S v Rohde (SS43/2017) [2018] ZAWCHC 146; [2019] 1 All SA 740 (WCC) (8 November 2018)

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[2018] ZAWCHC 146
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S v Rohde (SS43/2017) [2018] ZAWCHC 146; [2019] 1 All SA 740 (WCC) (8 November 2018)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
REPORTABLE
Case
No:
SS43/2017
In
the matter between:
THE STATE
and
JASON
THOMAS
ROHDE
Accused
CORAM:
SALIE-HLOPHE, J
DATE
OF HEARING:
9 OCTOBER 2017
DELIVERED:
8 NOVEMBER 2018
COUNSEL
FOR THE STATE:
Advocate L Van Niekerk
COUNSEL
FOR ACCUSED:
Advocate G Van Der Spuy
ATTORNEYS
FOR ACCUSED:
Witz, Calicchio, Isakow & Shapiro
JUDGMENT DELIVERED ON
8 NOVEMBER 2018
SALIE-HLOPHE,
J:
INTRODUCTION:
[1]
On a winter’s Sunday morning, in July 2016, the shocking news
of the death of a guest at the Spier Hotel rippled through
our
community and gripped news coverage around the globe.  The
upmarket hotel set in the picturesque Stellenbosch region of
the
Western Cape, also known as the Cape Winelands, posed a stark
contrast to the half-naked body of Susan Rohde, dead on the bathroom

floor of Room 221.  A life most certainly interrupted and cut
short in her prime.  Just aged 46, she was the mother of
three
daughters.  She was also the wife of Jason Rohde, a successful
businessman, the CEO at the time of a prestigious realty
company.
The hotel was the venue for the Lew Geffen/Sotheby’s
International Realty Conference during the weekend of
22 to 24 July
2016. It was however also the setting of the final scene of a love
triangle which had formed some months before.
[2]
Jason and Susan lived in Bryanston, Johannesburg.  They were
married for 23 years with three adolescent daughters, when
two weeks
after Valentine’s Day in February 2016, Susan discovered a
surprise card left for him in his suitcase by his mistress,
Jolene.
The card said it all. Jason had been having an affair.  Susan
confronted her husband without delay.  She
locked them up in
their
en
-
suite
bathroom, isolating them from their
children, interrogated what was apparent from the card to be proof of
a love affair.
She instructed Jason to call his mistress, on
speaker, and break off the affair in her presence.  Jason
obliged.  This
marked the first episode of what kicked off
months of a myriad of emotions in this love triangle.  Susan’s
ill-fated
discovery was followed with months of harrowing trauma.
The emotional hallmarks of infidelity entwined itself like creeping

ivy into the lives of those affected:  betrayal, suspicion,
passion, sex, frustration, anxiety, anger and humiliation took
its
inevitable shape.  Susan struggled in silence.  She wanted
to keep the appearance that all was well.  But beneath
her
exterior she was struggling to cope with her emotions.  She felt
her life had been turned upside down.
[3]
Jolene Alterskye, an estate agent with Sotheby’s, would be
attending the conference.  Susan insisted that she would
escort
Jason during the weekend at Spier.  She wanted to make sure that
Jolene would see them together and realise that there
is no place for
her in their marriage. Her husband assured her the affair was over.
He expressed his commitment to the marriage.
Susan was still
niggled with suspicions though.  But this weekend she was going
to openly triumph over her nemesis and prove
to all at the conference
that they were the picture perfect couple.  A united front she
called it.
[4]
Jason stormed out of marriage counselling, infuriated by Susan’s
insistence to attend at Spier.  From botox injections
to
clothing on appro, Susan was ready for the weekend.  She was
going to look her best for the occasion.  She travelled
to Cape
Town in time for the conference. This would be her last journey.
[5]
Jason delivered the opening speech under the watchful eye of his
wife.  Desperate to conceal the affair from her, he avoided

looking into Jolene’s direction at all costs.   Jason
messaged Jolene on the Saturday:
·
“
Cause I am frustrated I can’t be with you who I want.
U still love me?”
·
“
All I can think of is you.  I want to scream with
frustration.  I don’t want anything more in my life than
to be
with you.”
·
“
I absolutely hate it.  I just want it to end.”
·
“
Having you close is driving me crazy.  Sue is driving
me nuts!!!!! She follows me around like a fucking shadow.”
[6]
The following morning, Susan was dead.
[7]
In the hours before her death, they had returned to Room 221 from the
gala dinner.  Susan wanted to settle down with her
husband and
got undressed. Jason however wanted to be with his mistress.  He
sneaked into the bathroom to send his lover a
message, when Susan
caught him in the act. Her suspicions that the affair was not over
had proven true. Tempers soared as it became
clear that Jason’s
game was over. He wanted to get out and go to his lover. Their
argument soon became physical, with Susan
wanting to restrain Jason
from leaving the room and Jason wanting to get to his lover.
She did not give up the fight and
scurried behind him from one room
to the next.  Annoyed and frustrated that she would confront his
lover, he eventually acceded
to his wife’s command.  This
would be the last time she was seen alive outside of Room 221.
[8]
Jason said that Susan took her own life as a final response to his
persistent love affair with Jolene. Susan had been depressed
and
suicidal but the humiliation and shock that he wanted to end their
marriage had clearly been too much to bear.  She went
to the
bathroom that morning, closed the door, he fell back to sleep and
unbeknown to him, tragedy struck.  From the towel
hook behind
the bathroom door, his wife hanged herself with the cord of her hair
curling iron.
[9]
The State alleges that Jason murdered Susan then staged her death as
a suicide.  He was brought before the Court as an
accused.
[10]
This is the judgment of the trial which followed.
THE
CHARGES:
[11]
The indictment states that the accused is guilty of the crimes of:
1.
MURDER; AND
2.
DEFEATING OR OBSTRUCTING THE ADMINISTRATION OF
JUSTICE.
IN THAT
the
accused on or about Sunday, 24 July 2016 and at or near ROOM 221, THE
SPIER HOTEL AND LEISURE, R310 in the district of
STELLENBOSCH
unlawfully and intentionally-
COUNT ONE:
killed
SUSAN
FRANCIS ROHDE
, an adult female, by manual strangulation
and/or inflicting other violence unknown to the State;
AND FURTHER THAT
THE PROVISIONS OF Act 105 of 1997 are applicable in that
on Count one the offence is specified in Part II of Schedule 2 of the
said
Act, murder in circumstances other than those referred to in
Part I, and that  minimum sentence of imprisonment for a period

not less than 15 years is therefore applicable;
COUNT TWO:
to defeat or obstruct
the course of justice, committed (an) act(s), to wit inflicting
injuries to
SUSAN FRANCIS ROHDE
and tampering with the crime
scene by locking the bathroom door and by placing an electric hair
iron cord, one part loosely around
her neck, and the other part in a
single strand around the clothing/towel hook at the back of the
bathroom door’
AND
thereafter changing the same electric hair iron cord’s
position by tying it to hang in a double strand around the
clothing/towel
hook at the back of the bathroom door’
AND
by
supplying false information to the police, in order to mislead the
police as to the true method of her death and the identity
of the
perpetrator, which act(s) defeated or obstructed the administration
of justice.
PLEA
EXPLANATION:
[12]
The accused pleaded not guilty to both counts and provided a plea
explanation.  He was legally represented throughout.
A
plea statement in terms of Section 115 was handed up in court, marked
as Exhibit A.  In terms thereof the accused inter
alia admitted
that he had an extra-marital affair and stated further that it had
caused substantial strain on the marriage.
They resorted to
marriage counselling however the deceased continued to suffer severe
emotional turbulence as a result of his infidelity.
The deceased
insisted on attending the conference at Spier, they both knew that
Jolene would be attending.  As the weekend
unfolded, the
intensity of Susan’s anger became more manifest.  He
conceded that a physical altercation ensued between
him and the
deceased in the early hours of the Sunday morning.  He denied
however that he attacked her.  He claimed that
the deceased
committed suicide and that he did not kill her nor did he stage her
death as a suicide.
[13]
The trial ran for 57 days. The State called 21 witnesses whilst the
accused testified in his own defence and called 4 further
witnesses,
3 of which were experts.  Before the commencement of evidence,
the Court conducted an inspection-in-loco at Spier
Hotel,
Stellenbosch where the deceased body was found as well as other areas
in and around the location.  A minute and photographs
recording
the inspection was handed up as EXHIBIT “Z”.
[14]
SUMMARIES OF EVIDENCE
:
THE
WITNESSES FOR THE STATE
:
[14.1]
MR MARK THOMPSON (“THOMPSON”):
Thompson
testified that he knows the accused for 7 years and worked with him
at Sotheby’s International Realty. He attended
the conference
at Spier.  At around 8h30 a.m. on the Sunday he was chatting
with other guests at the breakfast venue where
the conference
programme was scheduled to proceed, when he heard from a colleague
that something happened at one of the hotel rooms.

Concerned that it may involve one of the conference attendees, he
went to have a look.  It was a couple of minutes after 08h30

when he came across a few staff members of the hotel standing in the
pathway outside the hotel room.  He went into the room
and saw
Susan Rohde’s body lying on the floor.  The accused was
seated next to her.   “
Mark
help me”
the accused told him.  He had never performed CPR
[1]
however felt that he must do something and proceeded to compress her
chest and blow into her mouth.  He learnt later that
he did not
do it correctly as he had forgotten to close her nose when breathing
into her mouth.  He realised that Susan was
dead as her body was
cold. He attempted to resuscitate her between half an hour and 45
minutes. During this time the accused blew
into her mouth once and
sat down again. Susan’s nose started bleeding during his
attempts to revive her.  He wiped the
blood off with a tissue
and started compressing her chest again. Her nose bled again which
happened about three times. He took
the Court through the thoughts
which raced through his mind at the time.  He testified that he
felt uncomfortable as Susan
was completely naked during the attempts
to revive her. He made various observations which either unsettled or
concerned him.
Questions raced through his mind in that moment:
Why was she naked? Why was the cord tied so loosely to the hook? Why
was the cord
so flimsy and not taut if her body had hanged from it?
Why was there still such a small, single knot in the one strand? Why
would
Jason not say anything to Susan?  Jason simply repeated:
“
Mark
help me, Mark help me”
and
only blew into Susan’s mouth once. Her body was cold, lips blue
and skin porcelain white.  Susan’s body was
lying with her
head furthest from the door and her feet under the basins. He could
not reconcile that position with her hanging
on the door and having
been taken off.  He noticed a massive indignant bruise on her
inside thigh, a small stool next to her
hip and a pool of urine under
her buttocks. A woman entered the room at the time he was getting
tired of attempting CPR.
She shouted in a frenzied state that
she commands him to revive the body in the name of Jesus. He found
this distracting and asked
her to pray outside.  Ms Geffen stood
at the door screaming with disbelief.  Wanting to contain the
panic, he asked her
to see to it that the paramedics would speed up.
Exhausted
from performing CPR, he sat down next to Jason, on the left of the
deceased and held him. Someone entered the bathroom
and covered
Susan’s body with a red blanket.
He
further testified that after the incident he reached out to Jason
with a view to assist him but Jason withdrew contact from him.
He
went for trauma counselling after this incident where he retold the
story several times.
Under
cross-examination
this witness testified that he did some
religious studies as the University of Cape Town and also pursued
theological studies at
Rhodes University.  He was later ordained
as an Anglican priest and worked in Bishop Lavis for some time as a
priest.
He was taught basic CPR at school and did a course
whilst in the air force but he had never performed CPR on a person.
In
response to a question whether he had noticed that the deceased
had worn a robe when he entered the bathroom, he explained it did
not
occur to him in that moment that the white towelling around her arms
was in fact a robe as it could also be that she was laying
on a
towel. He did not notice the difference.  It was only until he
saw the photographs that he could distinguish that her
arms were in
the sleeves.
Defence
counsel referred to respective photos of Susan’s body with a
silver chain around her neck, a bracelet on her wrist
and depicting a
towel on the right hand hook behind the bathroom door.  The
witness indicated that he could not remember it
as the things which
caused him trauma were mental images which remained with him
He
explained that he reasoned that in a traumatic situation such as
this, that you give someone a task to help ease the tension
and
anxiety.  That is what prompted him to ask Ms. Geffen to make
sure that the ambulance arrived quicker, which she did.
When
he put his hand under the back of her neck, while Susan’s body
was freezing cold, lips were blue, porcelain white, he
felt the
warmth at the back of her neck and he presumed that that was either
his hand or when he lifted her.  He explained
that even though
his arms were aching from CPR efforts, he kept going even though he
knew she was dead. He did not know what else
to do.
He
also noted that the area around her neck appeared more bruised than
he may have anticipated if she was hanged on a thin cord.
Her
whole neck looked bruised.
Counsel
put it to the witness that his client did not respond to his messages
because the newspapers had published Jason as being
complicit in the
murder of the deceased and that the accused was totally ostracised by
certain people thereafter.  Thompson
indicated that at the time
that the accused withdrew contact from him there had not been
publications that Jason was suspected
of murder nor had he been
ostracized.  He also indicated that they had experienced a very
tragic moment together.  It
therefore had puzzled him why Jason
was withdrawing himself from him.  On the Sunday evening he
tried to arrange early transport
for Jason to get back to his home so
that he could be with his children.  There would therefore not
have been any reason for
Jason to withdraw contact from him.
Thompson
explained differences or additions between his statements.
According to him his first statement was steeped in the
moments
following the trauma.  It must therefore be considered merely as
a mental data dump.  With trauma counselling
he had been able to
process the event as it had unfolded.  Things that were clear
and that he still remembers 15 months later
are those images that
stood out for him.  There were details that he could quite
easily have forgotten as they did not appear
significant, out of
place or commendable at the time.
He
indicated by way of photo illustration where he and the accused were
seated on the bathroom floor in relation to Susan’s
body and
how it was that he could have a clear view of the back of the door.
[14.2]
Dr Akmal Coetzee-Khan:
A
bundle of documents containing Dr. Coetzee-Khan’s (“Khan”)
CV, post-mortem report, notes and reference materials
were handed up,
marked as EXHIBIT D Bundle1 as well as a bundle of photographs marked
EXHIBIT D Bundle 2.
He
was on duty on Sunday the 24
th
when he received a request
from the Paarl Forensic Pathology Services officer present at the
scene to attend at Spier. They were
unclear as to whether the
deceased had committed suicide or whether she had been murdered. They
also wanted an estimated time of
death in order to corroborate the
history which was provided to them by the husband of the deceased. He
was informed of the alleged
history and that blood stains on the
floor of the hotel room, bed sheet, pillows and duvet cover appeared
suspicious to the attending
officers.
Khan
took the Court through various photos
[2]
and his observations of both the body and the scene at the time. He
arrived at the scene at approximately 12h45.  Upon entering
the
bathroom he noted the body on the floor, lying with the head towards
the toilet and the bath. The legs were underneath the
basin towards
the door.
There
was no ligature present on the body at that time. He had been
provided with information that the ligature had already been
removed
and that it was already placed into an evidence bag by the time he
had arrived. He noticed that the gown had blood stains
but there was
no blood that he could see on the back of the door or entrance of the
bathroom.  He also noticed that there
was make-up on the
deceased’s face.
A
ligature imprint mark was noted to the front and side of the neck.
The imprint mark was horizontally aligned, meaning that
it was on a
straight line horizontally across the front part of the neck and on
the left side of the neck as well.
[3]
On the right hand side of the neck the ligature mark was sloping
upwards slightly, with a very pale blanched appearance.
[4]
The imprint did not extend across the whole right side of the neck
and stopped just before the ear.  It did not extend pass
these
points.  He observed linear scratch marks located immediately
under the right lower jaw.
[5]
He also noted scratch marks on the left front of the neck above the
ligature imprint however it is not clear from the photos. There
was
no knot imprint mark against the surface of the skin.
A
haematoma was on the left eyelid as well as an abrasion to the left
occipital bone of the eye socket.  He interpreted this
injury
consistent with blunt force trauma to the face more specifically to
the eye with a fist wearing a ring.  This feature
is not
normally found in the case of a hanging or suicide.  It is
usually an indication that there was some sort of physical

altercation that had occurred.
There
was a small area of blood spatter on the right upper eyelid. He also
noted that there was bruising to the left knee and on
the left lower
leg.
[6]
He
noted that there was a very large healing bruise to the upper right
leg and thigh. Its greenish colour indicated that it had
occurred a
few days before. The presence of bruises of different ages was a
concerning feature and with the limited history he
had to also
consider battered women’s syndrome.
Abrasion
injuries were noted on the anterior aspect of the toes of both feet
with surrounding blood staining of the feet
[7]
and on her left shoulder were consistent with being dragged over a
rough surface like the carpet of the bedroom.
Reddish
colouration on the right hand knuckles indicated a bruise with a
small laceration.  A bruise was also noted on the
wrist.
These are typically defence type injuries sustained from a physical
altercation.
Faecal
soil was noted between the buttocks, with no faecal soiling noted on
the bathroom door.
Early
rigor mortis
was present with stiffening of the feet, arms and
jaw, which started in smaller joint but was not over the entire body.
The body
in hanging cases is usually presented with a specific blood
distribution in the lower limbs and feet, hands and forearms, and on

the neck if it had slumped to one side.
He
explained lividity in simple terms to be that when the person dies,
circulation of the blood ceases and the blood becomes stagnant
in
areas of the body depending on the posture of the body after death.
The
pattern of lividity was over the back and back of the legs, in other
words the contact areas over the shoulder blades and buttocks
were
pale.  The pattern was indicative of the deceased laying on her
back.  Lividity takes about 30 minutes to start
and about 3
hours to establish completely. This would assist him in calculating
the estimated time of death.
Time
of death estimation included the consideration of multiple factors
such as the cooling, the temperature he had seen of the
body compared
to the ambient environment as well as the changes of
rigor
mortis
and lividity.  He interpreted his findings that the estimated
time of death from the time of calculation to be 7 hrs and 30
minutes
earlier, subject an interval of 2.8hrs earlier or later based on the
calculations subject to certain unknown variables.
He estimated
the time of death to be at 05h40 a.m. on 24 July 2016 with a
probability of 95%.
[8]
He
had noted that there was red staining on the bedroom floor
[9]
and on the bedding which he found odd.  If the deceased had
committed suicide by hanging in the bathroom, he could not understand

why there were bloodstains on the pillow, bed sheet and duvet.
[10]
The belt of the robe was hanging off the bed.
[11]
He concluded that if the deceased got out of the bed to go to the
bathroom she would have in his view closed her robe.  This

features presented as suspicious, lending to the possibility that the
deceased body could have been moved or dragged naked from
the bedroom
to the bathroom.
From
his inspection of the bathroom door lock he noted that it is possible
to open the door from the outside by sliding something
in the groove
on the outside of the door locking mechanism.  These types of
locks are typical in hotel rooms for safety reasons
so that if
someone gets stuck it can be opened from the outside.  He
requested that the lock be examined by an expert in that
field as
well as the towel hook in order to determine if it could sustain the
weight of the deceased in the course of hanging.
Based
on what he had seen in the hotel room, in the bathroom, the bathroom
door and the appearance of the deceased he was not comfortable
to
declare it as a suicide from hanging. Many features did not fit the
history of suicide and hence he requested further examination
of the
scene by the crime scene unit.
He
testified that he also wanted the deceased’s husband to be
examined by a forensic clinician for any injuries.  At
that
stage, he was of the view that the matter ought to be investigated as
the death was possibly a homicide. He performed the
post mortem two
days later, on Tuesday, the 26
th
in the presence of
investigating police and the head of the pathology unit, Dr.
Abrahams.
Khan
referred to his chief post mortem report
[12]
and explained certain of his observations made therein:
[13]
An
incomplete ligature imprint mark noted to the anterior and lateral
aspects (front and side) of the neck. The ligature mark is
horizontal
and terminated before the ear and did not extend further along the
neck.
[14]
An electric cord around the neck in hanging normally presents a
friction abrasion from it rubbing against that surface of
the skin.
He did not notice any friction abrasion present at the ligature
mark.  He also noted that in hanging the pattern
would be
expected to be sloped in an upwards position sloping upwards on the
sides of the neck going to the suspension point. In
this case, it was
horizontally aligned across the neck and just sloping slightly on the
right side. In hangings the ligature mark
is usually in about 80% of
the cases above the laryngeal prominence which would be quite high up
in the neck. In his view the ligature
mark was applied after death
(post mortem) and not before death (ante-mortem) meaning that it is a
staging of a hanging.
Asked
by the Court to clarify what he meant by staging, he replied that the
person is already dead and an attempt is made to make
it look like a
hanging by applying a ligature which inflicts an indentation or
ligature mark. The imprint pattern and position
thereof was not
consistent with a hanging position.
He
further explained that in his view the ligature mark was inflicted
whilst the deceased was lying flat.  The lividity across
the
back further supported this conclusion. The post-mortem lividity is
fixed and well-established posteriorly with contact pallor
noted over
the shoulder blades and buttocks. The body’s position was
horizontal, lying on the back, indicating death in a
supine position
which is lying on the back. Other possibilities of hanging positions
were considered by him such as kneeling but
the lividity noted did
not support such an inference.
Scratch
marks to the right lower jaw and left side as well under the chin and
in front of the neck were assessed as fingernail scratches.
[15]
In
all cases of suspected hanging, strangulation or injuries sustained
to the neck, a bloodless neck dissection is performed which
is a
specialised technique. This ensures that the injuries or haemorrhages
observed in the neck region are true haemorrhages and
not features
that occurred after death.
The
process explained in simple terms would entail removal of the brain
allowing the blood to be drained from the head region as
well as
removal of all the organs below the level of the sternal notch, which
would be the lungs, heart, all the way down to the
intestines. All of
these would be removed before dissecting the neck.  The neck
region has to be bloodless before dissection
in order that any blood
from any smaller vessels that are on the surface could not infiltrate
that area and give an appearance
that there is a haemorrhage when in
fact it is not a haemorrhage.
The
process would start with the skin and reflect each muscle layer and
then eventually down to the bones and cartilage so that
each specific
area is inspected for any possible injuries.  The technique is
performed in layers because a small haemorrhage
can indicate where
force was applied to the neck. The hyoid bone and the thyroid
cartilage were inspected.  There was a fracture
of the thyroid
cartilage.
Directly
under the linear abrasions (scratches on skin by the jaw) and above
the ligature mark, haemorrhages to the subcutaneous
tissue as well a
large haemorrhage to the submandibular gland were observed.  A
haemorrhage on the other side (left side of
neck) where the other 3
scratch marks were noted also showed a haemorrhage to the
subcutaneous tissue.
[16]
The haemorrhages in the neck are geographically in a different point
to the location of the ligature mark. These haemorrhages which
were
on either side of the neck of the deceased were unrelated to the
ligature mark.
Dissection
of the hyoid bone revealed no fracture.  There was a haemorrhage
which indicates that force was applied to this
region of the neck. He
observed a haemorrhage to the membrane which is located between the
hyoid bone and thyroid cartilage.
The presence of a haemorrhage
there is indicative of blunt force trauma to this region.  This
feature was unrelated to the
ligature mark and usually in cases of
manual strangulation it would be indicative that there was pressure
applied from the left
side going inwards towards the bone.
[17]
Khan
testified that the type of injury to the superior horn of the thyroid
cartilage indicates a specific type of injury. Combined
with the
haemorrhages observed in the neck it is consistent with a hand being
applied to the neck with a squeezing type action
over the sides of
the neck, pointing to manual strangulation and not ligature
strangulation.
Usually
in cases of hanging, very little haemorrhages would be present in the
neck and the haemorrhages tend to be directly related
to the
ligature, which was not the case herein.
He
noted an area of pallor to the nose tip, upper and lower lips and
slight deviation of the nose.
[18]
The nose has been deviated, consistent with external airway
obstruction.  This indicates something had been placed over the

nose and the mouth. The pallor occurs over the nose and consistent
with an object or hand placed over the nose and mouth. This
was
confirmed by the pharyngeal soft tissue haemorrhages and congestion
to the base of the tongue.  As far as CPR is concerned
he
indicated that if the person’s nose was pinched, deviation of
the nose and pallor can occur if done roughly.
He
also noted congestion present of the internal organs and sub pleural
petechial haemorrhages to the surface of the lungs.
He
indicated that it was not clear on the photo
[19]
but there were also fine petechial haemorrhages noted on the surface
of the heart. This indicated features consistent with asphyxia,
a
result of interruption with respiration.
The
presence of bruising injuries to the body, face and fractures to the
third, fourth and fifth ribs anteriorly is evidence of
blunt force
trauma to the body. With CPR one can also get fractures to the ribs
especially in the front if it is performed quite
vigorously.
The
right chest wall indicated a further haemorrhage going towards the
axilla which he cannot associate with resuscitation as it
is quite
far away from the central aspect, more likely consistent with blunt
force trauma.
The
trauma is more consistent with a physical altercation including
punching or maybe kicking to that area.  In the context
of
manual strangulation, the rib injuries would result from a knee
placed against the person in order to overcome the victim, thereby

retaining pressure on the neck as the victim would be resisting or
moving their hands and body.
When
he flapped the scalp from the head, he found a haematoma to the scalp
of the occipital region and this further confirmed that
there was
blunt force trauma applied to the back of the head as well. This type
of injury pointed more likely to the victim’s
head being pushed
against a surface to cause blunt trauma to the back of the head.
Examination
of the meninges also showed that there was haemorrhage in the
subarachnoid area which indicated that there was also
trauma to the
head.
Bruising
and abrasion to the knuckles of the deceased indicated trauma to that
hand and knuckles
[20]
and well as a bruise to the left wrist
[21]
were most likely consistent with defence type injuries indicative of
the victim protecting him/herself and/or fending off the attacker.
There
were contusion injuries to the surface of the lungs and this also
indicates blunt force trauma to the chest wall.
On
inspection of the stomach, there was approximately 100ml of fresh
blood present, indicating that there was ingestion of blood.

