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[2018] ZAWCHC 147
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S v Saunders (SS64/2017) [2018] ZAWCHC 147 (7 November 2018)
SAFLII
Note:
Certain personal/private
details of parties or witnesses have been redacted from this
document in compliance with the law
and
SAFLII
Policy
In
the High Court of South Africa
(Western
Cape Division, Cape Town)
[REPORTABLE]
CASE NO: SS64/2017
In the matter between:
THE STATE
and
MORTIMER HENRY
SAUNDERS Accused
JUDGMENT
DELIVERED ON: 6 AND 7 NOVEMBER 2018
MANTAME,
J
A
BACKGROUND
[1]
The accused Mortimer Henry Saunders appeared before this Court on two
(2) counts, that is, rape and murder. The accused
pleaded not
guilty on the main count of rape, but guilty on the alternative count
of committing sexual act with a corpse; and not
guilty on the main
count of murder, but guilty on murder without premeditation and or
planning. In his plea – explanation,
and admissions in
terms of Section 220 of the Criminal Procedure Act 51 of 1977
(“
CPA
”), the accused stated the following:
“
1. I am the
accused in the aforementioned matter.
2. I have been
informed of my rights, in particular:
2.1
To be presumed innocent until proven guilty beyond reasonable doubt;
2.2 To plead not
guilty and put the State to prove of (sic) its case;
2.3 Not to be
compelled to give self-incriminating evidence, and
2.4 I am not obliged
to plead guilty as set out hereunder.
3. The charges have
been explained to me and I understand the charges against me, as set
out in the indictment.
4. I have not been
unduly influenced or threatened to plead guilty nor were any promises
made to me.
5. I do so freely,
voluntarily, without undue influence and while being of sober sense
(sic).
6. The provisions of
the
Criminal Law Amendment Act 105 of 1997
have been explained to me,
in particular:
6.1 in respect of both
Counts that the provisions of
Section 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
are applicable.
Plea of guilty
and admissions
7. I therefore plead
guilty as follows:
7.1
in respect of Count 1: Contravention of
s14
of Act 32 of 2007 in that
I unlawfully and intentionally committed a sexual act with a corpse;
7.2
in respect of Count 2: Murder without it being premediated and / or
planned; and
7.3
that in respect of Count 2 it has been explained to me that the
provisions of
section 51(2)
of the
Criminal Law Amendment Act 105 of
1997
are applicable to the aforesaid charge.
8. I make the
understated admissions:
8.1
The deceased Courtney Pieters resided at […] P Street, Elsies
River.
8.2
The deceased Courtney Pieters, is the biological daughter of J P.
She was born on […] 2013 and was three (3) years
old at the
time of her death.
8.3
I rented a room in the home in which the family of the deceased lived
at […] P Street, Elsies River.
8.4
I did so for a period of about two (2) years prior to 4 May 2017.
8.5
On 4 May 2017 the parents of the deceased, J P and A F, left her in
the care of her brother, aged six (6) years old.
8.6
I was on leave for the period 28 April 2017 to 8 May 2017 and was
also at home.
8.7
During the course of the morning on 4 May 2017 I woke up and made use
of the bathroom on the 1
st
floor.
8.8
On my way I noticed that both the deceased and her brother were still
asleep.
8.9
Ten (10) to fifteen (15) minutes after my return to my bedroom on the
ground floor the deceased came to my room to watch TV.
8.10
She stayed for a few minutes I told her to leave my room as I wanted
to sleep further.
8.11
The deceased left but returned thirty (30) minutes later.
8.12
Irritated for having been woken a second time and compounded by ill
feelings between myself and her mother I decided to give
her ant
poison.
8.13
I bought the poison some eight (8) months before, to use for an ant
problem I had in my room.
8.14
Because it was in powder form I mixed it with water.
8.15
My intention was to make her sick and in doing so to get back at her
mother.
8.16
Initially she did not want to drink it, but on telling her to do so
she did.
8.17
She started coughing and some of the mixture settled on her face,
hair and clothing.
8.18
At this point some of the other persons living on the property
started looking for her.
8.19
She tried to respond to their calls.
8.20
I panicked, I did not want her to be found in my room in the
aforesaid state.
8.21
To stop her from screaming I hit her with my open hand on the
forehead, closed her mouth with a towel and choked her by putting
my
hand around her throat.
8.22
Her body became limp and I placed her on a duvet in the corner of my
room.
8.23
I left my room with the door open.
8.24
After about ten (10) minutes I returned.
8.25
I noticed that her lips were blue and her body lifeless.
8.26
It also looked as if she vomited, as fluid was coming out (sic) her
mouth.
8.27
I realized that she was dead.
8.28
Utterly stunned by what I have done I remained in my room for about
an hour.
8.29
The TV continued playing and I mulled as what to do next.
8.30
I decided to get rid of the body.
8.31
Before I did so, I pulled down her denim shorts and panty penetrating
her vagina with three (3) fingers.
8.32
There was no reaction of pain by her and no active bleeding as my
fingers penetrated her.
8.33
However I became aroused.
8.34
I took out my penis and did place it on her body and around her
vagina but I did not penetrate her with it.
8.35
I thereafter covered the body in the duvet and placed it in the
plastic packaging the duvet came in.
8.36
I thereafter left the body in the bushes close to the factories and
railway line.
8.37
When the parents returned that evening they received a report that
the deceased is missing.
8.38
After an extensive search her lifeless body was found nine (9) days
later where it had been dumped in a nearby industrial area.
9. I make further
understated admissions in terms of
s220
of the CPA.
10. The deceased
mentioned in the indictment was at all relevant times correctly
identified as Courtney Pieters.
11. That, from the
time the body was found on 13 May 2017 until the time the post mortem
examination, the body of the deceased did
not sustain any further
injuries.
12. Dr Aloysia
Shanessa Ogle performed the post mortem examination on the body of
the deceased on 15 May 2017.
13. The cause of death
of the deceased as determined at the post mortem examination and
noted on the said post mortem is correct
as being, “most likely
asphyxia in nature (smothering, strangulation, etc.) and / or
poisoning, and the manner therefore
unnatural.”
14. To the extent that
her findings may be indicative that the genital injuries were
inflicted prior to death I do not admit it.
15. Dr Aloysia Ogle
took samples or specimens from the body of the deceased herein
referred to as “specimens retained”
during the post
mortem examination and it was at all relevant times properly sealed
and packed.
16. The photo album,
affidavit and key to the photos taken and compiled by Warrant Officer
Jaco Van Schalkwayk correctly depicts
the scene of the alleged crime
at […]P Street, Elsies River, [Exhibit “D”]
17. That the
correctness and content of the photo album, the affidavit and key to
the photos taken and compiled by Insp Elrika Van
Niekerk are admitted
and can be accepted as exhibits as mentioned:
17.1
Photos 1 – 59 taken on 13 and 14 May 2017 depicting the scene
where the body of the deceased was found on 13 May 2017
on an open
field behind Silicon Factory, Bofors Circle, Epping Industria, Elsies
River and where certain items were collected –
[Exhibit “E”]
17.2
Photos 60 – 93 of the deceased taken during the post mortem on
15 May 2017 – [Exhibit “F”]
17.3
Photos 94 – 100 of the accused (Mortimer Saunders) taken on 15
May 2017 at FCS Bishop Lavis dressed in a red golf T-Shirt
(Pringle
medium) which was also collected as evidence.
18. On 13 May 2017 at
Bofors Circle, Epping Industria, Dr Ogle collected the following
samples or specimens from the body of the
deceased:
18.1
nail clippings
18.2
one Paediatric Sexual Assault Evidence Collection Kit with seal
number PAD000493120 that contained:
18.2.1 Pubic swob
(sic)
18.2.2 Labia swob
(sic)
18.2.3 Vaginal swob
(sic)
18.2.4 Anal swob (sic)
18.2.5 Top
18.3
one Paediatric Sexual Assault Evidence Collection Kit with seal
number PA 4001720739 that contained the following:
18.3.1 vaginal swob
(sic)
18.3.2 right thigh
swob (sic)
18.3.3 right thigh
swob (sic)
18.4
one Adult Sexual Assault Evidence Collection Kit with seal number
PAD001780501 containing the following:
18.4.1 oral swob (sic)
18.4.2 left arm swob
(sic)
18.4.3 left hand swob
(sic)
18.4.4 denim shorts
18.4.5 under wear
19. That on 16 May
2017 Jacobus Adrian Van Zyl, a properly qualified forensic analyst
received a Toxicology kit with seal number
T07893K and marked
C14/1397/2017 and after an examination requiring skill in chemistry
correctly found that the deceased had “carboryl”
(sic) in
her stomach, bile and blood, [Exhibit “G”].
20. That Dr Andrews
examined me on 15 May 2017 and that I had no injuries.
21. That on 15 May
2017 and at the Directorate for Priority Crime Investigation, Old
SARS Building Bellville I made a statement
to Luitenant Colonel Mike
Barkhuizen.
22. That I admit and
confirm the content of the statement referred to in point 21 above
and that I made the statement freely and
voluntarily, in sound and
sober senses, without being unduly influenced and further that I was
satisfied with the content of the
statement, [Exhibit “H”]
23. That on 15 May
2017 and at Bishop Lavis FCS the accused gave permission to Captain
Sean Taylor to take my Buccal Sample and
that it was correctly sealed
in the DNA Reference Sample Collection Kit (16DBAP0277TF) and that it
was handed in Elsies River SAP13/1191/2017.
The Buccal sample
handed in at the Forensic Laboratory in Plattekloof under LAB NO
278955/2017.
24. That on 16 May
2017 I took Captain Speed to […] P Street, Elsies River where
I pointed out the room where the deceased
was killed.
25. On 16 May 2017 I
took Captain Speed to Bofors Circle, Epping where I pointed out the
place where I dumped the body of the deceased,
[Exhibit “K”].
26. That the recording
of CCTV footage with date stamp 4 May 2017 was correctly copied from
the relevant system, transferred to
a compact disk and thus reflects
a true copy of the original footage and may be accepted as [Exhibit
“L”].
27. That the frames
reproduced from the CCTV footage as admitted to in paragraph 17, are
true copies from the footage and may be
accepted as [Exhibit “M”].
Now therefore I admit
that I am guilty of:
28. Contravention of
s14
of Act 32 of 2007 in that I committed a sexual act with a corpse;
and
29. Murder, without
premeditation and / or planning.
30. I admit that at
all relevant times I knew that what I was doing was wrong and
punishable by a court of law.
31. In respect of both
counts I admit that I committed the crimes unlawfully and
intentionally.
32. I admit (sic) at
the time of committing these offences, I had no right or permission
to act in the aforesaid manner and that
my actions were punishable by
law.
33. I am deeply
remorseful for that (sic) I have done.
34. My legal
representative has explained the consequences of this statement and
it is with a clear understanding thereof that I
plead guilty.”
[2]
The state did not accept the guilty plea on the two counts, that is,
Contravention of
section 14
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
– committing a sexual
act with a corpse, and murder, without premeditation and or
planning. A plea of not guilty was
therefore entered in respect
of Count 1 – rape and Count 2 – murder.
[3]
In proving its case, the state called ten (10) witnesses, that is,
J
P, M W, Pamela Scholtz, Jacobus Van Zyl, Luthando Lukhanyo Tiya,
Constable Bradley Spogter, Professor Jacob Johannes Dempers,
Hildegard Thünemann-Oláh, John Patrick Segole and Captain
Sean Timothy Taylor
. The defence only called one witness,
Dr Segaran Ramalu Naidoo
.
[4]
Ms Cecil appeared for the State and Mr Calitz appeared for the
accused.
B
THE STATE’S EVIDENCE
[5]
J P
(“
Ms P
”), the mother of the deceased
was the first witness to give evidence. The state made an
application to Court that this
witness be warned in terms of
Section
204
of the CPA, specifically in respect of
Section 305(3)
(a) and (b)
of the Children’s Act 38 of 2005 relating to abuse or
deliberate neglect of a child, as some of the questions
that may be
put by the state may incriminate her. Ms P was warned
accordingly.
[6]
Ms P testified that in May 2017, she resided at […]P Street,
Elsies River. She stayed with A F (“
A
”), her
boyfriend and the house belonged to his sister, M P (“
M
P
”). Mortimer Saunders, the accused also stayed in
that house. In addition, M P’s children resided in that
house, i.e. M P and M W. M W occupied the backyard structure
(wendy house) with her husband and baby.
[7]
Ms P and A F have been in a long term relationship for more than
twenty (20) years. They were blessed with four (4) children,
A
(21 years), M (16 years), A (7 years) and Courtney Pieters (3 years)
(
the deceased
). She stayed with three (3) children and
the fourth one M lived with a church sister in the same street.
[8]
Initially, Ms P stayed in Tulbagh and she thereafter moved to Cape
Town. She has lived in the aforementioned address for
more than
ten (10) years. When she gave testimony, she advised the Court
that they have since moved to […] Delft in
November 2017.
She is still staying with A F and her three (3) remaining children,
that is, A, M and A.
[9]
It was her testimony that she knew the accused from the time he came
to stay at […] P Street. Their relationship
was a rocky
one as they did not like one another. The accused regularly
caused some problems between her and her boyfriend
A. The
accused targeted A when he was drunk as he knew that he is rude when
he is intoxicated. The accused would tell
A things that she
said about him and A would cause a scene. The accused took
advantage of him as they were childhood friends,
and close to each
other.
[10]
For the two (2) or three (3) years the accused stayed at […] P
Street, the accused occupied the bottom room and her
family occupied
the one bedroom upstairs. M P occupied another bedroom with her
family next to them.
[11]
In May 2017, she worked as a cleaner at Hungry Lion in Parow.
She worked there for almost a year. A worked at a
factory in
Epping and did not know his employer.
[12]
On Thursday, 4 May 2017 she woke up and prepared herself for work.
At the time, she was still breastfeeding the deceased.
When the
deceased woke up, she breastfed her and prepared porridge for her.
Since A was sick, she kept him home that day
and he did not attend
school. A and M P had already left for work. It was only
M who was sleeping in his mother’s
room and the accused who
occupied his bottom room was also present. Once the deceased
finished her porridge, she gave her
two (2) children some kisses and
left for work. When she left, the deceased as usual asked her
to bring some “
party packets
” in the afternoon.
[13]
It transpired during Ms P testimony that the two (2) children were
left alone on that day. Ms M W who normally took care of
the deceased
was not taking care of her that week, as she could not afford to pay
her.
[14]
When she returned that evening, A and C came running to her and
advised her that the deceased was gone. She immediately
went to
the house and quickly put her bags down. On inquiry from
Marsha, she advised her that she thought she took the deceased
to
work. Ms P started searching for the deceased frantically and
asked her whereabouts at the houses she normally visits
and
unfortunately it turned out that nobody saw her on that day.
[15]
After 19:00 in the evening, she decided to report the matter to the
police, and thereafter proceeded with the search with the
members of
the community. They walked up to Vasco, Ruyterwacht and
Goodwood to no avail.
[16]
On Saturday 13 May 2017, she was collected at her house with A to
attend at the police station. When they arrived, they
were
advised that the deceased’s body has been found, but were not
allowed to go and identify the body as they were not sure
yet if
indeed it was that of the deceased. They went back home
thereafter.
[17]
On Sunday, 14 May 2017, Captain Taylor came to fetch her, A and M P
at home for DNA testing. At the police station, Ms
P was
requested by Captain Taylor to phone the accused to come to the
police station. The accused advised her that he is
in the taxi
and was due to take another one. He proceeded to ask who is
asking that he comes to the police station and what
are they really
saying. She told him not to worry about what they are saying,
he must just come over. The accused promised
that he would
come, but he never turned up.
[18]
Ms P confirmed that Captain Taylor showed her some pictures at the
police station and was very shocked to see them. In
fact, she
lied to Captain Taylor and said she did not know the accused in the
pictures. She could not believe that such a
decent, quiet and
well-behaved person who loved children including the deceased would
do something like that. Ms P and A
were taken to identify the
deceased’s body at the mortuary later on.
[19]
Though the accused and Ms P did not see eye to eye, she would
occasionally perform some laundry duties for the accused as she
got
paid. She confirmed that the deceased visited the accused
regularly as she used to watch TV and play with the accused’s
daughter, S.
[20]
Before 4 May 2017, Ms P testified that she has never left the
deceased unattended, unless she was just attending to a place
nearby. Ms P disputed that there was an ant problem in the
house or that they used an ant poison. Ms P testified that
although she was deeply hurt, she is partly to blame for the
incident, and takes responsibility for leaving the child alone.
However, she received counselling for a day. The incident also
affected her health as she spent some time in hospital after
being
diagnosed with tuberculosis (TB) and meningitis. She spent a
month in Tygerberg Hospital and three (3) months at Brooklyn
Chest
Hospital.
[21]
Much of Ms Pieter’s cross-examination was on the fact that she
made it a habit to leave the deceased at home alone and
goes to work
with the hope that Marsha would keep an eye on her. Ms P did
not dispute that she left the deceased unattended
on occasions.
Further, she did not know what was happening to the deceased during
her absence. She was however not
aware that S, the accused’s
daughter took photographs of her playmates with her father’s
phone, as defence Counsel
put to her. Ms P disputed the
suggestion that she resented the accused as he told A that she did
not look properly after
the deceased and other children.
According to the accused’s version, she did not wash, clothe or
give them food.
Ms P was resolute that the accused made up
stories to A that caused friction. For instance, on one
occasion, the accused
sent a message to the owner of the house, M P
who was away, to come and check what was going on in the house, as he
was convinced
that Ms P has taken over the household. According
to Ms P, the accused was always a troublemaker and enjoyed upsetting
the
mood in the house. It was disputed by Ms P that she ever
cleaned the accused’s room. She further disputed that
there was an ant problem prior 4 May 2017 in that house. The
only foreign creatures that were there were cockroaches, so
said Ms
P.
[22]
M W
(“
Ms W
”) testified that she is married,
and lived at a wendy-house at the back of [...] P Street. The
house is owned by her
mother M P. She has known the accused
from the time she grew up as his father is a family priest. In
fact, they had
an easy relationship with the accused as they were
friends. She has lived in that house for her entire life, but
for two
(2) years at the wendy-house.
[23]
Ms W has two (2) children, C (9) and J (1). She knew A F as he
is her uncle and J P is her uncle’s girlfriend.
She was
aware that the accused and Ms P used to argue, shout and swear at
each other all the time, but could not figure out exactly
the reason
for such behaviour. In the opposite, A had a good relationship
with the accused.
[24]
On 4 May 2017 at about 7:30 in the morning, she took her daughter to
her mother as it was her normal routine and she walked
with her to
school. As the baby would be still asleep at that time, she
would go back and sleep with her baby for a while.
On that day
at about 8:30 she went to the main house. When she entered the
house A was standing in the front room.
She then proceeded to
ask where the deceased was. He responded that she was watching
television in the accused’s room.
She then went back to
the wendy-house as her baby was still asleep and started cleaning.
