, an
accused who
fails to produce evidence to rebut that case is at risk. The failure
to testify does not relieve the prosecution of
its duty to prove
guilt beyond reasonable doubt. An accused, however, always runs the
risk that, absent any rebuttal, the prosecution's
case may be
sufficient to prove the elements of the offence. The fact that an
accused has to make such an election is not a breach
of the right to
silence. If the right to silence were to be so interpreted, it would
destroy the fundamental nature of our adversarial
system of criminal
justice”.’
[289]
The
question, in the present matter, thus is, firstly, whether the
evidence led by the State in relation to counts 1 and 2 was such
as
to call for an answer from the accused, and secondly, whether in the
absence of any such answer, the evidence led by the State
is
sufficient to prove the guilt of the accused beyond reasonable doubt.
Put differently has the State produced evidence sufficient
to
establish a prima facie case and if so, absent any rebuttal from the
accused, is it sufficient to prove the elements of the
offences in
counts 1 and 2?
[290]
There
is of course the question of consent, a further element of the
State’s case which it must prove beyond reasonable doubt.

Firstly, in the nature of things there is no direct evidence from the
State that the deceased did not consent to vaginal or anal

penetration by the accused. This could only have taken place in the
tent occupied by the accused and the deceased and only those
two
persons were in the tent for the critical one hour or one hour plus
period when penetration must have taken place and the injuries
were
sustained. Secondly, it is of course possible that the deceased could
have consented to these forms of penetration and that
the injuries
she sustained were a result of rough but consensual intercourse or
penetration. The issue is, however, whether viewing
the evidence as
whole this was reasonably possibly the case.
[291]
The
two counts of unlawful sexual penetration allege that the accused did
so ‘
without
the consent’
of the complainant or ‘
under
circumstances when the complainant was unable to give such consent’
.
The concept of ‘
consent’
in relation to the offence is defined in sec 1(2) of Act 32 of 2007
as ‘
voluntary
or uncoerced agreement’
.
Section 1(3) contains a lengthy provision dealing with the
interpretation of the words ‘
voluntary
or uncoerced’
.
It reads in part as follows:
‘
(3)
Circumstances … in respect of which a person ('B') (the
complainant) does not voluntarily or without coercion agree to
an act
of sexual penetration … include, but are not limited to, the
following:
…
(d)
where B is incapable in law of appreciating the nature of the sexual
act, including where B is, at the time of the commission
of such
sexual act -
…
(iii)
in an altered state of consciousness, including under the influence
of any medicine, drug, alcohol or other substance,
to the extent that
B's consciousness or judgement is adversely affected;’
[292]
Jade
Grey testified that she did not think that the deceased was in a
position to have consented to intercourse. Secondly, Dr Naidoo,
the
accused’s own expert witness conceded that if the deceased had
been under the influence of LSD and MDMA – as is
the accused’s
case – her confused and disoriented state rendered it highly
questionable whether she could consent to
intercourse. This appears
from the following passage from Dr Naidoo’s evidence upon being
asked a question by the Court:
‘
If
your theory that this is a drug induced death is accepted then it
would follow I presume that before – would it follow
before
unconsciousness and convulsions this patient must have been –
the deceased must have been in a very disoriented state?
--- Yes,
M’lord. Agitated, disorientated, confused, incoherent,
restless. That is the typical picture of a person who is
under the
influence of such a drug and possibly … (intervention).
You
have already told the Court that in those situations a large question
mark is raised about questions of consent, if there was
sexual
intercourse. --- Yes’.
[293]
It
would appear to me, quite clearly, that the deceased’s state of
consciousness, as described by the accused (second-hand)
and by those
who were with her before she entered the tent and who assisted her
from the dance floor to the tent, together with
the evidence given by
the various experts on the effects of a drug such as MDMA, would
bring her squarely within the category set
out in section
1(3)(d)(iii).
[294]
To
summarise, there is clear evidence that the deceased had no injuries
of a sexual nature before entering the tent at approximately
midnight
and that these injuries must have been sustained whilst in the
presence of the accused alone during the following one
or one and a
half hours. The nature of those injuries are such that they could
only have been suffered as a result of penetration
of the vagina and
the anus. Save for one instance, in the hours and days after the
incident the accused insisted that there had
been no sexual
intercourse between him and the deceased at the critical time.
Throughout the trial itself it was repeatedly put
on his behalf that
no sexual intercourse had taken place between him and the deceased.
Notwithstanding these assertions there were
at least two pieces of
evidence pointing clearly towards sexual intercourse having taken
place in the tent during the critical
period, namely that of Mr Pallo
Manuel and the remark made by the accused in the presence of
Sebastian Driessen. To this must be
added the fact that the accused
is the only person who could testify first-hand as to what happened
in the tent during the critical
period and, more particularly, how
the deceased sustained the injuries to her vagina and anus. Such an
explanation would, in the
ordinary course of the events be expected
from the accused. Moreover, had the injuries been caused by the
accused during consensual
intercourse or sexual activity with the
deceased no adverse consequences could follow nor any adverse
inference be held against
him: he was in an intimate relationship
with the deceased and were he to testify that there was consensual
sexual intercourse between
them in the tent no witness would be able
to directly contradict him.
[295]
In
these circumstances the question must be asked, why did the accused
not testify? In my view the answer to this question can only
be that
the accused was not prepared to subject himself to cross-examination
on the discrepancies between, on the one hand, his
version that there
was no sexual intercourse between him and the deceased in the tent
and all the indications that there was intercourse.
That comprised
the objective evidence of the injuries which the deceased sustained
to her vaginal area and her anus as well as
the evidence of the
extensive bruising (even taking into account the magnifying effect of
the DIC) which the deceased sustained
as well as non-medical
evidence, namely that of Messrs Manuel and Driessen, indicating that
sexual intercourse had taken place.
The accused would also have been
cross-examined on all the bruises which Dr Abrahams observed and
which she and Professor Martin
testified could be explained by the
accused having had forcible intercourse with the deceased in a number
of positions. He would
also have had to explain how the deceased came
to sustain the abrasions on her knees and elbows which, the same
witnesses testified,
could well have been incurred by the deceased
when she was subjected to intercourse whilst on all fours.
[296]
The
accused thus found himself in a dilemma: on the one hand he had
consistently denied having sexual intercourse with the deceased
in
the tent before she fell into a state of unconsciousness yet there
was strong evidence, direct and indirect, that sexual intercourse
or
penetration must have taken place both vaginally and anally. On the
other hand were the accused to admit to sexual intercourse
with the
deceased he would have to explain firstly, why he had consistently
denied this and, secondly, if such intercourse was
consensual, how
the deceased had sustained such serious injuries to her vagina and
anus. Finally, if the deceased’s death
was ultimately
attributable to an adverse reaction to LSD or MDMA or both,  and
if she had been in the disoriented, confused
state of mind which the
accused described in his statement to the police before she fell into
a state of unconsciousness and convulsions,
how she could have given
consent to sexual intercourse?
[297]
One
final argument put up by the accused must be addressed, namely that
the apparent lack of any motive on the part of the accused
to
unlawfully penetrate/rape the deceased must count heavily in his
favour. In this regard it was pointed out that prior to the
incident
the accused had apparently been in a loving and intimate relationship
with the deceased. Although motive or the lack of
motive may in
certain circumstances be relevant to determining whether the State
has proved its case against an accused beyond
reasonable doubt,
motive is obviously not an independent element of any offence. Two
factors are relevant in this regard: firstly,
the accused was not
prepared to testify and be subjected to cross-examination where the
issue of motive or the lack of motive could
be properly explored.
Secondly, much was made by the accused, both through
cross-examination and in the evidence of his expert,
that the
ingestion of MDMA can reduce inhibitions and lead to intemperate
choices regarding sexual behaviour or to hypersexuality.
This was
explicitly advanced as the reason why the deceased allegedly
inappropriately and insistently demanded that the accused
have sexual
intercourse with her and, when he refused, masturbated herself to the
point of inflicting vaginal tears and ‘
rolling
around’
on the ground. However, assuming some credence in the evidence that
the ingestion of MDMA can lead to such behaviour modification
it must
not be forgotten that all the evidence suggests that the accused
himself ingested MDMA and would therefore be equally prone
to
inappropriate sexual conduct or hypersexuality. If this were the case
it would go some way to explaining his sexual assault
upon the
deceased notwithstanding that she was no longer in no state to
consent to intercourse.
[298]
In
my view, the accused did not testify since he was unwilling to
subject himself to cross-examination on the only explanation which
he
gave (indirectly) for the injuries sustained by the deceased, namely,
that they were self-inflicted.  In my view the suggestion
that
the deceased inflicted the injuries to her genitalia and anus herself
or that these were pre-existing injuries is not only
unsubstantiated
but, what is more, most improbable. Given the absence of any direct
evidence from the accused that the injuries
were self-inflicted and
given the overall highly improbable nature of the explanation
furnished by the accused in his statement
to the police and having
regard to the evidence as a whole I find that the injuries to the
deceased’s vagina and anus were
caused by sexual
intercourse/penetration and that this intercourse/penetration could
only have been with or been effected by the
accused.
[299]
Further
in my view, the only reasonable inference to be drawn from the
evidence as a whole and taking into account the accused’s