The intestines were dark in colour pointing to the presence of blood
sourcing from ingestion which had passed through the stomach
and
further down into the intestines.  Once he opened the
intestines, he saw altered blood products.  For this to have

occurred there must have already been some sort of trauma that caused
her to ingest blood and for it to go through the stomach
and be in
the intestines. This occurred before death and with the contusion
injuries to the lungs, she most likely started to cough
up blood and
ingest it for it to pass through and go to the intestines. This would
indicate that there was some sort of physical
or blunt force
altercation before strangulation.
Healing
bruises estimated to have resulted from blunt force trauma
approximately 7 days prior to the deceased’s death concerned

him as to the possibility that the deceased was a battered woman.
His
conclusion was that the deceased died of an unnatural cause
consistent with asphyxia due to manual strangulation and external

airway obstruction. The features of the ligature imprint abrasion
mark are consistent with post-mortem application to the neck.
The
deceased was 1.71m and 52kgs and was relatively slim but in a good
nutritional condition. The first post-mortem changes the
body.
Rigor
mortis
by that time was generalised and intense. The post-mortem
lividity was present posteriorly and fixed with pallor noted over the

shoulder blades and buttocks which was consistent with death, not
consistent to be in the upright position.
The
white gown was present on the deceased and there was no clothing
underneath that gown. There was red staining resembling blood
noted
to the inner aspect of the right shoulder at the back as well as to
the right neck and chest in front of the gown. There
was also no
evidence of medical intervention.
The
ligature imprint was 6–8mm in width and was incomplete and
horizontally aligned over the anterior aspect and left lateral

aspect. On the right hand side it slightly sloped upwards. The
imprint mark extended into the hairline and did not form an apex

posteriorly.  The imprint did not go to the back of the neck
meaning it only covered approximately 60% of the neck.
There
was no point of suspension, which is the point going upwards.
There was also no knot imprint which would otherwise
indicate where
the knot was located against the surface of the skin.  The
ligature imprint mark was not parchment or leathery
like and
presented features not consistent with ante-mortem application.
In other words it was placed or tightened around
the deceased’s
neck after death.
Based
on the features of the ligature mark together with the position of
the scratch marks over the skin surface of the neck, he
was of the
view that it most likely indicated a thumb that was on the right hand
side with the attacker’s remaining fingers
spread over on the
left hand side consistent with manual strangulation.
There
was an abrasion noted to the left shoulder with a tangential abrasion
mark with bruising noted.  This injury was indicative
of blunt
trauma more likely caused by rubbing against a rough surface.
The tangential appearance indicated further dragging
across a rough
surface.  He observed and considered the different surfaces in
the hotel room and in his view the carpet in
the bedroom had a rough
surface. The deceased was more likely dragged across that surface
resulting in this injury. This type of
drag mark would not be
consistent with the tiles in the bathroom and the position of the
injury is not consistent with hanging.
There
was also an abrasion to the second digit of the right foot and a
little abrasion on the toe on the right side. There was also
a linear
abrasion mark noted to the medial and anterior aspect of the first
digit of the left foot. A linear abrasion mark was
also noted to the
medial aspect of the second digit of the toenail on the left foot.
These abrasions indicate that that it rubbed
against a rough surface.
They could be caused by a rough surface like the carpet in the
bedroom or something else that had abraded
the top of the skin off.
Bruising
to the left anterior lower leg had also been noted. This was a fresh
bruise, different to the healing bruise as well as
a fresh bruise to
the left anterior and medial knee.
Blood
was sent to the DNA lab and a 5-panel drug screen on the urine tested
negative for drugs.
A
post mortem report by Dr Perumal (“Perumal”) was handed
in and marked EXHIBIT E.  A second autopsy was performed
after
the body was released from the state forensic pathology
services.
[22]
The second autopsy was requested by the accused. Khan was asked to
consider the contents of the report and comment thereon.
The
key aspects of his testimony in this regard were:
The
history as set out that: “
Mrs Rohde hung herself with a cord
attached to an electric hair straightener”
, does not
indicate that it is an
alleged
history, but appears to be
accepted as the background.
Reference
to the ligature imprint does not indicate whether it is an
ante-mortem ligature imprint mark or post-mortem imprint mark.
The
scattered abrasions and bruises on the neck, face and body are not
interpreted as to what the cause of these bruises could be.
No
mention of the injuries to the knuckles or to the wrist were made
normally indicative of defence wound injuries to that area.
No
mention of the fracture or the thyroid cartilage.
The
report is silent on the presence of blood in the stomach and the dark
pigmentation of intestines indicative of congestion.
The report
does not address the other injuries that were present on the body and
crucial findings thereof.
The
report does not indicate that the special technique of a bloodless
neck dissection performed during the first autopsy could
not be
performed during the second autopsy. The sutures would have indicated
that such a technique was performed.
The
report is silent as to the fact that the linear abrasions of the
lower jaw and on the side of the neck were above the ligature
mark
and thus unrelated to the ligature mark and whether or not it is
related to manual strangulation.
Indication
that there were no identifiable definitive ante-mortem bruises to the
subcutaneous tissue is misleading.
Stating
that there was “no definitive fracture of the hyoid bone or the
thyroid cornua”
[23]
is
incorrect and misleading.
The
report does not identify the possible cause of the injury to the left
shoulder; the abrasion to the left occipital bridge, the
haematoma to
the left eye nor the bruises below the right ear and the two small
focal abrasions to the knuckle of the left index
finger.
Whilst
certain injuries are noted, it is not considered in the conclusion
that the deceased died of injuries consistent with ligature

strangulation / death by hanging.
No
comment is made on the pallor and deviation of the nose nor the lips
and colour thereof.
No
mention was made of the skull and head injuries.  No
interpretation is given for the cause of the fractured ribs.
Bruises
to the tongue were not interpreted and is not a common feature in
hanging cases.
Many
of the injuries observed on the body of the deceased were omitted.
The second autopsy report would not have the findings
of the
bloodless neck dissection which is limited to a first autopsy.
Reconstruction after this type of dissection is not
possible nor can
a second autopsy reveal a finding or comment in connection
therewith.  The findings of the latter technique
would be
significant to differentiate the diagnosis of ligature strangulation
from manual strangulation.  The second autopsy
report however
nonetheless makes findings of the haemorrhages in the neck area and
labelled it as post-mortem artefacts with no
definitive ante-mortem
haemorrhages. A second autopsy cannot make findings which are
exclusive to the neck dissection procedure.
Khan
denies that the imprint noted by Perumal on the back of the neck was
on the back of the neck when the first autopsy was performed.

The second autopsy report does not comment that the ligature mark was
horizontal which would conflict with a suspension from above
the
head.
Whilst
Perumal noted the linear scratch abrasions, he did not interpret the
cause thereof as such injuries are important in the
determination of
the cause of death.
On
the recommencement of evidence, Counsel for the State indicated to
Khan that evidence over the weekend was obtained through affidavits

by the deceased’s sister
[24]
and mother
[25]
in which they stated that the deceased told them that she sustained
the bruise when she fell over on a dumbbell during an attempt
to
perform a handstand. Khan commented that this would be consistent
with his estimation of the age of the bruise of 7 days prior
to
death.  He, however, indicated that he could not comment on
information by the deceased’s mother that her daughter
had
bruised easily due to a condition for the reason that it would depend
on whether the condition referred to had been diagnosed
by a medical
practitioner or was it just based on their experience within the
family. He added that the area to the thigh is made
up of lax tissue
and can bruise much easier than stiff or condensed tissue. He further
added that there was no obvious evidence
of a specific bleeding
tendency or abnormalities to the vessels which he had observed during
the autopsy.
Under
cross-examination
counsel
questioned the veracity of Khan’s evidence to the extent that
the post-mortem handwritten notes could not have been
written at the
scene as he had testified.  Further placed into dispute the fact
that Khan could not have known the mortuary
reference number or death
register number which appears in his notes.  Lengthy cross
examination followed on the experience
of Khan and manner of his
previous workings, his understanding of various calculations in
forensic pathology and his understanding
of lividity, cooling of the
body after death and death interval time.  Counsel for defence
put to Khan that his understanding
as to the algor mortis calculation
as reflected in his report was incorrect.  As such it was put to
him
[26]
that his estimation of the time of death was wrong.  Khan
conceded that his interpretation of the calculation principles were

incorrect in that the estimated time of death would not be 05h40 with
a 95% probability but instead a calculation resulting in
a estimation
of death having occurred with 95% probability between 02h52 and
08h28.  Dr Khan explained that he worked out
the death time
interval as being 7,5 hours earlier with a variable of 2,8 hours
before and after.  His interpretation of the
95% factor was
incorrect and that he should have found the mean range as being the
95% probability and not the other way around.
So death most
likely happened between the range 2,8 hours before 05h40 and 2,8
hours after 05h40.
Questioned
as to the possibility that the death could have resulted from blunt
force trauma as opposed to manual strangulation,
Khan replied that
the blunt force trauma could have contributed to the death but the
findings that he found were consistent with
manual strangulation and
external airway obstruction.
Van
der Spuy questioned Khan on his findings that he excluded the hanging
the basis of the position of the lividity noted.
Khan replied
that lividity was not a main factor for excluding hanging but it was
something he took into account in his conclusion.
Khan
confirmed that the appearance of the ligature imprint mark and its
nature was a major factor informing his conclusion of manual

strangulation as well as the fact that the geographical locations of
the marks around the deceased neck (underlying layers) were
different
to that of the appearance of the ligature on the outside skin
surface. Khan also confirmed that the injury to the deceased’s

thyroid cartilage was a factor in arriving at his conclusion.
Khan
conceded that the explanation that deceased had fallen on a dumbbell
could have caused the bruise to her upper thigh but it
does not
explain other healing and fresh injuries.
It
was put to Khan that the deceased would have been under the influence
of alcohol and although her blood alcohol test read as
being below
the legal limit at 0.05, the defence will call Professor Saayman as a
witness in that there is a strong possibility
that on Susan was under
the influence of intoxicating liquor. Khan replied that he was
provided the information that she drank
alcohol the night before and
he took the sample to get the content determination which indicated
deceased had a low alcohol level
and not likely intoxicated at time
of her death.
Van
der Spuy questioned Khan’s appropriateness in recommending in
his report that the husband of the deceased’s passport
must be
removed until the investigation is completed.  Khan explained
given the history that the deceased and her husband
had an argument,
his observations of the scene and injuries noted on the body of the
deceased, lend reasonable cause for an investigation
as he suggested.
Van
der Spuy put to Khan that it was beyond his mandate and is out of
line for him to have done so. Khan replied that this is based
on his
experience in the Western Cape where they have had potential accused
suspects leave immediately after an event occurring
and that it is a
recommendation as he was informed by the police that the husband of
the deceased was going to the airport to travel
to Johannesburg.
As he was not sure as to his post mortem conclusion at that stage, he
considered it prudent to make the
recommendation.
Khan
conceded that he did not perform the special technique of a
pneumohemothorax as he did not consider it necessary.  He
also
confirmed that he although he did not perform a facial flap
dissection, he concluded that a secondary cause of death to be

smothering as there were other injuries indicating to smothering such
as injuries inside the mouth and haemorrhages to the pharynx
and
tongue. These were consistent with injuries that you would find in
smothering.
Khan
indicated that it was not necessary to perform further tests and
techniques to determine the cause of death as the injuries
observed
confirmed a finding of the cause of death as manual strangulation and
external airway obstruction.
[14.3]
Warrant Officer: Heremias Cornelis Engelbrecht
The
testimony of this witness was essentially on cell phone data and how
it works, the methodology and the sequence of cell phone
activity.
He started in the police service in 1990 and has 27 years’
service.
[27]
He took the Court through the software that is used for the
extraction of mobile data, how the cables are used during extraction

and the process of analysis of such extraction for the purpose of
creating a report.
He
also explained how the software works for advanced extractions and
the extraction process of data.  He did extractions of
2 phones
as per the request of the investigating officer in this matter.
[28]
Engelbrecht
testified that whatsapp messages were deleted between the accused and
Jolene around 08 August 2016.  Whilst he
cannot see the content
of the messages, he can see that there was contact between them.
He
noted that there were whatsapp messages between the deceased and
Jolene however the messages on Jolene’s phone were deleted.

The messages appeared on the deceased’s phone.
The
cell phones of the accused and that of Jolene had no sim cards.
He however accessed the data from the device itself.
Under
cross-examination,
the witness stated that as per HEC1 the
timeline between deceased and Jolene’s phone shows that there
is a Whatsapp from Jolene
to the deceased at 05h50am. Then at 07h02am
and 07h06am there were a whatsapp message from the deceased to
Jolene.  The last
communication from the deceased to Jolene was
at 07h06.  On J2, the extraction of Jolene’s phone
indicates the last
message between the accused and Jolene were around
10h45 on the 23
rd
.
[14.4]
Peter Norton
Norton
is married to the deceased’s sister, Angela Norton, and the
brother-in-law of the deceased.  He runs a construction

business.  He was notified on the Sunday morning about the death
of the deceased.
He
immediately went to Spier Hotel and was directed to a room where he
found Jason.
[29]
A number of relatives were there including the father of the
deceased, Mr. Neville Holmes (“Neville”).
He
described Jason as tearful and that he appeared devastated.
People were moving around in the room and Neville went in
and out of
the room whilst other people entered. Someone took a statement from
Jason.
[30]
Neville enquired as to what happened.  Jason explained that they
had a fight, and Neville asked to see his hands.
He said that
Susan had tripped in the car park and that she cut herself which is
where the blood had come from.  Norton said
that he looked at
Jason’s hands when he showed it to Neville and that he did not
notice any marks. Neville grabbed Jason’s
hands and turned them
over and looked at them.  Jason was well dressed and cleanly
shaven.
When
Jason finished his statement, Neville told him to read to Jason
before he signed it, which they did.  Jason’s
statement
[31]
was
handed to the witness.  He confirmed that to be the statement
made and read out the contents of the statement.
Under
cross examination
Defence counsel referred Norton to a
statement which he gave the police a year after the incident.
Norton said in his
statement that Jason never spoke to him at the
funeral and that the he (Jason) was late and never stayed for tea
after the funeral.
Defence put to the witness that by the time that
the funeral happened the accused was ostracised by the deceased’s
family
and was told that he was going to be arrested. Norton said
that he does not know what Jason’s state of mind was however he

can confirm that when the family saw him they hugged him and his 3
girls and that the funeral went ahead.  In answer to a
question
by the defence whether the family treated Jason like a husband or son
in law that suffered a tragedy, Norton replied that
there was
compassion mixed with suspicion.
The
witness testified that he did not know how Susan felt about her
father’s infidelity.
He
confirmed that to his knowledge Jason never displayed violence to
Susan.
[14.5]
Warrant Officer Anna-Marie Van Niekerk
Van
Niekerk has been in the police for 23 years and obtained a Master’s
degree in analysing cell phone records.  She
confirmed that she
was requested to analyse cell phone records in this matter which she
received from investigating officers.
She also obtained cell
phone records through the process of Section 205 summonses and call
reports from Spier Hotel.
Van
Niekerk took the Court through her methodology.  She established
a timeline of communication between the accused, deceased
and Jolene
Alterskye. Exhibit M was handed up which was her statement and
extraction data.
On
24 July 2016 the accused cell phone data shows at:
·
00:17:13 a call from 082 447 6169 and the call was not answered
·
00:27:27 an outgoing call of 9 seconds to the deceased
·
02:15:52 an outgoing call to Jolene of 0 seconds
·
02:56:39 an outgoing call to Jolene of 13 seconds.
·
03:00:03 an outgoing call to Jolene of 1 second.
·
03:00:20 an incoming call from Jolene of 50 seconds.
·
03:02:21 sms from Jolene.
·
03:02:26 the same sms message and then again at 03:02:34.
·
03:32:28 an incoming call from Jolene lasting 7 seconds.
·
04:45:33 an incoming call from Simony Dos Santos.
·
05:54:29 an incoming sms again from Simony Dos Santos.
·
08:02:22 an outgoing call was made from the accused’s cell
phone to Susan
(3 seconds).
·
08:41:28 an incoming sms to the accused’s phone.
Van
Niekerk then continued with deceased’s cell phone records and
said that at:
·
00:27:27 incoming call from the accused and it was not answered.
·
00:27:47 incoming sms was received from the accused.
·
03:11:47 outgoing call was made from Susan’s phone to Jolene
(call went
in to voicemail)
Van
Niekerk then proceeded with Jolene’s activations and said that
at:
·
00:17:13 an outgoing call to the accused and lasting 4 seconds.
·
01:01:21 an outgoing call (23 seconds) to Simony Dos Santos
·
01:04:14 an outgoing call (15 seconds) to Brendan Muller
·
02:05:57 an incoming call from Simony Dos Santos (0 seconds).
·
02:15:52 an incoming call from the accused (0 seconds)
·
02:56:38 an incoming call from the accused (13 seconds).
The
extractions and information established a basic timeline integrated
in time sequence which the witness indicated as:
·
00:17:13 the accused received a call from Jolene but he did not
answer lasting
5 seconds.
·
00:27:27 an outgoing call from the accused to the cell phone of the
deceased
which she didn’t answer.
·
01:01:21 Jolene made an outgoing call to Simony Dos Santos (23
seconds).
·
01:04:14 Jolene made an outgoing call to Brendan Miller (15 seconds).
·
02:05:57 Simony made an outgoing call to Jolene.
·
02:15:52 Jason made an outgoing call to Jolene.
·
02:56:39 Jason made an outgoing call to Jolene (13 seconds).
·
03:00:03 Jason made an outgoing call to Jolene (1 second).
·
03:00:20 Jason received a call from Jolene (50 seconds).
·
03:11:47 The deceased made an outgoing call to Jolene.
·
03:18:05 Jolene received an incoming call from Simony (50 seconds).
·
03:24:32 An incoming call from Simony (16 seconds).
·
03:32:28 Jason received a call from Jolene (7 seconds).
·
03:45:05 Jolene made an outgoing call to Simony (58 seconds).
·
03:58    Brendan Miller sent a messag to Jason
reading: “
You ok?”
·
04:03:07 Jolene made an outgoing call to Simony (22 seconds)
·
04:11:02 Jolene received an incoming call from Brendan Miller (56
seconds).
·
04:45:33 Jason received a sms from Simony
·
05:50:29 Whatsapp from Jolene to deceased: “
Go wash your
mouth”
·
07:02:06 Whatsapp from deceased to Jolene: “
Whore –
wash your own fucking mouth”.
·
07:02:23 Whatsapp from deceased to Jolene: “
After you
suck my husband’s dick”.
·
07:06:34
Whatsapp from deceased to Jolene: “
Jason
said you were only good for one thing and that’s why he keeps
coming back. He said you would be the last person he ever
wanted to
be with”.
[32]
·
At 07:06:36 Accused replied to Brendan Muller “
Drama
,
but
okay”.
·
At 08:02:22 an outgoing call made from the accused to the deceased’s
phone.
·
08:22 A call is placed from the inside line of Room 221 from the
accused to reception
as per his statement
·
At 08:51 An outgoing call was made to Sandy Geffen and then at 08:53
outgoing
call to Lew Geffen.
According
to the deceased’s extraction report iApple messages between the
deceased and her clinical psychologist (Ms. Newcombe)
on Friday, 22
July 2018 were exchanged as follows:
[33]
·
20:40:19 “
I shook her hand and said hi and said I hoped
we didn’t have to meet again”
- Susan to Newcombe
·
20:41:12 “
Did it leave you feeling in control?”
- Newcombe to Susan
·
20:44:39: “
Yes”
- Susan to Newcombe
·
20:45:24
“
Great!
So tomorrow will be better”.
[34]
-
Newcombe to Susan
The
witness testified to messages extracted between Jason to Jolene on
the Saturday, 23
rd
July 2018.
Van
Niekerk testified regarding incoming and outgoing calls between the
accused and Jolene for the period of February until July
2016
[35]
as well as exchanged messages between the accused and deceased on the
Saturday, the 23rd.
Under
cross-examination
the witness confirmed that there was a total of
2 229 Whatsapp messages from the deceased to the accused and the
total amount
of calls from the deceased to the accused were 1 703.
[14.6]
Psychiatrist - Jane Francis Newcombe
Newcombe
attained a nursing diploma, Bachelor of Arts in psychology, worked at
a psychiatric hospital for several years and did
her Honours and
Masters in Psychology. She did her dissertation on post-traumatic
stress disorder and the impact thereof on adolescence
and worked at a
Child Adolescent Family Unit as a registered psychologist.
Thereafter, she went into private practice.
Newcombe
testified that Susan consulted with her in May 2016, which was the
first of 8 sessions, every Wednesday at 08h30. She took
the Court
through her methodology applied and information collated from the
deceased.
Susan
informed her that her husband had been having an affair with one
Jolene which was ongoing. The affair started in June 2015.
She had
found a hand written Valentine’s Day card to her husband. When
she found out he stopped the affair immediately and
he had
communicated to Jolene and said that he loved his wife and wanted to
work on their relationship.
The
deceased was much calmer during the second session and appeared more
composed.  During sessions they also dealt with her
family
history and relationships with members of her family.  When she
was 35 she discovered that her father had an extra-marital
affair
which was devastating to her.  However, her parents have
remained together and seem to be having a better relationship.
Susan
was battling to cope with the fact that her husband had lied to her
and this affair seems to have been both an emotional and
sexual
affair. He had ended the relationship but had become quite aggressive
about the way he wanted them to move forward.
Susan
denied that there was any violence in the marriage but informed her
that they would have fierce arguments. Susan said that
she felt that
her husband was irritated with her constantly harping on about the
affair and that she was anxious, especially when
Jason travelled.
He
was very frustrated with her anxieties which she had expressed
regarding the affair. He was also in individual counselling and
they
were seeing a couple’s therapist where they made slow progress.
Susan expressed that she was lacking self-esteem and
could be
depressed. Newcombe indicated that when a patient said this she would
explore what is meant by that. She checked whether
Susan had any of
the symptoms of depression.
They
spoke about the affair including her struggles to overcome her
husband’s infidelity and to manage her hurt and anguish.
Susan
drew parallels between her experience and her father’s affair.
Susan shared that she had contacted Jolene to leave
Jason alone.
Susan would also check on Jason’s phone and asked him to take
Jolene off his phone as a contact and to
block her number. She
perceived that Jolene was very invested in Jason and wanted this
relationship.  Newcombe perceived Susan
as wanting to protect
Jason from being hoovered back into the affair with Jolene.
She
said that Susan wanted to fix the relationship and wanted to know how
to manage her anger and turmoil as she felt that the infidelity
had
turned her life upside down. It affected how she felt about
everything so she started to doubt her own ability to recognise
the
truth from non-truth and felt lost.  Newcombe indicated that
these feelings and experiences are normal when a spouse finds
out
that their spouse had been having an affair. Susan was very sensitive
to being criticised and possibly she had an issue with
envy.
Susan
disclosed in therapy that she met Jason at a party when they were 19
years old. She said that he was quite jealous of her
and had a
volatile temper but was gentle and kind most of the time. Susan said
that Jason is very sensitive about being criticised
and loses his
temper quickly.
Susan
was very involved in an orphanage called Hearts of Hope as well as a
primary school. She also provided support counselling
to victims at
Sandton Police Station.
When
Newcombe asked Susan whether she had any current fears, she mentioned
that she feared that they will continue to treat each
other badly and
that she will continue to live in fear. She feared that their family
will be exposed to the tension at home and
that Jason would lie to
her again.
Susan
described the marital relationship to always be a loving relationship
but that it had become distant in the past months. All
their friends
saw them as the perfect couple. She was angry that whilst Jolene knew
that Jason was married, she did not refrain
from getting romantically
involved with her husband. Susan said that both her father and Jason
were short tempered, both had affairs
and both are untrustworthy.
Susan was still very anxious when she was away from Jason and in
particular when Jason went away as
his work was in Cape Town. Susan
perceived Jason as being understanding about her anxieties as he
would take photos of where he
was so that she would feel more at
ease. She said that she checked his cell phone to see if there was
any indication that Jason
and Jolene were still in contact. They also
spoke about the couple therapy and Susan said that she was anxious
about upsetting
Jason so she was not really talking about what her
side of things were.
Susan
did not tell her family or friends about the affair as she did not
want people to hold Jason responsible or dislike him for
what was
going on. She felt that she had no one to really talk about what was
happening. This was distressing as she was trying
to deal with it all
on her own.
In
couple’s therapy, Jason took responsibility for having hurt her
but that he had difficulty with her wanting more details
of the
affair.
In
another session Susan was very distressed and crying. It was however
in relation to her eldest daughter as she had a big fight
with her
and the session focused mostly on that issue.
Newcombe
said that it appeared to her that Susan did not always put her needs
out there as she did not always get an empathic response.
Jason was
angry that she wanted to go with him to the conference in Cape Town
and was looking for reasons why she should not go
with.  Susan
wanted to go and she wanted her and Jason to be seen as this strong
intimate couple so that Jolene would not
think that there was space
for her to be in a relationship with Jason.
In
the last session it was discussed that if she discovered the affair
was still ongoing, she planned to leave the conference and
go to her
sister.
[36]
Newcombe told Susan that she could phone her if necessary. Susan
called her from Spier on the Friday evening and told her
that she was
complimented at the conference as being beautiful and that she had no
reason to feel threatened by younger women.
This distressed her
because she wished that it was Jason saying those things about her.
Susan told her that she did not greet Jolene
at the conference which
she was quite anxious about. They spoke about the fact that she had
nothing to be ashamed about and that
she was entitled to be there.
During the telephone call, Newcombe experienced Susan as distressed
but neither depressed nor
despairing.
[37]
By the end of the conversation, of around 10 minutes, Susan came
across as being more in control and ready to re-engage in the

evening’s activities.
[38]
Later
that evening she received a message from Susan. She indicated that
she greeted Jolene and said that she hoped that she never
had to meet
her again. Newcombe asked Susan whether it made her feel better and
whether she felt stronger for it, to which she
responded positively.
Newcombe
said that she did not experience Susan as suicidal and that she did
not experience her as a suicidal threat.  In Newcombe’s

opinion she was anxious but not depressed and there was no evidence
of impulsivity or acting out behaviour. She is of the view
that Susan
had not given up on life and that she had several protective factors
which would have prevented her from being suicidal.
Newcombe
continued that Susan’s marriage was not the only thing that
gave her life meaning.  Susan did not think that
the affair
would lead to divorce. Susan was very involved and invested in her
children which also gave her meaning. She was involved
in charitable
works in her community. Susan was very integrated into her friendship
circle and was well liked by others.
Newcombe
said that when she heard what had happened she was initially
completely shocked as she heard that Susan had killed herself.
She
said that her immediate thought was as to what she had missed.
This prompted her to go back to her notes to see if there
were things
that would suggest that Susan was in fact vulnerable to suicide.
Newcombe testified that she was satisfied and sure
that she did not
miss anything and that Susan did not present as depressed or
suicidal.
The
witness was referred to the statement by the marriage counsellor that
Susan might need to be admitted to hospital. She replied
that Susan
had informed her that the couple’s marriage therapist at one
point felt that she may need to be admitted to hospital.
In
exploring the possibility of an admission it became clear that Susan
became increasingly anxious when she experienced Jason
as being
emotionally distant.  This would trigger her preoccupation with
the details of the affair, which made Jason angry
and he withdrew
further. She explained that Susan’s overwhelming distress was
identified as a feature of anxiety rather than
depression and that
they decided that the solution was to handle the situation
differently rather than be admitted.
[39]
She
came across in therapy as someone that would be able to take back
control of her emotions and progressed well with therapeutic

treatment.  Although Susan was quick to anger in heated
arguments with Jason and experience emotional spill overs, she also