When she was done, she went back
to the main house. She
estimated the time to be shortly after 9:00. Ms W asked the
accused if the deceased was still
watching television. The
accused advised her that she left, but did not know where she went
to. When she made this
inquiry, the accused was standing in
front of his door.
[25]
Ms W proceeded to clean her mother’s room upstairs.
Whilst busy cleaning, Aunty Jolene arrived and asked where
the
deceased was as she wanted her to play with “
Poekoe
”
(real name C). Ms W’s response was that she thought she
was at her house as the accused said she went out.
This
conversation happened downstairs and the accused was in his room.
She immediately asked A to go and check if the deceased
was not at
Aunty Dimpie’s house. A came back and said she was not
there. She further sent him to look for her
at Aunty Monica’s
house, he also came back and said she was not there. Ms W
suggested that perhaps she was at her sister’s
place, Celeste
Adonis. Her sister lived in the second street from P Street.
She walked with Aunty Jolene to her sister’s
place, but her
sister was not there nor the deceased.
[26]
They decided to go back to her house as she thought Nonna (Celeste)
took the deceased back home. On arrival at home they
were not
there and she continued with her house cleaning duties downstairs and
the kitchen. While busy cleaning, her brother
M arrived, and
advised her that her mother said she must assist him with the
laundry. They did the washing manually and hanged
it on the
line, but there was no trace of the deceased. She however saw
the accused coming out of his room twice but did
not have a
conversation with him. M was cleaning the yard at the time.
After finishing the clothes, she took a bath
and prepared her baby in
order to go to the post office. She then locked the wendy-house
and went into the main house.
When she entered, she noticed
that the accused’s room was locked and the padlock was hanging
outside the door. It was
now in the afternoon at about 14:00.
She took the pram and went to the post office. She instructed
her brother that
when the deceased returns home, he should keep her
at home.
[27]
It was Ms W’s testimony that at some point when she was at the
back at the wendy-house, that the accused brought her
CV and advised
that he went to the library to do her CV, and also walked around
there to look for the deceased. This happened
after she asked
the accused to prepare her CV at his work some few weeks prior to
that day. He advised her that since he
was on leave he managed
to have time to prepare the CV.
[28]
On her return from the post office, she went back to her sister’s
house. Her sister advised her that the deceased
was not there
and they started to panic, as it was now in the afternoon. They
all went to their house and were joined by
some members of the
community. It is then that they realised that the child was
missing. Ms W asked the accused to
get hold of her mother so
that she can come back home urgently. The accused said he would
not call her, as he did not want
her to get worried unnecessarily.
It was about 16:00 in the afternoon when the deceased’s mother
returned home and
was advised about the disappearance of the
deceased. At all times, the accused’s demeanour was
normal, cool, calm,
unperturbed and he did not look suspicious, so
said Ms W.
[29]
The community started to be anxious and they proceeded to form search
parties in order to look for the deceased. The
accused did not
join them, he was in his room. They conducted the search until
3:00 or 4:00 the next morning.
[30]
On 5 May 2017, they continued with the search extending to Epping
Forest and The Range. Ms W remembered that the accused
assisted
with the search of the deceased on the first Saturday, that is, 6 May
2017 after the deceased disappeared. In other
days, she was
with other search parties, as a result she did not interact with
him. The groups were big and the police were
also involved.
[31]
During her testimony, Ms W confirmed that she was no longer taking
care of the deceased in the week of 4 May 2017. In
fact it was
four (4) weeks since she did not take care of the deceased. Ms
P would either leave the deceased in the bedroom
or take her to
“
Poekoe
” on her way to work. She stopped
taking care of the deceased as the deceased’s father A was laid
down at work
for some two (2) weeks and could not afford to pay her.
Usually when she looked after the deceased, and the mother went to
work, she would leave the deceased with her. The deceased would
ask to visit “
Poekoe
” later on in the day.
[32]
Ms W described the deceased as a very shy child. This accorded
with the deceased’s mother’s testimony.
She would
not take anything from a stranger. Also, she added that as a person
who cleaned the house, she has not seen any ant problem
in the
house. Further, she could not remember seeing any ant poison in
the house.
[33]
Ms W was asked to identify a photo with a heading “
Missing
”.
She testified that the attached photo was taken in the accused’s
room, with the accused’s cell phone
as the deceased is seen
lying on his bed. During the search, the accused forwarded it
to her sister Celeste for purposes
of making a flyer for the missing
child.
[34]
Pamela Scholtz
(“
Scholtz
”) gave testimony
that she works for the community as a neighbourhood watch. She
occupies the position of Captain in
neighbourhood watch Sector 3.
She resides at No 11 Leiden, Delft.
[35]
Ms Scholtz heard about the disappearance of the deceased on the news,
and people were called on to assist with the search of
the deceased.
At the same time, she received messages from the Brigadiers in the
police to come and assist with the search.
On 9 May 2017, she
went to [...] P Street where the deceased was staying with her two
(2) other colleagues, Bahija and Candice.
They started
searching the Salberau field, but could not find the deceased.
[36]
On 10 May 2017, they decided to take Ms P for trauma counselling in
Woodstock. In the afternoon they came back and continued
with
the search and were joined by the members of the South African Police
Services who had a warrant. They searched each
and every
neighbouring house, to no avail. They searched Ms W’s
wendy-house and could not find the deceased.
They proceeded to
the accused’s room and they found him sitting in his bed.
He did not say anything to them.
Ms Scholtz only remarked that
he must keep his room clean as it was typically untidy.
Otherwise, she did not see any ant
problem in the room while doing
the search. They did not return to the search party on 11 and
12 May 2017.
[37]
On Saturday, 13 May 2017 they returned to the search party.
Most of the neighbourhood watches were present at [...] P
Street
including Mitchell’s Plain, Delft, Elsies River and
Ruytewacht. They were split into groups as usual.
The
accused was part of the search party, but not in Ms Scholtz’s
group. Her group consisted of herself, Captain Walters,
Celeste
(the deceased’s cousin), Bahija and Candice. As Captain
Walters was driving with them, he wanted to drop them
off in order to
continue the search and went to check on one (1) other group and fill
up with petrol in Epping.
[38]
As the Captain was about to leave, Celeste insisted that they should
do the search at the back of the factories as there was
an open field
where people walk through to work. Captain Walters parked the
car outside the gates and they all alighted.
Captain Walters
walked with Candice and Bahija to the right side, she and Celeste
walked in the middle towards the left hand side.
Celeste did
not want to walk towards the left as the thorns were getting into her
boots. She then proceeded alone to the
extreme left along the
wire. She walked straight down to the corner. While
looking and scratching, she made up her
mind that she needed to get
to the corner of the field. To her shock, she discovered the
deceased body lying motionless,
covered with thorn bushes. She
immediately knew that it was the deceased as her mother gave the
description of the clothes
she had when she disappeared. Her
eyes caught the denim pants with an embroidery flower as described.
[39]
It was about 13:30 when she discovered the body. Ms Scholtz
immediately became emotional and powerless and she went to
sit down.
She sat for a while, and when she regained her strength, all she
shouted was “
Hello
”. At that time, Celeste
was behind her and saw her. Celeste then called Captain Walters
and said Ms Scholtz was
trying to catch their attention. On
their arrival, she showed them what she saw. Captain Walters
proceeded to call
other members of the police to attend to the scene.
[40]
Even though it was put to Ms Scholtz during cross-examination that
she was not an expert in the behaviour of ants, she still
maintained
that there were no ants in the accused’s room when she
conducted the search. Also when she was asked to
comment about
what she first saw when she laid her eyes on the deceased. Her
response was that she saw the navel, her jeans
were open and the zip
was down, the jeans were pulled down to the feet. There were no
shoes on her feet.
[41]
Jacobus Adriaan Van Zyl
(“
Van Zyl
”)
testified that he is a toxicologist and a member of the American
Academy of Forensic Sciences – Toxicology Section.
He
co-authored two (2) papers. In these papers, they used the
LC-MS (liquid chromatography mass spectrometry) for analysis.
In 2014, he completed a Graduate Certificate in Forensic Toxicology
at the University of Florida. In that course he did toxicology,
drug biotransformation and mechanisms of toxicology and molecular
mechanisms of toxicology, toxic substances and general toxicology
as
subjects. In 2015, he completed the Course for Coroners at the
University of Dakota in the United States, and it is a
course
equivalent to pathology in South Africa called Death Investigation
Training Course. The subjects covered were basics
of death
investigation, forensic pathology, terminology and diseases.
This course empowered him to identify causes of death
(what type of
sickness caused the death), some initial observations until the body
is uplifted to the mortuary. In 2015,
he did a course in
fundamentals of sample preparation used in toxicology, opioids and
pain management course. These courses
were offered by Forensic
Science Education. In 2016, he did an introductory toxicology
course at John Hopkins Hospital, Department
of Medicine in the United
States. It covered procedures to be implemented in medical
emergencies, clinical toxicology –
for instance, when a person
took an overdose – symptoms for and how they should be treated.
[42]
In 2000, he completed a National Diploma in Analytical Chemistry at
the then Cape Technicon (now
CPUT
). In 2004, he
completed a Bachelor’s Degree in Pharmaceutical Science at
Tshwane University of Technology. He
has eighteen (18) years’
experience as an analytical chemist, nine (9) years’ experience
on LC-MS and eight (8) years
on GC-MS (gas chromatography mass
spectrometry), four (4) years’ experience on high-resolution
accurate-mass. He worked
just under five (5) years in the
pharmaceutical industry, and over a year as a forensic chemist for
the police. Currently
he is stationed at the National
Department of Health-Forensic Chemistry Laboratory in Woodstock as a
forensic analyst, previously
he worked for six (6) months as blood
alcohol analyst. In addition, he has done four (4) years
with Medical Research
Council. In total, he has worked six (6)
years, eight (8) months in his current position as a forensic
toxicologist, and
is currently a Chief Forensic Analysis.
[43]
Mr Van Zyl’s duties entails doing maintenance of the equipment,
and calibrating them, training of forensic analysts,
signing off
cases, analysis of cases, preparation of reports, discussing them
with his supervisor (review the results if needs
be), and send them
out.
[44]
In this matter he received a piece of stomach, a piece of kidney, a
piece of liver, bile and blood to analyse. He compiled
two (2)
reports containing his findings. The two (2) reports were
entered on record as Exhibits “
O
” and “
P
”
respectively. In the first report, Exhibit “
O
”,
Mr Van Zyl did the screening looking for pharmaceutical drugs or drug
of abuse. He then detected a carbaryl compound
on the stomach
contents. In essence, this report only tells that something is
detected. He did not test that specific
sample for further
analysis. That is why it is referred to as the qualitative
report. Nothing was detected on the kidney
and liver as the
sample was insufficient. Carbaryl was however detected on the
bile as the sample was sufficient for the
drug screen test.
When screen tests were conducted on blood, carbaryl was detected as
there was a sufficient sample to do
a blood screen.
[45]
Carbaryl was described as carbamate pesticide. It appears that the
pathologist requested the sample kit to be analysed for
pharmaceutical drugs, as they were looking for ant poison. The
screening was done using GC-MS or Q Exactive Plus LC-MS Orbitrap.
Now for pesticides to be detected, he performed a QuEChERS extraction
or liquid-liquid extraction. If one needs a drug screen,
he
would do SPE because it is a better method than QuEChERS. One
would be able to see lower amounts of quantities of compounds
with
SPE, because the sample is more concentrated and less diluted like in
QuEChERS.
[46]
The second report, Exhibit “
P
” is the
supplementary report containing quantified results of the previous
tests done. So it should be read in conjunction
with the
previous report. The results in these tests revealed that the
carbaryl present in the bile had a value of 1.7 milligram
per litre;
and the blood had a value of 8 milligram per litre. Although
there was carbaryl detected in the stomach, there
was no value shown
as the sample was insufficient to quantify. In essence, Exhibit
“
P
” reflected the quantitative measures of
carbaryl in the specimens.
[47]
Carbaryl was further described as a reversible acetylcholinesterase
inhibitor. Acetylcholinesterase is an enzyme in the
body which
its function is to break down a chemical compound called a
neurotransmitter. What happens in the body is that,
if there is
acetylcholine, this enzyme will break it into an acetate ion and
choline. This breaking into two (2) happens
in a normal body
that is not poisoned or not under any pharmaceutical drugs.
Acetylcholine is important in the brain as it
uses it to send
messages to the muscles. For instance, it tells muscles to
contract or move. In a normal body, this
chemical will be sent
by the brain to the muscle to do its function. The enzyme,
acetylcholinesterase will break it up to
prevent the acetylcholine
from building up in the body.
[48]
With pesticides poisoning, in this case carbaryl, - carbaryl will
bind to this enzyme, but over time it can break again –
it is a
reversible reaction. Carbaryl will inhibit the enzyme so that
it cannot break up the acetylcholine. As the
enzyme is
inhibited, acetylcholine will be manufactured in excess. When
the message gets to the muscles, it comes as lots
of acetyl groups
and in the process giving the same message. The area where the
message is channelled or the receptor, gets
overworked. The
brain ultimately shuts down. Wherever that message was
channelled, it then gets paralysed.
[49]
Acetylcholine is found in glands, for instance, glands that form the
tears in the eyes. It is used to send signals in
eyes, it will
form tears and in the mouth it will form saliva. It will also
send signals in the lungs or bronchi –
for example there will
be more secretions, sweating in the skin, contracting of pupils,
heart rate, blood pressure, respiratory
rate – fast or
slow breathing, defecation, diarrhoea or urination, twitching of the
muscles and convulsions, constriction
or excessive constricted pupils
or pinpoint pupils – when the pupil closes, it looks like a
little needle, bronchospasm or
bronchoconstriction – that will
result in coughing, sneezing or shortness of breath, bronchial
secretions. As a result
of fluid building up, the lungs cannot
function properly and the heart will ultimately slow down.
Vomiting and teary eyes
could also be observed. In addition,
excessive salivation, muscle control or muscle co-ordination would be
affected, persons
cannot walk or pick up objects, tremors, paralysis
of the diaphragm, slurred speech might be visible. A person
might also
get cyanosis – the bluish-purplish discolouration of
the skin or mucous membranes close to the tissues or close to the
surface
– because of lack of oxygen in certain parts of the
body, and further because they are in a state of dying. Lastly,
a person might go into a coma which is followed by death. Not
all these symptoms or effects might be present. They
all depend
on the amount of poison administered in the body. For example,
if less or mild poison was administered, the symptoms
can take
between four (4) – twelve (12) hours to be visible. In
more than moderate or severe poisoning cases, it will
take twenty
(20) – thirty (30) minutes for serious effect to show.
[50]
As stated above, the binding of acetylcholine to the
acetylcholinesterase is reversible. In adults, as they have
lots
of these enzymes in their bodies, the body can break this bond
and the symptoms will disappear – but also, it will depend
on
the dosage administered. In cases of high dosage, one has a
chance of seeking medical treatment. That will be between
twenty four (24) – forty eight (48) hours in adults. If
the poison is not too serious they can recover on their
own.
The enzyme fixes itself in adult persons.
[51]
With children, their cases could be more severe as they have less of
this enzyme or the enzyme gets overpowered quickly and
they have to
deal with the symptoms as aforementioned. It therefore becomes
more difficult for the child to deal with symptoms
than an adult.
With a child weighing 12.5 kg, it will be difficult to recover and
they will require urgent medical attention.
Again, it will
depend on the amount of dosage administered. The main component
this pesticide affects is the breathing.
It becomes more
difficult for the children to breath. With high doses, within
half an hour to an hour a child must get medical
assistance, as the
effect of poison is treatable.
[52]
As carbaryl can be found in food, water or vegetable, the World
Health Organisation, said the safe level of dosage for vulnerable
people (children) would be equivalent to .01 milligrams per kilogram
per body weight. This means one can ingest .01 milligram
of
carbaryl poison without any effects. A person weighing 12.5 kg
can take .01 milligrams of this poison without serious
effects.
[53]
Mr Van Zyl testified that unfortunately he did not have literature
values reflecting a toxic dose for children. He could
only give
examples of overdose on adults that were treatable after medical
attention. For instance, for adults weighing seventy
(70) kg –
seventy five (75) kg a toxic dose is 5 milligrams per litre and a
lethal dose is 6 milligrams.
[54]
It was Mr Van Zyl’s evidence that he was surprised to find
pesticide in the blood as in his experience carbaryl is metabolised
very quickly. It gets absorbed very quickly by the stomach and
gets broken down and it moves out of the blood to the urine.
In a normal situation, one will find carbaryl in the stomach, bile or
urine as the body is trying to excrete the poison.
As it is
metabolised very fast – it is referred to as half-life.
Pesticides have got very short half-lives. It
does not stay
long in the blood. High concentration in the stomach is usually
caused by the overdose.
[55]
The only explanation that Mr Van Zyl could come up with for the
presence of carbaryl in the blood is that when one dies, the
metabolism stops, it does not break down further, For him to see it
in the blood, it could be that the person was exposed to a
high
dose. Since there was carbaryl in the bile, it means, there was
enough time for metabolism to take place. There
was either a
factor that caused death or something else or other mechanism caused
death or the pesticide caused death. In
this case, death took
place rather quickly, which then stopped metabolism and circulation
of the blood in the body.
[56]
According to Mr Van Zyl, given the fact that the body was decomposed
and nine (9) days later, he could find almost 1 milligram
(.08
milligram) of poison which is a fifth of the dose for an adult, the
deceased was given a toxic dose. Also looking at
its half-life
not much of it was broken down.
[57]
Mr Van Zyl could not comment on whether carbaryl had an impact on
decomposition during cross-examination.
[58]
Mr Luthando Lukhanyo Tiya
(“
Mr Tiya
”)
testified that before 17 May 2018 he was employed by the Forensic
Science Laboratory in Plattekloof. He was attached
to the
Biology Unit. He was a Forensic Analysis and Reporting Officer,
and held a rank of a Warrant Officer for about seven
(7) years.
His duties entailed getting an induction from the laboratory,
training in bodily fluid identification and mentorship
that enabled
him to work as an evidence recovery analyst. After two (2)
years he received further training in the DNA process
– from
the extraction of a sample until obtaining the actual DNA results.
This training took over a year to complete
and he further had to
undergo mentorship. He had been a reporting officer until he
left the employ of the Forensic Science
Laboratory. This means
that he was the last custodian of a case – he made
interpretations and reported on the findings.
[59]
In 2009, he completed a Bachelor of Science degree majoring in
Forensic Genetics and in 2010 he obtained a Bachelor of Science
Honours degree, both with the University of Free State. He is
currently a full-time Masters student at the University of
Stellenbosch studying Clinical Pharmacology.
[60]
In this case he made an interpretation and findings on all the
exhibits that were received. Warrant Officer Thünemann-Oláh,
his colleague was the receiving officer in this regard. Mr Tiya
prepared two (2) reports in this case and they were marked
Exhibit
“
R
” and “
Q
” respectively.
The difference between the two (2) reports is that the SAP21 contains
the negative results and then
the
Section 212
affidavit contains the
positive results.
[61]
Mr Tiya described the DNA as a molecule that is found in the cells of
a body and is termed a biological fingerprint.