failure to testify is that the accused’s sexual penetration of
the deceased, both vaginal and anal, was not with the consent
of the
deceased.
[300]
Put
differently, in my view the State established a strong prima facie
case that the deceased had been unlawfully sexually penetrated
both
vaginally and anally. In the particular circumstances of this matter,
for the reasons already given, I consider further that
the Court is
entitled to conclude, in the absence of an explanation from the
accused as to how the deceased sustained the injuries
which she did,
that the State has discharged its onus of proving beyond reasonable
doubt that these injuries were inflicted by
the accused through
penetration of the deceased both vaginally and anally and furthermore
that this took place without the consent
of the deceased.
Conclusion
[301]
For
all these reasons I consider that the State has succeeded in proving
the accused’s guilt on counts 1 and 2 beyond reasonable
doubt.
In the result the accused is acquitted on Count 3, the charge of
killing the deceased by manual strangulation or by inflicting

violence unknown to the State upon her, but is convicted on counts 1
and 2, namely, unlawful sexual penetration of the deceased
both
vaginally and anally on 1 January 2014 at Le Bac Estate Paarl.
____________________
BOZALEK J
For
the State: Adv E Erasmus
As
Instructed by: DPP
For
the Accused: Adv J Moses
As
Instructed Bagraim Attorneys
G
Duncan
[1]
1944 AD 493
at 508 – 509.
[2]
See
S
v Theunissen and Another
[2003] ZACC 12
;
2003 (6) SA 505
(C) at para
[56]
citing
Osman and Another v Attorney General, Transvaal
1998
(4) SA 1224 (CC).
[3]
S v Katoo
2005
(1) SACR 522
(SCA) at 529 E – F.