cooled down very quickly and moved on.
Susan
presented as an intelligent, attractive woman, whose responses to
situations were both appropriate and proportional.
She engaged
well in the therapeutic relationship and was forthcoming with
information and considered in her responses.  Whilst
Susan was
anxious and tearful at times, she was easily soothed and able to take
control and think her way through situations.
Neither an
examination of her history, nor the way she presented gave any
indication of potential suicidal behaviour.  She
was more
anxious than depressed and there was no evidence of impulsivity or
acting out behaviour.
In
Under cross-examination
Newcombe conceded that Susan had come
to see her after she had given a talk at the Sandton Police Station
to volunteer counsellors
on the topic of depression and suicide.
Defence
counsel asked Newcombe to read out a number of heated messages
exchanged between Susan and Jason on the Saturday at Spier.
The
messages were not listed in chronological order.  Newcombe was
asked to consider whether the exchanged messages
reflected Susan as
being rational.  She answered that it struck her more that Susan
was in a rage, however she cannot give
context as to what put her in
the rage.  She testified further that Susan’s ranting
appeared in line with emotional
spill over rather than being
irrational.
Defence
asked whether he is correct in saying that if Susan was bipolar,
manic, depressed and anxious she may have wanted to commit
suicide.
Newcombe replied that she was confident in stating that Susan was not
bipolar or manic depressive and that although she
had some
narcissistic features she did not qualify to have narcissistic
personality disorder.
As
to how involved she was with her children, Newcombe replied that she
spoke about her children with concern and love. She cared
about their
development and discipline. The way she spoke about the family as
well as her relationship and her care about her children,
came across
in a positive way.
Newcombe
said that Susan was a good candidate for long term psychodynamic
psychotherapy as she was thoughtful and could self-reflect
meaning
that she had an observing ego whereby she could look at her own
behaviour and comment on it.  Susan was able to identify
her
expectations of therapy.  Susan recorded in the questionnaire
that she hoped to process her anger and develop a good sense
of what
she should expect from herself and her husband in terms of going
forward.
Newcombe
said that she had at least 8 sessions with Susan and that the purpose
of the session notes is not to give a detailed outline
of everything
discussed in these sessions but to provide a trigger to prompt her
memory so that there is continuity between sessions.
She
was asked if she had dealt with any other suicides. She replied that
she never had a patient that had completed suicide. But
that she has
had several who were severely depressed and required hospitalisation
and who have been hospitalised then recover and
come back to
therapy.  Patients who have attempted to commit suicide were
those with personality disorders and had impulsive
tendencies.
Whilst
Newcombe conceded that the information she had regarding Susan was
based on what Susan had shared with her, she explained
that her views
is also based on her interpretation of interactions with Susan and
the knowledge which she acquired in practice
combined with her
clinical judgment.
Defence
asked whether she performed a basic mental examination for signs of
depression on Susan. Newcombe said that she spoke to
Susan about the
signs and symptoms of depression. There are some symptoms that appear
in both anxiety and depression.  Susan
appeared to be insecure
and have low self-esteem but not depressed.
In
re-examination
Newcombe expressed her view that there was a pattern of suspicion
which resulted in Susan’s emotional up and down.
Susan
expressed herself in exaggerated terms, for example, she would say to
Jason: “
I
hate you”
.
That was not because she really hated him, but because she was angry
with him and it was a way of dramatizing her emotions.
Newcombe
considered the fact that Susan tried to find out as much detail about
the affair and travelled to Cape Town to visit places
which Jason had
been with Jolene in order to visualise what she had missed out on.
She identified it as the game of catch
up which betrayed spouses
often resort to in order to deal with their trauma, shock and
humiliation.  It would also be normal
to search for the truth
and struggling with what is true or not.  Jason had often
reassured Susan of his commitment and telling
her that he loves and
desire her which had a rollercoaster effect on her.  Susan
experienced Jason to be aloof to her emotions
and that he did not
sufficiently respond to her verbal cues.  This would result in
her pre-occupation with the affair and
expressing herself in a manner
to get her husband’s attention such as saying: “
Sometimes
I just want to die”
,
but this was not her having suicidal ideations.  In her view,
Susan would use manipulative and exaggerated speech for example
the
message from the deceased to the accused
[40]
:
“
you
have ruined my life”
,
designed for her husband to be more attuned to her plight.
Newcombe
maintained that throughout her contact with the deceased until her
final contact, she did not observe or held the view
that Susan was at
risk of taking her life.
[14.7]
Marriage Counsellor - Carol Ann Nader
Nader
has a BA Honours in Psychology and is in her 6
th
year of
private practice as a registered marriage counsellor.
Jason
and Susan briefed her to improve their communication and conflict
resolution skills and to assist them to move to a stronger

relationship going forward.
At
their second session Susan looked depressed and jumpy. She proposed
that Susan gets her own therapy and possibly see a psychiatrist
for
medication.
At
the third session, Jason complained that Susan kept on asking the
same questions about the affair. According to Nader she appeared
to
be a bit hyper aroused and manic. Nader looked for symptoms of major
depressive disorder and ran a checklist in her head. She
asked Susan
if she had ever thought of suicide. Susan replied no and that she
would never do that to her children.
Nader
said that Susan complained about feeling sad, empty and sometimes
hopeless and that she appeared to be isolating herself.
She was
gymming a lot and was not socialising with her friends. She said that
Susan displayed a lot of agitation and erratic behaviour
and that she
was pacing within the room and complained about feeling jumpy.
Susan
stated that she felt that she could have been a better wife and that
she could have done things differently. Susan told her
that she had
lost a tremendous amount of weight and that she was not sleeping
well.
Nader
said that during the course of the counselling Susan highlighted
childhood trauma, low tolerance for mental and emotional
pain,
feelings of hopelessness and pushing family and friends away. Susan
did not want anyone to know about the affair, did not
confide in
anyone and said she would cope on her own. She felt that she needed
to keep up appearances.  Susan also displayed
outbursts of rage
and low frustration tolerance in the sessions.
Nader
mentioned that Susan agreed to go to therapy on her own and that she
noted that Susan felt a little better thereafter. Susan
became more
anxious when Jason was due to travel.
At
the following session, Susan was looking a lot better and appeared to
be more calm and in control.
In
a further session Susan said that she was feeling down again as they
were fighting often. Jason complained that she is insecure
and that
she called him 47 times the day before.
Susan
told Nader that she was seeing a therapist and that she was happy
with her.  Nader was still concerned about Susan as
she was
still demonstrating a lot of symptoms of agitation. There were
reports on things that she had done outside the sessions,
so she was
not convinced that she was not possibly suicidal. At the following
session, they were both calmer.
In
the next session, Susan complained that Jason was distant and
belittled her in public. The couple fought a lot in this session
and
accused each other of various things.
In
a session on 11 July they spoke about the upcoming conference and the
fact that Jason did not want Susan to go as he was worried
about how
she would behave.  In the last session before the Spier
[41]
weekend, 20 July, Susan insisted on escorting him to Spier and she
wanted his colleagues to see them together. Jason did not want
her to
go with to the conference. Nader said that she advised against this
and tried to mediate but failed. Jason stormed out of
the room and
appeared frustrated and angry. Susan also stormed out of the room.
On
27
th
of July, Jason called and informed her that Susan had
committed suicide. He was crying and tearful.
Nader
was requested by the accused’s legal representative, Mr. Witz,
to prepare a report, which she did, dated 18 August 2016.
[42]
She was also later requested to meet with Dr Panieri-Peter which she
did.  Nader testified that Panieri-Peter took down
notes of
discussions during their meeting and told her to read through her
handwritten notes and sign the last page thereof, which
she did. She
did not understand that the notes would be used in Court. Nader said
that she deleted the words that stated that Susan
“
was”
a suicide risk and inserted “
could
be”
because at no stage did she ever say that Susan was suicidal.
[43]
She does not have a copy of the note.  The notes however do not
reflect the amendment or deletion which she claims she
had made.
Nader
said that a lot of things which she reported to Panieri-Peter were
based on her
thoughts
and
assumptions
that she made and
not based on fact.
In
response to a question by the Court as to her qualifications to
clinically diagnose mental conditions such as depression, she

indicated that she is not qualified to make diagnosis but she can do
a primary assessment,
[44]
where
after she would refer the patient for onward psychological or medical
assessment.
[14.8]
Medical practitioner - Dr Lize-Mare Steenkamp
Steenkamp
attained her medical degree in 1996. She has a diploma in occupation
health (2002) and a certificate in travel medicine
(2006).
Her
first consultation with Susan was in February 2014 which was
primarily for the administration of botox. Susan had long standing

sleeping problems for which she prescribed Stilnox tablets.
Susan
told her that she was under a lot of stress and that she had been
dealing with marital discord since February. She tried to
get more
information but Susan was reluctant to discuss the matter any further
and did not want to be referred for therapy as she
had been seeing a
psychologist already. She also complained that she had heartburn and
had difficulty eating. During this visit
she did a general
examination but could not find any clinical abnormalities. Steenkamp
said that she decided to prescribe medication
for the short term
treatment of reflux and gastritis to help her regain her appetite,
Urbanol for daytime anxiety and Stilnox for
assisting sleeping
difficulties.
Steenkamp
said on 15 July 2016 they discussed her medication use and she
mentioned that she was using the Urbanol for the daytime
anxiety
occasionally and not every day. She was sleeping better with the
Stilnox. Susan looked more relaxed than with her previous
visit.
Susan
was generally a very healthy patient with very little medical
problems. She exercised, did not smoke and had good health.
Save for
Susan’s teary visit in June 2016, she was always very poised,
reserved and well presented.  Susan consulted
Steenkamp on 15
July 2016 for botox injections.  She already looked better and
informed her that she was going away with her
husband to Spier during
the following weekend.  Susan told Steenkamp “
make me
pretty”.
Under
cross examination
it was put to the witness that it has been
scientifically established that there is a noted association between
the use of benzodiazepines
(found in both Stilnox and Urbanol) and an
increased risk of suicide. Steenkamp testified that Susan had been
using Stilnox since
13 May and that she gave her another prescription
on 24 June. Defence counsel put to the witness his view that that is
not short-term
use and that over and above the dangers associated
with an elevated risk of suicide, it was also addictive. She conceded
the side-effects
and risks of the medication but pointed out that is
why she followed up with patients.
Susan
appeared to her to be stressed and appeared anxious due to the stress
in her life and therefore she gave her a prescription
for a drug to
help her with her daytime anxiety.  In her view Susan did not
have an anxiety disorder nor was she depressed.
She was anxious
which is considered normal human behaviour and reaction to a
stressful event.
Defence
counsel asked Steenkamp that if she had known that Susan was
depressed, could not sleep or eat, was tearful, drinking more,

started smoking, stalking her husband, was up and down emotionally
and exhibited other conduct associated with suicide etc., whether

that would have made a difference to her approach. Steenkamp replied
that had she been aware of facts as stated by Counsel, she
would have
referred Susan to a psychiatrist or considered adding other
medications.
She
received a request from an attorney representing Mr. Rohde for
information, however, she referred the request to the Medical

Protection Society whom referred her to a firm of attorneys for
assistance in this regard.  Thereafter she was contacted by
the
prosecutor in the matter.
She
did not perceive Susan as being depressed or that she exhibited a
loss of interest in life.  She was just anxious and appeared
to
be making effort in dealing with the stressor in her life, more
particular in respect of her marital discord.
[14.9]
DR DEIDRÈ KAY ABRAHAMS
The
prosecutor handed up Exhibit Y, a report by Dr Deidre Kay Abrahams
(“Abrahams”) who testified as follows. She was
appointed
as the chief of the Paarl Forensic Pathology Services and she has
done around 9000 autopsies.
She
was informed of the death on the day.  Dr. Khan, who works in
her unit was called out to the scene. Khan expressed to her
his
concerns that there were indicators that do not fit with the history
of suicidal hanging. Khan requested Abrahams to be a second
pair of
eyes at the autopsy of the deceased.
Abrahams
read part of her report into the record noting that:
“
the autopsy
report was compiled by Dr Akmal Khan and dated 2 August 2016. I
concur with the finding of the autopsy report. The cause
of death
determined to be unnatural, consistent [with] asphyxia following
manual strangulation and external airway obstruction.
The features of
the ligature imprint groove are consistent with post-mortem
application of a ligature to the neck
.”
“
The external
finds of the autopsy report revealed signs of traumatic, constrictive
force with pressure to the neck consistent with
manual
strangulation.
”
Abrahams
proceeded to take the Court through photographs taken of the deceased
and pointed out the scientific medical nature of
the injuries. She
pointed out scratch marks on the right neck at jaw angle, under the
chin on the anterior of the neck and a ligature
indentation on the
neck. Further, she pointed out using the photographs, areas of
ante-mortem haemorrhages and fractures stating
that this was
indicative of forceful pressure. There was evidence of blunt trauma
to the thoracic cage: fractures to the right
third, fourth and fifth
ribs.
In
her opinion these features were not consistent with a person that
hanged herself. There was contusion of the lungs and haemorrhages

consistent with ante-mortem injures. In her view the deceased was
alive at the time she sustained the aforesaid rib fractures.
There
was blood in her stomach and small bowel. The blood had gone in her
airways and was thereafter ingested. It takes around
20 minutes for
fluids to pass the stomach into the small bowel. There was some time
before the manual strangulation during which
she was alive and
swallowing blood. There was pallor over the tip of the nose, lips and
teeth imprint in the mouth which most likely
fits with a soft object
pressing over the mouth area causing suffocation.
The
ligature imprint covered 60% of the skin of the neck, with a single
line. There was no evidence of long term vertical suspension.
The
brain showed a haemorrhage.
Abrahams
was presented with
Exhibit 1
, and described it as a block used
to support the neck for the purposes of dissection. She could not
recall which one of the 6 blocks
was used for the deceased’s
autopsy. She then examined a photograph taken during the second
autopsy showing the back of the
deceased neck with a horizontal
indentation.  She indicated that it was a post-mortem artefact.
She further testified that
this mark was not present during the first
autopsy.
Abrahams
commented on the autopsy report of Dr Perumal, noting a few aspects
such as the fact that the second autopsy occurred five
days after the
first which brings its value into question; certain aspects were not
indicated in his report: haemorrhages, bone
fractures; dental
imprints; blood in the nose; contusion of the lungs; blood in the
stomach and small bowel were not noted. The
second report would be
compromised by the first autopsy having altered the body and which
would have made his findings partial
or incomplete due to the
previous dissection. Further, there is no comment in the second
report of the scratch marks or signs of
self-defence. The report, she
said, had also failed to find the thyroid fracture.
Under
cross examination
Abrahams maintained that she considered the
report of Perumal misleading and of dubitable value, for reasons,
most notably the
content of his report excluded crucial details and
that he was hired by the accused. She testified that a urine 5 panel
drug screen
was performed and was negative.
As
to Khan’s estimation of the time of death she testified that
the time of death was as per the final report, 05h40 with
a range of
2.8 hours i.e. between 02h52 and 08h28 with a 5% permissible
deviation.
Regarding
the question of lividity she testified that the evidence did not
support hanging as blood would collect in the lower part
of the body
due to gravity and this was not seen. She testified that lividity
does not start immediately and usually takes 20 –
30 minutes.
She conceded that lividity does not show the position of the body at
the time of death, but rather the position after
death and if the
body was moved shortly after death the lividity might redistribute
more specifically when a person hanged themselves
and was removed
shortly after death, within 30 to 60 minutes, then one would not
expect to see lividity indicating hanging.
As
for the evidence regarding smothering, she testified that pallor to
the nose is indicative of a lack of blood causing the area
to appear
pale. She maintained that this was caused by a soft object being
pressed against the deceased’s face, obstructing
the airways.
Other causes, she testified, could be if a person lied face down and
she conceded that pallor may be caused by hypostasis.
However, she
maintained that in this matter they saw pallor of the peri-oral,
peri-nasal areas with dental imprints of the teeth
on the lips and
intense congestion in the para-pharyngeal area, all of which was
indicative of a soft object being placed over
the deceased’s
face.
She
testified that the main cause of death was manual strangulation and a
supportive secondary cause was smothering. Although she
noted that
the deceased’s face was less congested than one would expect in
a manual strangulation case but this could be
in circumstances where
the deceased was strangled and smothered at the same time.  The
dental imprints on the inside of the
deceased mouth were not in her
view due to CPR.  Furthermore CPR would not normally result in
teeth indentations.
The
defence put it to the witness that the deceased’s injuries were
sustained variously through physical altercations with
the accused,
falling on a garden wall, as a result of her hanging herself and
during CPR.
Abrahams
testified that as regards the physical altercations aspect, she did
not hear the direct admissions by the accused. She
disputed the
garden wall history, testifying that this does not make sense as
there where two injuries to the chest wall (one anterior
and one
anterolateral) which would only make sense if she fell twice or was
hit twice. CPR, she testified, can cause injury, but
in this case the
rib fractures occurred prior to the CPR as the deceased had bled as a
result of the rib fractures and swallowed
and ingested blood whilst
still alive. Furthermore, she testified that the rib fractures were
on the right side, whereas CPR was
performed on the left side. She
conceded that if CPR were to restore circulation, haemorrhages may
form around CPR related injuries,
but disputed that this was the case
herein as the deceased was already cold and had no circulation. As
for the hanging injuries,
she testified that there might be other
injuries caused during the hanging but in the majority of cases there
are few other signs
of injury. Hyoid fractures, she testified, may
occur in hanging cases. As for convulsions, she testified that
normally this would
cause ligature abrasions on the neck, but this
was not evident on the deceased’s ligature mark. Further, she
testified that
thyroid cartilage injuries can occur but not
necessarily so with both manual strangulation and hangings. She
testified that the
left superior horn of the thyroid of the deceased
was fractured and in order to come to a conclusion on the cause of
the death
one looks at all of the injuries in context including the
force vectors acting on the thyroid horn and the various haemorrhages

found in the neck area and other injuries sustained. She denied that
the thyroid horn had been mistakenly cut during the autopsy.
This
injury she testified was not a post-mortem artefact. The
haemorrhages, she testified, were ante-mortem in origin.
The
defence handed up a bundle of photographs taken by Perumal marked as
Exhibit
BB.  Attention was drawn to 2 lines on the back
of the deceased’s neck.  Abrahams testified that this mark
was not
present during the first autopsy and denied that she had
missed this mark during the first autopsy. She testified that they
examined
the neck in
situ
and then eviscerated it, removing
parts for examination on the dissection table, all without causing
injury.  These horizontal
marks were caused after the autopsy
was performed and therefore not ligature marks.
As
for specimens for the purpose of histology, she testified that they
did not harvest any as they did not consider it necessary
in the
circumstances.  It would be superfluous to do so in that they
had determined the cause of death as being consistent
with manual
strangulation, evidence of suffocation and of a post-mortem placement
of a ligature against the neck.
She
testified that this was not a difficult case, there was clear
evidence of the cause of death and they were not equivocal in
respect
thereof. They had performed external and internal examinations which
produced evidence of manual strangulation and thus
it was not
necessary or mandatory to take tissue samples for microscopic
examination (histology). Further, she testified that it
is within the
doctor’s discretion whether to take tissue for further
examination.
The
inter-thoracic organs were first removed, then the brain and only
then did Khan perform the neck dissection. She testified that
they
followed all procedures in order to perform the neck dissection
without causing any artefactual injury.
With
regards to the ligature mark, she testified that you cannot always
determine from the colour of the mark whether it was an
ante or
post-mortem injury.  However, there were many factors that went
into the type of mark that was left. In this case,
she testified that
the ligature mark was indicative of a post-mortem application of a
ligature as it was pale, translucent, blanched
and showed no sign of
vital reaction. She noted that there was a redder line above and
below the blanched area on the neck, which
she referred to as
“hyperaemic” and caused by the displacement of blood
above and below the ligature imprint.
This means there was no
blood circulation.  The person was dead at the time of imprint.
Further, she testified that there
was no friction abrasion and no
drying or dark brown discolouration which one would normally see and
there were no haemorrhages
under the ligature mark.
The
defence posited that the scratches or abrasions at the angle of the
neck was resuscitation associated, which the witness disputed
stating
that one does not resuscitated by applying pressure to the neck but
rather by opening the airways.
The
defence took the witness through various photographs of the
deceased’s autopsy. She conceded that they did not strip the

tissue between the ribs. As for photograph 167, she testified that
sub-pleural petechial haemorrhages were present, as often seen
in
asphyxia deaths. She disputed that this contusion of the lungs was
resuscitation related. As for photograph 193, she denied
that the
haemorrhage on the skull was a post-mortem artefact. In photograph
197, showing the brain, there was a subarachnoid haemorrhage.

Photograph 210, showing the hyoid bone, she indicated that that there
was no fracture but a haemorrhage. On photograph 220, showing
the
thyroid cartilage, she testified that this was fractured with a
haemorrhage around it, denying that this was a cut caused by
a
scalpel.
She
referred to the pillow cover
[45]
and indicated that it shows an imprint of two areas of makeup
(mascara) and bloodstains which was highly likely used to place onto

the face of the deceased in the course of smothering or suffocating
her. The blood stains on the left (B13-1a) and the two mascara
marks
are consistent with the abrasion above the left eye of the deceased,
mascara worn by the deceased and on the right is a smaller
blood
stain (B13-1c) consistent with the blood stain noted over the right
upper eyelid.
[46]
Defence
counsel put to her that she had prematurely concluded that the
deceased was murdered without being in possession of all
the facts,
refused to acknowledge other medical views and opinions; was biased
and unprofessional and that her testimony was medically

unjustifiable. To this the witness stood by her testimony and
disputed the allegations vehemently and that the allegations made
by
counsel countering her expert opinion, were without substance.
She testified that they had followed correct procedures
and did a
full examination before coming to their findings. When other views
and literature were put to her by counsel, she considered
them in the
context of this matter, distinguished same from her findings in this
case and therefore it could not be said that she
had dismissed
opposing views without justification.
She
emphasised in her testimony that she was a scientist, based her
findings on the science to which she is an expert and that it
was for
the Court to determine the issue on all of the facts of the case.
[14.10]
MR K MABETA
This
witness testified with an aid of an interpreter.  He was on duty
as a security guard at Spier Hotel on 23 July 2016 until
the
following day.  His shift started at 18h00.
He
was patrolling the area when he saw a couple, a man wearing a black
trouser pushing the woman wearing a white gown and who was
bare
footed.  He observed them as having a disagreement.  When
the man pushed the woman, she moved backwards but both
continued to
walk.  He concluded them to be having an argument given their
facial expressions and that the man was pushing
the woman.
Cross
examination
revealed that had he seen the male hitting the female
with a fist or kicking her would have intervened by calling for
back-up.
[14.11]
MARIUS JOUBERT
Exhibits
marked GG1, GG2 and GG3 were handed up, which was a statement by the
witness, the DNA results collected at the scene as
well as a sketch
of the scene.
Joubert
has 26 years. experience at SAPS with 24 years. experience as a crime
scene investigator. He is a forensic crime scene expert
and
bloodstain pattern analyst.
He
confirmed that he attended a crime scene at room 221 at Spier Hotel
and received information from Constable Mbongo and Detective
Sergeant
Appollis at the scene.  They were of the view that the
bloodstains at the scene were contemporaneous to the events

surrounding the incident.  He explained that contemporaneous in
this context indicate that the blood stains happened approximately
at
the same time.
In
his DNA report he identified two persons, namely Susan Rhode and
Jason Rhode.
Joubert
explained that B4 depicted in photo 3
[47]
on his schedule is blood of the deceased deposited on the bathroom
floor to the left of the deceased body.  He identified
the stain
as a contact transfer.  He explained that a contact transfer is
made when a bloody object comes into contact with
a surface and in
the process blood was transferred onto that specific area. He further
explained that in that specific stain they
did not have a
recognisable pattern so he cannot conclude what created that specific
stain. It could be that the accused handled
an object and then blood
was transferred to that object which thereafter came into contact
with the floor.
The
blood of the accused was also identified on items in the bedroom, on
the duvet cover as B10-7, B10-8, B10-11 and B10-12.
Blood
stains on the pillowcase were that of the accused, marked at B11-2.
The
bloodstain marked as B8
[48]
observed in the passageway between the bedroom and the bathroom which
belonged to the deceased.
His
interpretation is that at some point before, during or after the
incident, the accused’s blood came into contact with
surfaces
within the crime scene however he cannot determine the age of the
specific bloodstains.
The
blood stains of the deceased on the duvet cover indicates that the
deceased was lying on the right hand side of the bed because
all of
the blood from the duvet cover was situated on the right hand side to
more or less in the middle of the duvet cover.
The blood stains
belonging to the deceased towards the lower half of the duvet cover
is consistent with bleeding from injuries
to her toes.
The
injuries sustained to the deceased’s left eyebrow could be seen
on the other pillowcase marked as B13.  That pillowcase
was the
one on the left side of the bed.
[49]
The pillowcase marked B11 with two smudges of mascara and bloodstains
on either side thereof (consistent with the abrasion
on the left and
the blood stain noted on the right of eye) is depicted in photo 2
(Exhibit “D”) (on the floor).
Photo
1 depicting the blood stain on the bedsheet marked as B12 was that of
the deceased, suggesting that she was in bed when those
injuries
delivered blood to the surface. Joubert added that the narrative
presented to him is consistent with the bloodstains which
he observed
at the crime scene.
He
testified that in order for bloodstains of the accused to have been
deposited in the bedroom and bathroom the accused must have
sustained
an injury such as a small cut for blood to come onto the surface and
be transferred onto objects. The bloodstains appeared
to be of
minimal quantity of blood.
During
cross examination
counsel put to the witness that from his
understanding the quantity of blood could come from a cut on a finger
or nick from shaving
which one did not notice, possibly was not aware
of or would not remember 2 days later.  Defence further put to
the witness
that as the accused and deceased had used the room for a
couple of days, it could be possible that the blood had been produced
at any stage during their stay in the hotel.  Joubert confirmed
this to be correct.
Defence
counsel also put to the witness that if he were to be told that the
accused had no recollection of a nick or cut which he
had at the time
whether that could have caused the bloodstain and whether that would
surprise him, Joubert confirmed that it could
be that he sustained an
injury and did not notice it.
As
regards the blood of the accused collected from the bathroom floor
(B4) next to deceased’s body, counsel asked the witness
how a
secondary deposit could take place.  The witness explained that
the accused could have handled an object and then in
that process
blood was transferred on that specific object.
To
a question by counsel whether it would be a fair comment to say that
the blood evidence which he found is not of such a nature
that it
does not prove any force, trauma or violence, Joubert confirmed that
to be correct.  He also confirmed that the blood
stain analysis
is consistent with the accused and deceased having had an
altercation. However, he added that the deceased blood
stains on the
bed are not consistent with the pattern produced from a bleeding nose
as the latter would result in a blood drip
trail.  As to whether
the blood stains of the accused could have been from normal day to
day living, he confirmed that that
would be possible.  He cannot
say however when the bloodstains were deposited.
[14.12]
LIEUTENANT COLONEL SHARLENE OTTO
Otto
works for the SAPS in the Forensic Sciences Laboratory in
Plattekloof, Cape Town. She has experience testifying on DNA
analysis.
She attested to four affidavits which were handed up as
Exhibit HH1; 2; 3; and 4
.
Otto
testified that they work through the exhibits and start DNA analysis
on the ones which might have the most evidential value.
Each
bloodstain must have a DNA profile for Captain Joubert to work on.
Otto
testified that her role is to submit the stains into the DNA process.
Once a DNA profile is obtained, she would write an affidavit

explaining that the profile belongs to a certain reference sample.
She identifies the donor of DNA.
Otto
testified that HH4 was produced later as she was requested by the
investigating team in Stellenbosch to analyse some stains
which they
had missed, stains on tissue paper from the bathroom, a gown belt and
sheets.
She
confirmed that scrapings were taken from under the fingernails of the
deceased. Analysis thereof indicated only the DNA of the
deceased and
none belonging to the accused.
The
Court enquired into the process involving secondary transfer.
She testified that blood normally dries very quickly, perhaps
in less
than 30 minutes and the less blood the quicker it dries. Otto
testified that secondary transfer can be excluded after half
an hour.
In
re-examination
counsel asked as how to the various conditions at
the time: season, temperature, air-conditioning would affect the
drying of accused
blood.  Otto testified that it would still
take maximum half an hour for blood to dry, having taken all those
conditions into
account. Further questions regarding this aspect were
objected to by the defence.
[14.13]
MR DESMOND DANIELS (“DESMOND”):
Daniels
testified in Afrikaans, with the aid of an interpreter.  He was
on duty on 24 July 2016 at the Spier Hotel. He had
been working at
Spier for 15 years doing maintenance. On that morning he had certain
tasks to perform as directed by the control
room, managed on that day
by Niklaas.  He reported for duty at around half past seven in
the maintenance room. He responded
to a call for him to attend at
Room 221 at around 08h15, reporting that the bathroom door cannot
open.
He
testified that he went to the room and knocked on the door to the
room which was closed. A man opened the door, which Daniels
pointed
out as the accused before Court. Daniels asked him what the problem
was and the accused responded that the toilet door
cannot open. He
turned the handle of the door but the door could not open.  He
testified that if the door cannot open and
it is locked from the
inside, it can be opened from the outside with a screwdriver.
He
confirmed that the screwdriver in Court is the one he used to open
the door.  It has two sides: a star side and a flat side.