Basically, this
means that the DNA is unique to a person and there are no two (2)
persons that share the same DNA, except for the
identical twins.
For example, the DNA obtained from saliva of an individual would be
the same as that found in his semen.
It remains the same
throughout the body. It does not change in a person’s
lifetime. A DNA that an adult person
has now is the same DNA
that person was born with. Because a DNA is small, it cannot be
seen with the naked eye. Various
things have to be done in
order to get a visualisation of a profile. These include DNA
isolation, that is, chemistry that
is done on the particular sample
in order to extract the DNA from the cells. The next step would
be QPCR (quantitative polymerase
chain reaction). This enables
the analyst to see whether the sample indeed contains the DNA or not,
as it would be useless
to send a sample downstream that does not
contain any DNA. This step is important more especially in
sexual assault offences
where the analyst targets the sperm cells in
order to detect whether there is male DNA in the sample. The
next step is PCR
where the DNA is amplified to make multiple copies
of it. The next step is electrophoresis – where the
analyst converts
this information into an information where they can
visually see. Finally the analyst will employ a software which
is called
a Gene Mapper – the international software that is
used or enables the analyst to visualise the said DNA profile.
[62]
According to Mr Tiya’s Section 212 affidavit, the forensic
laboratory extracts DNA on sixteen (16) regions. One
of these
regions is called the gender marker. The gender marker reflects
the sex of the donor of the DNA – whether
it is male or
female. In essence, it is the gender marker plus (fifteen (15)
other STR
loci
that makes a person’s unique DNA
footprint. In order to say a person’s DNA matches, it has
to be matched on all
those sixteen (16) DNA
loci
. A
mismatch on just one will not be able to be a positive
identification. When these tests were conducted, they were
able
to fully extract DNA from a possible semen sample that was on a top.
It was referred to as a possible semen because
at a preliminary
level, a presumptive test was administered on this top. In a
presumptive test, one looks at an exhibit and
try to find any body
fluid. Simply because an exhibit has a red stain, it does not
mean that the red stain is blood.
Similarly, if an exhibit has
a white stain it does not mean it is semen. The presumptive
test enables the analyst to eliminate
the actual bodily fluids from
those that are not. Then a confirmatory test would be the
actual extraction of that said bodily
fluid. Each and every
bodily fluid has a different extraction method. Blood and semen
extraction would be different.
The extraction of semen is more
involved and is called differential extraction. Its main aim is
to target sperm cells and
remove any other cells attached to the
sperm cells. In some cases this extraction works perfectly well
and the analyst is
able to isolate mainly the male DNA, whereas in
other cases one gets a mixture of DNA. This normally happens
when the female
DNA is in excess.
[63]
In this particular case, the analyst was able to fully extract only
the male DNA. Upon extraction of this unique male
DNA the
analyst compared the unique profile to that of the deceased and that
of the accused. A blood was extracted from the
deceased and a
buccal reference sample obtained from the accused. According to
the covering minute, a top was obtained from
the deceased. A
comparison was made between a top and the reference sample of the
accused. The numbers fully aligned
and the same, there is no
mismatch. The fifteen (15) plus the gender marker are the same
and there was a full profile match.
Mr
Tiya’s findings were that:
“
The DNA result
of the possible semen on the top, sealed bag 13D7AA3014, matches the
DNA result of the reference sample uniquely
sealed in bag
16DBAP0277. The most conservative occurrence for this DNA
result is one in 5.1 X 10 trillion people.
”
[64]
Mr Tiya testified that with regard to his SAP21, there are different
ways of reporting a negative result that is employed by
the
laboratory. A negative result is when one could not find a
profile on the particular sample that matches an individual.
It
is reported on three (3) ways,
first
;
NO DNA – meaning there was no DNA found in the sample,
second
;
NO DNA result – meaning there is some DNA, however it is very
small to put into the DNA process and
third
;
NOT enough DNA – meaning there is some DNA that could yield a
profile and then it is put downstream. However, in the
downstream process it does not yield a usable profile. Then
there is a report on non-incriminating matches – meaning
having
DNA on your own item for example, shirt that one is wearing. Mr
Tiya’s findings SAP 21 were that:
paragraph 3.1
“
No
DNA was obtained from the T-shirt which was uniquely sealed in
PW3000053434. The swab marked Exhibit 1, which was sealed
in
14DCAY0705. The swab marked Exhibit 2, sealed in 14DCAY0705.
The panties sealed in Exhibit bag 15D7AA3014.
The pubis swab
sealed in 13D7AA3014 and the anus swab sealed in 13D7AA3014;
paragraph 3.2
Not
enough DNA was obtained from the jeans, sealed in 15D1AB5641 and the
deep vault swab 13D7AA3584;
paragraph
3.3
The
DNA result from the reference sample, this is the accused reference
sample, 16DBAP0277, is read into the mixture of the DNA
result
obtained from the swab, Exhibit 3, 14DCSY9768 and the mat stain 47,
which was sealed in bag TAB000234136.
paragraph 3.4
The
DNA result of the mat stains 43, 45 and 49 were sealed in bag
TAB000234136, matches the DNA reference sample of the accused,
which
was in bag 16DAP0277
Paragraph 3.5
The
DNA result of the vault swab sealed in 13D7AA3014 matches the DNA
result of the reference sample of the deceased, which was
uniquely
sealed in bag 15D2AA7180.
”
[65]
It was Mr Tiya’s evidence that the jeans and the vault swabs
were not tested at evidence recovery for presumptive testing.
They went directly to DNA extraction as they contained a blood crotch
area. It was indeed found that there was indeed DNA.
The
analyst deviates from testing samples that contained blood at a
preliminary stage in order to ensure that they do not get any
false
positives at that stage. The solution used might not only react
with semen, but with blood.
[66]
Further, from the two (2) swabs that were received by the laboratory
on the thigh. The second right thigh tested positive
for
possible semen at the preliminary stage. When the QPCR was
conducted it was found that there is some male DNA, but insufficient
to yield a usable profile. Be that as it may, the only semen
that was extracted fully in this case was from the top, and
it was a
full DNA profile belonging to one individual, that is the accused.
[67]
Also, a vault swab (sexual assault kit) was tested and a semen
extraction protocol was used. It was found that indeed
there
was a male DNA and a female DNA. The testing was continued
further, and at the end of the process the profile found
was that of
the accused, but it could not be visualised.
[68]
Mr Tiya was asked during cross-examination as to what presumptive
test he does for visible blood. The response was that
he will
use the H sticks (haemal). The strip itself is an oxidizing
agent and it reacts to a green colour once blood is dipped
on it.
The other presumptive test for blood is luminol – this is where
one cannot visualise the actual body fluid.
This agent
illuminates blood in the dark and produces a blue glow.
[69]
The presumptive test for semen is a brentamine reagent. This
reagent reacts with an enzyme that is found in semen and
produces a
purple colour. This enzyme is called the acid phosphatase (AP
test). This is a time dependant test.
A reaction to this
enzyme under a limited time will be indicative of some presence of
semen. AP is also found in vaginal
secretions. However, the
reaction time will be longer.
[70]
After Mr Tiya had completed his evidence, the defence Counsel made an
application for further cross-examination of Mr Tiya.
He was
therefore recalled for that purpose. Mr Tiya was cross-examined
as to at what stage does a sample get subjected to
a presumptive
test. He testified that every sample that gets to a laboratory
gets subjected to a presumptive test.
However, it will depend
on the swabs presented. For example, if it is a vaginal swab
that has blood on them, it will not
be subjected to a presumptive
test. The only confirmation to be employed is an extraction
protocol for a particular body
fluid. The results that it will
yield thereafter will be confirmation that indeed that particular
body fluid has been extracted.
In a case where the swabs are
bloody, the main aim is to extract the DNA from the semen as it is a
sexual assault kit. The
target is to get DNA from the sperm
cells. Those swabs will not be subjected to the preliminary
testing, but to a method
that isolates DNA from sperm cells.
[71]
Mr Tiya disagreed with the supposition from the defence Counsel that
the highest concentration of DNA is found in semen.
According
to him, the highest concentration of DNA is found in blood. It
therefore depends on the amount of sperm cells found
in the semen to
get a DNA – for example, one might have a couple of sperm
cells, but not yield a DNA result. The Court
was taken through
the DNA testing process in the examination-in-chief.
[72]
It was put to Mr Tiya that Dr Naidoo will testify that semen is the
most DNA rich or concentrated body fluid. Mr Tiya
insisted that
semen does have a lot of cells, and in fact millions, but that will
not mean high concentration of DNA. Again,
it was put to Mr
Tiya that if a person ejaculates more than once, is it possible that
the pre-ejaculation fluid could possibly
carry some of the semen that
was from the initial encounter. Mr Tiya’s response was
that it is possible. Further,
the defence Counsel confirmed
that Dr Naidoo agrees with Mr Tiya.
[73]
The reports by Warrant Officer Thünemann-Oláh were
presented to Mr Tiya for comment. Nothing much was said
by Mr
Tiya, except for the confirmation of what was reported by Warrant
Officer Thünemann-Oláh. It was put to
Mr Tiya that
he testified that the semen was found in the deep vault swab.
Mr Tiya disagreed with defence Counsel in this
regard, and in his
testimony he stated that both the jeans and deep vault swab had
traces of the male DNA. He also mentioned
that the right thigh
swab where the male DNA was found but was not included in his
Section
212
affidavit, as this was a subsequent test.
[74]
When questioned as to how he came to identify the Y marker when it
comes to the deep vault swab. His response was that
when it
comes to the QPCR test, they have a way of detecting it. One
extracts DNA by first checking the maleness in the actual
body fluid
through the Quant duo kit that is manufactured by Thermo Fisher.
This kit is used especially in sexual offences
cases – to check
whether there is maleness in the swab. Amelogenin is the second
maleness test that is normally used.
There is an SRY gene that
is found in the Y chromosome of the male. That is why they
explicitly concluded that there are
traces of male DNA. Mr Tiya
confirmed that the effect of decomposition on semen does contribute
to its degradation.
[75]
Mr Tiya further explained in his re-examination that if DNA is
exposed to various elements over time, it degrades. One
has a
greater chance of obtaining DNA on a fresh sample than obtaining DNA
on a sample that has been lying somewhere for a while.
For
instance, if well preserved, the DNA can stay intact for five (5)
days. The Quant duo test was further explained to be
used to
check first whether the sample that the analyst dealt with is that of
a human being. One needs to rule out if, for
example, the blood
is not that of a dog. The gene to look for is the RppH gene.
The Quant duo test, further tests for
another gene that is found in Y
chromosome and confirms that there is a male DNA present. Now
contrary to the SRY, the amelogenin
is present in the X and Y
chromosomes, but expressed differently in X chromosomes compared to Y
chromosomes.
[76]
Constable Bradley Ronaldo Spogter
(“
Constable
Spogter
”) testified that he is stationed at Elsies River
Police Station and doing blue-light patrols. He has been in the
police
service for the past seven (7) years. He is the
arresting officer in this matter.
[77]
On 14 May 2017 at about 23:00 at night, he was the driver of a police
bakkie and was doing night patrols in Elsies River when
he received
an anonymous phone call. This lady asked if he was still
looking for Mortimer (the accused). Constable
confirmed that
indeed it is still so, and he continued to ask if there is an
information that she had. The lady said he must
go to 34
th
Avenue, and turn left to the first turn at No. 8, that is where he
can find the accused. He followed up the lead and came
to Jonah
Close.
[78]
On arrival at 8 Jonah Close, his colleague, Constable Fortune
alighted and went to the man who was standing in front of the
gate.
Constable Spogter then followed him through the gate and walked
towards the door and knocked. The door was opened
and he went
inside and observed Mortimer (the accused) sitting on a chair and
watching television. Immediately he proceeded
towards him.
The accused stood up and walked in a different direction. He
then grabbed him from behind as it was an
indication that he wanted
to get away. He informed him that he was looking for him in
connection with Case No.: 82/05/2017,
a murder case. He
proceeded to read him his rights and placed handcuffs on him.
He asked him whether he had any weapons
or any injuries on him.
The accused said he has nothing. Constable Spogter found his ID
document in his right side
of his trouser pocket. On the front
side of the pocket was his cell phone. Constable asked if he
was going to take
these items with him. He advised that he will leave
his cell phone with his friend. He informed him that he cannot
leave
his ID document as the investigating officer will need it for
the purposes of this case.
[79]
Constable Spogter took him to the police van and they drove to the
Elsies River police station. He knew it was the accused
as his
photograph was placed at the police station. The accused
was wearing a red golf t-shirt, blue jeans and yellowish
caterpillars. On arrival at the police station he immediately
informed Colonel Kiewits about his arrest. He proceeded
to give the accused his written rights. He searched him once
more and booked him into the cells.
[80]
It was Constable Spogter’s testimony that the photograph of the
accused was taken from the video recording of the place
where the
deceased was found, and when he arrested him, he was still wearing
the same clothes, and he gave his full co-operation.
[81]
Professor Jakob Johannes Dempers
(“
Prof Dempers
”)
testified in Dr Ogle’s stead, the pathologist who performed the
post-mortem on the deceased. Dr Ogle was said
to be
untraceable. She was reported to be somewhere in Dubai, but her
whereabouts are unknown. Professor Dempers was
present when the
body of the deceased was recovered and when the autopsy was conducted
and he supervised Dr Ogle.
[82]
Professor Dempers testified that he is a qualified forensic
pathologist. He qualified as such at Stellensbosch University.
In 2002 he sat for his examinations at the Colleges of Medicine of
South Africa. He was employed as a registrar while doing
his
training and he has specialised in the same division since then and
he is currently the Head of Department and Associate Professor
in
Forensic Pathology at Stellenbosch University. They are
affiliated with the Forensic Pathology Services of the Western
Cape.
Academically, they operate at the University of Stellenbosch,
Tygervalley campus. He has an MBchB degree (1994),
Diploma in
Forensic Medicine (1999) and a Forensic Pathology (FC) as a fellow of
the College of Forensic Pathology (2002).
[83]
Professor Dempers though appointed by the Western Cape Forensic
Pathology Service, also teaches both undergraduate and post
graduate
students as they are affiliated with the University of Stellenbosch.
He also teachers Registrars, that is, doctors
who want to become
pathology specialists, law students and students in health
professions in general.
[84]
As a Head of Department for the past year and a half, his duties
involve the performance of medical legal autopsies, and he
has
performed about 7500 cases in his career. The performance of
autopsies was his primary role as a junior registrar, but
with his
appointment as a consultant, it came with a supervisory role.
Currently, he has a huge administrative burden, but
he still fully
participates in the calls, supervising calls and registrars both at
scenes and at the mortuary. He still testifies
in court in
cases where he either performed or supervised autopsies. He
also trains about 350 medical students annually and
teaches them
forensic pathology.
[85]
Further, Professor Dempers confirmed that Dr Ogle was a qualified
medical practitioner who was appointed at Tygerberg Hospital
as a
registrar from 1 January 2017 – July 2017. She was at his
division for five (5) months and he supervised her when
she performed
the autopsy of the deceased in this matter. Professor Dempers
explained that not all the scenes are attended
to by a consultant and
a registrar. As this was not a relatively straightforward
case, coupled with the fact that Dr
Ogle was in her first year as a
registrar, he accompanied her to the scene.
[86]
As a consultant, he is charged with giving guidance and supervising
all the autopsies that are performed in their dissection
room
throughout the dissection process. Before the body is closed,
they will have a findings discussion. This is where
part of the
case evaluation is wrapped and the registrar reports the findings and
summarises them. If needs be, this is where
they all have an
opportunity to re-look at all the facts and decide whether any
information is crucial to the investigating officer
if at that time
he or she is not in attendance. This is the stage where they
flag if they need more information and need
to consult other
specialists – this stage is termed a consolidation stage.
In difficult or challenging cases this type
of discussion is almost
continuous as was the case in this matter.
[87]
Professor Dempers confirmed that he was present during the scene
investigation and in the dissection room during the autopsy.
As
he had other supervisory responsibilities he did not stand there next
to the body for the duration of the autopsy, but he was
consulted
extensively by Dr Ogle throughout that dissection. He was shown
and verified the findings that she made, and he
is very comfortable
with the facts of the case.
[88]
In this case, the chief autopsy findings were that: the body
was found to be a juvenile female. External blunt
force
injuries were present on the face, torso and limbs. A deep
scalp haemorrhage was noted without skull fractural brain
injury
which could be clearly identified. Features of pressure to the
neck were noted and genital injury was also noted.
[89]
At about 14:00 of the same day, Dr Ogle was informed by the
investigating Officer, Captain Taylor that it was suspected that
the
child may have been poisoned. After this information had come
to light, the body of the deceased was re-opened at about
15:00 and
Dr Ogle collected specimens for toxicological analysis. The
results confirmed the presence of carbaryl in the gastric
tissue,
bile and femoral blood. As the history was presented, Dr Ogle
concluded that the cause of death was asphyxia in nature
– i.e.
strangulation or smothering and /or poisoning and the manner was
suggested as being unnatural. As it was not
clear at the time
as to which mechanism that caused death, it was concluded that it
could be either of these mechanisms or both.
[90]
It was Professor Dempers’ testimony that in addition, the issue
of decomposition of the body potentially affected their
observations. The moment a person dies, the physiological
functions that keep the cells alive and keep the body looking the
way
it does ceases immediately and then the body becomes autolytic and
starts to decompose. Decomposition starts within an
hour after
death. Decomposition is therefore classified into stages, i.e.
early and late decomposition changes. In
the early stage the
body goes stiff – rigor mortis stage, that is, the cooling of
the body depending on the atmosphere and
ambient temperature, and
then it progresses to hypostasis – that is, the movement of
blood in the small blood vessels and
the tissue to the gravity
dependant areas. The late stage starts after about three (3)
days. This includes marbling
and insect predation.
Marbling is the decomposition of blood vessels of the blood within
the blood vessels. The blood
vessels under the skin become
green. The pattern is almost like a tree, the same can be seen
on the skin of green branches.
Due to the structure of red
cells, the blood releases these substances that give a different
colour. With that also come
de-epithelialisation, the junction
between the cells of the skin becomes decomposed and let go, and it
looks like blister formation,
if one takes the skin and rub it, it
comes off and the dermis is left underneath. Also, the
distinction of the body cavities
from organisms that produce gas can
cause the body to balloon out or blow up, and the fluid inside the
body can seep out. Squeezed
out or purged out of the cavities i.e.
mouth, eyes, ears – as purging fluid. This can cause the
eyes to be more prominent
or bulged out, and the tissues can also
discolour.
[91]
When the deceased’s body was found, there was blue
discolouration on the face, on the cheeks, below the eyes and there
was some blueness which is very focal on the upper eyelid on the
left. Just underneath the hairline there is a blue area
sticking out and the blueness goes down onto the face. In cases
of this nature, they normally look at the history and distribution
of
lesions, how focal they are as decomposition rarely conforms to one
area, unless it is around the eye where fly or larvae activity
might
be prominent. For instance in Picture 28 there are two (2)
lesions that are very suspicious in terms of bruising.
There
are other injuries that are a bit more distinct in terms of the
application of force. One is on the forehead and another
on the
eyelid. They are clearly demarcated and conform to the colour
of a bruise. The one on the forehead is over the
area of
rounding and not in a recessed area. In cases of children, when
the force is applied it is normally over a protruding
area of the
body. Professor Dempers had full cognisance of the fact that
decomposition changes were present, it is not because
of the autopsy
photographs that they thought there was wounding. They saw the
body in a much less state of decomposition
two (2) days before the
autopsy.
[92]
In addition, he asserted that blunt force injuries can also
constitute abrasions. At the scene, the body did not have
any
significant signs of advanced decomposition, there was a small area
of marbling and no large areas of skin slippage in the
areas where
these wounds were identified. The autopsy report indicated that
the wounds that were identified were abrasions,
they did not say that
they were de-epithelialised areas that looked like abrasions.
From a medical perspective they were
comfortable to state that those
were abrasions.
[93]
It was testified that Dr Ogle in fact specified all the pathological
changes on the external aspect of the body. She
described two
(2) types of defects, i.e. abrasions and contusions. These
areas were observed at the autopsy and were duly
measured as such.
As it could be seen from photograph 70, 71 and 74, there is a
difference between loss of epidermis from
decomposition and loss of
epidermis from the application of force. In the vast majority
of cases, contusions results from
the application of force, for
instance, if they are small and focal they can result from poking
skin with an object, and focal
bruises can be caused by a grab with
fingers, etc. In this case, one has to postulate the cause of
the injuries. From
the pattern of injuries, one cannot be
specific as to what the causal object was, but in areas where there
are large dispersed
areas of abrasions, it could be that there was a
rough object that was applied to the area. The movement or
struggle could
have caused the small abrasions.
[94]
On the other hand, the deceased’s one side of the face is
distinctly blue, and towards the front of the cheek it becomes
less
blue or light blue. There is no doubt that the distinct colour
is decomposition. At the same time, there is a
very focal
discolouration above the upper lip and that was characterised by loss
of the superficial epithelium in that area.
Epithelium
according to Professor Dempers can be lost from the application of
force and it can be rubbed off. One cannot
exclude the
possibility that there had been a substance that had caused the
epithelium to come loose. This was quite irregular
on the urges
and had a distinctly demarcated line in the region, and when he first
saw it at the scene it was as if it was rubbed
off or an abrasion.
This might as well occurred as a result of an application of a
vigorous force to that area with the skin
being compressed against
the gums. In addition, a pressure of the hand on the upper lip
can cause that type of an injury
or a rough object.
[95]
When the scalp was incised and the whole of the scalp was peeled off,
they revealed a purple discolouration in keeping with
a haemorrhage
inside the scalp. This is a very good indication of blunt force
head injury. At the same time, it was
said that, one cannot
exclude the fact that it could be caused by decomposition.
Otherwise no microscopic abnormalities were
noted in the mouth,
tongue and pharynx. However, an incision of the upper lip
mucosa from the inside of the mouth and the
darkening of the tissue
was noted and that was consistent with contusion. This can also
be caused by the application of force.
Further, the
sternocleidomastoid muscles were meticulously examined and a dark
discolouration consistent with contusions was present
in the superior
or the top aspect of those muscles. These are the muscles
coming from the back of the head down onto the
chest. This
tissue block was retained as fragments of muscle tissue for
histological examination. These were consistent
with the
application of blunt force. According to Professor Dempers,
these areas were suspicious as they were in the top
part of the neck
and in the floor of the mouth. If these signs are present, then
it is consistent with strangulation.
[96]
When the stomach was incised, there was a beige and small homogeneous
amount of fluid and there were no strange odours emanating
from it.
In addition, the vagina was incised. At the opening of the
vagina there were bands of lacerations. The
tears seemed to
involve almost the whole circumference of the discolouration of the
soft tissue in the deep vaginal wall that was
consistent with
contusions and the tissue block was retained for histological
examination. The findings were that the lacerations
in this
distal aspect were caused by the physical application of an object.
In a young girl like the deceased, the vaginal
orifice is quite small
and when that structure is over distended it is surely going to
rupture - in the ordinary it should allow
a pinkie finger to go
through. Further, there was dark discolouration of the soft
tissues in the deep vaginal wall that was
noted. That was
consistent with contusions. This tissue was also retained for
histological examination. It was
stated that the lacerations
could have been caused by penal penetration.
[97]
Sections of the vaginal wall which showed autolytic tissue with loss
of nuclei and cytoplasmic definition were taken.
It was
testified that there were no pools of red cell ghosts that were
detected that are normally visible when a red cell is a
distinct cell
with a nucleus which helps it to develop. The red cells also
had gone through autolysis and when they do they
lose their
definition on the inside of the cell, they get depressed in the
middle and assume the shape of a disc. A careful
examination of
adjacent large blood vessels also failed to elicit the presence and
remnants of red cells. Instead they contained
a few
foci
of
cellular debris and bacterial overgrowth. The only conclusion
at that time was that there was no blood in the tissue, as
they could
not detect any trauma or haemorrhage in the tissue. When they
had a closer look at the blood vessels, they could
see debris and the
odd ghost cells. If that is the case, there were few deductions
to be made, firstly, that the blood vessels
bled empty hence there
was an indication of no red blood cells in the tissue or else the red
cell component on the tissue was so
autolytic to the extent that no
red cells could be detected. The other possibility was that
there could very well be red
cells in the blood where the debris was
detected and /or in the tissue where the debris was seen.
[98]
The crux of the medical evidence in the said situation would be that
there was no ante-mortem injury because of the absence
of red cells
in the tissue. As stated by Professor Dempers, that was a
diagnostic criteria and he was a little bit hesitant
about that
conclusion. Since the tissue was so autolytic it was not
summarily excluded that there had been blood in the tissue
and that
it is now decomposed. Gathering from the histology findings,
two (2) important points can be illustrated, that is,
first
,
the degree of autolysis and
second
, the absence of any
significant natural pathology. Further, that no natural
pathology (disease) could be introduced by examination
as a potential
alternative cause of death.
[99]
Sections of the brain also demonstrated an autolytic tissue with
sparring of the cytoplasmic and architectural outlines to
some
extent. There was no evidence of obvious haemorrhage or other
pathology.
[100]
Professor Dempers proceeded to illustrate through the computer slides
and a video, the structure of a brain. He demonstrated
a fresh
piece of brain that contained a cerebellum or the small brain and
there were clearly visible blue dots. These represented
the
nuclei and the pink colour in the background is either the cytoplasm
or neural fibres. These all come from the cells.
The
distinct spaces between the fibres indicated a normal tissue.
This tissue was then compared with the tissue of the deceased.
There were visibly no blue dots as compared to the normal one.
The tissue was so thin and only the small vessels that were
decomposing were seen. Decomposition is therefore associated
with gas bubbles and pigment deposition. It was stated
that
nerve cells and nerve fibres in the tissue survive for a long time
and these were detected. That is where a little peck
of blue
dots could be seen. These are not organised, they are a
jumble. This pattern represented a well-established
decomposition with loss of nuclei and cytological definition.
[101]
At the same time, one could see some small rings. These were
referred to as ghost cells. Next to them, there is
a pink
portion that has to be blood because it is inside the blood vessels.
This cannot be detected easily because the tissue
is autolytic.
There is no way that one can say that is blood and there is also no
way that one can say that is not blood.
So, it is difficult to
say there could have been blood in the blood vessels. In fact
the absence of what is typically considered
as blood is a definite
diagnosis of the fact that there was no application of force in the
ante-mortem period. The samples
that were analysed were taken
from four sections of the vaginal soft tissue as well as the soft
tissue in the neck.
[102]
From what was shown in Court, Professor Dempers was very careful and
meticulous in his analysis. His opinion was that
the lack of
distinct cells in the tissue where he saw some debris and some pink
homogeneous structure, does not in his opinion
exclude the fact that
the blood could have been in the tissue before these nine (9) days
but be obscured by decomposition.
The inference to be drawn is
that the possibility that injuries happened ante-mortem and that
blood had seeped into the tissue
cannot be excluded. Similarly,
the contusion that was seen on the scalp, it was Professor Dempers
opinion that he cannot
exclude an ante-mortem haemorrhage.
Further, he could not exclude that there may have been ante-mortem
injuries to the vagina.
As there are multiple areas of injuries
before one can conclude if these injuries were caused before or after
death, one has to
look at the surrounding circumstances holistically.
[103]
In addition, as carbaryl was found in the stomach of the deceased, Mr
Van Zyl the toxicologist was asked to quantify his findings.
As
carbaryl is a potentially fatal substance and could have caused the
death of the deceased, it was crucial that the actual quantity
be
known. Simply because someone has some poison it does not
necessarily mean it caused their death. It was important
for
them to have a clue as to whether there was enough poison to kill the
person.
[104]
It was testified by Professor Dempers that carbaryl is in the
carbamate family of drugs and an acetylcholine blocker.
It
causes acetylcholine to not bind in the area where it is supposed to
at the neuromuscular junction or at the junction where
the nerve
cells ends. It is known for its respiratory effect. It causes
lacrimation in the organs that secretes fluids in
the body e.g.
lungs, tears, etc. If the patient survives, they have very wet
lungs – i.e. over production of fluid.
The known side
effects are stomach cramps, nausea and vomiting. Lungs are the
most prominent side effect. In severe cases,
a patient can have
convulsions. Cardiac disturbances normally occur towards the
end of fatality, but at times it does not.
That of course
depends on the quantity of carbaryl that was administered. For
instance, if the deceased was already compromised
by poison and had
difficulty with breathing, strangulation would have made her problem
worse, but that would depend on the mechanism
used. Professor Dempers
in essence confirmed what Mr Van Zyl testified on with regard to the
effects of carbaryl.
[105]
It was however testified that the situation could be different if a
person gets new air into the lungs, there is a chance
that a person
will be normal again.
[106]
Professor Dempers reiterated that the dark purple black or black
discolouration in the body of the deceased that was seen
during
autopsy was an indication of decomposition changes longer than a
week. This discolouration should not be confused
with cyanosis
– where a person is deprived of oxygen within the cells in
areas that are quite rich with blood supply, the
blemish
discolouration is quite mild and it usually affects areas with
relatively thin tissues i.e. fingertips and lips.
Now, due to
the level of decomposition, one may not say that the person was
cyanotic at the time of death.
[107]
With regard to the semen that was found in the deep vaginal vault,
there are many possibilities for it being there.
For instance,
it might have been due to contamination, it could have landed there
due to the movement of the body, it could also
have been deposited by
a penis through ejaculation or contamination by the same penis inside
the vagina. In a majority of
cases, if there is semen inside
the vagina, it was placed there. Professor Dempers rejected the
suggestion that the deceased
was digitally penetrated with fingers.
In his opinion that could only happen if the semen was placed on the
fingers, otherwise
the fingers cannot ejaculate. The only
source of semen is a penis. Now coupled with injuries to the
vagina, it can
only be a penis that caused those injuries to the
vagina.
[108]
Professor Dempers was requested to comment on Dr Naidoo’s
(defence pathology specialist) report. For instance,
reference
to extensive injuries in the autopsy report described the number and
areas of injuries in the body. According to
Dr Naidoo none of
these injuries were found to be deeply penetrating for example, to
have caused a skull fracture, or else to have
caused any significant
internal injury that could have been seen as a cause of death.
The description referred to multiple
injuries over large areas like
the cheek, forehead, thighs, back and so on. One might conclude
that they were relatively
minor in their severity. Professor
Dempers noted that there is nowhere in the report where it is alluded
to the fact that
they were severe in terms of how deep they
penetrated. However, their extensive nature was noted.
[109]
Again, there was a small area of protrusion over the forehead that
Professor Dempers was certain it was contusion. There
were
areas of haemorrhage in the frontal aspect of the scalp and they
constitute injuries. Coupled with the history of what
happened,
one cannot exclude that there was an application of force in that
area. Dr Naidoo’s generic statement that
it was unlikely
that there was a head injury is unfortunate. A child getting a
small bump on the head is also an injury.
[110]
It was put to Professor Dempers that Dr Naidoo however, concedes that
strangulation and /or smothering cannot be excluded.
Professor
Dempers agreed with Dr Naidoo as there were visible injuries in the
deep muscles of the neck, abrasions on the lip of
which the pattern
is such that there was some force that was applied on the neck.
[111]
Once more, Dr Naidoo opined that the ingestion and / or effects of
the toxic pesticide might have contributed to the death
of the
deceased in some way. Professor Dempers agreed with Dr Naidoo
in that respect. Further, Dr Naidoo concluded
that there is no
objective medical or scientific evidence to indicate that there was
any seminal or other male DNA deposition on
the vaginal canal to
suggest penal penetration of the vagina either before or after
death. Professor Dempers left this aspect
in the hands of the
Court to measure on the testimony by the experts in DNA evidence and
the presence of semen in the vagina.
But in his opinion, if
semen was found in the vagina, it can only come from one place, which
is a penis. However, it can
be contaminated or it can be
deposited there.
[112]
With respect to the fact that in Dr Naidoo’s opinion, there is
no indication that there was any sort of vaginal penetration,
if at
all it had occurred, in his opinion it happened while the deceased
was not alive, Professor Dempers re-iterated that in a
situation
where there is a fresh tissue one expects to see haemorrhage and red
cells. That cannot be seen in this case because
the tissue is
completely autolytic, so the pathology can point to either side.
Professor Dempers stated that digital penetration
of the vagina after
death of the deceased is the most implausible version. In his
opinion, one cannot exclude that the injuries
occurred around death,
peri-mortally but certainly while the little girl was still alive.
The
Glycophorin A technique
[113]
Professor Dempers somehow felt unsettled about the nature of evidence
that he gave on the absence and /or presence of red
blood cells in
the tissues due to the degree of decomposition of the deceased body.
He felt obliged to perform a further
test at greater expense in order
to prove this point. Shortly after the results were made
available, the state moved an application
to adduce further evidence
on this point and such was granted by this Court. This Court
will deal with this application later
on in the judgment.
[114]
The state re-called Professor Dempers and he testified that after he
gave his testimony in chief, he went back to his academic
department
to discuss issues regarding this case with his registrars. A
day after this discussion, one of the registrars
came back to him and
pointed out that there is literature available to specifically
indicate the components of red blood cells
that had decomposed.
One of the issues that bothered Professor Dempers was whether debris
or the small blebs that was illustrated
on the slides were indeed
decomposed red cells or not.
[115]
The registrar found one article during the research. Subsequent
to that they found two (2) other articles relevant to
the subject out
of hundreds of thousand that are published. These specifically
looked at this marker, in the forensic setting
to stain for
decomposed cells. Although these markers are quite expensive,
they nevertheless proceeded with the tests.
Even though they
have immunohistochemistry facilities in their laboratory, they did
not have the specific marker for this test
and they had to ask around
the laboratories in Cape Town, as to who does the Glycophorin A
markers. They established that
the NHLS at Groote Schuur does
the C version and that Pathcare, a private laboratory, does the
Glycophorin A. In performing
the tests they were guided by the
articles aforementioned which were published in 2007 and 2011
respectively.
[116]
Professor Dempers went back to the tissue and identified in the
genitals very clearly where the areas of lacerations were
seen.
He recut a section and those were the areas that stained eventually
with the stain. Due to the nature of
these inks, it
stains different parts of the cell differently. When the ink
was put on the tissue it stained the cell membranes
and cell
components pink and it stained the nuclei black or blue. This
type of staining is said to be normally done mostly
in the diagnosis
of tumours at anatomical pathology. Its use in forensic
pathology is well-established overseas. As
it is an expensive
test, it is only starting to make inroads in South Africa, and there
are specific diseases where it is used
quite regularly, for example,
in amniotic fluid embolism in children and pregnant mothers.
[117]
This test assumes or presumes that there are different proteins in
the cell membrane or in the cell nucleus that are unique
to that
cell, because all different types of cells have unique proteins,
either in the membrane or in the cytoplasm or in the nucleus
of the
cell. This Antigen – is designed specifically to attach
to the unique protein cell. As the antigen –
antibody
complex is not visible through a microscope, they also attach some
sort of identifiable stain or colouring agent to the
antibody that
will attach to the antigen. This test can target a specific
protein.
[118]
It was Professor Demper’s testimony that the
immunohistochemistry has been used extensively and the tests are
performed
on a weekly basis in our country at the anatomical
pathology laboratories. The technology itself is not new.
[119]
In this case, Professor Dempers had a sliver of vaginal epithelium or
the vaginal tear and a piece of normal muscle cell on
the slide.
There are controls in place for this test to exclude false positives
or negatives. According to the article,
red cells do decompose
and when they decompose they break up. The studies have shown
that at about six (6) to nine (9) days
the cell start to break
apart. Before this happens, one can see the little ringlets in
the blood vessels as they were shown
in Court. In those
studies, the efficacy of the Glycophorin A was tested. There
are about four (4) or five (5) groups
of Glycophorin proteins (it is
arguable) and they are transmembrane proteins in the red cell.
They have varied functions
in the red cells. The theory is that
when the red cell breaks up, the molecules are not going to break as
quickly and easily
as the cell itself because the membrane of the
cell gets small holes and starts to drift apart, but a lot of these
proteins will
be maintained.
[120]
As illustrated in the articles, Glycophorin A was used to test the
efficacy of the stain. Glycophorin A is used to illustrate
red
cells post mortally and cells that had been broken up and cells that
have autolysed. It was therefore important to illustrate
the
findings of the stain and to indicate whether in fact those blebs
that Professor Dempers suspected had been red cells that
broke up.
[121]
The tests were conducted at Pathcare. Professor Dempers
testified that according to his observation on microscope, the
tissue
does not stain from immunohistochemistry. The antibody binds on
the antigen with a colour tag. It can be brown
or red or
whatever the colour might be. In this case it was brown.
That is where the Glycophorin protein attached.
The Glycophorin
protein is unique to red cells and Glycophorin A stains quite
clearly. So this is a positive stain.
The very dark
staining inside the decomposed blood vessel represents the red cells
that are still relatively maintained.
One can be relatively
sure that the Glycophorin protein that was stained represents the
presence of red cells in the blood vessels,
but there is no way to
absolutely state that there has been bleeding before the person died
or very shortly thereafter. In
conclusion, the blebs that
Professor Dempers thought were red cells are indeed red cells.
So, the opinion by Dr Naidoo that
there are no red cells and that it
is therefore likely that the injuries occurred post-mortem are
unsustainable.
[122]
However, Professor Dempers disagreed during cross-examination with Dr
Naidoo’s opinion that the distinct defects on
the cheeks are
blisters that have dried out as a result of refrigeration. When
blisters break, they do not express a significant
darkening. It
is only abrasions that darken like that because of red cells that
have released a haemoglobin pigment.
Further, when questioned
about whether blood is present in purging fluid during the process of
decomposition, Professor Dempers
could not commit that there is
indeed blood and /or purging fluid or both. But from what he
observed, the stain was not a
purging fluid in the crotch region of
the jeans. However, it was agreed by Professor Dempers that the
concentrated stain
on the edges and the clear demarcation is for the
blood on the deceased’s t-shirt.