He proceeded to demonstrate on Exhibit 2
[50]
how he opened the door that morning.  He placed the flat side of
the screwdriver into the door mechanism. He testified further
that
whilst he did this, that the accused stood across from him. He
explained that the door can also be unlocked using a coin or
a
teaspoon.
Daniels
testified that when he opened the door he saw a person’s legs
under the basin to the right. He demonstrated with the
aid of a ruler
of 15cm and indicated that the door opened to approximately the
length of the ruler.  He saw the legs of the
deceased from about
the knee to the feet. At this point the accused called out “Suzy”
and went pass him and into the
bathroom. He waited outside the
bathroom where he faced the wall.  He did not look at the
deceased’s legs as he had
been trained not to interfere with
the guests. After the accused went in there was silence for about 2
to 3 seconds, then the accused
called to him and asked him to come
and help. When he entered the bathroom the accused asked him to
assist with the removal of
the cord from the neck of the deceased. He
saw that the deceased was naked. The accused was holding her under
the arms.  The
testimony was re-enacted before the Court in
accordance with the witness’ testimony and directions.
Daniels
testified that when the accused held her up against him, her head was
laying skew, tilted a bit to the left side. She was
facing the
witness.  He testified that she was not breathing and there was
a cable around her neck. The screwdriver and the
cable was handed up
as Exhibits 3 and 4.
He
also illustrated how the cable was hanging behind the door and around
the deceased’s neck. The cord was tied with the curling
tong
part posing upwards above the top line of the door.  The accused
and the deceased were 1 or 2 metres behind the door.
The accused
asked him to remove the cord which he did. The cord was not tight
around her neck as he could loosen it easily. Daniels
testified that
he remembers the cord to having a few knots in it. After removing the
cable, Daniels moved out of the bathroom whilst
the accused was still
in the bathroom with the deceased in his arms. The door was 30
centimetres ajar at that stage. He then made
a phone call to the
control room so that the ambulance, police and security can be
called. He did not enter the room again that
morning.
A
white bath robe was before the Court which he confirmed to be the
Spier hotel robes.  Daniels could not recall if he saw
a robe in
room 221 on that particular morning. The deceased was not wearing a
robe or any clothing. He testified that there were
no sockets in the
bathroom, only in the room.
The
witness recorded a call out in his pocket book at 08h45 on 24 July
relating to Room 221 and the toilet door. A copy of the relevant
page
of the pocket book was handed in as Exhibit JJ
.
Daniels
testified that he was trained in first aid a few years ago.
In
response to a question by the Court the witness confirmed that the
door can be unlocked or locked from the outside using a screwdriver,

teaspoon or coin.
Under
cross examination
Daniels indicated that he was 62 years old.
His highest level of education is Standard 8. On the day in question,
he received
a call from control and not from the switchboard. He was
in the maintenance room at the time which is about 5-6 minutes’
walk to room 221. Daniels testified that he spoke to a man, named
Niklaas, at control who told him that the door cannot open. The

defence disputed this putting to him that Mavis, a woman, had called
and told him the door was locked from the inside.  The
defence
handed up an affidavit from Ms. Mavis Dingalibale as Exhibit QQ.
He
testified that he had never before been called to open a bathroom.
In training he had been told how the door could be opened.
The
accused did not tell him that there was someone inside nor was he
under the impression that there was someone in the bathroom.
He
opened the door and testified that the body was not against the
door.  The door opened with ease as there was no resistance
to
pushing the door open. He stopped opening the door when he saw the
legs of the person flat on the floor.  After he was
called to
help by the accused, he entered the bathroom. He testified that he
removed the cord easily from the deceased’s
neck whilst the
accused was holding the deceased. The defence pressed Daniels that
the assertion that it was easy to remove was
not mentioned in any of
his statements or affidavits, to which he had no explanation.
Further, he testified that he was shocked
as the deceased was
completely naked, had no clothes on and that he could see her full
frontal. The defence disputed that the deceased
was naked, without
concession from Daniels.
Daniels
testified that the cord was wrapped several times around the hook.
Counsel for the defence kept pressing the witness as
to the fact that
he had previously demonstrated less than four loops and on this
occasion he wound the cord 10 times around, to
which he had no
comment. He testified that the deceased was facing him however he did
notice injuries to her face. The defence
disputed this, stating that
she was facing towards the accused. Daniels stood by his testimony.
He further elaborated in
answers that when he took the cable off, she
was facing him and she was not breathing.  He called control
from the bedroom
and informed them that something had happened in the
bathroom. He told control to inform security in order to make a
report and
thereafter to get the police and an ambulance.  He
testified that he specified that the lady was naked and not
breathing.
He
was at room 221 for about 20 minutes. He left the room at around
08h40 and stood outside. He testified that he did not speak
to
anyone. He disputed speaking to Mr William Lee (“Lee”)
and testified that he did not say “
I can’t believe it.
She hung herself
”. The defence handed up an affidavit by
Lee as Exhibit RR
.
Daniels
said he did not see the accused giving the deceased CPR. This was
queried as his statement to the police stated that he
did see this,
which he conceded. Fifteen minutes later ‘somebody’
arrived and then the duty manager arrived.
The defence disputed
Daniels’ recall of how long this series of events took, to
which the witness had no comment.
Daniels
testified that he made three statements to the police: the first on
the day in question; the second a few days later, and
the third about
a week later. (An affirmed statement and two affidavits) These
documents were handed up as Exhibits LL1; 2; and
3. In the affidavit
he said he saw the accused give the deceased mouth-to-mouth
resuscitation while he was leaving the room. He
stated that this came
to him, that the statement was correct. Daniels testified that the
second affidavit was to clarify the first.
The defence disputed
Daniels evidence on the third affidavit attested to allegedly “a
week later”, saying that no affidavit
was attested to a week
later. To this Daniels had no comment.
The
defence had Daniels repeat the demonstration. He had no comment for
any differences between the two demonstrations as pointed
out by the
defence, who handed up photographs of the first demonstration during
examination in chief as Exhibit OO and during cross-examination
as
Exhibit PP.
On
examining the door, Daniels confirms that there is a crack on the
narrow edge of the door, from the locking mechanism upwards
and
downwards, which he had not previously seen. Daniels testified that
the lock mechanism does not use a key. It is locked on
one side using
a t-shaped handle and on the other side is a circle with a groove in
it. He testified that the supervisor at Spier
taught him how to open
the bathroom door using a screwdriver, teaspoon or a coin.
Daniels
testified that he had a pocketbook to log problems for 2 years, since
around March 2016. He was unable to point to an entry
earlier than 24
July 2016, the day in question. He wrote the entry on the second last
page, as he was in a rush and just wrote
it where the book opened.
This was the only entry recording a time. He was in a rush as he was
told that this was urgent by the
controller. He pointed to entries
recorded for September and August 2016. The defence put it to him
that he could not have received
the call at 08h15 as the accused had
called reception at 08h22, but the witness stood by his version.
The
defence questioned Daniels about where he had lunch during the
adjournment and with whom. He stated he did not meet anyone and
spoke
to no one. The defence refuted this, showing Daniels a picture taken
of him with Mr Schoof from Spier. Daniels explained
that there was no
one from any law firms with him.
Under
re-examination
, Daniels testified that there were extra pages to
the notebook that were ‘sellotaped’ but no longer in the
book and
he did not know if they still existed.
[14.14]
COLONEL DANIEL GEORGE POOLEMAN
Pooleman
has a B.Eng. in metallurgy degree from the University of Pretoria
(1995) and is currently the head of the engineering subsection
of the
Forensics Science Lab.
Pooleman
said that he was asked by Sergeant Appollis to investigate whether
the electrical cord had stretched in any way and if
there are any
breaks which can indicate that the deceased hanged from the cord. He
said that when he looked at the photos and looked
at the tool, he
questioned how this person had hanged herself with the cable hanging
in the orientation that it was.
He
said that he had to do a tensile test on this cord to determine
whether it stretched and whether there was anything wrong on
it or at
what point it would fail. He explained that he could not make sense
of the information provided to him hence he did an
inspection on
site.
He
said that there is a groove in the lock mechanism which is clearly
visible. He mentioned that he used a teaspoon as there was
a coffee
bar in the room and he was able to open the door with the teaspoon as
well as a R2 coin. He also tried to open the door
with his fingers
only which was not possible.
Pooleman
said that he examined the cable and could not see any physical
failures to the external structure of the cable. There was
no section
that had been overly stretched or looked like it was broken or
deformed. He took x-rays of the hair tool and over the
length of the
cable and he said that he did not see any failure on the internal
structure either.
He
explained that a tensile test is to determine the force on a certain
component when pulled. One side will be tied and he will
pull with
the tensile test apparatus on the other side to see how strong the
cable is before it starts breaking. He said that the
instrument is
calibrated to do that and it measures the force needed on this
material. The double strand tensile test held at 510
Newton for 10
minutes then released.  He testified that the body of the
deceased weighed 52 kilograms and that amounts to
about 510 Newton.
The third test was a double-strand tensile test which he tied around
the bottom part and pulled it also until
failure until he heard it
starting to break.
He
mentioned that in a single strand configuration with her hanging, her
weight being 510 Newton this cable failed at 392 Newton,
which means
the cable would have broken. In the double strand tensile test a
tensile force was kept at 510 Newton for 10 minutes
and no failure
was detected. The instrument was able to keep it at 510 Newton and
the cable did not fail during this test. With
the third test, the
cable started failing at 762 Newton which is about 77 kilograms. This
means that on a double strand configuration,
the cable could
withstand the force of the deceased hanging completely as it only
started failing at 762 newton which is similar
to 77kgs.  The
points in the cable where the cord failed are observed by the
breakage of the copper inside.  Once the
copper strength of the
material is gone, he illustrated that the cord could easily break.
Pooleman
said the way in which the cable was observed by police on arriving at
the scene, is irreconcilable with the position Daniels
demonstrated
the body to have been in when he opened the door.
Pooleman
presented the Court with a demonstration during his testimony as to
how tensile force works as he was of the view that
working from the
Khan’s post-mortem report, the position of the ligature mark
would mean that the force had to come from
the back.  EXHIBITS
UU and VV were handed up in court
.
Under
cross examination
Pooleman confirmed that there is an initial
elastic stage in the cord where it might stretch a bit. When you
reduce or remove the
force it will revert to its original shape and
form. If you exceed that then the cord will not revert to its
original shape.
Defence
Counsel asked him whether he is able to say what the cause of the
crack on the door could be and whether he can exclude
the possibility
that the crack is associated with the application of a heavy weight
on the left hand back hook. He replied that
he saw the crack when he
visited the scene and that it looked as if force was applied from the
outside as it runs through the locking
mechanism of the door. So it
looks like someone tried to open the door with force from the
outside. He feels that it is highly
unlikely that a weight hanging
there would cause that crack down the door. He indicated that force
to the door will cause it to
crack at its weakest spot which is at
the door hinge where the lock goes in.
14.15
MR MARK MACLEAN HOLMES
Mr
Holmes testified that he is the deceased’s brother and that he
lives in Melbourne, Australia. He received news of his sister’s

death and understood the cause to be suicide. He had known Jason for
around 27 years. He sent a text message to him on the Sunday
night
expressing his shock and sadness. He spoke to Jason briefly on
Tuesday 26 July 2016 and then again on 27 July 2016. During
the last
call, he testified that Jason was very emotional and it was difficult
to understand all his words but he said “
I killed her, I
killed her, I killed her.”
Holmes tried to comfort Jason
saying that it was not his fault and that the family loved him. He
took a flight to South Africa
and met with Jason on the Friday,
together with the family. The meeting was initiated by Jason and held
at his house. Jason explained
that he was under investigation, that
he was having an affair with Jolene and that he had had an
altercation with Susan at Spier
but that he had not laid a hand on
her.
Holmes
testified as to how the deceased had reacted to their father’s
infidelity.  He testified that she was resolute
and pleased that
their parents were able to reconcile their marriage. She was very
proactive in getting them marriage counselling.
From his
discussion with her, he did not understand her to be scarred by this
event. He further testified that he did not believe
the deceased
would have linked their father’s infidelity which occurred some
16 years prior with Jason’s infidelity.
He
testified that his sister had a temper. She was volatile and
passionate about issues. She would not give up.
Under
cross-examination
Holmes testified that he had not seen his
sister during 2016 and she had not told him about the accused’s
affair. He further
testified that when the accused called him and
said that he had killed her, Holmes took this to mean that he had
killed her
emotionally
, that having this affair had led to her
death and that the accused had not actually murdered her.
[14.16]
CAPTAIN MAY FRANS SEPTEMBER AND CONSTABLE DONRITO ALPHONSO
FERNANDES
September
and Fernandes are members of the South African Police Services.
Fernandez was doing patrols when on the day in question
when he was
asked by September to assist him with an incident at Spier regarding
an alleged suicide.  Fernandes took a statement
from Daniels on
a car bonnet in the parking area of the estate.  He thereafter
took it to the police station.
September
confirmed that he was in control of the scene.  He explained the
process which he followed to obtain a case number
as in his
experience the body will not be removed without such a number.
Under
cross examination
September confirmed that initially the matter
was considered as an inquest under number 83/07/2016.  He
explained that if
there are too many dockets during the day, then the
nightshift would capture case numbers on the system but the case
number book
could also have been used to allocate case numbers.
[14.17]
SERGEANT STEVEN ADAMS
Adams
is a SAPS Detective for 15 yrs. He has been allocated with Sergeant
Appollis in an investigative capacity.
Adams
said that his colleague, Sergeant Appollis took a further statement
from Daniels and that he was in consultation with Daniels
on two
occasions in Stellenbosch. He testified that he had not coached
Daniels as to what to say in follow up statements and that
no
coaching was done by Appollis to his knowledge. He explained that he
however prepared the witness for Court which entailed going
through
the statements with Daniels again and explained how the Court
procedures work as he (Daniels) had never been in Court before.
Under
cross examination
the witness confirmed he had conducted an
interview with the domestic employee of the accused, named Lucy.
He further testified
that he had enquired whether she had ever
observed or suspected domestic violence or any physical violence
which the accused might
have demonstrated at home against the
deceased. He indicated that she informed him that there was no such
incidence to her knowledge.
Defence asked why he did not take a
statement from her. Adams replied that the domestic worker, Lucy is
Zulu speaking and he found
it very difficult to communicate with her.
He told her that he would come back to her with an interpreter to
take a formal statement
from her. Adv. Mihalik who acted for the
accused at the time phoned him and instructed him to cease further
communication with
the domestic. When Adams thereafter contacted her,
she no longer wished to speak with them.  The witness confirmed
that they
did not do a statement to that effect.  He denied that
the reason for not taking a formal statement was because it was
favourable
to the accused.
[14.18]
MR JOEP SCHOOF (“SCHOOF”):
Schoof
is the General Manager at Spier Hotel since 2013.  He testified
how the hotel management handled the incident on the
day in question.
The hotel manager and HR director provided counselling to the team
members.  The hotel management resolved
to provide assistance to
any of their staff members who had been involved in the incident.
The facilities manager dealt with
security and made arrangements to
get the other guests out of that area of the hotel so that the police
could attend to the scene.
Schoof
confirmed that he attended Court when Daniels was required to be in
attendance as a witness.  His role was to provide
Daniels with
moral support as hotel management had undertaken to do for any of
their members. He further testified that he had
not discussed
Daniels’s testimony with the prosecution authority or the
police. During Court adjournments he would check
how Daniels was and
offered him something to eat and drink. He further testified that he
assured Daniels that if it made him more
comfortable, that he could
look to the witness whilst he was testifying.
Their
conversations were not relating to the matter or his testimony.
He denied that he had coached Daniels as to the contents
of his
testimony.
Schoof
explained what the trained protocol is for the staff members when
called upon by a guest for assistance.  In the event
a guest
reported that a door could not open, staff members would be required
to ensure that the door be opened.  In the event
of a door being
locked, they would simply unlock it.
[14.19]
MS FARRAH AMEERMIA_(“AMEERMIA”)
Ameermia
is an estate agent at Sotheby’s and was in attendance at the
conference at Spier Hotel.  She was having drinks
in a room on
that Sunday morning with Brendan Miller and Jolene Alterskye. The
hotel room is located on the ground floor.
She was sitting on a
couch with her back to the door, chatting to Jolene and Miller when
Jason walked in.  He went to sit
on the edge of the bed. He did
not say anything and the three of them just looked at him as he sat
there with his arms folded.
Shortly after that the door opened again
and she saw that it was Susan.  She stood by the door and called
his name. She appeared
agitated and her voice was very stern.
Susan
called him several times but Jason remained unresponsive.  Susan
then proceeded to walk towards him and placed her hand
on his arm
which the witness understood as a gesture for him to leave with her.
Susan wore a white robe. Thereafter the two
of them left the room. It
sounded like they were arguing outside which went on for about 10 to
20 minutes. Jolene looked shocked
when Jason entered the room and
came across more expressive than usual.
During
cross examination
the witness testified that she did not know
that Jason and Jolene had been having an affair.
[14.20]
SERGEANT MARLON JUAN APPOLLIS
Appollis
is one of the investigating officers in this matter and has
assistance from Sergeant Adams.  He testified that on
the Sunday
afternoon he was contacted by one of his commanders, Colonel Jones to
attend to the scene. He met Captain Joubert; Captain
Bester; W/O
Nicholas and Constable Adams as well as the Forensic Pathologist
Officers. It was his task to oversee the investigation
conducted at
the scene. He investigated outside the hotel room for broken windows
or doors and did not find anything out of the
ordinary, nor were
fingerprints lifted from the outside window sill.
After
the room had been process, he proceeded with his investigation.
He found a burnt note as well a letter in the laptop
bag which
indicated that the accused was involved in an extra marital affair.
He found a laptop; watch with a broken strap; bank
cards; USB modems
which he sealed and removed from the scene. He looked for suicide
notes, a diary or anything written down but
he could not find
anything.
After
the autopsy on the Tuesday, 26
th
, Dr. Khan informed him
that the cause of death was determined to be a murder and not
suicide.  A murder docket was opened.
He thereafter arranged to
interview Daniels and Thompson.  He met with them on the
following day.
Under
cross examination
, Appollis explained his reasons for arresting
the accused at his home on the 23
August 2016.  They
attended to investigations in Johannesburg and obtained information
that the accused was planning on leaving
the country. He said that he
felt that he needed to take action as a murder had been committed.
Appollis
testified as to the process they followed when they applied for
search warrants to conduct further investigation on the
contents of
computers, laptops and cell phones in the matter. He indicated that
where the investigation does not reveal anything
relevant it would
not be required to place a negative finding in a statement.
Appollis
testified that on the day of the incident no other items other than
those which had been booked in at the police station
had been removed
from the scene.  He denied that a handbag containing a diary and
a vanity case had been seized by the police.
Items which were in the
room, under the control of Spier security, were returned to the
attorney acting for the accused at the
time, Mr. Hassan.
He said that Mr Hassan
came to their offices 2 or 3 times and asked for the personal
belongings of the deceased which they had handed
over to him.
Mr. Hassan was killed in November 2016.
STATE’S
CASE CLOSED
DEFENCE
WITNESSES:
[15.1]
JASON THOMAS ROHDE
:
The
accused is 49 years old, born in the United Kingdom and moved with
his family to South Africa at the age of 3.  He met
the deceased
in 1989 and they got married in 1993.  They moved to Australia
and he has dual South African/Australian citizenship.
They
lived there for 4 years.  He missed home and wanted to return to
South Africa, Susan was reluctant to return, but eventually
acceded
to his wishes.  Susan successfully underwent fertility treatment
and gave birth to their eldest daughter and thereafter
twin
daughters. He testified that his wife was a perfectionist who was
committed to her goals.  She would deal with confrontation
head
on, whilst he would shy away from it.  He testified that their
relationship had ups and downs.  Whilst their verbal

altercations were awful, it never escalated to physical violence.
They had been to marriage counselling in the earlier years of
their
marriage and would consider their marriage to have been good.
His
relationship with Jolene started around mid-2015.  The deceased
found out about this affair on 28 February 2016 when she
discovered a
Valentine’s card in his travel bag on return from Cape Town.
He was not aware that Jolene had left the
card in his bag.
Shocked and scared by his wife’s confrontation, he admitted to
the affair although he initially tried
to deny it.  He described
that Susan went “
berserk”
and that she could not
believe that he had cheated on her. Susan instructed him to call
Jolene, place the call on speaker and that
he had to terminate the
relationship, which he did.  Susan held on to his phone in the
days thereafter and intercepted a message
which Jolene sent him.
Jolene indicated in the message that she had written him a letter
which she wanted him to see. Pretending
to be Jason, Susan gave
Jolene an email address and intercepted this email.  He
described that Susan was devastated, she was
consumed by the affair
and wanted minute details thereof.  A few days after the
discovery of the affair Susan phoned him and
said that she was on a
flight to Cape Town to confront Jolene at her office.  After
landing in Cape Town, Susan demanded details
of places which he had
been with Jolene.  He indicated that he was concerned about the
embarrassment this would cause and
obliged Susan with the information
she wanted.  She went about Cape Town and visited the areas
which he told her he had been
with Jolene.  Susan returned home
the following day, she did not though follow through with her threat
to confront Jolene.
The
relationship between him and Susan became fraught as she vacillated
between anger and anxiety, which was exacerbated by him
emotionally
withdrawing from her.  Susan would wake him up every 2 hours
crying and sobbing wanting to talk about the affair.
Although
they attended sessions with a marriage counsellor, he continued with
the affair.  They also had individual counselling
with separate
therapists.  He explained that he led a double life, including
lying to the counsellor and his therapist.
He was very good at
covering his tracks.  He felt like a fraud as he did not want to
destroy his family life but also did
not want to leave Jolene.
Susan did not eat much, exercised a lot and lost weight.  He did
not realise that she was
in fact in need of psychiatric help.
Upon his request, his therapist (Ms. Long) had a session with his
therapist, but there
was nothing noticeable in Susan’s
behaviour after that.
He
testified that Susan insisted on attending the Spier conference and
that this was also discussed with the marriage counsellor.