[123]
Upon being asked on whether there are any negative controls that
Professor Dempers applied in these tests that were performed,
it was
responded that because of the specificity of the Glycophorin protein,
the important aspect in this case was the positive
control. The
negative controls were the tissue in the slide that does not contain
a Glycophorin protein. The red cells
stain and the other
tissues do not stain. There are also parts that stain a ghost
outline. Even though Professor Dempers
did not specifically
indicate that those were an assumed negative control, but by
inference he thought it was.
[124]
It was put to Professor Dempers that Dr Naidoo asserts that the
appearance of the two (2) lesions in the deceased’s
right thigh
are in keeping with decomposition and any attempt to weigh these into
bruises is stretching the possibility to probability.
Professor
Dempers cautioned Dr Naidoo that his opinion should not be based on
external photographs having not been present at autopsy.
The
defects in the deceased’s body, that is, the two (2) focal
lesions were carefully considered after spending hours on
it.
He still maintained that the areas of darkening were consistent with
contusions, which are consistent with the application
of blunt
force. If they are focal, it can be due to poking of the skin
with an object, for instance, if someone grabs with
fingers and so
on.
[125]
Further, it was the defence’s pathologist’s opinion that
he disagrees with Professor Dempers’ testimony
that there was a
gradual transition of decomposition. According to Dr Naidoo,
that is not always predictable. Professor
Dempers restated that
when they first visited the scene when the body was found, the body
had not reached the level of decomposition
that they observed two (2)
days thereafter when they performed an autopsy. Again, it is
very easy for Dr Naidoo to just look
at the pictures and give an
opinion, so said Professor Dempers.
[126]
With regard to Professor Dempers’ testimony that the small dark
areas that are excavated and seemingly that there was
a loss of
tissue on the cheek and close to the ear and upper lip, in his
opinion a force was applied and that looked like a wound
and not a
post-mortem change. There was a little doubt that the areas
looked like an abrasion. According to Dr Naidoo,
these were
decomposition blisters which the detached skin causes them to be
exposed and dried out because of the refrigeration.
This
assertion was disputed by Professor Dempers for the reasons already
explained above.
[127]
It was put to Professor Dempers further that in his testimony
reference to multiple lacerations of varying degrees and depth
around
the introitus, the whole circumference of the vagina and dark
discolouration was consistent with contusion, whereas that
is not
associated with any reddening or inflammation could not be correct,
more especially that none could be detected in histology.
These
defects according to Dr Naidoo could be of a post-mortem nature.
Professor Dempers’ response was that Dr Naidoo
would at least
have appreciated that the body was nine (9) days decomposed, so there
would be no hope for any redness from inflammation
to be seen even if
it was once present. So with haemorrhage or blood in the
tissue, after nine (9) days and without the Glycophorin
A test being
conducted, there is nothing which could be proven conclusively that
the blood has leached into the tissue while the
person was alive or
while she has gone through the process of dying or after death.
[128]
Furthermore, it was put to Professor Dempers that Dr Naidoo does not
agree that the deceased’s tears on the vagina seems
to involve
the whole circumference of the vagina. According to Dr Naidoo,
the full circumference injury is generally opposed
to that seen in
the penile penetration where the injury is usually at a six o’clock
position or thereabout as opposed to
a portion of the vestibule
introitus. Professor Dempers disagreed with this statement as
it seemed Dr Naidoo was referring
to a rape case in a generic way as
to how injuries happen. Where a woman is raped pinned down and
the penis is forcefully
thrusted against the posterior wall of the
vagina, in that situation, one can get lacerations in the posterior
wall. In children,
there is a very restricted small vaginal
wall orifice. Any object that is significantly larger is bound
to cause lacerations
and unpredictable lacerations for that matter in
that area. One cannot take the generic rape scenario of ten and
six o’clock
lacerations. It depends from which side the
penis enters the vagina and then has to be applied to a child where
the variables
are varied. For instance, if one has a head of a
penis or whatever large object penetrating the vagina, one could have
these
lacerations that do not conform to the typical six o’clock
position that one finds in adults.
[129]
Notwithstanding the fact that Dr Naidoo appreciated the application
of the specialised technique of the use of Glycophorin
A, it was
Professor Dempers’ opinion that in the last report he prepared
based on his testimony on the subject, Dr Naidoo
seemed to be
contradicting himself. He somehow in the same report expressed doubt
as to the validity and usefulness of the test.
For Dr Naidoo to
state that the test cannot be valid because it was made to detect
tumours is nonsensical. As Glycophorin
A membrane proteins are
present in the precursors of red cell tumours, Glycophorin A protein
is also present in the membranes of
red cells. After this test
was conducted, Professor Dempers’ concluding remarks that he
can safely say in the area
where they noted contusion and lacerations
of the vagina, that there was blood. This test put him in a
different situation
than before where he was full of doubt.
[130]
The state called the evidence of
John Patrick Segole
(“
Mr
Segole
”), the medical technologist who assisted Professor
Dempers with the further tests. Mr Segole testified that he
qualified
as such at Cape Peninsula University of Technology in
2007. He did his internship in Histopathological Methods in
2008 and
qualified as a histopathological technologist in 2009.
He was then employed by the National Health Laboratory Services from
1 December 2009 – end April 2015. He is currently
stationed at Tygerberg Hospital but employed by the Department of
Health, Forensic Pathology Services. His duties include doing
normal histology and immunochemistry, histology (the study
of tissue)
and immunohistochemistry (a technique that is used to identify
cellular structures with the aid of antibody-antigen
interactions).
[131]
According to Mr Segole, Professor Dempers requested that a test be
performed on Glycophorin A which is an antibody that binds
on the
epitope on the antigen in the region of the cell. He wanted to
establish if there was blood present in that specific
tissue.
[132]
As the immunohistochemistry is quite a new field, they received their
new instrument at the beginning of this year in their
laboratory.
They only have a few antibodies in their laboratory as they tend to
be expensive. It so unfortunately happened
that they did not have
this Glycophorin A antibody. Professor Dempers arranged with
Pathcare Laboratories in N1 City that
they perform the test on their
behalf.
[133]
Mr Segole proceeded to cut the specific sections of the specific
blocks as requested by Professor Dempers. On 1 August
2018, he
took them to Pathcare Laboratories where he labelled the slides with
their numbering system. The test was completed
after three (3)
hours. The technologist at that laboratory figured out that
there was an adhesion problem and that the cover
slipped resulting in
the tissue not sitting on the slide. It could not stick due to
the robust reagent that they used.
He suggested that he redo
the whole preparation of the tissue and gave him the Pathcare slides
to use.
[134]
The next morning, 2 August 2018, he prepared the slides, labelled and
numbered them and on this occasion the tissue was incubated
overnight. When he went to check the results on 3 August 2018,
the test was successful. He collected the slides and
handed
them back to Professor Dempers for evaluation.
[135]
Warrant Officer Hildegarde Thünemann-Oláh
(“
Warrant Officer Thünemann
”) testified that
she has been employed by the South African Police Services since
December 2014 at the Forensic Science Laboratory
as an Evidence
Recovery Analyst. In 1994, she obtained a degree in Bachelor of
Science majoring in Microbiology and Biochemistry.
After
graduating in 1994 she was a stay-at-home mom until 1999 when she
created some craft and body products. From 1999 –
2003
she worked for Stellenbosch University as a technical officer at the
Conservation Ecology Department, and from 2003 –
2012 she was a
manager at a school for children with special needs, that is,
Camphill School in Hermanus. From 2012 – 2014,
she returned to
Stellenbosch University and worked for a fundraising charity.
[136]
Warrant Officer Thünemann’s duties are to maintain the
chain and custody of her cases and to recover biological
evidence
from the exhibits she receives from the crime scene. With
regard to this case she received numerous samples and
swabs which
were collected from the deceased, accused and the accused’s
residence to recover biological evidence. According
to Warrant
Officer Thünemann, she tested the deceased’s panties and
possible blood was detected and there was no possible
semen detected,
no possible hair was recovered and it was not tested for epithelial
cells. When she tested the deceased’s
blue jeans, there was
possible blood that was detected, no possible semen was detected, no
possible hair was removed and it was
not tested for skin cells. The
mouth swab was not tested for possible blood or semen or hair removed
or epithelial. On the left
arm swab and left hand swab there were no
reagents used or presumptive tests done. In the deep vault swab and
right thigh swab,
no presumptive test was done. When a “Top”
was tested, possible blood was detected, possible semen was detected
and
possible hair was removed. However, it was not tested for skin
cells. On the vault swab, labia swab, pubis swab, anus swab –
no presumptive test was done. On the fridge swab, possible blood was
detected. On the fridge tray swab – possible blood was
detected
and no presumptive test was done. On the Mira swab there was possible
blood detected, but not tested for possible semen.
Possible hair was
removed and possible epithelial was removed. On the bags and tape –
no possible blood was removed, no possible
semen detected. On the
t-shirt there was possible blood detected. However, it was not tested
for possible semen, no possible hair
was removed and it was not
tested for skin cells.
[137]
This report was contained in a
Section 212
affidavit dated 16
November 2017. She performed the presumptive test for the detection
of blood. The test she uses for visible
blood is a reagent called
Hemastix and for invisible blood she uses Luminol. For semen
detection she uses a chemical called Brentamine.
For example, when
she tested the jeans, she went for the crotch area as it looked
bloody and in such instances a sexual assault
was possible.
[138]
According to their standard operating procedures, when genital area
swabs are bloody they are not tested with a reagent for
Brentamine.
They are presumed to be positive for semen and are sent directly into
the DNA process. This includes the deep vault
swabs, right thigh and
the left thigh swabs. Again, swabs that are not from the genital area
are not tested for semen, unless the
doctor or prosecutor has given
such instructions. For these reasons the two (2) right thigh swabs,
mouth swab, left arm swab were
not tested.
[139]
When these tests are conducted there is no room for contamination as
they strictly adhere to their standard operating procedure.
Their
laboratory has a list of database of DNA profiles for everyone
including contractors. If there is contamination, it can be
picked up
by the system immediately.
[140]
Captain Sean Timothy Taylor
(“
Captain Taylor
”)
confirmed that he is the investigating officer in this matter.
He is stationed at Bishop Lavis SCS, Family Child
and Sexual
Offences. As a unit commander, he is in charge of the officers,
but he does take on some cases personally.
[141]
On 4 May 2018, he received a call for a missing child, Courtney
Pieters in Elsies River. His unit started with the search
the next
morning. Since the case attracted a lot of interest, the police
received false information at times. As they normally
do with other
cases, they first started interviewing people who resided in the
house with the deceased, including the accused.
The accused stated
that he saw the deceased on the day that she disappeared. She came
into his room and he watched DSTV with her
and she then left. All
other people who stayed in the house had no clue of what happened to
the deceased.
[142]
Captain Walters of Elsies River organised all the search parties.
They also followed all the false information they received
from the
public. At some point, there were two (2) random ransom demands and
they turned out to be false and there was other information
that the
deceased was seen walking in Cape Town. Captain Taylor and his team
followed this information up and this again turned
out to be false
information. The accused was also involved in all the searches. At
some point Richard Maxim was said to be the
number one suspect by the
accused and other people. It was said that the deceased was seen
standing opposite his house that morning
of her disappearance. He was
eliminated after the interview.
[143]
On 13 May 2017 midday, Captain Taylor received a call from SAPS
Elsies River informing him that they have found the deceased
at
Bofors Circle in Epping. He and his team decided to go and attend at
the scene. When they arrived at the scene it was cordoned
off, but
could see where the deceased’s body was lying. The warrant
officer from Bellville LCRC was called to take over the
crime scene.
Nobody was allowed to go near the scene except the pathologist,
Professor Dempers and Dr Ogle. The war room personnel
also attended
the scene. That same evening, a video footage of the accused carrying
and later on dumping the deceased was collected
by the war room
officers.
[144]
On 14 May 2017, that is, Saturday at about 09:00, Captain Taylor
attended at Elsies River SAPS and a video footage was shown
to him.
He could clearly see a person dressed in a red t-shirt walking with
something over his shoulders. This person walked first
to the right
side and kneeled and he then moved to the corner about ten (10)
metres where the body was found. This person then
dropped something
there. He left the area and came back later on to do the unknown.
[145]
As an investigating officer, during his investigations he started by
sharing the video to people who stayed in the area. He
called Gail
Baron. Gail Baron immediately identified the accused as they grew up
together. He thereafter called the mother and
the father of the
deceased to show them the video footage. At that stage, they said
they did not know the person.
[146]
On Sunday, 15 May 2017, the mother of the deceased went to identify
the body at the mortuary. At that point, the preliminary
autopsy was
already commenced with by Dr Ogle. As sexual assault was already
suspected on the body of the deceased, Captain Taylor
decided to get
all the males in the house in order to collect the buccal swab for
DNA purposes in order to start eliminating people.
He could not
get access to the accused but managed to take samples from the other
males in the house. He repeatedly asked him to
come to the police
station to no avail. At some point, he asked the deceased’s
mother to call him on her cell phone. He could
overhear him saying
that he was on his way to the police station but never pitched.
[147]
Later in the day, he contacted the dog unit for a blood fluid
investigation at [...] P Street. On entering the house, the
dog
immediately ran to the accused’s room. When the dog
handler, Sergeant Timmy took the dog out of the room, it went
back to
the room repeatedly. On the last occasion, Sergeant Timmy came out of
the room with the dog and advised him that the dog
definitely sniffed
body fluids. That is when he decided to call the Cape Town LCRC to
investigate the room. They collected a couple
of exhibits for
testing. While he was waiting in the yard for them to finish, J P,
the mother of the deceased approached him and
advised that she lied
when she told him that she did not know the person on the video. She
could clearly see that it was the accused.
She could not believe that
the accused could do this to her.
[148]
On Sunday evening, the accused was arrested by Constable Spogter
because at that time they had gathered enough information
about him.
[149]
On Monday morning, 16 May 2017, he was excused from attending the
autopsy and he and Warrant Officer Kotze booked out the
accused for
an interview. They first explained all his constitutional rights,
nevertheless he advised them that he does not need
any legal
representation. He told them that he killed the deceased, he admitted
raping the deceased after she had died and putting
his fingers into
her vagina. At that stage, Captain Taylor stopped the interview and
enquired if he wanted to have a confession
and he agreed. He once
more asked if he wanted to get legal representation. The accused
advised that he wanted to get his head
clear and tell the truth.
[150]
Captain Taylor proceeded to phone the Goodwood Magistrate’s
Court, but was unable to obtain a magistrate to take a statement.
The accused was taken to Lt Col Barkhuizen in Bellville in the
afternoon for that purpose. He also took his buccal sample
and
collected further samples from the mortuary to hand over to the
forensic laboratory. When that process was completed,
he asked
if the accused wanted to point out the scene. He did not have a
problem with pointing out. He further asked
if he did not want
to get legal representation. His response was that it is not
necessary. Captain Taylor arranged
with Captain Speed to do a
pointing out with the accused.
[151]
It was Captain Taylor’s testimony that when the search for the
deceased was conducted, the photograph of the deceased
was obtained
from the accused. Actually, it came from his cell phone.
Initially, it was a photograph of three (3) children
including the
deceased, but it was cut to reflect only the picture of the
deceased. At the time, the deceased’s parents
did not
have the picture of the deceased. The picture was circulated in
the community with the flyer including the Pink Ladies.
[152]
Captain Taylor confirmed that he does not know the results of the
tests of the exhibits that were taken at the accused’s
room
during cross-examination. He also confirmed that the accused
confirmed to him that he poisoned the deceased and when
she got sick,
he did not know how to keep her quiet, so he started to suffocate
her. After the deceased died, he did not
know what to do with
the body and when he got a chance, he went to dump the body. At
the crime scene, he used his fingers
to penetrate her. However,
during his confession, the accused stated that he penetrated her in
his room.
[153]
On being questioned during his cross-examination on whether he knows
for a fact that the accused took the photograph that
was used in the
flyer to broadcast a missing child, Captain Taylor testified that he
could not confirm as he does not know whether
the accused took the
photograph himself. He was told that the accused took the
photograph himself. Captain Taylor also
confirmed that he
investigated the issue surrounding the ant poison. The
investigations were done through the owner of the
house, the mother
of the deceased, J P and the father of the deceased, A F. They
all confirmed that there was no ant problem
in the house. Also,
when he was at [...] P Street during his investigation of the case on
a number of occasions he did not
witness any ant problem in the
house.
[154]
It was put to Captain Taylor that the accused denies that he told him
that he penetrated the deceased after her death at the
crime scene
where he dumped the body. Captain Taylor responded that what he
testified on is what he could remember and hence
he stopped the
interview when he wanted to make a confession. He also
confirmed that the accused told him during his interview
that he
bought the ant poison as there was an ant problem in the house.
[155]
It was further put to Captain Taylor that the accused’s version
is that he did not take the photograph. The children
constantly
played with his cell phone and took each other’s photographs.
Captain Taylor re-iterated that he received
the information that the
accused took the photograph from the people who stayed at the
deceased’s house.
[156]
When asked about whether he investigated the circumstances that the
deceased’s mother left the deceased on the morning
of 4 May
2017, Captain Taylor testified that he investigated such
circumstances. The deceased was left with her six (6) year
old
brother and the deceased’s mother did not want to wake them up
early in the morning. J P sister or niece, who stayed
at the
back as he was advised, usually looked after the deceased.
[157]
The state closed its case.
C
THE DEFENCE’S EVIDENCE
[158]
The defence elected not to call the evidence of the accused, but
rather the evidence of his pathologist.
[159]
Dr Segaran Ramalu Naidoo
testified that he is a forensic
pathologist by profession. Due to his training and tertiary
qualifications he is a specialist
in the field. He is duly
registered with the Health Professions Council. He qualified as
a general medical doctor in
1981 before he specialised as a
pathologist. He has thirty five (35) years of experience as a
qualified doctor and twenty
eight (28) years as a specialist.
For the greater part of his work experiences, he has been attached to
state institutions.
He then left the state employment in 2011
and started his private practice.
[160]
Dr Naidoo’s daily duties involves autopsy work, consultations,
legal consultations, agency functions, teaching medical
students,
human rights work and many others. He estimated to have
performed approximately 12000 – 14000 autopsies to
date.
He also added that he specialised in sexual clinical forensic
medicine. As he completed a Diploma in Forensic
Medicine, he
therefore focused on sexual violence medicine.
[161]
Dr Naidoo started teaching at the University of KwaZulu-Natal
(“
UKZN
”) and further worked at the Department of
Health from 1990 until 2011. In the last eight (8) years he was
with the
State and further worked as an Associate Professor and Head
of the Academic Forensic Department at UKZN. He has continued
teaching even after he left the State’s employ. He still
runs the LLM postgraduate module for law students. He
is also
involved in training Legal Aid Board practitioners on sexual violence
medicine. Additionally, he does gender based
violence training
with an NGO called the Street Law in Durban and Port Elizabeth.