Susan wanted to make sure that he is not seeing Jolene any longer and
to show that they were together. He did not want this for
selfish
reasons and he was concerned that Susan would confront Jolene.
They
arrived in Cape Town on the Thursday, the 21
st
of July and
spent the night at the home of Susan’s sister, Angela Norton.
They arrived at Spier at about noon on the
Friday.  As the CEO
of the company he was to co-host the event.  The situation
between him and Susan was very tense and
he was afraid of a
confrontation between Susan and Jolene.    During
formal events on the Friday he specifically
avoided contact with
Jolene however had cell phone contact with her and briefly met in a
quiet area of the estate.
They
attended an award ceremony on the Saturday evening which ended at
around 22h30, followed by an informal cocktail party.
After the
bar closed, he returned with Susan to their room when two Sotheby’s
employees passed them and asked if he would
join them at the after
party in one of the rooms.  Susan insisted that they return to
the room and would not let him go.
They were back in the room
between 2 and 3 am. Susan was not drunk, but having had some drinks
upped the tempo in their bickering.
Whilst she was undressing,
he went to the bathroom and started to type a message to Jolene when
he was confronted by Susan. She
was enraged by this, swore and
shouted at him that he was deceitful.  He retaliated verbally
and wanted to get out of the
room.  At that time the deceased
was wearing the white hotel gown which she had been found in later.
When
he got to the door she attempted to physically prevent him from
leaving, pushing his hand away from the door and pushing him
back in
to the room.  He wanted to go to Jolene and he presumed that
Susan knew that.  He grabbed her wrists and pushed
her hands
down.  He tried to physically move her aside.  She kept on
moving back to the door.  This continued for
some minutes.
He grabbed her at her wrists and there were a flurry of actions.
Then he grabbed her at the front of
her gown to move her out of the
way.  He shoved her by her neck to get her out of the way, but
did not squeeze her neck or
throttle her. In this way he managed to
get the door open and get out of the room.  She attempted to
pull him back into the
room. He swung his arm backwards to dislodge
her and struck her on the side of the face with his forearm.  In
the course of
the struggle he also caught her on the top of the nose
with his elbow.  She followed him out the door and kept pulling
on
his jersey.  She was wearing the white towelling gown with no
shoes.  A short distance from their room, he went up the
stairs
leading up to a room from where he could hear the sound of music.
He saw some of Sotheby’s staff members.
The deceased had
followed him up the stairs.  He asked where Brendan Miller was
and was informed of his room number.
[51]
On his way to Miller’s room they passed by the security guard
who had earlier testified.
[52]
When he got there he found another staff member, Farrah Ameermia, as
well as Miller and Jolene.  He sat down on the
bed opposite
Jolene, whilst Susan stood in the doorway, telling him to get out of
the room.  Afraid of an altercation between
Susan and Jolene, he
got up and left.  He described that it was awkward and tense.
He was embarrassed by this.
Their arguing continued.  When
she grabbed on his back, his elbow hit the top of her nose but she
was not bleeding.
Susan grabbed on his shoulders with both
hands, and as he tried to loosen himself from her she partially fell
between a small ledge
and a flower bed.
He
walked back to their room, with Susan following close behind him.
When she got into the bedroom she was screaming: “
my fucking
toe is bleeding”.
Her toe had been cut, and he noticed a
graze mark on her left eyebrow, which was not bleeding. There was no
blood from her nose.
She did not walk any differently and he
did not notice any other injuries.  He undressed and got into
the left side of the
bed.  He told Susan that they could not
live like this anymore and that he was finished.  She continued
to rant at him
as to what a lying cheat and adulterer he is as well
as profanities about Jolene.  He however fell asleep and does
not know
when she got into the bed.
At
around 7 in the morning Susan woke him up and she furiously told him
that Jolene had sent her messages.
[53]
Susan was sitting in the bed, to his right.  She was propped up
with a pillow and carried on ranting.  He checked his
phone and
saw a message sent earlier from Miller asking him if he was okay.
He replied, “
Drama,
but okay”
.
[54]
He responded to Susan’s ongoing ranting that he was done and
when they get back to Johannesburg they would sort things
out.
Susan
got out of bed, stood at some point at the foot of the bed. He is
absolutely sure that she had worn her gown.  He turned
over and
from the corner of his eye saw her walking towards the bathroom door
and heard her shutting the door.  He fell asleep
again.
He
woke up some time later.  As he does not wear a watch, he did
not know what time it was.  He tried to get into the
bathroom to
prepare for the conference breakfast programme.  He called out
to her to open the door.  He thought she was
lying in the bath.
He got dressed, did not need to shave as he had shaved the previous
evening, but had to brush his teeth.
He packed his clothes into
his bag.  He thought that Susan was having a bath.  He
phoned her and heard the phone ring
from inside the bathroom.
Whilst he did not know the time, from his cell phone records he
subsequently saw that he had placed
the call at 08h02.  He
started listening at the door but could not hear splashing of water.
He became concerned and
called reception to send someone from
maintenance.
[55]
He then tried to push the door open, kicked it and nudged it with his
shoulder.  The door did not move in the least
but he is sure
that the crack which is subsequently seen in the side of the door was
caused by his efforts to break it down.
Daniels
arrived about 5 minutes later. Daniels knocked on the main door of
Room 221 and he opened for him.  He told Daniels
that the
bathroom door was locked from the inside.  Both him and Daniels
stood in the passageway in front of the bathroom.
Daniels was
to his right, crouched down and unlocked the door by way of the
screwdriver.  The moment Daniels unlocked the
door, he (Daniels)
stepped backwards and the accused opened the door a couple of inches,
until the door was blocked.  Daniels
stepped back and he pushed
against the door.  The door only partially opened as Susan was
behind the door.  He proceeded
to illustrate this before the
Court.  He put his shoulder to the door and wedged it open to
get in. Susan was hanging behind
the door in a crouched position.
He could not see if her knees were on the ground but her feet were
together and slanted
on its side pointing towards the basin.
She was leaning slightly forward.  He picked her up and called
for Daniels to
help him, as he would not have been able to remove the
cord from her neck.  She felt heavy and felt like a ton.
Her
weight was so great. Later in his testimony he described, whilst
holding the deceased up, “
she was a deadweight”
.
He held her with his arms under her arms.  Susan was wearing a
white gown.  When Daniels entered he also had to squeeze
through
the door.  It was not a loose knot as it was very tight around
her neck.  Daniels wiggled the cord and slipped
it over her
head.  The cord depicted in photographs taken by police is
exactly how the cord was tied to the door and how the
cord was left.
He immediately lay Susan down and proceeded with chest compressions
and mouth to mouth.  He thought she
was still alive because
there was saliva on the left side of her mouth. She was still warm.
He never before had performed
CPR and only saw it in the movies.
The air would come out when he blew into her mouth.  His back
was against the back
of the door, meaning that he was positioned on
Susan’s right.  He continued to do this until Thompson
arrived who sat
down opposite of Susan and also started chest
compressions.  The accused stated that he also blew into her
mouth and alternated.
They continued performing CPR until the
paramedics arrived.  After performing some tests, the paramedics
declared her dead
on the scene.
According
to him Daniels unlocked the door only and did not physically open
it.  Daniels could not have seen the deceased’s
legs, as
she had been in a crouched position behind the door.  He
disputed that Susan was lying on the floor and denied that
the cord
had been loose around her neck.  He indicated that when he held
the deceased up, her face was towards him, not away
from him as
Daniels maintained. He could not comment on the manner in which the
cord had been tied around his wife’s neck
as he did not pay
attention to how many times it was knotted or what kind of knots it
were.
He
explained that in that moment he could only think of his children and
how ashamed he was of his behaviour which caused his wife
to go to
these lengths.
After
the paramedics had declared the deceased dead, they took him to the
ambulance and provided him with medical treatment, after
which he was
taken to an adjacent room at the hotel.  His brothers-in-law
arrived, as well as his father-in-law, Neville Holmes.
His
father-in-law checked his hands, and then checked the door mechanism
from both sides (the bathroom in the adjacent room where
the accused
had been taken to).  He gave a statement to the investigating
officer, went to Stellenbosch Police Station where
after an hour and
a half he was told that he was free to leave.  His family drove
him to the airport and he flew home later
that afternoon.
On
Tuesday, 26 July, he was contacted by Sergeant Appollis, who
indicated that he had to return to Spier to explain the sequence
of
events.  He returned to Cape Town on Thursday the 28
th.
He was on route to Spier with his attorney when contacted
by the investigating officer that Spier would not grant SAPS access

to the facility.  They were instructed to proceed to SAPS
detectives offices instead.  On arrival there he was informed

that he was being charged as a suspect in the murder of his wife.
He
described that his whole world was crashing and that it was
unbelievable. He was taken for an examination by Dr Tiemensma where

the only injuries noted was a cut on his finger and 2 scratches on
his back.  He testified that in the days after Susan’s

death flowers had arrived from sympathisers.  When he reached
for a vase which was on a high level, it fell and nicked his
left
hand middle finger.  It was a deep nick.  He went to the
basin to run water on it.  His daughter helped him
and his
mother-in-law assisted him with a plaster. In this regard we point
out that neither the daughter or Jason’s mother-in-law
were
called to collaborate this evidence.
He
described that he was in complete shock by this turn of events.
He felt like he was in a “
dwaal”
. He returned home
and upon legal advice immediately arranged with his legal
representative for a second autopsy to be done.
He
could not recall any interaction with SAPS until his arrest on the
23
rd
August (at his home), although his legal
representative in Cape Town had indicated to the investigating
officers that he would
co-operate.  As a result of his arrest,
his employment was terminated.  He denied any attempt to escape
or flee the country
nor had he shifted money overseas.
He
testified in detail, giving particularized account of the events
around his arrest leading up to his appearance in the lower

court.
[56]
He arrived in Stellenbosch the following day, the 24
th
of August and was released on bail the following Tuesday.  He
gave a detailed recollection of the conditions of the holding
cells
and treatment by various police officers.
He
did not dispute the evidence of Mark Holmes (the deceased’s
brother) that he had said he “
killed her”
, with
reference to the deceased, but explained that he meant that his
conduct caused her to take her own life.  He denied
having
caused the deceased’s death, in any manner, and further denied
obstructing the course of justice by tampering with
the scene.
Further
evidence was led regarding a Discovery Life Insurance policy, with a
pay-out on the death of Susan.  It had a 2 year
suicide
exclusion clause and the start date was in 2015.  He was aware
of the policy.
Under
cross-examination
he conceded that Susan was a committed parent
to the children and confirmed Newcombe’s testimony that she was
very involved
and invested in their daughters.  He was aware
that the deceased was involved with charitable work at an orphanage.
She was very caring about the community.  He could not dispute
that she did volunteer work by assisting children from disadvantaged

communities with maths and reading support. She also had a wide
circle of friends and acquaintances.
He led Susan to believe
that he was working on the marriage as he wanted both women in his
life.  It was at Spier when he contemplated
the option to
divorce.  He conceded that he had during previous arguments
mentioned divorce but that he did so to be spiteful
and never took
steps to pursue divorce action.  He explained that he was good
in covering up his tracks, ducking and diving
matters to be
deceitful, so as to sustain both his marital and extra marital
relationship.  The marriage started falling apart
from 28
February 2016 with Susan’s discovery of the affair.
He
did not want Susan to come to Spier as he had a hidden agenda to be
with Jolene.  He did not want to rub the affair in her
face and
place her under more stress.  He was terrified that Susan may
discover the affair was still ongoing as he knew how
she would
react.  He did not want to be embarrassed at Spier by any
confrontation by Susan.  He testified that he is
no longer
seeing Jolene, though she messaged him once to see how he is
doing.
He
testified that during his efforts to exit the hotel room after Susan
caught him texting Jolene in the bathroom, he shoved at
her neck with
his right open hand to move her out of the way.  It was not a
throttling motion and did not injure her in any
way. He demonstrated
that he put his hand alongside her neck, not around it.
With
respect to the knot around the deceased’s neck (or as he
clarified, the noose), he explained what he meant by tight,
it was
not just loosely flopped around her neck, there was tension in the
cord so that it was not easily lifted off.
[57]
He could not say how many times it had been looped around her neck.
He did not take notice of this.  His only concern
was to get it
off her neck.  According to his recollection, both strands of
the cord had been around her neck, but he was
not sure. At this point
he was asked to demonstrate how he saw the cord around Susan’s
neck.  He illustrated the double
strands hanging down from
either side of the hook around the neck of the Constable who acted as
a model during the demonstration.
There would have been tension
on the cord as the deceased was suspended from it.  He repeated
that Susan was in a crouched
position behind the door.  He
agreed that when he picked her up, the cord from her neck to the hook
would have slackened,
although he did not actually see this. His
perception was however that the noose was still tight around her
neck.  He indicated
that he had no recollection of how many
times the cord was around her neck however he was sure that the
tension was tight.
Later in his evidence he testified that he
is not sure if it was a double strand around her neck if the 2
strands hanging down
from the door were split as he was not paying
attention to it.  He questioned Counsel why he would be focusing
on the knots
or how it was tied as all he was focused on was it being
removed. He could not remember if it was her heels or her toes that
he
saw when he opened the door.  He repeated to Counsel what
relevance was it to him to take interest in the cord. When various

hanging scenarios were put to the accused, he agreed that the tension
on the cord would have slackened when he picked her up but
maintained
that the cord was still tight around her neck. On a question by the
Court during the demonstration as to whether the
cord was tied in a
single or double strand around the deceased’s neck, he
testified that it was in a single strand.
The
accused was of the view that Susan had been upset at the time of her
father’s infidelity, although he conceded that he
could not say
that this had affected her years later in respect of his infidelity.
He
testified that when he stated in the statement to the police, in the
presence of his relatives, that they had a disagreement,
he did not
say that it was a physical altercation in that he was embarrassed to
state in the presence of his in-laws that they
had a “
wrestling
match
” between them.  He also did not mention that he
had wanted to get out the room to be with Jolene as this too would be

embarrassing for him to say under those circumstances.
He
conceded that it was totally out of character for Susan to have
committed suicide.  He claimed that his father-in-law had
been
led to believe by talking to others at the scene that he had been
responsible for his wife’s death.  He denied
that when he
spoke to Mark Holmes and said “
I killed her”
, that
he had used the words in the literal sense.  He felt responsible
for her death, but did not murder her.
He
persisted with the version that when he called reception, he had
indicated that the bathroom door was locked from the inside
and that
he repeated this to Daniels upon his arrival at the room. He did not
tell Daniels that there was someone in the bathroom.
He also
did not alert the receptionist, Mavis, that there was someone in the
bathroom, namely Susan.
He
denied that the noose had been loose around the deceased’s neck
or that he placed the cord around her neck.  He reiterated
that
he could not comment on whether there was a knot in the cord, or
whether there was more than one loop around the deceased’s

neck, as he did not note either fact.  He was in complete shock
and that he cannot remember details.  When he tried to

resuscitate Susan he thought that he could revive her.
As
at the time of their return to the hotel room, Susan did not complain
of any other injury other than the one to her toe, but
does not know
whether she had attended to that before going to bed.  He
testified that whilst his blood was found at the scene,
he cannot
recall having bled at any point.  When presented with a replica
of the Spier hotel gown, he demonstrated how he
saw it on the
deceased when he found her, but could not confirm whether the gown
had been open or closed, or whether the belt had
been on or not,
although he vehemently denied that she was naked when the bathroom
door was opened.  He conceded that when
Susan wore the hotel
robe, he would have recalled if at any time the robe was wide open
and that the belt must have been on and
tied during those times.
Later
in testimony and with more specific reference to her wearing the gown
when she stood at the foot of the bed, he indicated
that he does not
remember if the gown was open or close, however, he would have
recalled if she was naked.  He turned over
and fell asleep at
that stage.
When
he called Susan to open the door, he had an uneasy feeling in his
gut.  When he made the call to reception, he had been
worried,
but did not explicitly state that Susan was in the bathroom.  He
did not attempt to peer through the bathroom window
from the outside,
as it never occurred to him to do that.  He did not go outside
for help nor looked down at the handle of
the bathroom door. He
denied that he smothered his wife or that he staged her murder when
he realised that she was dead.
On
being questioned by the Court, he clarified that when he told his
wife that he was done and would want to sort things out back
in
Johannesburg, he did not say that he wanted to get divorced, but that
is what he meant.  As to where in the bathroom him,
Daniels and
the deceased was positioned, he inferred that Daniels must have been
standing on his left-hand side when he removed
the cord from the
deceased’s neck, which would have given Daniels a side-view of
the deceased’s face.  He had
to draw inferences as he
could not specifically remember.  He explained that he was so
shocked at the time and that his memory
is slightly blurred.
[15.2]
DR GANAS PERUMAL (“Perumal”):
Perumal’s
CV as to his qualifications, experience in autopsies and medico-legal
experience was placed on record.  He
stated that a second
autopsy is not ideal; the body will have been anatomically altered
during the process of the initial autopsy
and it is not always easy
or possible to reconstitute the tissues to their original state or
position.  Also, depending on
the time between death and
autopsy, decomposition could have begun.  Interpreting the
findings from a second or further autopsy
requires more experience
and expertise than would be necessary for conducting the initial
autopsy.  The anatomical changes
would be autopsy artefacts and
injuries caused to the removal from the scene to the mortuary or when
the body would be subject
to predation.  Autopsy artefacts are
not necessarily recorded at subsequent autopsies, as the practitioner
would be aware
that there had been a previous autopsy.
His
autopsy report (Exhibit E) in this matter had been produced without
having had sight of the State’s autopsy report.
He
attended Court during the testimony of Drs Khan and Abrahams.
He produced a second report summarising his autopsy, photos,
special
investigations as well as his input concluded from the testimonies of
Drs Khan and Abrahams.
[58]
He explained that his first report was of factual observations, hence
the absence of interpretations as critiqued by the
State pathologists
during their testimonies.  He indicated that when a specialist
is called to the scene their primary purpose
is to determine time of
death, and that they should refrain from making any other
pronouncements prior to the actual autopsy.
Ideally, scene
visits should be done after the autopsy, as the specialist then has a
better understanding of the events.
This also prevents the
pathologist from prematurely coming to any conclusion regarding the
cause of death, as it would be difficult
to turn one’s mind to
any other idea once that has happened.
With
reference to photo 6 “HHH” he noted parallel linear
abrasions (not tramline abrasions)
which tended to go
upwards on the right side.  A ligature imprint was almost
circumferential around the neck.  It was
centrally blanched,
with redness above and below the blanched areas.  The imprint on
the front of the neck sloped upwards
and to the right of the deceased
(towards the ear).  The blanching was more pronounced at the
front and to the right; towards
the left there was an area of
friction, which was red and felt leathery.
In
cases of hanging the main insult is deprivation of oxygen to the
brain, which can occur by various mechanisms, which makes it

difficult to predict which one is operative in a particular case.
After as little as 8 seconds consciousness is lost and
between 10-19
seconds, convulsions set in.  On average after about 2 minutes
the body becomes flaccid, and after 3 minutes
the individual is
deceased.  The individual can often sustain injuries during
convulsions, as the limbs flex and retract,
and there will also be
traction of the tissues in the neck.  As a result of this the
person may end up dying in a different
posture than he or she had
originally hanged in.  Depending on the environment of the
hanging, the person can strike something
and sustain injury during
convulsions.
In
his opinion, since the ligature marks trend upwards towards the ear,
the most likely point of suspension would be related to
the right
ear.  According to him the most common site of application in
cases of suicidal hangings, is either the left or
the right ear.
The greatest pressure will be at the point opposite to the point of
suspension – in this case the deepest
lesion associated with
the ligature is on the left side laterally, showing some abrasion.
He referred to photos 10 and 11
of “C”, the photos of the
first autopsy, which according to him showed a parchment-like or
leathery area in the ligature
imprint.  He indicated that this
set of photos was the best to work with, as it had been taken the
closest to the time of
death.  He indicated that an electrical
cord would not create the same amount of friction injuries as a rope,
as the outer
cover is smooth. Also, from the lack of abrasions above
or below the ligature mark, he determined that there had been no
attempt
to grab at the cord by the deceased which could be indicative
of an afterthought.
He
noted that one had to be careful about making definitive findings
regarding the neck region when there had been prior autopsies,
as the
tissue would have autopsy artefacts.  As a result he did not
make any definitive findings regarding injuries in the
soft tissue in
the neck, and did not dispute the findings of the first autopsy on
this point.  As a result of post mortem
artefacts he found a
break / interruption in the thyroid cartilage (with no associated
haemorrhage). In his view the thyroid cartilage
was not fractured
ante-mortem, but that it was an artefact (cut) from the first
autopsy.
He
noted small abrasions on the second toes of both left and right feet,
a small abrasion on the left shoulder, and a small abrasion
just
below the left eyebrow, with associated blood seepage around the
eye.  He also noted a bruise below and behind the right
ear.
There were 2 small abrasions on the knuckle of the index finger and a
bruise on the left wrist.  He further noted
ill-defined bruising
on the right and left forearms posteriorly, and healing bruises on
the upper right thigh and the left upper
leg (both anterior).
The fingernails on the hands and feet were all intact.
In
cases where the deceased is female and has injuries, it is mandatory
to do a facial flap dissection (to reveal injuries in areas
that are
difficult to see as well as the inner aspects of the lips and
cheeks).  Dr Khan said it was the right ribs that were

fractured.  CPR was on the left side. It was not done in the
first autopsy.  If a person is smothered and offers resistance

then there will be injuries in the soft tissue over the underlying
bone structure.  In the present case there were no injuries

indicative of smothering.  He also did not find any bruises on
the scalp, but would not contest the finding of the first autopsy

that there had been.  He found bruising on the left lateral edge
of the tongue, which he attributed to convulsions.
Ribs
2 to 5 on the left side anteriorly were fractured, but with no
associated haemorrhage at the fracture site.  There was
also a
fracture of the middle third of the sternum, again with no associated
haemorrhage.  There was however haemorrhage associated
with
fractured ribs 3 to 6 on the right side anteriorly.  Fractures
in the ribs are difficult to see unless the intercostal
muscles are
cut and the bone removed. The haemorrhaging in his view indicates the
presence of some degree of circulation (which
could include
cardiopulmonary resuscitation).
The
site of the fractures mentioned is in his view typical of
resuscitation injuries.  Both lungs were oedematous and
congested,
and there was petechial haemorrhaging and ecchymosis in
the pleura of the right lung.  In his opinion the contusions on
the
lungs were related to resuscitation.  He indicated that if
an individual had a fracture of the sternum as well as bilateral
rib
fractures, that individual would be in a significant amount of pain,
with associated disability.  So if these injuries
had been
ante-mortem, the deceased would have been seriously affected.
However, the lack of circulation in relation to the
external fracture
and the left side fractures indicated to him that these were either
peri-mortem, or post-mortem injuries.
He
also indicated that there must have been an injury to the nose, which
bled posteriorly, and was swallowed into the stomach.
He stated
further that there must have been two episodes of bleeding, as there
was blood in both the stomach (the second episode)
and blood in the
proximal duodenum (the first episode).  It was however
impossible for the blood to have come from pulmonary
contusions as
testified by the State pathologists, as that would require vascular
injuries (noting the lack of leopard skin appearance
in the lungs).
He did not find any fluids in the guts or stomach, but any such
fluids would have been discarded after the
first autopsy.  He
found no pathology in the mucosa of the gut that could have caused
bleeding.
The
takeaway from his report was that multi-organ congestion is
non-specific, but that it is also in keeping with asphyxial death.
Regarding
the block that had been suggested as the origin of the marks on the
posterior of the neck, he indicated that he himself
used such a
block.  He stated that in pathology a negative finding is as
important as a positive one.  And also, that
he had never in his
experience seen the mark he noted on the neck being made by such a
block.  This is so also because the
edge of the block does not
touch the middle of the neck.  The mark in question is also a
tramline mark, not a single edge.
During the examination of the
neck the block would be placed under the shoulder blades, to allow
for drainage, in order to create
the bloodless field necessary for
the neck dissection.  The darker area above the ligature was
explained as most likely post-mortem
lividity.
Regarding
the calculation of time of death he stated that one could not say
that the time of death in this case was 05:40, as that
was the mean
time.  All that could be said was that there was a 95% chance
that death had occurred between 02:50 and 08:30,
with a 5% chance
that it occurred outside those times.  He stated that it was not
material in this case that the temperature
of the floor had not been
measured, or that a rectal temperature had not been taken.  The
bigger issue was that the findings
had not been correctly
interpreted.  He also noted that environmental factors had to be
added to the calculation, as per the
textbook guidelines.
Returning
to the hyoid bone, he stated that fractures therein (or even the
absence thereof) does not definitively support either
strangulation
or hanging as cause of death.  What is pertinent in this case is
the presence of haemorrhage on the inner side
of the hyoid bone.
This could not be accounted for by external pressure being applied
with a hand (which would cause external
injuries).  He stated it
to be related to convulsions, as tension within the neck structures
would cause haemorrhage in the
thyroid hyoid membrane.  The
fracture of the superior horn of the thyroid cartilage is the
commonest skeletal structure injury
in cases of hanging even if it
appears as an ante-mortem injury.
A
bundle of authorities prepared by the witness was handed up as
“LLL”.  He referred to the definitions total versus

partial hanging: total hanging being when the individual is totally
suspended, with the full weight on the noose, as opposed to
when some
of the weight is transferred to a surface, so that some of the weight
is taken away from the suspension point.
With reference to
authorities, he indicated that if the person is standing with feet
flat on the ground, the weight on the suspension
point could be
reduced to as little as 65% (meaning that in this case there could
have been as little as 33.8 kg on the suspension
point).  In
this case, the feet being to the right could be as a result of
convulsions, it does not necessarily reflect their
original
position.  However, it will reduce the amount of weight on the
suspension point.  He stated that it would be
relatively easy to
hang one self, as loss of consciousness sets in quite quickly
therefore provided one could create enough pressure
from the
suspension point even a sitting position is possible.
He
explained lividity to mean that when circulation ceases and blood
settles in the lowest parts of the body, in a light skinned

individual the skin will appear red where the blood has settled.
This does not however indicate the position in which the
person died,
only the position the body was in when lividity set in.
Precisely when lividity sets in is difficult to determine,
and cannot
reliably be used to determine time of death.  This gravitational
settling could be an explanation for the pallor
in the lips that Khan
noted at autopsy, though he could not see it in the photographs, and
it would not be an indicator of smothering.
Further
he explained rigor mortis to be the stiffening of the voluntary
muscles, which starts at the same time throughout the body,
but
manifests first in the smaller muscles like the hands or the jaws.
With
reference to Khan’s finding that there was an absence of
leathery appearance of the ligature mark, he stated that due
to the
smooth surface of the cord, one would not necessarily find a leathery
appearance, one might only find blanching.  He
mentioned that
there is abundant authority for the view that the longer the person
had been suspended, the more pronounced the
ligature mark would be.
He stated that the scratch marks to the lower jaw could either have
happened during application of
force or during resuscitation to
extend the jaws to keep the airways open.  While he could not
conclusively exclude manual
strangulation, he stated that the
scratches were more likely associated with hanging and
resuscitation.  The two focal abrasions
behind the right ear
might be related to the knot more particularly placement thereof.
Based
on his finding related to blood alcohol, he stated that the deceased
would have been intoxicated.  The blood alcohol
level was
sufficient to have affected the central nervous system.
He
listed the things which Khan missed in his report, including the
ligature mark at the back of the neck
[59]
,
a u-shaped scar under the right breast, bruises on the left and right
arms, bruising on the left forearm, fractures of the ribs
on the left
side, fracture of the sternum, the facial flap dissection which was
not done
[60]
,
the haemorrhaging into the tongue, and the organs were not
histologically examined.  This is particularly important with

respect to the lungs, as it is not possible to comment thereon with
scientific accuracy when considering aspiration of blood or
gastric
content.
He
referred to authority regarding the saliva which the accused
testified he had noted on the deceased, that being that it is a

classic feature of ante-mortem hanging, but that it will not always
be present (depending on the precise mechanism by which death
is
caused in a particular case).
Perumal
testified that after taking into account the testimonies of the State
pathologists as well as the accused, he set out in
his report at
paragraph 9.18.4:
“…
my
findings are consistent with ligature strangulation (i.e. hanging).
However, on a post mortem examination alone it is simply
not
possible, and in a case like this, to be adamant about the cause of
death.”
He
conceded that ligature strangulation (hanging) would not be the only
possible conclusion which he could make from the injuries
of the
deceased.
With
reference to his bundle of authorities, he mentioned that the
injuries to the face and neck must be very carefully interpreted,
as
they may be very similar to those found after throttling.  He
also added that there may be ecchymosis at the beck of the
neck after
resuscitation, and that bruising and abrasions may occur to the face
and neck during resuscitation.  There is also
authority for the
view that injuries to the sternocleidomastoid muscle are the most
common soft tissue injury found in cases of
hanging; that the vast
majority of such cases showed pale white glistening tissues beneath
the ligature mark and that only a small
number of cases showed mild
contusion of the neck structures; and that fracture of either the
left or right superior horn of the
thyroid cartilage is most frequent
in right-sided hangings. Soft tissue injuries occur at high rates in
cases of hanging deaths
and the presence of such injuries are not
necessarily indicative of manual strangulation.  Also virtually
bilateral rib fractures
are usually associated with resuscitation.
Under
cross-examination
he stated that if a blood sample is taken
within 4 days of death, then the blood alcohol reading is taken to be
a fair reflection
of the level at time of death.  Again, he
would not be dogmatic about it as there could be minor variations
either way.
In this case there had not been much time between
death and the body being removed to the cold storage facility, the
first autopsy
(at which the blood samples were taken for analysis)
was done within two days, the blood samples were taken from a femoral
artery
and the body showed no signs of decomposition.
A
bundle of photos he had taken at autopsy was handed up as “QQQ”.
He stated that it is incorrect to say that
there is no continuity
between the ligature mark on the left and the mark on the back of the
neck, as the mark on the left is 95mm
below the ear.  During
autopsy, he was unable to join the two marks, as a result of the
reconstruction done after the first
post mortem, which created a
distortion at that level.  He indicated that when he made the
markings on the mannequin in Court,
it had been merely illustrative,
not to scale.  According to his observations, the mark on the
back of the neck was almost
horizontal, before tilting slightly
upwards towards the right lateral neck, just before the suture mark
on the right lateral neck.
For that reason he concluded that
the point of suspension had most probably been on the right.
The mannequin had not been
drawn for accuracy.  The reason the
ligature mark is less pronounced at the right side, is indicative
that the ligature was
not firmly against the skin at this point in
other words it was moving away from the skin at the point of
suspension.  Explained
differently, the knot is not tight
against the skin, therefore when the head leans to the left, the
ligature pulls away in an inverted
V shape.  The absence of
marks on the right, as well as the fact that the marks are deepest on
the left, confirms his reasoning
that the point of suspension was on
the right.  The marks are always deepest, and almost horizontal,
on the side opposite
a point of suspension.
He
conceded that purely from a scientific point of view, the ligature
could not have been tight around the neck, based on the observations

from the two autopsies.  If the ligature had been tight around
the neck, one may more likely to have seen a knot imprint.
He
could not state that the small abrasion pointed out to him on Khan’s
photo 121, was definitely related to the knot.
He did however
state that that abrasion would not necessarily imply that the cord
had been tight as it could be related to pathophysiology
or
convulsions.
To
the statement that the mark at the back of the neck looks different
than the one at the front, he stated that one must consider
the
structure of the neck tissue.  The back of the neck has denser
connective tissue.  Hence the ligature will not manifest
the
same all the way around the neck, on account of differences in
pressure as well as differences in types of skin subcutaneous

tissue.
In
his opinion, it looked like a single ligature mark.  He agreed
with Khan that the death was unnatural and that it was consistent

with asphyxia.  While he did not exclude the possibility of
manual strangulation, based on his findings as well as what had
been
documented (from the scene to the first post mortem), he favoured on
a balance of probabilities the hanging scenario.
When he did
his dissection he found no evidence to support smothering as a cause
of death.  He postulated that it was an observer
error on the
part of Khan to state that there was no parchment like appearance to
portions of the ligature mark and thus that it
was applied
post-mortem), as he noted it in his own autopsy.
He
stated that many pathologists will consider a ligature mark to be a
post-mortem phenomenon.  Since death occurs relatively
quickly
in cases of hanging, the mark only becomes more prominent the longer
the person is suspended. Therefore, as per the recognised
textbooks
in the field, one cannot use the appearance of the ligature mark to
determine whether it was applied ante- or post-mortem.
He
indicated that if the person had been deceased when the smooth cord
was applied, only an impression of the cord would be seen.
If
the individual was still alive, the friction between the cord and the
neck, with the movement of the body, would create the
mark seen on
the deceased.  His findings do not accord with the suggestion
that the cord was applied after the person had
died.  He
reiterated that he would not conclusively exclude any other
possibility, but based on his findings he believed the
ligature marks
to be ante-mortem.
Also,
if the deceased was already dead when she was hanged, one would not
see saliva being expressed although an absence of saliva
would not
necessarily indicate that the person was already dead.
He
would not adamantly say that there had been no fracture in the
thyroid cartilage, but that based on the probabilities it was
more
likely to be an autopsy artefact in other words that the cartilage
was incised during the first autopsy.
He
indicated that the injury above the left eye was either a deep
abrasion or a superficial laceration, and that it was the result
of
blunt force trauma.  He was not convinced that the mark under
the eyebrow constituted a separate injury, but rather that
it was
extravasation of blood.  Again though, he would not exclude it
being a separate injury.  He stated that if the
supraorbital
ridge had impacted any blunt object (like the retaining wall), it
would create a wound, but that that would not create
blood spatter as
depicted on the photographs.  Spatter required impact with a
blood source.  While he could not exclude
the retaining wall as
the source of the injury, he stated that it was most likely something
broader, as he would have expected
the wall to cause a deeper and
larger laceration.  He also could not exclude a fist with a ring
as being the source of the
injury.  Also, if someone had fallen
and attempted to break their fall he would expect injuries on the
prominences of the
body (knuckles, elbows, etc.).  A number of
injuries were pointed out to the witness, and he was asked if they
could be related
to the fall that the deceased took on the way back
to the room.  He indicated that they were all blunt force trauma
injuries,
and that with the exception of the injury to the wrist,
they could have been sustained in the manner suggested.
The
deceased must have had some injury to the nose, as she had blood in
her nostrils.  That could account for some of the blood
found at
the scene.  However it would be difficult to state when that
injury was sustained.  The blood in the intestines
of the
deceased cannot be precisely “timed” due to there being
many factors that influence gastric emptying time, but
he estimate
that it had not happened at or about the time of her death.  The
blood that was still in her stomach however could
have been swallowed
at or about the time of her death.
The
ligature mark would not look the same throughout, as one cannot
predict the movements in the convulsive state and those are
the ones
causing the imprint.   He could not exclude the possibility
of a pre-existing injury from a digit (fingers)
underneath the
ligature mark, though he did not believe it to be likely.
His
later report had been drafted after having heard evidence in Court.
He could not exclude the possibility of bias having
crept into his
findings, but stated that his testimony was based on science and
logic.
Regarding
the faecal staining Khan noted (specifically that he did not find any
on the door or the gown) he stated that he would
not have expected
staining on the door, as she had been wearing a gown. The faecal
stain on the bathroom tiles outside the bathroom
in his view had
possibly been caused by the body being dragged along the floor in
that area and a stool between her buttocks smeared
on the floor.
This would occur if her buttock had been exposed.
On
re-examination
he stated that he has never come across a
specialist pathologist that has not made an observer error at some
point.  On a
question from the Court he explained that when
someone is strangled and death is prolonged, then there may be an
inflammatory response
to that trauma, but when someone is hanged and
the death is rapid, there will be no such response.
[15.3]
DR LARISSA PANIERI-PETER
Dr
L Panieri-Peter’s CV was handed up as exhibit NNN1.  She
confirmed that Mr Rohde was referred to her for an independent

psychiatric evaluation during September 2016. The purpose was for her
to conduct a broad forensic psychiatric assessment as well
as to
comment on any findings that might or might not in forensic
psychiatric terms be congruent or incongruent with an intimate

partner homicide. In addition, she was requested to conduct a
retrospective independent psychiatric assessment in other words a
so
called psychological autopsy of the deceased in terms of her known
history. She was also specifically requested to comment on
any
features pertaining to Mrs Rohde that might or might not in forensic
psychiatric terms be congruent or incongruent with suicide.
She
confirmed that she compiled a report which was finalised on 6
th
June and sent to defence counsel by email.  She confirmed the
report was hers. The report was handed up as exhibit NNN2.
She
confirmed that he had made a summary or table of contents of the
report which was also handed up in court as exhibit NNN3.
The
witness explained the term psychological autopsy to the Court as the
factors that occur or lead someone to commit suicide but
obviously as
mental health professionals they need to try and understand why
people get to the point that they kill themselves.
So there has been
a wealth of literature on it to help them understand what facts are
ideally, so that it could be prevented. Therefore
they use
psychological autopsy which entails gathering information from people
who knew the deceased to work out what lead to the
suicide.
According
to her our Supreme Court of Appeal has also accepted this exercise
even though it has been subject to criticism academically.

According to her it is important to get as much information as
possible, from as many people, closest to the time of her death.

She had interviews with Mr Rohde on a number of times. She also
interviewed the eldest daughter in her home. Ms Suzanne Long, the

clinical psychologist of the accused was also interviewed as well as
other professionals known to the deceased.  The remaining

persons interviewed were also close to the deceased.  These said
persons were asked to discuss their observations of both
parties over
the years they had known them.
The
strengths and weaknesses of the couple were also discussed while
specific questions were asked at the end of the interviews.
She
testified that there was no bias from the witnesses.
Upon
being asked by the Court as to how was she informed on who to consult
to gather information from, she testified that she got
the
information from the legal team of Jason Rohde and Mr Rohde’s
family and deceased friends.
She
disputed that her sources of information got polarised but did admit
that a number of persons did not want to speak to her,
such as the
deceased’s family who flatly refused to meet with her.
She
was however impressed by the marriage counsellor who reported to her
that the deceased was a suicide risk.  She elaborated
on a
question by the Court as to the fact that Nader did not have the
qualifications to make such a diagnosis to which she indicated
that
Nader was reflective on behaviour and that it were those observations
which were reported to her.
Continuing
with Mrs Rohde’s assessment she looked at her family history,
forensic history, her medical and surgical history,
her personal and
developmental history, her educational and occupational history,
substance addiction history and her psychiatric
and psychological
phenomenon.
During
her testimony she stated that she did not intend to usurp the
functions of the Court, but merely looked at the issues within
the
scope of her psychiatric knowledge
She
divided Mrs Rohde’s situation to when she heard about her
husband’s affair, to February to July 2016, and the moment

leading to Spier.
She
then looked at deceased’s life as a student, then as a parent,
her children’s schooling.  It was testified
that deceased
was an outdoor person, athletic but not very religious. She suffered
hypertension. She bruised easily. She started
to smoke during the
months before her death. She was a perfectionist in her appearance
and her daughters. She was obsessive about
her weight and what she
consumed. She was diagnosed with Attention Deficit Hyperactivity
Disorder (ADHD). She could never let go
of an argument. The deceased
had long standing trust issues of men with regard to extra marital
affairs.
She
testified that according to the marriage councillor there were six
out of nine points of these diagnostic criteria, whereas
one needed
five of the following symptoms that had been present during the same
two week period and represent a change from previous
functioning.
According to the DSM diagnostic manual these indicators include a
depressed mood, most of the day by either
subjective self or hopeless
observation made by others; a marked diminished interest in all
activities of most of the day; significant
weight loss or weight
gain; insomnia (unable to sleep) or hypersomnia which means to sleep
all the time, nearly every day; psychomotor
agitation or retardation
everyday observable by others; feelings of worthlessness; fatigue or
loss of energy and recurrent thoughts
of death.
She
explained symptoms of anxious distress which requires feeling tense,
restless, difficulties concentrating, a feeling that something
awful
might happen and the individual might lose control.
According
to Panieri-Peter there is evidence from observed facts and reports
from professionals, the accused, other persons, including
reference
to previous witness testimony that the affair was in a crisis and
that it resulted in a drastic change in her demeanour.
In
addition to her insecurities, vulnerabilities, genetic risk factors
to suicide, narcissistic traits, perfectionism and wanting
the world
to see her as being perfect, resulted in Susan having been suffering
from major depression which increased her risk of
suicide. The fact
that she did not triumph over the mistress also affected her
resulting in a narcissistic wound.
So
overall, taking into account all the information and the facts that
were brought before Court and the information she got from
her
sources she disagreed with the deceased’s clinical psychologist
that she was not a suicide risk. According to the witness,
the
deceased was a suicide risk with her framework of understanding of
the evidence before the Court and her evaluation of the
testimonies
as well as the information that had been provided to her from certain
sources.
Even
though she confirmed that the deceased’s clinical psychologist
was in a better position than her, because the psychologist
had
consulted with the witness she believe that the deceased was not
properly diagnosed by her psychologist.  This concluded
her
report on the deceased.  Her report proceeded on to her
investigation regarding the accused.
Upon
recommencement of the proceedings, the Court made a ruling curtailing
the further testimony on the contents of the report,
however, the
witness was invited her to provide other information other than
relating to the report, for the reasons that the expert’s

report went about to usurp the function and role of the Court.
It sought to embellish the testimony of the accused, as well
as
regurgitating testimonies of previous witnesses.  The ruling
further indicated that the report was referring to information
from
anonymous sources and persons without giving their names.
References to “
someone said”
go against the
hearsay rule. Reference to evidence already given before the Court
was not in accordance with the best evidence
rule.  Those
testimonies and supporting exhibits had been placed before the Court
and subjected to cross-examination.
It is the function of the
Court to evaluate, analyse and consider such evidence.  This was
not the role of the expert.
The evidence which Panieri-Peter
further sought to give in terms of the report also attempted to give
evidence which the accused
did not testify to.  She also sought
to give, as set out in her report, her evaluation of the
probabilities of the evidence
of the accused in respect of the events
in question.  She also sought to testify to her view that the
deceased was most likely
to have murdered the accused.
The
witness was afforded an opportunity to draw the Court’s
attention to any other facts or evidence.  No further evidence

was tendered by the witness and the witness was excused.  The
reports of Panieri-Peter appear on the record as had been marked.

Exhibit NNN4 was added to the record containing the bundle of
authorities referred to by the witness.  I will deal with the

evaluation and admissibility of the evidence Dr. Panieri-Peter as
well as the value of her reports further in this judgment.
15.4
Examination of Dr Isak Adriaan Johannes Loftus (“Loftus”):
The
CV of Dr. Loftus (“Loftus”) was entered onto the record
as exhibit “ZZZ”.  A flow-diagram of his
“agenda”
for his testimony was handed up during his testimony as exhibit
“AAAA”, while a bundle of documents
he intended to refer
to during his testimony was handed up as “BBBB”.
He
explained that histological tests are not routinely done, due to the
cost factor, but that they are always done in cases of sudden
death,
and in order to determine microscopically whether tissue is bruised
or whether it is hypostasis, and to evaluate tissue
response (vital
reaction).
A
vital reaction is used to date a specific event, and, more
importantly, to differentiate between events that occurred before
death (ante-mortem) and those that occurred after death
(post-mortem).
In
the present matter two categories of pulmonary haemorrhage are
pertinent: petechial haemorrhage and contusions.  Due to
the
history of blood in the deceased’s stomach, the question is
whether there was pulmonary pathology severe enough to explain
that
finding.  In his opinion, it did not play a role.   He
stated that when he looked at all the images of the
lungs, he did not
see any haemorrhage in any of them.  In his view there were no
signs of aspiration of blood.
With
reference to Khan’s post mortem findings that blood-stained
fluid was present in the trachea and main bronchi, the witness

critiqued that Khan did not indicate if there was any blood in the
smaller airways.  For blood to get from the periphery to
the
main bronchi’s it would have to go through the smaller ones
first.
Khan
did not note any signs of haemorrhage other than the contusions and
petechial haemorrhages at autopsy, which he stated supported
his own
findings that the deceased’s respiratory function had not been
compromised preceding death.
He
considered the photos of the neck area of the deceased captured
during the first autopsy and indicated that from the photos it
was
difficult for him to say whether the ligature was horizontal, as the
deceased’s shoulders were not at the same level
and the face
was tilted to the right-hand side.  He stated that the reason
the marks looked so different, the posterior aspect
as opposed to the
anterior aspect of the neck, is that the posterior contains thick
fibrous tissue which would result in very little
haemorrhage when
pressure is applied.  The skin texture differs substantially
between the front and the back of the neck,
so that haemorrhage in
the skin of the anterior neck will be much worse.
As
to whether the ligature mark was ante or post-mortem he indicated
that the multiple bruises and contusions found above the ligature

marks may be post-mortem, however, when they are below the ligature
mark, they are usually ante-mortem.  He indicated that
while
there is some debate on the point, the leathery-like appearance of
the ligature mark is usually associated with ante-mortem
application
situations, rather than post-mortem.
He
had some concerns regarding the interpretation of the neck
dissection, including spatially relating external injuries to
internal
injuries, as the photos were not taken from the same angle /
distance from the body and the body was not in the same position in

all the photos.  This would have to be accounted for in the
assessment.  However, he had performed a digital bloodless
neck
dissection. According to him, the extensive haemorrhages seen in the
area of the submandibular gland indicated that the deceased
was still
alive when the injury was sustained.  He also stated that an
area of haemorrhage in the region of the sternomastoid
muscle
indicated convulsions, and the muscle taking the brunt of the force
of the body hanging against the ligature.  He commented
that
Khan should have incised the cut differently and that the fracture so
observed in the first autopsy is in his view not a fracture.
He
stated that a number of haemorrhages shown in the neck dissection
slides had not been correctly interpreted by Khan.  He
noted
haemorrhages closer to the spine, which he indicated are often seen
in people who were free hanging in the lumbar region
(lower spine),
in which case there is a jerking motion.  While he accepted that
there were injuries outside the ligature marks,
he stated that these
could have resulted during convulsions, which are common when people
commit suicide.  He also pointed
out that although the bruises
under the jaw of the deceased were geographically in a different
location to the ligature mark, the
hyperextension of the neck during
dissection would cause the layers below to appear higher up than the
ligature mark on the skin
of the neck.
Regarding
the use of temperature to determine time of death, he indicated that
a number of factors needed to be taken into account,
including
whether the person had been clothed, the type of surface the person
was lying on and so forth.
He
proceeded to the matter of bruising of the deceased left eye and
referred to a quote from an article to the effect that it is
usually
caused by a direct punch or kick to the eye socket, but that a
pathologist must also consider alternative explanations.
These
included direct violence which may or may not be associated with an
abrasion or laceration on the upper cheek, eyebrow, nose
or other
parts of the face, gravitational seepage of blood beneath the scalp
from a bruise, laceration on or above the eyebrow
would result from
survival and if the person was in an upright posture for some
minutes.  He stated that the important point
is there must have
been survival of some minutes between when the deceased sustained the
injury and when she died.  While
he could not say how many
minutes in context, it was not an injury sustained at the time of
death.
He
was asked to indicate, based on his expertise, in view of the
probabilities, whether this was an ante-mortem hanging, or whether
it
had been staged post-mortem.  He indicated that he believed a
ligature had been applied ante-mortem and that the cause
of death was
hanging, that when the ligature exerted its force, the deceased was
still alive.  Though he could not, as a pathologist,
exclude
other causes, he believed that the most probable cause of death was
hanging.
He
indicated that he was familiar with the scenario called para-suicide
– where suicide was not intended, but was instead
a cry for
help.  He could not confirm or exclude the possibility of a
failed para-suicide in this case.
As
regards the faeces at the scene, he expressed doubt whether it was
human or animal faeces.  After confirmation by the Court
that it
had not been placed in dispute and that it can be accepted that the
faeces to be that of the deceased, the witness referred
to photos
depicting a swab taken from the inner thigh during the first autopsy,
which also contained faeces.  He noted that
the only fluid on
the tiled floor of the bathroom was that found underneath the
deceased.  He believed it to have been urine,
as the passing of
urine and faeces are common upon somatic death due to the muscles
relaxing and is indicative as to where the
deceased has passed
away.
He
differed completely with Abrahams regarding the blood in the
deceased’s stomach and bowels as he indicated that it would
not
have been possible not to inhale that volume of blood.
As
to the possibility of the deceased’s functioning in the
scenario where she sustained rib fractures prior to hanging herself,

he indicated that pathologists should not be dogmatic when commenting
on a victim’s capacity pursuant to an injury and disagreed
with
Abrahams who held a different view to this aspect.  In his view
it is difficult to state or rule out that a person could
not perform
some or other activity due to the fight or flight response, citing
the example of a soldier injured on a battlefield
and continuing with
battle. He agreed with Perumal that the rib injuries and lung
contusions were sustained as part of the CPR
process.
In
cross-examination
he conceded that he was at a disadvantage when
commenting, as he had not been present when the first autopsy was
done by Khan,
or when the second autopsy was done by Perumal.
He maintained though that he was in a position to interpret the
findings
made during the autopsy.  He conceded that he had been
working with material (photos) that was sub-optimal.
He
stated that convulsions did not make any noise however it depended on
whether a part of the body was in contact with surrounding
surface.
Unless she kicked against the door while convulsing, it may have been
completely soundless.  He could however
not exclude the
possibility of her having made any noise.
When
put to him by the State that on the accused’s version, there
was a period of some 25 minutes that the deceased was supposedly

hanging on the back of the door before the accused and Mr Daniels
entered, and that as a consequence the State would argue that
the
deceased was already dead when CPR was commenced, he stated that the
time was irrelevant.  He explained that some mechanisms
involved
in hanging could take as much as 20 minutes to result in death, so
that the deceased was in his estimation probably unconscious,
but in
the process of dying when she was found hanging, and then died on the
floor though he could not exclude the possibility
put to him.
He stated that the urine found was more likely passed at the moment
of death, but conceded that it could be passed
after death or if
pressure is applied to the bladder.  He conceded that he could
not definitively state that the rib fractures
and surrounding
haemorrhages were caused by CPR, and could not exclude an ante-mortem
assault as the cause.
He
indicated that the head would naturally flop to a side when hanging,
therefore the lateral force applied to the sternomastoid
muscles
would be greater on the side the head flops to, than on the other
side, to explain the difference in marks to the sides
of the neck.
There would also be a difference in markings between a static and a
slip knot.  He conceded that he could
not comment on whether
there was bruising on the back of the neck, as he did not have a
histology section, thus he could not exclude
it.
He
conceded that the passing of urine and faeces did not definitively
indicate place of death, that the body can excrete it at any
time
after death, however it was merely a strong indicator as to where the
deceased died.
He
indicated that the skin could have wrinkles or creases at autopsy
when the neck is in a backwards position, but that these are
usually
temporary, except when dealing with obese patients or babies.
In those cases one could have what looks like ligature
marks, but
they are in fact artefacts.  He disagreed that the lines on the
back of the neck could be caused by lividity, due
to the appearance
of the surrounding tissues.  He stated that the lines are mostly
parallel.  He also stated that the
marks were in his view
ante-mortem, not caused post-mortem by the neck block, as lividity
would have been fixed at that point.
In
his opinion, having taken account of all the evidence, he believed
that the deceased hanged herself in the bathroom, that she
was alive
when the ligature was placed around her neck and that she did not die
instantaneously.  She was taken off the hook
and unsuccessfully
resuscitated.  She died on the bathroom floor.
In
re-examination
he indicated that taking into account all the
objective facts and the transcribed record of testimonies before the
Court, he is
of the view that it is beyond reasonable doubt that the
cause of death is suicide by hanging.  Forensic medicine is the
merging
of science and law.  He reiterated that his scientific
and objective findings allow him to form a legal opinion.
[15.5]
MR BRANDON ALAN MILLER
Mr
Miller confirmed that he works at Sotheby’s International
Realty and is in charge of the Sea Point offices and is presently
an
independent franchise holder.  He gave a statement to the
police, confirming his account of events when the accused and
the
deceased entered his hotel room.  To a large extent his evidence
was similar to that of the State witness, Ameermia. In
his view
however Susan appeared calm but that she did not touch the accused
when she called him.  A short while later he sent
the accused a
message to enquire if he was okay.  He received a reply to that
message shortly after 7 am.  He confirmed
that Jolene worked in
the same office as him but he was not aware that she had an affair
with the accused.  Asked by the Court
as to why the atmosphere
was tense in the room, he clarified that it was because there had
previously been rumours of an affair.
Under
cross examination
, he conceded that his memory might have been
blurred as he had been drinking that evening.  His recollection
is though that
Susan was not screaming but that he could not dispute
Ameermia’s testimony that Susan came across agitated.
THE DEFENCE ELECTED TO
CALL NO FURTHER WITNESSES AND CLOSED THE DEFENCE CASE.
APPLICABLE
LEGAL PRINCIPLES:
EXPERT
EVIDENCE:
Experts
have become a prolific feature in litigation.  Expert testimony
was a substantial part of the evidential tapestry in
this matter.
Given the extent to which expert witnesses have asserted themselves
in the course of these proceedings, it is necessary
for me to
consider the role and function of experts in our courts as developed
through case law.
For
several centuries, decisions about issues of fact, in certain cases,
have been assisted by experts.  As early as 1554,
it was held in
the English decision
Buckley
v Rice Thomas
[61]
that:
“…
if
matters arise in our law which concern other sciences or faculties,
we commonly apply for the aid of that science or faculty
which it
concerns.  Which is an honourable and commendable thing in our
law.  For thereby it appears that we do not despise
all other
sciences but our own, but we approve of them and encourage them as
things worthy of commendation.”
Centuries
later, this rationale has taken such effect that it has become the
order of the day.  The dramatic term of the battle
of the
experts has become a commonplace phenomenon in our courts.
Experts from the same discipline testifying diametrically
opposed
opinions about the same facts has become the norm in litigation and
regular visitors in our courtrooms.  The misguided
belief is
seemingly created that the dispute is decided not on the merits by
the adjudicator but rather as to which party presented
the most
compelling experts.
Over
a century has passed since the poet mused:  “
When
doctors differ, who decides amid the milliard-headed throng?”
[62]
The
fundamental principle for the hearing of expert evidence must remain
central in the proceedings.  Experts are there to
assist the
court.   They must remain unbiased and true to their
disciplines and expertise.  The Court remains the
trier of
fact.  Adjudication of the dispute before it is the expertise of
the Court, not the expertise of any expert witnesses.
GUIDING
PRINCIPLES OF EXPERT EVIDENCE
:
Our
law has through various decided cases developed principles applicable
to the admissibility of expert opinion evidence.
[63]
The list is not exhaustive.  Relevant to this matter, I also
consider the following:
i)
Specialized skill or knowledge
:
The
witness must be called to give evidence on matters calling for
specialized skill or knowledge.
[64]
Evidence of opinion on matters which do not call for expertise is
excluded because it does not help the Court.  At best,
it is
superfluous and, at worst, it could be a cause of confusion. In
R
v Turner
,
[65]
the Court held:
“
If on the
proven facts a judge or jury can form their own conclusions without
help, then the opinion of an expert is unnecessary.”
The
underlying rationale is that expert opinion dressed up in scientific
jargon given by an expert with impressive qualifications
does not on
its own render his or her opinion relevant or probative.  For
example, expert testimony on behaviour within the
limits of normality
is not helpful to the Court as the Court is capable of evaluating and
determining that on its own.  The
danger of course is that the
expert thinks it does.
[66]
An expert witness should also make it clear when a particular
question or issue falls outside his expertise.
Expert
opinions in the form of conclusions about the credibility of a
witness or a party are beyond the scope of the witness’s

expertise and in the realm of speculation and conjecture.
ii)
Faculty of science or expertise
:
The
discipline in respect of which the expert wishes to testify must be
accepted by the Court.
[67]
A topic on which the expert renders his or her knowledge has to be
proven not just as a faculty beyond the scope of the skill
of the
Court but also that the science or model upon which the topic is
based has been the subject of peer review and accepted
within the
society from which the expert hails.  It is the duty of the
expert to furnish the Court with the necessary scientific
criteria in
order that the accuracy of the expert’s conclusions be capable
of being independently assessed.
[68]
The Court must also be placed in a position to consider whether the
evidence sought to be given is applicable to the facts
of the
matter.
[69]
Failing to do so may render the evidence inadmissible.
The
oft quoted
Daubert-rule
enunciated in the decision of the Supreme Court of the United States
in
Daubert
v Merrell Dow Pharmaceuticals Inc
.
[70]
deals with determining the reliability of expert evidence:
Whether the theory can be or has been tested; whether the technique

has gained general acceptance within the scientific community;
whether the technique has been subjected to peer review and
publication
as a means of increasing the likelihood that substantive
flaws in methodology will be detected; the known or potential error
rate
and the existence and maintenance of standard controlling the
operation techniques have to be placed before the Court by the
expert.
[71]
iii)
Relevance:
The
guidance offered by the expert must be sufficiently relevant to the
issue/s in dispute.
[72]
This would by implication require that the testimony of the expert
must be demarcated and aligned to the issues in question
and must
remain charged to the facts of the case.  Doing more than that
would be to complicate the record, burden the Court
with scientific
garble designed in my view to do no more than attempt to confuse.
iv)
Sufficient  Data and Admissible Evidence:
The
expert opinion must be based on sufficient data and information upon
which the investigation has been done.  The expert
must refrain
from expressing an opinion where he or she could not obtain
sufficient information from which to consider an expert
opinion,
failing which this must be stated with an indication that the opinion
is no more than a provisional or preliminary one.
[73]
The facts upon which the expert opinion is based must be proved by
admissible evidence.
[74]
This point was made in the case of
R
v Turner
(above) at 73 where the Court stated:
“
Before a court
can assess the value of an opinion it must know the facts on which it
is based. If the expert has been misinformed
about the facts or has
taken irrelevant facts into consideration or has omitted to consider
relevant ones, the opinion is likely
to be valueless. In our judgment
counsel calling an expert should in examination in chief ask his
witness to state the facts on
which his opinion is based. It is wrong
to leave the other side to elicit the facts by cross-examination.”
These
facts are either within the personal knowledge of the expert or on
the basis of facts proved by others.  The expert must
properly
identify his or her sources of information and set out a factual
basis upon which the opinion is based.  In the absence
of same,
the Court is left to sift through the evidence to determine what
remains reliable and relevant.  With such shortcomings,
the
expert’s role in assisting the Court becomes questionable and
it places the sifted evidence in the shallow side of credibility.