He also occupies himself with informal
teaching online, webinar
teaching with Cranfield University in the UK. He taught
undergraduate medical students, post graduate
students training as
specialists, nurses and other groups.
[162]
As a specialist in sexual violence medicine or sexual assault his
approach is focus specific as the field requires a different
approach
in evaluation and understanding other than for instance, that of a
gynaecologist. Gynaecologists and obstetricians
could be
reasonably competent in examining a rape case, but not able to
dissect and differentiate the intricacies or nuances or
physical
signs that one would find with his specialisation for the benefit of
the case in his opinion. Sexual abuse medicine
is about
understanding medical findings in sexual assault cases.
Currently, he is writing a court handbook for doctors and
lawyers.
[163]
Further, Dr Naidoo has done some human rights violations work with
the United Nations and African Union in Ukraine, South
Sudan and
Gambia. It was his testimony that he is the Founding
Chairperson of the Africa Network of Forensic Medicine and
a member
of Forensic Advisory Board of the International Committee of the Red
Cross Hospital. He also worked in Bosnia, Croatia
and Kosovo on
human rights investigations.
[164]
Dr Naidoo commenced his testimony by explaining death and
decomposition, and when a person is said to be dead. According
to the National Health Act, a person is referred to as dead when he
or she is brain dead. Whereas when one talks about
decomposition
of the body that constitutes changing of constituents
in the body after death, the cells autolysis, that is, in the earlier
stages
they self-digest or auto digest with the aid of small
proteolytic enzymes inside the body. Autolysis takes place
between
18 – 24 hours. It starts in the intestinal area,
because that is where the greatest amount of bacteria is found and
also on the surface of the body. It then progresses due to
insect activity, predations and so on. The body then starts
to
liquefy because of bacterial action and releases the purge fluid
through the orifices. Orifices in this regard refer to
nose,
mouth, anus, vagina, and penis and so on.
[165]
Dr Naidoo’s testimony was that he had been involved in cases
where he discovered a positive pesticide in the body and
that include
the carbamates. The carbaryl that was found in the deceased’s
body is a carbamate and basically anti-cholinergic.
Carbaryl
has an effect on enzyme cholinesterase. When acetylcholine is
broken down by an enzyme, the brain sends a message
to a muscle or
gland the poison affects the enzyme. For instance, all the
messages to the muscles are hyper stimulated and
a person might die
or damage might be caused as a result thereof.
[166]
It was conceded by Dr Naidoo that he is at a disadvantage in this
case as he did not attend the autopsy. Notwithstanding
that, he
had sight of the reports, slides, photographs and all the information
that was provided to him in order to form his opinion.
For
instance, he looked at the post-mortem report and photographs of the
deceased and observed that Dr Ogle has reported on certain
injuries
that were sustained by the deceased. Based on this information,
he compiled his own report and that is where his
testimony is based.
[167]
Dr Naidoo went on to challenge Dr Ogle’s findings on the
injuries sustained by the deceased. For example the injuries
on
the face, torso and limbs as they appear on the images, to him, they
are of such a degree of decomposition that the findings
of injuries
could easily be due to putrefaction changes. Also, the
blistering and skin shading of the skin surface of the
face, lips,
neck, arms and right shin are in keeping with putrefaction.
They have dried out due to exposure and refrigeration
and such could
be misdiagnosed as abrasions on the skin surface as Dr Ogle has
done. Similarly, an ant bite and other insect
and scavenger
excretions can also look similar to abrasions of physical injuries.
[168]
According to Dr Naidoo the wounds could be misdiagnosed, for
instance, when a body decomposes it gets blisters and when they
dry
out by exposure to elements like refrigeration such blisters could be
mistaken with bruises or abrasions. Reference was
made to
Photograph 62 and 63 – when Dr Naidoo identified a blister
below the deceased’s earlobe and close by and on
the left
eyelid. To him, below the cheek it looked like shed blisters
and to someone it may appear as abrasions. Dr
Naidoo magnified
the photographs of the deceased in his laptop. In his
observations, the detached skin looked white and the
slightly drying
surface looked brown. That is typical of a shed blister and /or
intact blister in photographs 64, 65, 66
and 67.
[169]
Dr Naidoo acknowledged that this is a well-documented autopsy.
He could clearly see the colour changes of the deceased’s
skin
that it is in keeping with the post mortem changes. In his
opinion, the dark blue patches over the deceased’s
forehead,
nasal bridge and around the eyes and mouth are consistent with the
greater bacterial proliferation. Likewise, the
front of the
chest and the shoulders and the linear branching areas are marbling
and in keeping with greater progression of decomposition.
The
trickle from the nostrils could well be a purging fluid.
[170]
Additionally, turning to photograph 71, the two (2) lesions marked
“X” in the right thigh - Dr Naidoo disagreed
with
Professor Dempers that the lesions could be caused by fingerprints,
according to him that could be decomposition as it looks
no different
from the black of the marbling.
[171]
Further, Dr Naidoo testified that a large blister partially
collapsing could be seen in photograph 73 on the left side of
the
thigh. On the trunk, there are several other small blisters.
Some of them have shed and look more like focal abrasions.
Further up on the left thigh there is a pinkish-red discolouration
and a lot of black that is emerging. That is a different
stage
of decomposition. One might misdiagnose it as a bruise.
Similarly, the right lower back and the buttock region
appear less
darkened. It is Dr Naidoo’s opinion that this is all
decomposition colour changes.
[172]
Dr Naidoo’s view for instance, on the report by Dr Ogle’s
which made reference to ‘extensive blunt force
trauma’, -
in his opinion, such finding is misleading to the Court.
However, this is not to infer that there were no
mild bruises and
abrasions. The distinction between those is very difficult to
make in the presence of established decomposition.
The
histology examination of the tissue did not establish that there were
abrasions or bruises in the neck and genital areas.
[173]
Dr Naidoo disagreed with Dr Ogle’s finding that the purplish
discolouration of the skull is in keeping with the deep
scalp
haemorrhage. In his observations, such discolouration may be
attributed to the changes of decomposition.
[174]
Similarly, this discolouration applies to the neck region.
Bruises do not necessarily have to manifest if smothering
or
strangulation had occurred. For young children who cannot
resist for whatever reason, it then follows that physical injuries
may not manifest. Findings of subaponeurotic bruising of neck
muscle were nullified by the negative histology examination
which
looked to confirm the bruising in these sections. This equally
applies to suspected genital bruising which was thought
to be present
on naked eye examination.
[175]
With regard to the genital injuries, Dr Naidoo was not convinced
objectively by looking at the photographs that what he saw
was linear
lacerations or multiple linear lacerations involving the whole
circumference of the vagina as was stated by Dr Ogle.
According
to him, if there were such injuries, the histology examination would
have shown it. Dr Naidoo re-iterated that
there was no damage
on the vagina. In any event if there was damage that might be
acceptable to this Court, it could easily
have been post-mortem as
there was no inflamed redness or bruising that he could detect
microscopically or with the naked eye.
In any event, if there
was penile penetration, entry is usually at a six o’clock
position or thereabout at the posterior
portion of the vestibule or
the introitus. This means the greatest tractional injury is at
the rear of the vagina closer
to the anus varying between three, six
or nine o’clock position. At times it might be a four or
five o’clock
position. In his opinion, the pattern as
stated by Dr Ogle does not fit the normal penile penetration.
[176]
Dr Naidoo confirmed further that he examined 25 slides received from
Professor Dempers and they showed significant decomposition,
liquefaction, loss of character, detail, texture and resolution.
In his observations, there were several large blood vessels
with
clearly identifiable ghost outlines of red cells and nucleated white
cells with smudge appearance.
[177]
In view of the fact that the whole exercise was to consider a
diagnosis of traumatic bruising of connective tissue sections
of neck
and genital tissues, in his opinion, there is no evidence of red
blood cells in between fibre septae and muscle fibres
to any degree.
Debris noted is of minimal nature and likely the consequence of
liquefaction change. These features
do not suggest the presence
of any traumatic bruising to any degree.
[178]
With regard to the immunohistochemistry technique, Dr Naidoo agreed
with Professor Dempers that it is still in its early stages
in our
country and it is used to detect red cell antigens.
Specifically, it is used for the tissue identification in tumours
and
some abnormal lesions. Applying it for forensic purposes like
the present is a novel usage. It will always be secondary
to
the tried, tested and confirmed vehicles and tools that are currently
used. Dr Naidoo therefore noted and accepted the
features of
the immunohistochemistry that were employed by Professor Dempers.
According to him, it is important to draw the
Court’s attention
that the mere detection of red blood cells by a special immuno or
detection process does not make a diagnosis
of bruising.
Bruising is not diagnosed by the presence of scanty red blood cells
outside vessel walls but by a pattern of
recognition of substantial
amount of red cells that escape out or are driven out by vascular
hydrostatic pressure or ruptured small
blood cells from physical
trauma. In his opinion, he is not convinced that there were in
fact vaginal injuries. If
there were injuries, assuming this
Court accepts, there is no evidence to suggest that this was at all
ante mortem, it could have
easily and readily be post mortem or peri
mortem. If the accused inserted fingers on the deceased’s
vagina, that could
have caused damage.
[179]
Dr Naidoo rejected Professor Dempers opinion that after conducting
the immunohistochemistry technique on Glycophorin A, the
results
pointed to the fact that there was indeed red blood cells present.
In his opinion, the fragments of red blood cells
in globs or globules
and the debris clearly prove that the bleeding was post-mortem.
Put differently by Dr Naidoo, a cluster
of swallows does not make a
summer.
[180]
During cross-examination when Dr Naidoo was asked what he did
to qualify himself as a sexual assault specialist, his
response was
that this is not a specialisation as such in South Africa, but this
area is recognised in other jurisdictions.
There is no specific
training that one needs to undergo, as an independent academic, he
does research and keeps abreast with the
latest developments.
[181]
Dr Naidoo conceded that he was not present at the scene and during
post mortem. He relied on the information received
in the form
of post mortem report, photographs and so on in order to prepare his
own report. He conceded further that looking
at the photographs
alone, it would be difficult to distinguish between bruising and
decomposition, especially with the resolution
and the angle in which
the photographs were taken.
[182]
It was put to Dr Naidoo that the accused in his admissions in terms
of Section 220 of the CPA stated that in order to stop
the deceased
from screaming, he hit her with an open hand on the forehead.
Having regard to the injury of the deceased’s
forehead and the
accused’s version, would it not be possible that the blunt
force applied could cause a bruise. It
was conceded that it
could cause a bruise, based on the amount of force applied.
Further, it was conceded by Dr Naidoo that
the same situation would
have caused bruises on the cheeks, eye and upper lid. But to
him, the marks were more in keeping
with decomposition or else, it
may either be a bruise or decomposition.
[183]
Dr Naidoo during cross-examination denied Dr Ogle’s findings
that there was an irregular abrasion measuring 40/12mm
on the upper
lip. According to Dr Naidoo, Dr Ogle was employed by the
forensic services for a few months. As a junior
doctor she
misdiagnosed the decomposition and called it an abrasion because of
inexperience. On being asked as to how possible
could that be
after having been supervised at the scene and autopsy table by
Professor Dempers. Dr Naidoo responded that
the artefacts of
decomposition are so complex, that even a senior and experienced
person can do so. When Dr Naidoo was reminded
that when he
explained the characteristics of a bruise, he said the abrasions can
be irregular, and that is exactly what Dr Ogle
has done and even gave
measurements. How is it possible for her to misdiagnose in that
scenario. Dr Naidoo then agreed
that perhaps that could be an
abrasion.
[184]
It was put to Dr Naidoo that the marks below the left ear and two in
front of the ear were identified by him as blisters.
Dr Ogle
and Professor Dempers identified these marks as abrasions.
Again, in light of decomposition, how can he be dogmatically
certain
that these are blisters and not abrasions. Dr Naidoo responded
that because of their pattern, to him they looked
like shed blisters
that have dried out or crated surface. There is less likely
possibility that these might be abrasions,
but cannot completely
exclude abrasions.
[185]
Dr Naidoo was asked for an opinion where a person’s mouth has
been closed with a towel, if that person cannot suffer
abrasions.
Dr Naidoo agreed that such a scenario could cause an abrasion, but it
will depend on the tightness and roughness
of the towel. It was
put to Dr Naidoo that the accused in his admissions said he closed
the deceased’s mouth with a
towel and choked her by putting his
hand around her throat. Dr Naidoo agreed that it is possible
that abrasions may follow
depending on the towel and the manner in
which it was wrapped. It could cause an abrasion. But
again, the focal nature
of the upper lip does not fit with a towel,
obstructing the entire nostrils and mouth. As small children’s
nostrils
are sensitive, the towel would have abraded the nostrils or
the lower lip or else the surrounding cheek. The abrasion would
somehow result if the towel was rough.
[186]
It was put to Dr Naidoo that in his first report, his opinion was
that, there were fine mucosal fissures that are longitudinal
on the
distal vagina, how come during his evidence he could not see the
injuries in the vagina. His response was that when
he
subsequently looked at the material in preparation for this case he
realised that what he saw was not convincing as fissures
more
especially that he viewed the photographs on his new laptop screen.
The resolution was now clearer hence he is now revising
or correcting
his previous opinion.
[187]
Further, it was put to Dr Naidoo that if he cannot see the injuries,
he cannot say they were caused ante or post mortem.
He agreed.
When asked if he took into account the evidence of Mr Tiya that the
DNA results proved that there was a male DNA
in the deep vaginal
vault. Dr Naidoo retorted that he looked at it briefly and did
not focus on it. He only concentrated
in the areas of his
expertise which is medicine and pathology.
[188]
The question whether it was possible to get semen in the deep
vaginal vault only with the accused’s three (3)
fingers,
was asked having regard to the accused’s admission that he
first penetrated the deceased with his three (3)
fingers and he
became aroused and took out his penis and placed it around the
vagina. Further, male DNA was also found in
the crotch area of
the deceased’s jeans. Dr Naidoo commented that semen can
land up in the deep vaginal vault by contamination
if the semen is on
the fingers and the fingers penetrated the vagina. At the same
time, if there was no contamination, it
is possible that semen might
have landed in the vagina through penile penetration.
[189]
Further, Dr Naidoo stated that although he had occasionally performed
a staining test on immunohistochemistry, however he
has not worked
with Glycophorin A, but has a basic knowledge of how it works through
the literature. He therefore agrees
with Professor Dempers’
findings. In spite of this comment, Dr Naidoo testified during
cross-examination that he accepts
that Glycophorin A is
scientifically valid, it worked well, it proved something that we
expected to see, but the application of
this test in the context of
this case to show bruising is faulty. The state closed its
case.
D
SUBMISSION BY THE STATE AND DEFENCE
[190]
With regard to a rape charge, the state argued that it relied on
circumstantial evidence. According to Professor Dempers’
testimony, the opening of the vagina had multiple lacerations of
varying degrees and depth around it. These tears were on
the
whole circumference of the vagina and could have been caused by a
blunt object. It is when that part of the body is over
extended
and stretched too far that one gets injuries like those of the
deceased. Professor Dempers testified that the vaginal
orifice
of a child will normally allow a pinkie, but if it is over extended,
it will lacerate or rupture. Further, the dark
discolouration
of the soft tissues in the deep vaginal wall was consistent with
contusions. As stated by Professor Dempers,
a penis could cause
the lacerations in the introitus. This point was conceded by Dr
Naidoo during his cross-examination.
[191]
It was further submitted that apart from what Professor Dempers
testified on, the DNA expert, Mr Tiya testified that a male
DNA was
found on a top of the deceased, on the jeans and deep vaginal vault
and it tested
positive for semen
[“
the state’s
emphasis”
]. Further, the right thigh swab of the deceased
tested positive for possible semen, but was insufficient to read in a
profile.
[192]
Both Mr Tiya and Warrant Officer Thünemann-Oláh testified
that they followed strict standard operating procedure
in their
laboratory and that there was no room for contamination of exhibits.
There are positive and negative controls to
pick up any
contamination.
[193]
It was further submitted that the Accused, in his plea explanation
admitted that he first penetrated the deceased with his
three (3)
fingers and thereafter became aroused. It was only at that
stage that the accused took out his penis and placed
it on her body
and around her vagina. He denied penetrating the vagina with
his penis. If the accused’s explanation
could be
accepted, that he did not penetrate the deceased, then where did the
semen in the deep vaginal vault come from? What was
the cause of
darkening inside the vaginal wall? Both Professor Dempers and
Dr Naidoo agreed that there are other ways in
which the semen could
end up in the deep vaginal vault, first, by penile penetration and
second, by contamination through fingers.
[194]
It was argued further that if it is the accused’s explanation
that he first inserted his fingers in the vagina, it is
therefore
highly improbable that the semen could have come from the fingers. It
could only be the penis that deposited the semen
in the vagina as it
was taken out after the digital penetration was completed. His
fingers were not contaminated hence it
could not be the fingers that
deposited the semen in the vagina. According to the state the
crux of this charge is about
drawing a reasonable inference from the
proven facts as was stated in
R v Blom
1939 AD 188
at 202-203
that:
“
In reasoning by
inference there are two cardinal rules of logic which cannot be
ignored:
(i)
The
inference sought to be drawn, must be consistent with all the proved
facts. If it is not, the inference cannot be drawn;
(ii)
The
proved facts should be such that it exclude every reasonable
inference from them save the one sought to be drawn. If they
do
not exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.
”
[195]
It was submitted that applying the test to the facts of this case,
and in light of the totality of evidence, the only inference
that can
be drawn is that the accused penetrated the deceased with his penis.
Further, the accused is the last male person
who last saw the
deceased alive. The male DNA was found in the deep vaginal
vault of the deceased. Even though it was
insufficient to read
the profile of the accused, the only reasonable inference to be drawn
from the proven facts is that the semen
belonged to the accused.
[196]
The main dispute in this matter was whether the deceased sustained
such injuries before or after death.
[197]
It was only during cross-examination, that Dr Naidoo agreed with
Professor Dempers that the focal mark on the upper right
thigh of the
deceased is consistent with a contusion caused with a fingertip or
digit. Dr Naidoo further conceded that it
might have resulted
when the accused held the leg of the deceased down to restrain her.
He conceded further that the injuries
to the neck could have been
caused by strangulation or smothering. Dr Naidoo could not
challenge the cause of death as stipulated
in the post mortem report.
[198]
The state further observed that what was disturbing is that Dr Naidoo
in his initial report, conceded that indeed there were
lacerations at
the introitus of the deceased’s vagina. When he gave
evidence in Court, he testified that he could not
see any injuries in
the vagina of the deceased. In light thereof, he could not say
whether the injuries were caused ante
or post mortem. However,
should the Court find that there were such injuries, in his opinion,
Dr Naidoo said they were caused
post mortem. The state asked
the Court to reject such a contention.
[199]
Dr Naidoo it was argued, conceded in his cross-examination that his
knowledge in respect of the immunohistochemistry test
is limited and
he has never used Glycophorin A in the past. He however, was
adamant that this test by Professor Dempers and
Mr Segole did not
heed a significant pattern of distribution of red blood cells.