This conduct falls terribly short of being helpful to the Court and
the expert testimony which is borne therefrom ought to be rejected.
In
the case where an expert witness, who has prepared a report, cannot
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.
[75]
v)
Beware the Hired Gun
:
Expert
evidence must be the independent product of the expert. In the matter
of
Stock v Stock
1981 (3) SA 1280
(A), the Appellate
Division at 1296F held that:
“
An expert . . .
must be made to understand that he is there to assist the Court. If
he is to be helpful he must be neutral. The
evidence of such a
witness is of little value where he, or she, is partisan and
consistently asserts the cause of the party who
calls him.
”
The
expert must guard against buckling to the hype and demands which
comes with litigation.   The Court must not be presented

with a product which is tailored to suit the party who calls for his
or her expert opinion.  It must not only be the independent

product of the expert, but it must be seen to be so.   An
expert witness should provide independent assistance to the
Court by
way of objective and unbiased opinion in relation to matters within
his or her expertise. An expert witness should never
assume the role
of an advocate and should refrain from giving evidence beyond the
scope of the field from which he or she yields.
He or she must
acknowledge expert opinion which traverses his or hers in the matter
and provide the Court with a reasonable explanation
for
distinguishing the opinion so held.  An expert acknowledges
shortcomings in his or her testimony, makes concessions where

necessary and must consider material facts.
vi)
Second bite of the cherry:
Particularly
in the context of evidence of a psychological/psychiatric nature, the
expert is not allowed to embellish the evidence
of another witness,
in this case the accused, by augmenting his testimony with “facts”
coming through the back door,
so to speak. Testimony in that respect
would amount to contaminating the record, for the evidence so given
is not capable of being
contested, the value of which takes the
matter no further and ought not to be admitted.
vii)
Judicial Independence and Expert Evidence
Opinion
evidence must not usurp the function of the court for this remains
the domain of the Bench. Furthermore, “
the
expert witness is not permitted to give opinion on the legal
probabilities or the general merits of the case.  The evidence

of the opinion of the expert should not be proffered on the ultimate
issue.  The expert must not be asked to answer questions
which
the Court has to decide
.”
[76]
In
S
v Gouws
1967
(4) SA 527
(EC) at 528D it was stated:
“
The prime
function of an expert seems to me to be to guide the court to a
correct decision on questions found within his specialized
field.
His own decision should not, however, displace that of the tribunal
which has to determine the issue to be tried.”
JUDICIAL
INDEPENDENCE:
The
principle of judicial independence is a fundamental and widely
cherished element of democracy and has been enshrined in the

Constitution under section 165, which provides in relevant part:
“
(1) The
judicial authority of the Republic is vested in the courts.
(2) The courts are
independent and subject only to the Constitution and the law, which
they must apply impartially and without fear,
favour or prejudice.
(3) No person or organ
of state may interfere with the functioning of the courts.
…”
Judicial
independence entails the ability of a Judge or Bench to make a
decision without undue influence and interference from internal
and
external forces.  This independence can be compromised in more
ways than one.  The battle of experts, as rival expert
testimony
lashes out in Court, can pose a threat to judicial independence.
Whilst the judiciary acknowledges its limitations
in relation to
specialist knowledge in other fields, however this does not entail
deferring its role and function or allowing its
exclusive role to be
usurped by another.
[77]
The
litigants and public enjoy the right to have disputes adjudicated by
the Bench and not those who occupy the witness box.
This
constitutional imperative is encapsulated in section 165 (quoted
above) read with sections 34 and 174 of the Constitution.
[78]
Judges take an oath of office to administer justice without fear,
favour and/or prejudice. Experts and the legal representatives
who
call them must remain mindful of this fundamental rule and must not
merely pay lip service to it.  It must manifest in
trial
preparation, pre-trial procedures and submission of timeous reports
to Court as well as to the contents of the testimony
sought to be
given.  The experts are there to assist the Court and not the
other way around.  It must remain conscious
of the capacity in
which they appear and it must go about matters to help the Court
through their expert knowledge.  A disturbing
feature in the
course of this trial was the fact that expert reports were not
provided to the Court before the testimony of the
expert witness.
[79]
This manner of litigation places the Court at a disadvantage; being
unable to properly obtain the assistance the expert is meant
to
offer.  It blindfolds the Court, hampering the Bench from
meaningfully ventilating issues and ensuring trial fairness,
to the
detriment of the litigants and the overall interests of justice.
The ambush approach, if not guarded against properly,
could pose a
risk to the independence of the Judge as the trier of fact.  Not
disclosing reports of experts prior to their
testimony or at all as
had happened in this case, takes the meaning of ‘trial by
ambush’ to new heights.  This
expression is normally used
in the context of litigants who keep their opponents in the dark
thereby surprising the other side
with evidence.  In the present
case, the defence team went further and kept the Court completely in
the dark as to the content
of the experts testimonies it had
proceeded to tender in evidence.
16.
EVALUATION:
16.1
MARK THOMPSON:
Thompson
was a single witness in respect of the events which he had been
called to testify.  He entered the bathroom finding
the accused
sitting next to the deceased lying on the bathroom floor.
Testifying as the first witness for the State, he placed
the Court in
the proverbial position of a “
fly on the wall”
.
His well-reasoned observations lend expression to this view.  He
impressed the Court as a person with sound life experience
and showed
maturity in handling a most traumatic situation.  Thompson was
one of the earliest persons at the scene and spent
a reasonably
lengthy period in the bathroom.  Steeped in these moments of
horror and despair he nonetheless observed features
which according
to him simply did not tally up to the notion that the deceased had
hanged herself.  His evidence laid the
foundation for the
suggestion that the deceased had not committed suicide.
The
fact that he was familiar with both the deceased and the accused did
not in my view impact the objectivity of his testimony.
He withstood
cross-examination and could not be shaken in the course thereof.
He gave his account of events in a consistent
manner and successfully
explained the contradictions put to him.
In
light of the fact that his evidence is that of a single witness, the
Court evaluated his testimony with the required caution
[80]
.
After taking into account all relevant aspects of his testimony as
well as the shortcomings argued by the counsel for the accused,
I am
satisfied that the evidence of this witness was credible and
satisfactory in all material aspects. Therefore his evidence
may be
safely relied upon.
16.2
DR. AKMAL COETZEE-KHAN AND DR. ABRAHAMS;
The
evidence of Drs. Khan and Abrahams was that the cause of death was
determined by to be unnatural; consistent with asphyxia following

manual strangulation and external airway obstruction.  In their
opinion the features of the ligature imprint mark or groove
were not
only of a post-mortem nature, but that it was superficial, not
associated with the underlying injuries of manual strangulation.

It was of horizontal application, consistent with it having been
inflicted or staged whilst the deceased was lying flat. .
They
testified that the deceased had sustained substantial and distinct
injuries before death which are not consistent with the
suicide
theory.  They had performed a specialist technique to the neck
of the deceased, known as a bloodless field neck dissection,
which is
limited to a first autopsy. They had noted various critical findings
in the course of their post mortem examination,
inter alia,
that the haemorrhages of the subcutaneous tissue or muscle on either
side of her neck were sustained whilst the deceased was alive,

consistent with a squeezing action caused by a thumb on the right and
fingers on the left.  The scratch marks on the neck
of the
deceased were associated with manual strangulation by the hand.
Significantly these injuries were not in the location of
the ligature
indentation on the neck.
It
is significant that Dr. Abrahams testified that in all probability
the deceased was strangled on the bed and that the pillow
marked as
B13 was used to smother her.  The deceased’s body
sustained injuries consistent with having been dragged from
the
bedroom into the bathroom.  The deceased also had a number of
other injuries which were not found to be consistent with
having
committed suicide.  Dr Perumal (as later discussed) also
conceded that some of the injuries were consistent with drag
marks.
Both
Drs. Khan and Abrahams were subjected to vigorous and lengthy
cross-examination.  They made concessions where necessary
and
came across as unbiased and objective.  Extensive literature on
various aspects of forensic pathology put in particular
to Dr.
Abrahams were dealt with successfully and she could distinguish the
contents thereof apropos the facts of this case. They
impressed the
Court as having the qualities of an expert and that the evidence they
gave was trustworthy and reliable.
16.3
WARRANT OFFICERS ENGELBRECHT AND VAN NIEKERK
:
These
witnesses provided the Court with an understanding of the cell phone
extractions and other electronic communication evidence.
They
impressed me as credible witnesses, whose evidence can be safely
relied upon.
16.4
PETER NORTON AND MARK HOLMES:
As
relatives of the deceased, their evidence gave the Court insight into
a number of aspects within the familial dynamics and how
the deceased
dealt with conflict generally.  Both witnesses came across
during their testimonies as fair minded and gave evidence
in a
satisfactory and truthful manner.
16.5
NEWCOMBE AND STEENKAMP
:
Newcombe
and Steenkamp were professional witnesses who provided the Court with
crucial information relating to their interactions,
observations and
clinical findings of the deceased, particularly in the months and
days before her death.  The deceased had
been their patient. The
deceased had been a patient of Steenkamp since 2014 for general
medical care and botox treatment.
Her last consultation with
the deceased was 9 days prior to her death.  The deceased looked
more relaxed and mentioned that
she was going to Spier in Cape Town
with her husband the following weekend.  She consulted Steenkamp
during her last consultation
for botox treatment and asked that the
doctor make her pretty. This is one of many factors which would
support a reasonable inference
that the deceased was not in a
pervasive state of despair or low mood, or that she was a risk to
herself.
Newcombe’s
last consultation with the deceased was on 20 July, the Wednesday
prior the deceased’s death.  She also
had a 10 minute
telephone call from the deceased during the weekend at Spier, as well
as message exchanges between them. She did
not in all her
interactions find the deceased to be suicidal or depressed.
Newcombe identified the deceased’s statements
or conduct
displayed to the marriage counsellor, and the deceased’s
statements to herself, as being consistent with her anxiety,
and an
exaggerative attempt to get her husband to understand and favourably
respond to her feelings.
The
common thread in their evidence is that the deceased did not have
mental health challenges and that she did not present symptoms
of
depression or anxiety disorder, nor that she was a suicidal threat.
They withstood lengthy and vigorous cross-examination
that they had
misdiagnosed the deceased; however, they consistently stood by their
testimonies.  The Court found them to be
reliable witnesses who
gave evidence in a credible and trustworthy manner.
16.6
CAROL NADER:
This
witness observed the deceased and accused engage each other in the
marriage counselling sessions with a view to restoring their
marriage
as it took strain  with the discovery of the accused’s
extra-marital affair.  Her early impressions of
the behaviour of
the deceased during sessions concerned her that the deceased may
require further psychological and medical intervention,
which she
addressed with them.    I understand from her
testimony and written statements
[81]
that she is not qualified to diagnose mental conditions.  The
deceased heeded her advice for onward psychological intervention
by
engaging the ongoing services of a clinical psychologist, and visits
with her doctor who prescribed medication for daytime anxiety
and
sleep difficulties.
Nader
was persistent during her testimony that the information she gave Dr.
Panieri-Peter, did not necessarily contain her professional
findings,
nor was it based on fact.  I understood her evidence in this
regard to be that she engaged the topic more as being
off the record
banter with a colleague.  She expressed her shock and surprise
that much of her conversations with Dr. Panieri-Peter
were placed
before the Court.  She also remained steadfast that she did not
communicate to Dr. Panieri-Peter that the deceased
was suicidal.
In
evaluating the evidence of this witness it must be said that the
Court was constrained to distinguish between her professional
views
and mere speculation or conjecture.  Not much weight can be
given to the view which she held of the deceased’s
mental
state, as she was not qualified to do so. However, more importantly,
any concerns which she had on a primary assessment
level were
superseded by subsequent psychological and medical attention, the
evidence of which has been placed before the Court.
It
must be said however that the witness transgressed the rules of
medical privilege by providing a written report to the attorney

appearing on behalf of the accused.  Both the deceased and the
accused were her clients under the umbrella of counselling.

Information so given can only be released by her to other parties
with their respective express consent.  I deal with this
aspect
later in this judgment.
16.7
MR K. MABETA
,
CAPTAIN SEPTEMBER AND CONSTABLE
FERNANDES
Not
much turned on the evidence of these witnesses, save that their
testimonies serve to corroborate aspects in various events and
in the
sequence in which they had unfolded from the early hours of the
Sunday morning until after the death of the deceased.
Mr.
Mabeta, the Spier security guard, confirmed that he saw the deceased
and accused pacing along the pathways in between the hotel
rooms and
that he observed them to be arguing, with the accused pushing the
deceased.
The
evidence of Fernandes placed into context circumstances as to how
Daniels’ first statement came about. It was taken by
him after
arriving at the scene, outside in the parking area on a vehicle
bonnet.  This would reasonably explain why further
statements
were requested from Daniels, which also provided more details.
The
Court is satisfied that these witnesses testified in a truthful
manner and that it is safe to accept their evidence. The Court
finds
that these witnesses were credible and had nothing to hide.
16.8
CAPTAIN JOUBERT AND COLONEL OTTO
:
The
evidence of Joubert and Otto gives the Court an understanding of the
DNA collected at the scene and the locations in the hotel
room where
blood stains were collected from.
Blood
of the accused was found at various locations in the bedroom, which
Joubert testified was either deposited by the accused
before, during
or after the incident.  He makes a significant finding that the
blood stain on the bathroom floor next to the
body of the deceased is
a contact transfer, meaning that the transfer was made when a
bloodied object had come into contact with
that surface.  Otto
testified that in order for a secondary transfer to be made, the
blood had to be wet.  She estimated
that such a transfer can
only happen within 30 minutes from the time the blood was produced,
in other words from the time the person
started bleeding.
The
evidence of these witnesses is accepted as trustworthy and reliable.
16.9
DESMOND DANIELS
:
Daniels
was a single witness who gave evidence as to how he had come out to
the scene and what he had observed.  He gave his
account in a
consistent manner.  He was subjected to lengthy, hostile and
vigorous cross examination often on matters which
were irrelevant to
the matter.  He was consistent in recalling the events and did
not come across as being malicious towards
the accused or having an
ulterior motive in testifying to events as he did.  He is an
independent witness.  Daniels gave
crucial evidence on a number
of aspects such as the position the deceased was in when he opened
the door; how and when the accused
went into the bathroom; that the
witness had pushed the door open after fiddling the lock; that he saw
the legs of the deceased;
the basic features of the cord tied to the
towel hook and around the neck of the deceased; that she was not
breathing when he removed
the cord; that she was completely naked,
importantly that the accused never told him that his wife was in the
bathroom or called
out to her before he was asked by the accused to
get the bathroom door open and that the accused did not at any stage
ask him to
call for an ambulance or other emergency medical
assistance.
Daniels
gave account of the basic features that the cord was in when he saw
it at the back of the door and tied around the neck
of the deceased.
He was taken apart in cross-examination for not being able to
reconstruct how the cord was tied and being
unable to repeat the
demonstration.   This witness was called as a lay person.
He is not an expert in reconstruction
and he gave a sufficient and
reasonable account of how he remembered seeing the cord in the
fleeting minutes when he entered and
exited the bathroom.  His
eyes were not fixed on the cord.  In that fleeting time he would
have had to direct his focus
on a number of things, which from his
evidence he clearly had done.
Section
208 of Act 51 of 1977 embodies the principle the Court must apply to
the evidence of a single witness.  This requires
that the
evidence of Daniels must be satisfactory in all material respects.
The cautionary rule is a matter of common sense.
In
Modiga v
The State
(20738/14)
[2015] ZASCA 94
(01 June 2015), at para 32,
it was held that:
“
I am mindful of
the salutary warning expressed in
S v Snyman
1968 (2) SA 582
(A) at 585G that even when dealing with the evidence
of a single witness, courts should never allow the exercise of
caution to
displace the exercise of common sense.”
Equally
important is the sentiments of the Court in
S
v Sauls
[82]
that there is no rule of thumb test or formula to apply when it comes
to consideration of the credibility of the single witness.
The
Court must consider the merits and demerits of the testimony and
having done so, will decide whether it is trustworthy and
whether,
despite that there are shortcomings or defects or contradictions in
the testimony, he is satisfied that the truth has
been told.
Van
der Spuy subjected Daniels to vigorous cross-examination as regards
what he considered and subsequently argued to be material
differences
between Daniels’ testimony and that contained in the 3
statements given to the police.  Counsel criticized
the evidence
of Daniels as being materially different to the statements made to
police and being of such a poor quality that no
reliance can be
placed thereon.  I disagree.  In my view the difference
between the statements and Daniels’ oral
evidence in Court are
not material. Through other testimony it was apparent that the
initial statement was obtained from Daniels
at the scene by Constable
Fernandes in the parking area.  After the post mortem report was
completed on the Tuesday and pursuant
to the findings contained
therein, the investigative team subjected Daniels to further
consultations and recorded further information
as sought.
Daniels
maintained that the ligature around the deceased neck was loosely
placed around her neck, allowing him to take it off her
neck with
ease.  The cord of the curling iron is 3 metres long.  The
door is 2 metres in length, (the hook is 1,94 metres
long) which
makes it possible for the appliance to be tied around the hook with
sufficient length (1 metre and 6 centimetres) for
the remainder to be
tied around the neck of the deceased.  Given the length of the
cord the deceased would have been able
to lie in a supine position.
At the very least given the evidence of Daniels that her calves were
on the floor, it would
mean that  her buttocks were on the floor
and possibly so was her back, or at the very least her back could
have been slightly
raised, with the cord tied around her neck.
Daniels
testimony in Court remained consistent in material ways.  He
testified to being sent to room 221 due to a bathroom
door not
opening, what he did upon arrival, his discussion with the accused,
opening of the door and assisting the accused in removing
the cord
from the deceased neck.  He left the bathroom and called for
further assistance.  His three statements, each
containing
further information, it was argued by Van der Spuy, have been the
result of the police having suggested the further
detail which he
went on to elaborate.  That he initially said that the deceased
was lying on her back, was argued to be materially
different to his
testimony in court wherein he explained that he opened the door
approximately 15cm when he saw the calves of the
deceased flat on the
ground.  It is well known that police statements are as a matter
of common experience not taken with
the degree of care, accuracy and
completeness.
This
was dealt with in
S v Xaba
1983 (3) SA 717
(A) at 730B-G.
In cases where there are contradictions between the statement made by
a witness to the police and subsequent
viva voce evidence, the
approach is the same as dealing with the contradictions between two
witnesses.
In
S v Mafaladiso en Andere
2003 (1) SACR 583
(SCA) 593E-594H
reads as follows:
“
. . .in neither
case is the aim to prove which of the versions is correct, but to
satisfy oneself that the witness could err, either
because of a
defective recollection or because of dishonesty.  The mere fact
that it is evident that there are self-contradictions
must be
approached with caution by a court.  Firstly, it must be
carefully determined what the witnesses actually meant to
say on each
occasion, in order to
determine whether there is an actual
contradiction and what is the precise nature thereof
.”
(Own underlining.)
This
Court is alive to the fact that the previous statements which Daniels
made were not taken down by means of cross-examination,
nor do we
know what questions have been put to him which would have solicited
the recorded statements.  The Court observed
Daniels to be a
simple and relatively unsophisticated man.  He gave account of
events, referring submissively and respectfully
to the accused in the
dock as “
die
meneer
”
[83]
.
He worked as a maintenance man for most of his adult life, for the
first many years at Stellenbosch University followed
by his present
employment at Spier where he had been working for the past 15 years.
He is not highly educated and his work
experience and training is
limited to general maintenance work at the hotel.  He testified
with the aid of an interpreter,
he speaks with a cracked voice
rasping at times during his testimony.   This added strain
to the interpreter’s
role which often required of her to confer
with him that she had understood him correctly. Though his statements
were recorded
in Afrikaans, which is his chosen language, there may
have been language, cultural and other communication challenges
between the
witness and the person taking down the statement which
could stand in the way of what precisely was meant.
In
Mafaladiso the approach is that not every error by a witness nor
every contradiction or deviation adversely affects the credibility
of
a witness.  Non-material deviations are not necessarily
relevant.  Furthermore it was held that the contradictory

versions must be considered and evaluated on a holistic basis.
In
addition to weighing up the previous statement against the viva voce
evidence of Daniels, I considered his evidence with the
necessary
cautionary rules as a single witness whether it was credible and
satisfactory in all material ways.  Evaluated on
a holistic
basis I am satisfied that Daniels’ account of the events of
that fateful morning is reliable and notwithstanding
any
shortcomings, I am satisfied that the evidence is credible in all
material respects.
Van
der Spuy argued that Daniels lied about the fact that he spent the
Court lunch adjournment, whilst under cross examination,
with his
supervisor, Mr. Joep Schoof.  This was argued to be indicative
of two things, one that Daniels could not be trusted
and secondly
that Daniels was influenced or coached by his employer.  Daniels
in reply maintained that his testimony relating
that which he had
been called upon to testify had been nothing more than that which he
had experienced himself and as he had observed
it and that even
though he was prepared for Court with the assistance of lawyers for
Spier, he was not coached as to the merits
of his testimony.
Schoof also testified (as dealt with hereinafter) that he did not
tell Daniels how to answer questions
put to him in Court and that
Spier had no interest in the matter whatsoever.  Corroboration
that Daniels was not coached is
also found in the testimony of
Sergeant Adams.
Notwithstanding
some shortcomings in the testimony of Daniels, it is my judgment that
his evidence on the events in question was
satisfactory and reliable
in material respects.  There were no material contradictions in
Daniels evidence.
16.10
MR. J. SCHOOF:
Mr.
Schoof, the general manager of the hotel, testified that Spier Hotel
has no interest in the matter and that the support that
the Hotel
gave to Daniels, through their lawyers and the hotel management, was
that of supporting their employee and that they
did not seek nor did
they in fact influence the testimony given by Daniels.
Schoof
gave evidence in a consistent and truthful manner.  The Court
has no reason to doubt his evidence and accepts the contents

thereof.  Further corroboration that Daniels was not influenced
or coached as to the contents of his testimony can be found
in the
affidavit
[84]
handed up by agreement with the defence that the contact with Daniels
was for the purpose to prepare him for Court and that they
did not
instruct nor coach him in respect of evidence Daniels testified to.
16.11
COL D.POOLEMAN
:
Pooleman
testified on a number of engineering aspects relating to the bathroom
door and the curling iron.  He impressed the
Court as a sound
expert and his evidence is accepted.
16.12
SERGEANT ADAMS AND SERGEANT APPOLLIS
:
Appollis
was the investigating officer assisted by Adams.  They testified
on a number of aspects in the course of investigating
the matter.
The Court did not get the impression that their evidence was false or
that they had ulterior motives for implicating
the accused. It is
significant that Appollis did not find any evidence indicating an
intruder.  It was not placed into dispute
that the deceased and
the accused were alone in Room 221 during the early hours of the
Sunday morning until Daniels arrived on
the scene.  The Court
also accepted their evidence as reliable and trustworthy.
16.13
FARRAH AMEERMIA:
The
evidence of this witness was concise and confirmed that when the
deceased entered this bedroom after the accused, she had worn
a white
robe and called for the accused to come.  It was not suggested
in her evidence that the deceased had any notable injuries.
The
Court has no reason to doubt the truthfulness of her evidence.
EVALUATION
OF DEFENCE WITNESSES
:
16.14
JASON THOMAS ROHDE
:
Rohde
remained consistent throughout his testimony that he was not guilty
of the charges proffered against him.  Whilst he
was able to
give a comprehensive and coherent account of the weekend’s
events, his testimony as to the events between the
hours of
approximately 7h00 am to 08h30 am on the morning of his wife’s
death, was evasive and specious.  This period
is also
significantly the period during which the deceased by all accounts
must have died.
When
the deceased and accused returned to the bedroom at around 3 am, he
testified that he got into bed and fell asleep and was
awoken by the
deceased shortly after 7 am.  Whilst the deceased was irate at
the earlier events and her toe bleeding from
a fall outside,
objective evidence though supports his evidence that he had fallen
asleep.  Cell phone records show that he
only responded at 07h06
to a message sent by Miller a few hours earlier.  Blood stains
in the bed consistent with her lying
in bed with a bleeding toe
support his testimony that the deceased had been in bed when he woke
up.  Cell phone activity on
the deceased’s phone shows
that after attempting to phone Jolene at 03:11 am, further activity
on her phone continued sometime
around 05h50 am with enraged messages
exchanged between the two women.  This carries on intermittently
until 07:06 am when
the deceased wakes the accused up and screams
profanities that Jolene had sent her messages.  This seemed to
have reignited
the fury between the accused and the deceased.
The accused maintains that at this point he told her words to the
effect that
he was done and wanted to sort things out when they
returned home.  She responded by getting out of bed and went to
the bathroom.
Jason fell asleep until he woke up some time
later.  The events which followed thereafter are as set out in
the summary of
his evidence.
The
accused testimony as to the events of the fateful morning is
interspersed with inherent improbabilities and seen within the