He was convinced that he could not see bleeding
or contusion in the
decomposed tissue after the results were made available to him.
In his opinion, a focal collection of
blood cells does not confirm
that there was a haemorrhage ante mortem as there was no pattern of
distribution of red blood cells.
However, he conceded that the
Glycophorin A is a valid test. He could not dispute that the
test was positive for staining
of red blood constituents.
[200]
The state submitted that Dr Naidoo is not an expert on the
Glycophorin A test. He is therefore not in a position to
draw
an opinion. In any event, the defence did not challenge the
outcome of the results and the Court has no reason to accept
this
testimony by Dr Naidoo. In turn, Professor Dempers was very
honest in his testimony. He should therefore be regarded
as a
reliable witness.
[201]
In light of this evidence, it is more probable that the injuries to
the vagina were sustained before death and not after death
as per the
accused’s plea explanation. The state, it was submitted,
has proven its case on rape beyond reasonable doubt.
[202]
It was the defence’s view, that it was Dr Naidoo’s
testimony that apart from some shredding, he saw no bruising
which
would be the vital reaction if the deceased sustained the injuries in
his vagina while still alive. Professor Dempers,
when he
testified on immunohistochemistry results, conceded that the
contusion could have resulted ante or post mortem, so these
results
do not take the matter any further. Despite the fact that Dr
Naidoo could not see any injuries in the vagina when
he testified, he
however took the view that the injuries were more in keeping with
digital penetration as evidence or repeated
thrusting was absent.
In any event, there is doubt as to whether the injuries as described
were true injuries, it was agued.
[203]
With respect to the fact that the injuries as testified by Professor
Dempers were true injuries, they differed considerably
as Dr Naidoo
identified them as the continued process of decomposition.
Certain findings were in keeping with the accused’s
plea
explanation. The accused did not deny that he violently applied
force on the deceased. Also, it was conceded during
argument
that the right thigh swab tested positive for semen, but it did not
do so at QPCR. Further, the semen found on the
deceased’s
jeans does not contradict the version of the accused.
[204]
It was the defence’s submissions that the possible semen found
on the deep vault swab did not yield a full profile.
According
to Professor Dempers, it might have landed there on three ways,
through the penis, contaminated fingers and / or contamination
itself. Even if the Court accepts that it was deposited there
through the penis, the next inquiry would be when that happened.
On the probabilities, it was the defence’s submission that
there is more which does not countenance penetration while the
deceased was alive. If the accused repeatedly thrusted his
penis into the deceased’s vagina while she was still alive,
her
screams and reaction to the pain would have caught attention.
According to the defence, the state has not discharged
its onus that
the deceased was penetrated while still alive.
[205]
With regard to the pre-meditated murder, it was the state’s
contention that the accused in his plea explanation stated
that the
deceased came to watch television in his room and she stayed for a
few minutes. He then told her to leave as he
wanted to sleep.
He became irritated as he was woken up for the second time by the
deceased. He admitted that he decided
to give her ant poison.
This was triggered by his ill feelings for her mother. This was
confirmed by J P and M W in
their testimony.
[206]
The state submitted that the Supreme Court of Appeal in
Montsho v
The State (20572/2014)
[2015] ZASCA 187
(27 November 2015)
at
para [13] it was stated:
“
In the view I
take of the matter, I do not consider that there is any benefit to be
derived, on the facts of this case, in formulating
a general
definition of whether the phrase ‘planned or premeditated’
denotes a single concept. The inquiry as
to whether any given
facts would at the very least sustain an inference to be drawn from
them as to whether or not an Accused had
manifested a plan or
premeditation to commit the offence in issue can properly be
determined on a case by case basis. Thus
the circumstances in
which a crime was committed and the peculiar facts of each case will
determine whether or not the commission
of the crime was planned or
premeditated
.”
According
to the state, in his own words the accused stated that he made up his
mind to administer the ant poison. He gave
effect to his
decision when he took the poison and mixed it with water. He
knew the effects of the poison when he gave it
to the deceased.
In
Kekana v The State (629/2013)
[2014] ZASCA 158
(1 October 2014)
para [13] the Court stated:
“
In my view it
is not necessary that the appellant should have thought or planned
his action a long period of time in advance before
carrying out his
plan. Time is not the only consideration because even a few
minutes are enough to carry out a premeditated
action.
”
[207]
The state disagreed with the accused’s version in his plea
explanation that he wanted to make the child sick.
From the
evidence of the toxicologist, Mr Van Zyl, it was clear that the
quantity of poison that was administered was high as the
presence of
carbaryl was still present in the bile and blood after nine (9) days.
[208]
It was the state’s submission that the accused started to panic
when the deceased’s started to scream and hit
her with an open
hand. He did not want anyone to find her in his room in that
condition. If indeed he wanted her to
get sick, he could have
sought medical attention or some help. He did not advise anyone
that the deceased was in his room.
He hit her on the forehead,
closed her mouth with a towel and proceeded to choke her by putting
his hands around her throat.
From his actions, he wanted to
permanently silence the deceased. He wanted to finish what he
had started. The state
submitted that the accused knew what he
was doing. When the body became limp, he even placed it on a
duvet in the corner
of his room and still went about his duties.
He gave a description in his plea that her lips turned blue and that
she vomited.
His actions were not of a person who wanted the
child to become sick. He waited for her to die. His
further action
to get rid of the body indicated that he wanted to
complete his plan. His further explanation was that he bought
the poison
eight (8) months prior to this incident as there was an
ant problem in the room. All the witnesses who lived in that
house
testified that there was no ant problem in the entire house.
It was the state’s submission that the accused waited to
kill
someone with this poison. So there exists no reasonable doubt
that the accused has not committed the crime.
[209]
The state concluded that in considering the circumstantial and other
available evidence in this matter it is convinced that
it has proved
the guilt of the accused beyond reasonable doubt that the murder was
premeditated. The accused should therefore
be convicted of the
murder and rape of a child below the age of sixteen (16) years.
[210]
It was contended by the defence that in
S v Raath
2009 (2) SACR 46
(C)
at para [16] it was stated:
“
Clearly the
concept suggests a deliberate weighing-up of the proposed criminal
conduct as opposed to the commission of the crime
on the spur of the
moment or in unexpected circumstance.
”
However,
the defence noted that the courts have dealt with each matter on a
case to case basis. In the circumstances where
the presence of
the people and their movement were unpredictable, their close
proximity, in a room in which the door hanging from
the hinges could
not fully open or close and the latch was on the outside, it would be
highly irresponsible for the accused to
commit a premeditated or
planned murder. Accordingly, the state has not discharged its
onus beyond reasonable doubt that
the murder was planned or
premeditated.
E
APPLICATION BY THE STATE TO ADDUCE FURTHER EVIDENCE
[211]
After the examination in chief of Professor Dempers and before his
cross examination, the state made an application to adduce
further
evidence. The state submitted that after Professor Dempers
concluded his examination in chief, he felt unsettled
about some of
his evidence, as he could not answer the court’s questions with
certainty. He went back to conduct further
tests in order to
prove or disprove a specific fact. The state therefore asked
leave to tender such further scientific evidence.
This was made
by the state fully aware that the cross-examination has not commenced
yet and no delay could be anticipated.
The state submitted that
it is therefore its duty to adduce further evidence in order to
ensure a fair trial.
[212]
The defence objected to this application on the basis that this would
amount to new evidence. The state disputed this
contention and
argued that the tests are meant to support what Professor Dempers has
already testified on in Court. This contention
was denied by the
defence and it submitted that this is another ploy by the state in
its attempt to augment its evidence, the Court
should therefore
refuse this application.
[213]
The tests were performed on the decomposed neck and genital tissues
of the deceased. The purpose was to establish whether
there was any
bleeding ante or post mortem. The results of such tests have been
dealt with in Professor Demper’s evidence.
[214]
Applications of this nature are normally dealt with at appeal stage,
but in this case, the application was made during trial.
Section 309B of the CPA and Section 19 of the Superior Court Act 10
of 2013 give guidance in this regard. But what is evident
in
Section 309B (5) (c) is that:
“
(c) The court
granting an application for further evidence must –
(i)
receive
that evidence and further evidence rendered necessary thereby,
including evidence in rebuttal called by the prosecutor and
evidence
called by the court; and
(ii)
record
its findings or views with regard to that evidence, including the
cogency and the sufficiency of the evidence, and the demeanour
and
credibility of any witness.”
[215]
It is without a doubt that policy considerations have to be taken
into account when the court is confronted with applications
of this
nature. In my view, since Professor Dempers has not yet been
cross-examined, only his examination in chief had been
concluded, the
re-opening of the examination in chief in my view would not prejudice
any of the parties as the trial has been on-going.
In light of
the fact that Professor Dempers was at pains in court trying to
explain whether there was bleeding or no bleeding before
the tissue
became autolytic, without a doubt that is a point that needed to be
clarified or settled, if there was a way of doing
so. The fact
that he conducted tests on the issue that has already been canvassed
during his evidence, in my view would not
amount to new evidence.
This would rather be a continuous debate on the subject that was
already before court. The
question about the delay in
proceedings does not even come into play.
[216]
When justice demands, in circumstances like the present matter, the
Courts will not hesitate to allow further evidence.
In the
interest of justice, fair trial, and public interest there are no
justifiable reasons to refuse this application. The application
therefore succeeds.
F
ANALYSIS OF FACTS AND THE APPLICABLE LEGISLATION
[217]
It is common cause that the burden is on the state to prove the guilt
of the accused beyond reasonable doubt. It is
therefore common
cause that the state relied on circumstantial evidence in this case.
The accused appeared before this court on
two (2) charges, that is,
rape and murder as stipulated in the indictment.
[218]
Rape used to be a crime that was perpetrated against a woman by a
man. That on its own does not legitimise the crime
of rape as
it is the most, shameful, intrusive, disempowering type of a crime.
But, in this day, our courts are inundated
with this type of crime
being perpetrated against babies and children of all sexes.
Children are repeatedly deprived an opportunity
to be children.
Their lives are interrupted before they even understand their own
purpose of living. In most instances,
these abominable crimes
are committed by close people, like in the instant case. These
are the people who are meant to protect
them in a sane and normal
world, rather than be the perpetrators. The accused abused his
position of trust as the deceased
was unable to consent to the degree
of abuse she received from the accused. She was a young
defenceless child. The
deceased died a slow torturous death.
[219]
To the extent that the accused pleaded not guilty to the charges he
faces before this court, it is of utmost importance that
this court
evaluates whether the state has discharged its burden of proving the
guilt of the accused beyond reasonable doubt, given
the
circumstantial evidence it presented.
[220]
The evidence before this Court is that the deceased was left by her
mother with her younger brother, A when she met her death.
The
deceased’s mother, J P could not afford to pay M W who
previously took care of the deceased. The accused that has
stayed in that house for more than two (2) years was present as he
was on leave. Ms P left the children in bed and proceeded
to
work. The accused had a long standing relationship with this
family as he grew up with the deceased’s father A F
in the same
community. It appears that the negotiations for the accused to
stay at [...] P Street were even facilitated by
A as they were close
friends from childhood. That is how the accused rented a room
downstairs from A’s sister, M P.
[221]
J P acknowledged that she had a rocky relationship with the accused,
but when asked by the accused, she performed some laundry
duties for
him as she desperately needed the money for their upkeep. It
was not disputed that the deceased used to visit
the accused
regularly as she watched DSTV in the accused’s room and played
with the accused’s daughter, S. In
effect, there was some
trust relationship that was built between the accused and the
deceased over a long time as they all stayed
under the same roof.
Ms P even described the accused as a decent, quiet and well behaved
person who loved children including
the deceased. Even though
parents warn their children to be careful of strangers, in my
opinion, accused seemed to be trustworthy
and reliable around
children including the deceased. Much confidence and trust was
placed on him by the deceased’s
parents. The fact that
the deceased’s mother left her two (2) children in the same
house and in the accused’s
presence indicates that she
harboured no fear against the accused.
[222]
It might be that the accused had ill feelings towards Ms P.
Again, could that be a valid reason for him to violate her
child.
This is not only Ms Pieter’s child, this is also A F’s
child, who was accused best friend. If he
wanted to get back at
Ms P, he should have confronted her and not the child. It is
without a doubt that the death of the
deceased deeply hurt his best
friend equally. This Court rejects the version that the accused
poisoned the deceased to get
back at her mother. In any event,
the accused’s lecherous mind did not stop at the poisoning
stage. In my view,
the crimes committed were motivated by the
accused’s lewd and selfish reasons.
[223]
The accused did not testify during trial about the sequence of events
which took place from 4 May to 13 May 2017. Again,
this Court
does not hold that against the accused, as it is his right to do so,
if he so elects. As the burden of proof is
on the state, this
court will therefore analyse the circumstantial evidence, that is,
the witnesses’ evidence including the
scientific and / or
medical evidence to prove the charges against the accused.
[224]
Mr Tiya, the forensic analyst testified that when the tests were
conducted on the specimen’s received, they were able
to fully
extract DNA from a possible semen sample that was on a “top”.
It was then referred to as possible semen
because the test was
administered at a presumptive stage. The analyst compared the
unique profile to that of the deceased
and the accused. Blood was
extracted from the accused. A comparison was made between a top
that was obtained from the deceased
and a reference sample of the
accused. According to Mr Tiya the numbers fully aligned and
there was no mismatch. This
means that the sixteen (16) DNA
loci
corresponded, and matched the profile of the accused.
Further, it was Mr Tiya’s evidence that both the jeans and deep
vaginal swab contained traces of male DNA. The male DNA was
found in the right thigh swab. In fact, the second right
thigh
swab tested positive for possible semen at the preliminary stage.
The jeans and deep vault swabs went directly to DNA
extraction as the
jeans contained a blood crotch area.
[225]
This version has to be evaluated against the admissions in term of
Section 220 of the CPA that were made by the accused.
The
accused admitted that he pulled down the denim shorts and panty of
the deceased and penetrated her with his three (3) fingers.
There was no reaction of pain or active bleeding. He became
aroused and took out his penis and placed it on her body and
around
her vagina and did not penetrate the deceased. That’s
begs a question of what sane adult person behaves in such
a manner
towards a baby. Whereas, in his confession statement, the
accused does not state exactly, at what stage he penetrated
the
deceased with his three (3) fingers. He stated that he
penetrated her with his fingers to make it look like she was raped.
He stated further in his confession statement that there is
no DNA
because he only used his fingers to penetrate her. According to
the confession statement, the idea was to mislead the investigators
in the matter so that they do not think it was him. It appears that
the accused had a polluted mind when he committed and / or
finished
committing these crimes. Why was it so important for the accused to
state that there was no DNA. Was he perhaps
certain that he
covered his tracks after raping the deceased? [
my emphasis
].
[226]
Dr Ogle who performed the autopsy reported that on examination of the
vaginal vault, multiple lacerations of varying degrees
and depth were
present around the introitus and distal third of the vagina.
These tears seemed to involve almost the whole
circumference of the
distal vagina. Dark discolouration of the soft tissues in the
deep vaginal wall was consistent with
contusions. Dr Ogle
however, confirmed the pathological changes as a result of
decomposition.
[227]
As the tissue in the sections of the vaginal wall were so autolytic,
an examination of adjacent large blood vessels also failed
to elicit
the presence and remnants of red cells. Instead they contained
a
foci
of cellular debris and bacterial overgrowth. The
only conclusion that was reached at the time was that there was no
blood
in the tissue as no trauma or haemorrhage could be detected in
the tissue. When a closer look was made there was debris and
odd ghost cells present. If that was so there were few
deductions to be made,
first
, that the blood vessels bled
empty hence there was no indication of red blood cells,
second
,
that the red blood cell component on the tissue was so autolytic to
the extent that no red cells could be detected,
third
, there
could be red cells in the red blood where the debris was detected and
or in the tissue where the debris was seen.
[228]
Professor Dempers in his analysis testified that the lack of distinct
cells in the tissue where debris or pink homogenous
structure were
present does not in his opinion exclude the fact that there could be
blood in the tissue before these nine (9) days
but obscured by
decomposition. If that is so, the inference to be drawn by this
Court is that the injuries in the deceased
happened ante-mortem and
that blood had seeped into the tissue.
[229]
In the contrary, Dr Naidoo concluded that there is no objective
medical or scientific evidence to indicate that there was
any seminal
or other male DNA deposition on the vaginal canal to suggest penal
penetration of the vagina before or after death.
It appears
that Dr Naidoo made this statement loosely as, in fact there was a
DNA evidence presented to that effect.
[230]
As Professor Dempers felt unsettled about this uncertainty, he
performed further tests in order to ascertain whether
the
debris or small blebs that were illustrated on the slides were indeed
decomposed red cells or not. It was important to
settle this
issue as it was relevant for the determination of injuries in the
vagina if they happened ante or post mortem.
[231]
In fact, Dr Naidoo did not agree that the deceased tears on the
vagina seem to involve the whole circumference of the vagina.
However, Dr Naidoo accepted that he is at a disadvantage in this case
as he did not attend the autopsy. It was Dr Naidoo’s
testimony that he was not convinced that what he saw on the
photographs was multiple linear lacerations. This was however an
about
turn from his initial report. In his opinion, if there
were such injuries, the histology examination would have shown it.
Again, Dr Naidoo failed to appreciate that histology examination
would not yield any results given that the tissue was autolytic.
Further, his idea that the pattern stated by Dr Ogle does not fit the
normal penetration, appears to have been made after having
in mind
the generic type of a rape. Further, Dr Naidoo gave this
opinion without the full comprehension that this is not
a fresh
refrigerated or well-preserved body, it had undergone some level of
decomposition. One would not have seen any redness
or swelling
in a situation where the body had undergone some degree of
decomposition for nine (9) days. Nonetheless, Dr Naidoo
could
not explain the causes of dark discolouration inside the vaginal wall
that Dr Ogle diagnosed as contusion.
[231]
In spite thereof, it was Ms Scholtz’s evidence that when she
discovered the body at the scene, she saw the navel, the
deceased’s
jeans were open and the zip was down and the jeans were pulled down
to the feet. If it was the accused’s
intention to put his
3 fingers inside the deceased’s vagina, and nothing else, then
why would he pull the deceased’s
jeans down. In addition, if
after putting the three (3) fingers, there was no reaction of pain,
how did the deceased suffer multiple
linear lacerations in the
vagina; how did the panty end up with blood, and how did the jeans
end up with blood and seminal fluid.
In numerous rape cases
that regularly come before this Court these are the identifying
feature that a victim has been sexually
violated. This Court
rejects the accused’s explanation that he only penetrated the
deceased digitally.
[232]
Again, to answer my initial question, the fact that the accused knew
that there is “no DNA” as he penetrated the
deceased
digitally as he put it, when he gave the confession statement could
only mean that he thought he covered his tracks well,
as he had all
the time to do so to himself or else was discouraging any type of
investigation to the deceased genitals. If
he did not rape the
deceased, why would it be the responsibility of the accused to
mislead the investigators of the case.
The inference to be
drawn by this Court could only be that he believed he was successful
in wiping out the evidence. He was
not aware that besides
providing his lame explanation for tearing of the vaginal orifice
being his three (3) fingers – the
DNA tests and pathological
examinations by Dr Ogle and further Glycophorin A test by Professor
Dempers would reveal more.
[233]
In light of this denial by the defence, coupled with his own
uncertainties, Professor Dempers performed the Glycophorin A
test
that is used to illustrate red cells post mortally and cells that had
been broken up and cells that have autolysed.
The findings were
that the debris or small blebs that Professor Dempers thought were
red cells were indeed red cells. Dr
Naidoo however, rejected
these findings without any evidence to the contrary or supporting his
opinion. According to Dr Naidoo,
in order for the Glycophorin A
test to prove positive for bruising, there should be blood all over
the damaged cells. In
his opinion the fragments of red blood
cells in globs or globules and debris clearly proves that the
bleeding was post mortem.
This opinion was made despite the
medical authority to the effect that Glycophorin A is useful as a
marker of bleeding when decomposed
bodies are investigated using
anti-human GPA monoclonal antibody immunohistochemically. In
all the specimens obtained, from
the dead bodies with different
degrees of decomposition, GPA was detectable on blood vessels.
This therefore suggests that
GPA is considerably resistant to
putrefaction, GPA is an excellent and useful marker for
distinguishing discolouration. See
–
Immunohistochemical
demonstration of bleeding in decomposed bodies by using
anti-glycophorin A monoclonal antibody, Forensic Science
Internationl
87 (1997) 1 – 8 – N Tabata, M. Monita
.
[234]
A. Taborelli et al on The use of the anti-Glycophorin A
antibody in the detection of red blood cell residues in human soft
tissue
lesions decomposed in air and water – a pilot study,
- opines that the distinction between ante mortem and post mortem
wounds is one of the most important medico-legal problems.
In
fresh cadavers the microscopic examination of haemorrhagic
infiltration can be sufficient to reveal the vitality of a wound
but
in more difficult cases (putrefied corpses) histological and
histochemical analyses is vital. Taborelli went on to state
that most pathologists still look for the more mechanical signs of
haemorrhaging i.e. the presence of red blood cells within the
tissue
surrounding the lesioned area. (This is exactly what Dr Naidoo
did in this case). Furthermore, Taborelli
acknowledged
two (2) authors in the subject – who looked into the
possibility of verifying within decomposed tissues the
presence of
haemorrhaging by looking for red blood cell residue (the Glycophorin
antigen) – that is, Kibayashi et al and
Tabata et al.
[235]
Professor Dempers testified that the tests were conducted according
to the guidelines stated in these articles with success.
For Dr
Naidoo to maintain that histological examination should have shown
the injuries after the tissue was said to be autolytic
is
unfortunate. It seems he did not appreciate the advanced
medical technology on the subject. Dr Naidoo was not present
at
the scene, he was not present at autopsy and he only based his own
opinion on what he saw on the photographs. Both Professor
Dempers and Dr Naidoo agreed that he might be disadvantaged by these
factors as he was not present at the autopsy.
[236]
However, it is quite contradictory for Dr Naidoo to acknowledge that
Dr Ogle’s post mortem report is well documented
in the same way
he acknowledged the application of the Glycophorin A technique.
He was upfront that he has never worked with
Glycophorin A. He
however criticised and undermined Dr Ogle’s diagnosis of
injuries. He further volunteered his
bold opinion on this new
technique, despite him not ever working with it, that its application
on this case is faulty, as it is
meant for cancer tumours. This
leaves this Court with one conclusion that Dr Naidoo is not objective
in his approach as an
expert witness or deliberately misled this
Court. I agree with the state’s contention that he is not
an expert on Glycophorin
A. It is incomprehensible as to how
did he arrive at that conclusion after Professor Dempers testified
extensively to the
veracity of the Glycophorin A test and further
referred to medical literature.
[237]
Further, there is an unchallenged DNA evidence that the semen sample
that was on a “top” matched the DNA of the
accused; male
DNA was found on the right thigh swab; the male DNA was found on the
crotch area of the jeans and the vault swab
and the medical evidence
that multiple lacerations of varying degrees were present around the
introitus and distal third of the
vagina. There appears to be
some corroboration in this respect with regard to the injuries in the
vaginal vault and the male
DNA found in the deep vaginal vault.
It therefore follows that the male DNA could only be deposited in the
vaginal vault
through penal penetration. It is not the
accused’s explanation that his hands were contaminated with
semen or seminal
fluid when he penetrated the deceased with the
fingers. As Professor Dempers put it, fingers cannot
ejaculate. The
semen can only originate from one place, that
is, a penis. In fact, this Court rejects the version that the
deceased was
penetrated using fingers.
[238]
It is clear in the accused’s confession statement, plea
explanation and Section 220 admissions, that the accused is
not
honest as they do not set the same tone. The fact that he
elected to state that he used his fingers to penetrate the
deceased,
surely points out to the fact that he clearly thought about this
crime and, if caught on this shameful act, he did not
want to be
convicted of rape.
[239]
In my mind, the accused’s plan to rape the deceased was hatched
some time ago. Somehow, things did not unfold
according to
plan, hence he panicked and killed the deceased. It is so
unfortunate that though Dr Naidoo conceded in his
report that the
injuries on the deceased’s vagina were lacerations, he
nonetheless retracted such concession and testified
that he could not
see any injuries and if the Court finds that there were injuries,
such injuries occurred after death since the
histological
examinations could not reveal them. Again, the histological
examination could not have been able to show the
injuries as the
tissue was decomposed.
G
FINDINGS
[240]
Having analysed the aforementioned evidence, the fact that there was
blood and male DNA in the crotch area of the jeans; there
was male
DNA in the vault swab; there were tears of varying degrees in the
vaginal vault and a subsequent positive result in the
Glycophorin A
test proved that there was bleeding in the lacerated vaginal tissues
this is enough proof beyond reasonable doubt
that the injuries
happened ante mortem. The semen or male DNA found on the
deceased’s body could belong to no one else
other than the
accused. He is the last person to see the deceased alive and
the last person to pull the panty and the deceased
jeans down when he
became aroused. This Court should reasonably infer that
he is the same person who raped the deceased.
[241]
The fact that not even a single person in that house heard a scream
or some sort of movement in his room is an indication
that the
accused put a strain on the deceased. In fact, due to the
accused’s dominance, the deceased was not in a position
to
scream. He however admitted to closing her mouth with a towel
and choking her. The focal marks or lesions on the
deceased
upper right forehead, eyes and lips, is a reflection that the
deceased put up some resistance but was met with violence
and
overpowered by the accused. It is so unfortunate that Dr Naidoo
wants this Court to believe that all those defects were
caused by
decomposition.
[242]
Having analysed this evidence, I am therefore satisfied that the
state has proved its case of rape beyond reasonable doubt.
[243]
With regard to the count of murder, the accused does not take issue
with the fact that he caused the death of the deceased,
whether by
strangulation or by poison or both. It would not be necessary
to deal with the cause of death, as same is not
in dispute. The
accused’s contention is that he admits that he is guilty of
murder, without premeditation and / or
planning. The state, on
the contrary rejected the accused’s admissions to that effect.
[244]
Again, this Court rejects the version of the accused that he
administered the poison on the deceased in order to make her
sick for
the following reasons; judging from the toxicologist evidence if
indeed that was so, he had all the time, to seek medical
help and to
save the life of the deceased. Carbaryl as the toxicologist put
it, is not a fast acting poison in humans.
Its effect is
reversible and treatable. In fact Mr Van Zyl was surprised to
find carbaryl in the blood as it metabolises
quickly. The only
explanation if carbaryl is in high concentration is that the person
was exposed to high doses and death
happened rather quickly.
Also since carbaryl was found in the bile, there was enough time for
it to metabolise. If
the accused’s intention was really
to make the deceased sick, the child would not have died from
poisoning, given this evidence.
The accused, in my view had
other motives that were clearly to commit crimes.
[245]
In order to ascertain whether the murder committed by the accused is
premeditated or not, it is important to examine all the
circumstances
surrounding the murder.
[246]
The witnesses, J P and M W testified about the rocky relationship
between the accused and the deceased. This Court has
rejected
the fact that this might be a valid reason for the accused to rape
and murder the deceased. It appears though that
the accused
harboured ill-feelings against the deceased’s mother for a long
time. In paragraphs 8.12 and 8.15 of the
accused’s
admissions, he stated the following:
“
8.12 Irritated
for having been woken a 2
nd
time and compounded by ill feelings between myself and her mother I
decided to give her ant poison.
…
8.15 My intention was
to make her sick and in doing so to get back at her mother.
”
Gathering
from these statements, the accused has always had an intention to get
back at Ms P. He planned to commit a crime
a long time ago.
Whether the offences committed justify such a revenge when the
witnesses who testified in Court and the accused
could not put a
finger on the cause of these disagreements, is a cause for concern,
and I repeat, in my view not enough a reason
for the crimes
committed.
[247]
Further, all the witnesses who resided at […] P Road testified
that there was no ant problem at that house prior 4
May 2017.
Ms Scholtz who conducted the search of the deceased in that room was
resolute that there was no ant problem in
the said room.
Captain Taylor was asked if he did investigate this ant problem
during his investigations. He testified
that he did investigate
the issue. He has been in that house on numerous occasions
during his investigations, not even a
single day did he encounter
ants in that household.
[248]
This therefore brings the Court to a question once more, whether the
accused was honest when he made his admissions, plea
explanation and
confession statements. The accused stated in his confession
statement that he wanted to mislead the investigators
not to think it
was him who committed these offences. Similarly, the accused
wants this Court to believe that the ant poison
was in the house to
get rid of the ant problem. Whereas in fact the reason for the
ant poison was for the accused to use
it on the deceased or any other
person for that matter. As the toxicologist testified, the
quantity of carbaryl in the deceased
blood was very high.
Further, the accused did not know the effect of this poison on a
human being. In the said situation,
could the accused be
believed if he stated he wanted to make the deceased sick. The
only inference that this Court can draw
given the absence of evidence
that there was an ant problem at that house is that the accused
intended to kill the deceased.
[249]
It is so that premeditation requires some planning, and that the
accused’s actions in my view could not be said to have
happened
at the spur of the moment. He procured the poison; waited for
the opportune time to execute his plan when the child
or children had
no adult supervision in the house; went to mix the poison outside his
room in the sink; gave the poison to the
deceased and further
threatened her with violence if she did not want to drink it; he
choked her when she wanted to scream; he
hit her with an open hand on
the forehead and continued to choke her by putting his hand around
her throat.
[250]
If one had to consider what the deceased had gone through before her
death, it has been a painful, agonizing and harrowing
experience.
This is borne out by the injuries that she sustained in her body that
were noted by Dr Ogle. It is apparent
that the deceased went
through a great deal of torture before she met her death. The
accused had all the time to do as he
pleased on the deceased the
whole morning. The video footage only showed him carrying the
body of the deceased to the dumping
site shortly after 14:00 in the
afternoon.
[251]
The accused had enough time to stop his evil intentions if indeed he
wanted to, but nevertheless went ahead. This means
that for all
intents and purposes, the accused made it a point that what he had
planned has to be carried through. It is
settled law that
planning should not have been done a long time ago, a short time
would suffice. In
Kekana v The State
(
supra
)
the court held:
“
In my view it
is not necessary that the appellant should have thought or planned
his action a long period of time in advance before
carrying out his
plan. Time is not the only consideration because even a few
minutes are enough to carry out a premeditated
action
.”
[252]
In this matter, the circumstances were such that the planning and
carrying out the premeditated action were achieved.
The
inference to be drawn is that the accused had manifested a plan to
commit a crime and succeed in doing it – See
Montsho v
The State
(
supra
)
.
[253]
It might be that the expert witness that was called by the defence
downplayed what was typically the injuries that were suffered
by the
deceased in this ordeal. Dr Naidoo blamed all the defects in
the deceased body to haemolysis due to decomposition.
For
instance, the injuries that were described by Dr Ogle and Professor
Dempers as abrasions were identified by him as shed blisters.
At the same time, he was non-committal about the basis of his
opinion.
[254]
Highly disturbing the pronounced dark marks on the forehead, eyes,
upper cheek and upper lips which is patently clear that
it resulted
from the application of blunt force was described by Dr Naidoo as a
random colour change and was in keep with the greater
bacterial
proliferation. Dr Naidoo maintained his opinion despite being
reminded that the accused admitted hitting the deceased
with an open
hand, closing the deceased’s mouth with a towel and choking
her. Surely, this would require an amount
of force from the
accused to shut the deceased down. Dr Naidoo’s response
was that he drew an objective inference having
kept the accused
version on the background. The state in my view has proved the
case of murder beyond reasonable doubt.
The
assessment of the pathologists
[255]
The principles governing the assessment of expert evidence are the
same in both civil and criminal matters, and are set out
in
Schneider
v AA
2010 (5) SA 203
WCC at 211 E
, where Davis J observed:
“
In Zeffertt,
Paizes & Skeen The South African Law of Evidence at pg 330, the
learned authors, citing the English judgment of
National Justice
Compania Naviera SA v Prudential Assurance Co Ltd (The ‘Ikarian
Reefer’) [1993] 2 Lloyd’s Rep
68 at 81, set out the
duties of an expert witness thus:
‘
1.
Expert evidence presented to the court should be, and should be seen
to be, the independent product of the expert uninfluenced
as to form
or content by the exigencies of litigation.
2.
An expert witness should provide independent assistance to the court
by way of objective, unbiased opinion in relation to matters
within
his expertise … An expert witness should never assume the role
of an advocate.
3.
An expert witness should state the facts or assumptions upon which
his opinion is based. He should not omit to consider
material
facts which could detract from his concluded opinion.
4.
An expert witness should make it clear when a particular question or
issue falls outside his expertise.
5.
If an expert opinion is not properly researched because he considers
that insufficient data is available, then this must be stated
with an
indication that the opinion is no more than a provisional one.
In cases where an expert witness who has prepared
a report could not
assert that the report contained the truth, the whole truth and
nothing but the truth without some qualification,
that qualification
should be stated in the report.
In short an expert
comes to court to give the court the benefit of his or her
expertise. Agreed, an expert is called by a
particular party,
presumably because the conclusion of the expert, using his or her
expertise, is in favour of the line argument
of the particular
party. But that does not absolve the expert from providing the
court with an objective and unbiased an
opinion, based on his or her
expertise, as possible. An expert is not a hired gun who
dispenses his or her expertise for
the purpose of a particular case.
An expert does not assume the role of an advocate, nor gives evidence
which goes beyond
the logic which is dictated by the scientific
knowledge which that expert claims to possess
.”
[256]
In my view, when an expert comes to give evidence, he or she should
stick to the principles as laid down in
Schneider
(
supra
).
This court was presented with evidence, most of which was scientific
in nature. In my analysis, the expert evidence
provided by the
state cannot be faulted. From the toxicologist, a DNA expert,
medical technologist and pathologist, their
evidence was independent,
objective and unbiased.
[257]
Then coming to the parallels of the two (2) pathologists, that is,
Professor Dempers and Dr Naidoo, the two (2) experts seemed
to be at
odds with each other. Frankly, this Court understood the role
of an expert witness clearly when Professor Dempers
testified as a
witness. The wheels started to turn when Dr Naidoo testified.
In my mind, it was clear that Dr Naidoo
was a hired gun who dispensed
his expertise for the purposes of the accused’s case. Dr
Naidoo’s evidence was
tailor-made to suit the explanation of
the accused, for instance, that he committed sexual intercourse with
a corpse. He
continued to advance the opinion that the
injuries, if any that were sustained by the deceased in her genitals
and on the entire
body were post mortem, even after overwhelming
scientific evidence to the contrary from the DNA expert, Dr Ogle
(pathologist who
performed autopsy) and Professor Dempers who
performed immunohistochemistry stain test. Given the fact that
both experts
were from the same field, this Court expected them to
agree on a number of issues and concessions be readily made where
possible.
But that was not the case. Dr Naidoo in my view
came to Court with a fixed mind and in the process assumed the role
of an
advocate.
[258]
However, in accepting the expert evidence of Professor Dempers, the
Court examined both expert witnesses and analysed their
essential reasoning, based on the surrounding circumstances of the
case. The approach to the expert evidence has an established
rule and it was laid down in
Michael and Another v Linksfield Park
Clinic (Pty) Ltd and Another
2001 (3) SA 1188
at 1200 at para [36]
where the Court held:
“
That
being so, what is required in the evaluation of such evidence is to
determine whether and to what extent their opinions advanced
are
founded on logical reasoning.
”
The
evidence of Professor Dempers, in my view assisted the Court
tremendously as it went further to uncover the evidence that was
obscured by decomposition. The application of Glycophorin A, as
a novel phenomenon and a specialised technique ultimately
proved that
where Dr Ogle noted contusions and lacerations on the vagina, there
was indeed blood. Professor Dempers evidence
in its entirety
was logical.
Immunity
from prosecution
[259]
To the extent that it might be said that Ms P abused and / or
neglected the deceased by leaving her alone in the house with
her six
(6) year old brother, A, this Court is equally alive to the economic
status of Ms P. Ms P left the children alone
so that she could
afford to put food on the table. She left the children alone in
order to earn a living. Unfortunately,
Ms P’ children
especially the deceased suffered the consequences of being born in a
society that is unequal and poverty stricken.
Their mother had
to leave them unattended as she could no longer afford to pay Ms W,
in order to attend to the job for their sustenance.
The
accused, on the other hand, was present in the house, he was not a
stranger to this family, but he abused their trust.
He was part
of this family unit as the parents and the deceased developed some
level of trust when he was around. Little
did the family know
that the accused would be the main perpetrator of these crimes.
Even after he committed these crimes,
he kept quiet for days and went
about with the search parties to look for the deceased, knowing very
well what he did to her.
He in fact agreed with the members of
the community when at some stage the number one suspect was said to
be Richard Maxim.
Had there been no discovery by Ms Scholtz’s
search party, he would have continued with his life and said
nothing. The
behaviour of the accused in this entire period is
the most vicious, brutal, inhumane, ruthless, sanguinary and painful
this Court
has ever seen.
[260]
After observing the mother of the deceased reliving what happened to
her last born child through her testimony in Court; the
lack of
professional support; the emotional effect of this ordeal and the
impact it had on her health; it would not be fair and
just for the
Court to add an element of prosecution, more so after the
deterioration of her health. In any event, Ms P showed
some
remorse as she was deeply hurt. She took responsibility for
leaving the deceased without adult supervision. Ms
P is
therefore granted immunity from prosecution. In the result, Ms
P is discharged from prosecution in terms of Section
204 (2) of the
CPA.
[261]
In conclusion, after careful consideration of the totality of
evidence that was presented in Court, this Court is therefore
satisfied that the state has proved its case beyond reasonable
doubt. In the result,
261.1 The accused is
found guilty on Count 1 – Rape (the main count
261.2 The accused is
found guilty on Count 2 – Murder (the main count)
_________________________
MANTAME J
WESTERN
CAPE HIGH COURT