factual matrix of the matter falls to be rejected as not being
reasonably possibly true.
The
accused disclosed in his plea explanation and testified that he had a
physical altercation with the deceased in the early hours
of the
Sunday morning.  Using terms such as “
colliding”
with the deceased and his body “
connecting”
with
the deceased was clearly a way of ducking the reality that the
accused had assaulted the deceased by using physical force
and
violence to overcome her resistance, including resorting to shoving
her by her neck to stop her from blocking his exit from
their hotel
room. He did not squeeze his hand over her throat, though it gave him
the success of getting her out of the way.
Clearly the accused
showed the propensity to go for the deceased’s throat to
overcome her and render her powerless over him.
The
accused testified over 6 days.  His version of events on the
morning of his wife’s death came across as scripted,
he showed
difficulty in answering questions beyond the facts to which he
testified in chief, could not answer questions crucial
to the events
of that moment and contradicted himself in a numbers of ways.
During cross examination he initially illustrated
that the cord was
around her neck in a double strand.  However, later he changed
his version that the cord was around her
neck in a single strand.
As in the case of Daniels, the Court does not make much of the fact
that the accused could
not do a reconstruction as to how the cord was
tied behind the door and to the neck of the deceased.  He is not
an expert
in the field.  However, it is reasonably expected from
the accused to be able to give basic features as to how the cord was

around his wife’s neck.  He became argumentative and
belligerent when challenged under cross-examination, answering

questions to that effect with questions and inferences.  He
struggled with the details of events when he testified on this

aspect.
As
far as the accused demeanour during his testimony, it must be borne
in mind that it is seldom ever decisive in determining the
outcome of
a case.  On its own, findings of demeanour have limited value.
Demeanour should be considered with
all other factors, including the
probability of the witness’ story, the reasonableness of his
conduct, his memory, the consistency
of his version and his interest
in the matter.   The risks of accepting demeanour evidence
is diminished if the evidence
accord with the inherent probabilities,
is corroborated, is not contradicted, or if it is contradicted, then
only by evidence of
a poor quality.  The demeanour of the
accused should be measured against adequate facts and tested against
probabilities and
improbabilities of the case as a whole.
[85]
The
accused explained that his inability to remember crucial details was
as a result of his shock and trauma.  However, measured
against
the events surrounding his arrest, which had clearly been shocking
and traumatic, he testified with clear and specific
details.
Emotional and evidently distraught by recalling the manner of his
arrest, he was able to give a clear account of
where he was when he
heard the bell ring; what time of the morning it was;  how many
police officers he saw from the landing
of his house and the police
vehicle through the window; what his mother put to the police
officers and upon returning to the room
what clothes he put on.
He also described in detail how he was taken from various police
stations and eventually driven from
Johannesburg to Cape Town.
These events were very upsetting to him and traumatized him.
Notwithstanding the trauma
he gave his account in quick successive
expression with events particularised in coherent detail.  As he
described the events
relating to his arrest, he became tearful for
the first time during his testimony.
The
accused’s account of events leading up to his wife’s
death and his discovery of her body had been relayed in his
evidence
without the emotional anguish which he exhibited when he testified to
his  experience of his arrest.  The demeanour
of the
accused must however be seen within the limitations of its
evidentiary value.
It
is a significant feature of the crime scene that the accused’s
blood was found at the scene, more particularly on the white
duvet
cover, pillow and on the bathroom floor where the body of the
deceased was found.   The accused could not explain
why his
blood was found at various areas in the room.  In view of the
fact that he sat down next to the deceased the contact
transfer in
the bathroom highly likely means that the accused was bleeding from
an injury sustained 30 minutes earlier meaning
when his blood was
still wet. Though counsel for the defence pointed out that the
accused and deceased had been occupying the hotel
room since the
Friday, it was not suggested that the room had not been serviced on
the Saturday morning.  This would reasonably
imply that the
accused had bled from a wound between the Saturday and the Sunday
morning.  The evidence suggests that this
time frame is narrowed
down substantially to the accused having had a bleeding injury 30
minutes before he sat down on the bathroom
floor next to the body of
the deceased. It is not in dispute that he sat down next to her at
around 08h25 – 08h30.
Blood of the accused was not noted
on the bedsheet
[86]
.
This would reasonably suggest that he did not have the bleeding wound
at the time that he was sleeping
in
bed.  The various bloodstains on the bedsheet were all those of
the deceased consistent with her lying in bed with a bleeding
toe.
The accused must in all probability have sustained the injury of
which he claims he was not aware
after
he got out of bed that Sunday morning.    The
bloodstains of the deceased on the pillow on the side of the bed
where the accused had been sleeping are consistent with the abrasion
she had on her left eyebrow, two mascara marks consistent with
the
position of her two eyes and a smaller round blood stain on the
right.  This is not the pillow on which she had slept.
It
is the pillow on the accused side of the bed.
State
witness, Norton, the brother in law of the deceased, testified that
his father in law, in his presence, asked to see the accused’s

hands, to which the accused obliged.  However, the district
surgeon, Dr. Tiemensma  on the J88 recorded 4 days after
the
death of the deceased, that the accused that a tiny cut or scratch on
his hand to which he explained that he had cut himself
on a vase
after the deceased’s death.  During his testimony the
accused repeated that the cut on his hand was sustained
from a vase
which he had reached for and had dropped in the days after the
deceased’s death.  He further testified that
it was quite
a deep cut from which he bled somewhat and that his mother-in-law,
Mrs Diane Holmes, was present at home to administer
some aid to
reduce the bleeding and assisted him with a plaster.  The
defence did not call his daughter or Mrs. Holmes to
corroborate this
event.  Whilst it could be that as the mother of the deceased,
she may have not wished to co-operate with
testifying, this was
however never indicated to the Court, nor was the suggestion made
that the accused wished to call her as a
witness.  Mrs. Diane
Holmes had earlier in the trial given a statement explaining the
deceased’s bruise on her thigh
and that the deceased had a
bruising condition.  That being the case, no explanation was
tendered why another affidavit by
her could not be obtained to
confirm how the cut on the deceased hand had been sustained.
Therefore an adverse inference
can be drawn from the fact that the
defence did not tender evidence to corroborate his testimony in this
regard.  (See
S v Teixeira
1980 (3) SA 755
(A).) The
Court is justified to infer that the failure to call Mrs. Holmes was
that she might possibly have contradicted the testimony
of the
accused in this regard. In
S v Teixeira
the Court held that
the failure to call an available witness may not be without
consequences. The blood at the scene, on the bathroom
floor and the
white duvet cover, appears conspicuous and it is inconceivable that
the accused would not notice his blood on these
areas some time
during the time that he had occupied the room or that he would not
have felt the pain from the infliction of the
wound.  Apart from
2 healing scratches on his back, the district surgeon could only find
one cut on his left hand which he
claimed was sustained subsequent to
the deceased’s death.  If that was true and he did not
sustain the cut on his hand
on the weekend of the deceased’s
death the corollary would mean that two cuts or wounds would have
been found on his body,
that being, a cut from which he bled
unknowingly over the weekend leaving bloodstains at the scene and the
cut sustained from the
broken vase after the deceased’s death.
Blood
stains on the bedsheet (bottom half) all belonged to that of the
deceased which is interpreted to be consistent with the deceased

lying in the bed on the right, bleeding from her toe/s.  Whilst
her blood was found on the other two pillows consistent with
an
abrasion on her left eye, it is significant that these were not the
pillows on her side of the bed where the deceased had slept.

One pillow is on the left side of the bed where the accused was
sleeping and the other on the floor next to his side of the bed.

On the blood pattern analysis/reconstruction of crime scene form,
prepared and signed by Joubert at the scene on 24 July, the pillow
on
the left side of the bed is marked as B13 and the pillow on the floor
on the left side of the bed is marked B11. This is also
so
illustrated in the photo album marked as Exhibit B on photos 38 and
39.  The latter photo also appears at Exhibit D Bundle
2
Annexure 3 (photo 2).  The markers at B11 and B13 are
differently illustrated, pointing to the pillow on the bed as B11
and
the one on the floor as B13.  I have engaged counsel during
argument on this and it had been agreed that the locations
of the
markers must be accepted as set out in the reconstruction scene and
the photos of Exhibit B.    Hence the
pillow on the
bed is B13 and the one on floor is B11. Either way, the pillows
marked B11 and B13 were not used by the deceased.
They were
both on the side on which the accused slept.
Joubert
conceded during cross examination that the quantity of blood produced
by the accused could have been from an insignificant
injury, so small
that he could not possibly have been aware thereof.  In my view
this does not detract from the fact that
the accused bled at the
scene.  Whilst it was a minimal quantity of his blood, it was
nonetheless conspicuously noticeable
on the duvet, pillow and
bathroom floor. Everything indicates that the accused bled during the
time when the deceased was fatally
wounded and the accused cannot
account for it.
The
accused was adamant that the deceased wore her robe when she was
found in the bathroom.  When viewing the photos it was
clear
that her forearms only are inside the sleeves of the robe and that it
is inside out. Photo 15 clearly shows the inside seam
on the outside
at the sleeve.  The back of the robe is essentially cascading on
the side of the deceased with the sleeves
half over each of her
forearms.  Some of the blood stains were noted to have been on
the inner aspect of the left shoulder,
which if worn inside out would
cause the blood to be on the inner aspect of the left shoulder.
This serves as corroboration
that she had not been wearing the robe
when she was discovered by the accused and Daniels.   It is
unlikely that had
she worn the robe when he lifted her and placed her
down on the floor that the robe would end up being around her body
and next
to her for it would have been under her.  It is most
likely in the light of the evidence that she was naked when she was
‘discovered’
as Daniels testified.  After Daniels
left the bathroom, the accused appear to have attempted to hurriedly
put the robe on
the deceased body, which would have been a futile and
difficult exercise without help.  He mistakenly donned the robe
onto
the deceased inside out.  Daniels had just exited the
bathroom and staging further would have been pressurised by the
shortage
of time and limited opportunity before others arrived.
With the deceased being a “
dead weight”
, as the
accused testified, it is likely that he could not don the robe on her
completely, save for placing the limbs which would
have been more
capable of moving into the robe.  The belt was on the bed.
The accused had either forgotten to place
same into the loops of the
robe or he had run out of time to do so. Either way, this was part of
staging to cover his tracks.
The
finding that the robe was placed onto and around the body of the
deceased lends independent corroboration to the testimony of
Daniels
that the deceased was completely naked.
The
accused said that he resorted to phoning his wife after she did not
respond to him.  He could hear the phone ring from
inside the
bathroom unanswered.  From records this call was placed at
08h02.  Though his concerns at this point had grown
to a “
gut
feeling that something was wrong”,
he waited in the room
for 20 minutes before placing a call to the hotel reception.
The call to hotel reception in these circumstances
is even more
perplexing.  Whilst knowing that his wife was in the bathroom
and believing that something was wrong, he informs
the receptionist
that the bathroom is locked from the inside, that it cannot open and
that she should send a
maintenance worker to open the door
.
This is preposterous in these circumstances.  He was convinced
that something bad had happened, a maintenance worker
would only
serve to open the door.  What supposedly would a maintenance
worker do once the door was opened?  The accused’s
conduct
is consistent with someone who knew that his wife was dead on the
inside of the bathroom.  Whilst the call to reception
is to call
for assistance, he limits the assistance to merely opening the door
and excludes raising the alarm that his wife may
need emergency aid,
let alone mentioning that she was inside the bathroom. At the point
of being so convinced that the deceased
was in danger, it is a
peculiar feature that the accused did not seek emergency or medical
assistance.
The
accused thereafter waits for a maintenance worker to arrive, however
long that may take as he did not know when exactly aid
would come.
Some 5 - 6 minutes later, Mr. Daniels arrives knocking at room 221.
The accused is not waiting outside
in anticipation.  Instead the
door of the hotel room is shut.  The accused opens after Daniels
knocks for attention and
the accused then tells him that the bathroom
door cannot open.  The accused claimed that he mentioned to
Daniels that the
bathroom was locked from the inside.  Daniels
testified that the accused simply told him that the door could not
open.
The difference is not material.  For either way, the
accused did not relay to Daniels that his wife was inside the
bathroom
or that he was concerned that something may have happened to
her which would have cautioned Daniels that she was inside.  He

does not call out to his wife as a last caution that he got someone
from the hotel to open the door.  After all, forcing the

bathroom door open with his wife inside has the effect of invading
her privacy.   She may have been exposed in the bathroom
or
in a compromising position which would embarrass her.
Logic would dictate that a man in the position of the accused
would
raise the alarm to someone who would be opening the door on his wife,
possibly naked in the bathroom or in a comprising position,
so as to
exercise caution when opening the door.
The
accused said in cross-examination that by stating that the bathroom
was locked from the inside he would not have to spell out
to anyone
that his wife was inside as it was obvious that by it being locked
from the inside that “
someone”
was inside the
bathroom.  But this was not “
someone”
.
It was his wife.  According to his account of events she had
gone to the bathroom some time earlier, was naked save
for a hotel
robe and he had initially thought that she was in the bath.
The
accused claims that shortly after coming to the apprehension that his
wife had done something bad, he rammed against the door
in an effort
to force it open and gain access.  “
It did not move an
inch”
he testified.  This being so, he did not resort
to any other attempts to gain access.  He does not bend down to
look
at the door handle.  The first port of call when a door
cannot open is to check the handle.  Realising that he is in a

corner during cross-examination on this point, he answers that he is
not technically inclined.  How would he have known that
it
requires technical knowledge, if at all, if he had not even looked at
the handle or its lock.  When the State counsel probed
whether
he had previously experienced someone being locked inside a room or
bathroom for example his children, he answered that
they do not have
keys to their home bathrooms. The accused started adapting his
version when questioned on aspects which did not
make sense.
The
Court had the benefit of an inspection in loco of the hotel room.
The room is located on the ground floor.  The front
door as
depicted on various photos clearly illustrates the bathroom window
situate on the left, approximately a meter or so adjacent
to the
front door.  The bathroom windows upon inspection was noted to
be opening vertically, and a member of the forensic
unit, a well
built, adult male accessed the window with ease as depicted on photo
50 of the in loco photo album. The window was
opaque, but the top was
clear glass.  A retractable shutter is on either side of the
window accessible from the inside of
the bathroom, which appeared as
an aesthetic accessory.  I find it strange that during this
crucial period, the accused did
not open the front door to engage
help from persons passing by nor had he gone outside to the window
to, at the very least, check
if the window was open or to see if he
could open the window to access his wife.  Possibly the bathroom
window was open, this
would allow him ease of access in one way or
the other.  Many other feasible possibilities flow from simply
coming out the
hotel room, such as knocking on the window to get her
attention or enlisting the help of others.  It was after 8 am,
people
and staff would be passing.  He surely could address his
concerns that his wife was in danger and see if they could open the

bathroom door.  He could knock on the window, call out for her,
if all else fails, break it.  No doubt breaking the window
would
have been easier to do as compared to breaking the bathroom door
down, which did not move an inch. Clearly he wanted to retain
control
of the scene.
The
evidence of the accused leaves more questions than answers.  But
moreover, it disintegrated with illogical statements.
A
clear picture emerges that the accused wanted to create an alibi by
calling upon a handyman from the hotel as opposed to a paramedic

aid.   Daniels arrived, not only willing but also obliged
to act upon the instructions of a hotel guest.  The accused

refrained from expressing his apparent concern regarding his wife
inside or that she was inside the bathroom in the first place.

Daniels was unsuspecting that he was being used as a prop.  He
was unknowingly given a key role as a “witness”
or an
“alibi” to corroborate the version that the deceased had
killed herself.   Clearly the accused wanted
Daniels to be
ambushed by the discovery that the deceased was locked inside the
bathroom and hanged herself.  It is inconceivable
that after
being asked to fiddle the mechanism so as to get the door open, that
the handyman would simply stand back without checking
that the door
could in fact open or to ascertain that the lock mechanism had been
the cause of the door not opening.  It is
more probable that he
would turn on the door handle to see if he was successful in
unlocking the door and through a process of
elimination he could
determine if his fiddling had solved the problem.
The
two distinct versions as to who opened the door, also lead to the
unravelling of two diametrically opposed theories: suicide
v
homicide.  Daniels claims that he turned the handle to see if
the door now opened and upon doing so stopped immediately
when he saw
two legs on the floor.  He testified that he saw the deceased
legs more particularly her legs flat on the bathroom
floor in the
direction under the basin area which is on the right of the bathroom
door.  The accused maintained that he opened
the door, but the
deceased body caused resistance against the door. He contradicted
himself during his testimony when describing
at which point he saw
the deceased’s feet.  At some point he said he felt her
against the door, then he said he saw
her feet as he opened the door
changing it to seeing her feet when he wedged himself through the
door opening.
The
accused’s testimony that he is a “100%” sure that
the deceased had on her bathrobe is also questionable.
Even if
she had on her bathrobe (which Daniels states she did not) and that
she was completely naked, leaves the reality that without
the belt,
which is clearly seen on the photos to be on the bed, the deceased
would have been significantly exposed of her private
areas.  The
accused did not make any concessions as to the fact that her body
upon “discovery” would have been
exposed, but maintained
that she had been dressed in the bathrobe.   Had this been
the case, Daniels would not have had
such a clear view of the
electric cord tied around the deceased neck.
The
hotel robe is made of a thick towelling fabric and has a fold over
collar running behind the neck to the front of the robe.
When
Daniels removed the cord from the neck of the deceased by sliding it
over her head, he would according to the accused version,
have had to
manoeuvre his left hand underneath the robe collar and her hair to
access the cord from the back of her head and his
right hand would
have to take the cord from the front of her neck with her face
leaning on the chest of the accused.
This would
have taken some effort, particularly as accused claimed the cord was
tight.  The accused did not provide this detail.
Upon
further questions from the Court as to where Daniels was standing and
exactly what the positions of the three persons were,
the accused
struggled with the construction of the narrative of his version.
In my view, this is so, because the manner in
which the deceased was
found and how the cord was removed by Daniels was based on a
fiction.  His version had to be adapted
to answer questions from
the Court.  This presented a problem for him in relaying the
events as it simply did not happen that
way.  Given that the
deceased was in a crouched position with her back against the door,
he had to construct his version to
the effect that he picked her up
facing her.
It
was an established pattern of the testimony of the accused that he
could not remember crucial details and became argumentative
when
asked questions as to the state of the cord around her neck.  He
repeatedly asked counsel for the State of what interests
the cord
around his wife’s neck was as all he wanted was for it to be
removed.  If anything is to be said of his opportunity
and need
to observe it is that he would have had a longer opportunity to
observe the ligature around the deceased’s neck
and a greater
interest than Daniels to gather how it could come off her neck.
Finding the deceased suspended from a ligature with
a noose around
her neck would have compelled him in that moment to check how the
noose was tied as picking her up could potentially
have tied the
noose tighter around her neck causing further injuries.
After
Daniels removes the cord from the deceased, it is not disputed that
the accused lets Daniels leave the bathroom without calling
out for
him to get medical attention.  Not calling for medical or
emergency assistance remains a peculiar feature throughout
the
evidence of the accused.  Daniels is left to his own devices,
which he does by going in to the room to call reception
for immediate
assistance. The accused says he went about attempts to resuscitate
his wife.  Bizarrely the accused denies that
he heard Daniels
calling for assistance and to ask of Daniels to do so.  This
would be all the more reason for him to call
for assistance.  He
testified that he has only seen CPR on television dramas.
The reasonable response of the accused
would have been to call for
emergency or medical assistance as soon as he feared that something
was wrong.  He had various
opportunities on his own version to
do so and at various instances during this crucial period.
Instead he remained in the
room; phoned his wife; waited for 20
minutes then phoned reception; waited for an indefinite period for
the handyman to arrive;
when the handyman gets the door open he yet
again does not call for medical attention or assistance.
The
affidavit of William Lee (exhibit “RR”) also states that
when Lee stood at the bathroom door, he asked the accused
seated on
the floor next to the deceased if he should call anybody, but got no
response.  Once again the accused does not,
even upon
invitation, call out for emergency or paramedic assistance.
16.15
DR PANIERI-PETER:
PSYCHOLOGICAL
AUTOPSY:
According
to literature on the topic, the psychological autopsy is thought to
be the cornerstone of suicide research.
[87]
It is also called psychiatric autopsy, retrospective death
assessment, reconstructive evaluation and equivocal death analysis.

This is a procedure for investigating a person’s death by
reconstructing what the person thought, felt and did preceding
his or
her death.
It
was developed in the 1950’s by two psychologists working in a
hospital in the United States of America.  The term

‘Psychological Autopsy’ was coined in 1958 by Edwin
Shneidman, Norman Earberow and Robert Litman, the directors of
the
Los Angeles suicide prevention center
[88]
.
There is no well-developed conceptual or theoretical basis for
deriving conclusions from the various sources of information

collected as part of such an autopsy.  It appears that the
professionals involved draw upon their experience to relate the
facts
to symptoms or syndromes that they would encounter in their daily
practices.  Information is collected by interviewing
relatives,
friends, employers, physicians and others, including teachers and in
some cases even bartenders, who could provide relevant
information in
an attempt to reconstruct the deceased’s background, personal
relationships, personality traits and lifestyle.
The nature of
information collected would usually include biographical information
(age, marital status, occupation); personal
information
(relationships, life style, alcohol/drug use, sources of stress,
social networks, life events and chronic life stressors);
and
secondary information (family, history, police records, diaries,
clinical histories and suicide notes); physical illnesses;
medical
and police records.
The
term psychological autopsy is neither particularly well defined nor
standardized.  One major concern in this discipline
is that
there does not appear to be a systematic procedure in place for the
conduct of these interviews.  Depending on the
nature of the
case under review, the procedure will vary from case to case and the
time interval between the death and the interview
will also influence
the quality of information obtained. The assessment involves the
subjective views and opinions of those willing
to participate.
However, despite many weaknesses of the evidence and procedure used
in the autopsy, it would appear from
various literatures on the topic
that it its strength lies as an
investigative
tool
.
The burden of proof required during the course of investigations is
different from that which is required in Court.
Authors in the
field consider that psychological autopsies could have a more
productive role outside the Court, than inside.
Whilst there
are many benefits to a
comprehensive
psychological autopsy, scholars are guarded against extending its use
beyond research or clinical practice.  Although some
believe
that the science is a standard which is reliable and a valid tool,
others argue that it is still in its infancy and requires
far more
empirical support before its scientific basis is established. Based
on the literature, the  psychological autopsy
is still searching
for its legitimacy and place as an evidentiary tool in the
investigation of a crime, let alone a criminal trial
[89]
.
The
persons interviewed by Dr. Panieri-Peter for the purpose of
conducting the autopsy were as set out in the report as being the

accused, his eldest daughter , the housekeeper of the deceased,
identified as Ms. MM, friends of Mr. and the late Mrs. Rohde
(individually
and anonymously cited as Mr. PC, Mr. GP and Mr. TC),
Ms. Suzanne Long (clinical psychologist of the accused), Dr. Kevin
Stoloff
(psychiatrist of the accused who has been attending to the
accused post the event in question),  as well as the two State
witnesses, Nader and Newcomb as referred to earlier herein.
Save for Newcombe, whose testimony is before the Court, the witnesses

are all closely linked to the accused.  In
S
v Botha
,
Case No: K/S19/12 (unreported decision)
[90]
the accused was charged with the murder of her husband by shooting
him twice with a revolver.  The version of the accused
was that
the deceased committed suicide.  Dr. Panieri-Peter did a
psychiatric assessment of the accused, as well as a psychological

autopsy of the deceased, and concluded that the deceased was suicidal
and that the accused did not present as a person capable
of murdering
her husband.  In its judgment the Court, with reference to the
guiding principles applicable to the admissibility
of expert opinion,
found that Dr. Panieri-Peter’s report could not carry weight.
The conviction was confirmed
on appeal to the SCA, under citation
Botha v
S
(901/2016) [2017].
It
is rather clear that Dr. Panieri-Peter had accepted, as fact, her
client’s allegation of suicide and  then set about
finding
confirmatory evidence for this conclusion.  She did not, during
her testimony or in her report, consider whether the
exhibited
behaviour of the deceased could be associated with the discovery of
the extra-marital affair of her husband.  Author
and therapist
Robert Weiss in his article titled: “
A
Better Understanding of Betrayed Spouses”
[91]
,
writes that if most of the time, a cheated-on patient’s current
emotional state was the only guideline for diagnoses, they
would be
labelled as rage-filled, vengeful, impulsive, inappropriate,
unstable, and the like (possibly as having some personality
disorder
or some other mental disordered label).  The result is that
patients are often misdiagnosed, as many betrayed spouses
experience
stress and anxiety, symptoms characteristic of posttraumatic stress
disorder (PTSD) but not in fact PTSD, including
flashbacks,
nightmares, severe anxiety, hyper-vigilance and powerful mood
swings.  Crucially, Newcombe, (the deceased’s
treating
psychologist), testified that the deceased displayed many or most of
these symptoms, however, whilst it is similar to
PTSD, she viewed it
as the deceased experiencing the normal emotions and symptoms
resulting from coping with the accused’s
infidelity and not
that she had suffered from a mental disorder.
Reference
to communication between the deceased and Newcombe on the Friday and
Saturday of the Spier weekend, had been interpreted
by Dr.
Panieri-Peter as the deceased having been in emotional turmoil and
out of control.  Newcombe’s testimony however,

corroborated in part by the cell phone extraction of their
conversations, points to a far more positive impression of the
deceased’s
emotional state and her exhibited behaviour.
Panieri-Peter’s interpretation of the same event is misleading,
creating
a picture of the deceased as being in complete despair,
hopelessness and simply that she was an emotional wreck.
In
terms of the best evidence rule, the Court must be guided by the best
evidence available to support the communication between
the deceased
and Newcombe.  In this case, the Court is in possession of the
best evidence of these events, that being the
testimony of Mrs.
Newcombe and the extraction of the messages exchanged between them.
The evidence of Dr. Panieri-Peter in
this regard is not only
misleading but also superfluous and can be rejected.
The
report also refers to various unidentified informants, relying on
hearsay information and constructing her opinion on information

provided by the accused which was not provided in his testimony, for
example that there was a strong indication of a genetic
predisposition
to suicide as according to the accused the deceased’s
father had occasion to express a desire to commit suicide by hanging

himself with a rope, furthermore that other family members of the
deceased had suicidal tendencies or thoughts; and that the deceased

had previously expressed suicidal intent by threatening to jump out
of the car.  The accused did not testify to this, nor
was it put
to the members of the deceased’s, family who had been called as
State witnesses, that being Holmes, the brother
of the deceased and
Norton, the brother-in-law of the deceased.   The majority
of the deceased’s personality traits
was pointed out in the
report in an extremely negative light and expressed as indicator of
depression, suicide and being out of
control. By and large every act
or conduct of the deceased was stretched and taken out of context to
fit the mould of a depressed
and suicidal woman.  Whilst the
deceased was not diagnosed as having a personality disorder of
narcissism, Panieri-Peter finds
that the circumstances at Spier and
the consequent humiliation  amounted to a narcissistic wound, so
severe that she took
her own life.
The
report indicates that State witnesses, Newcombe and Nader, were
respectively interviewed on 22 August and 12 September 2016.
The
former took the form of a 15 minute telephone interview and the
latter a 3 hour consultation.  .  In the matter of
S v
Botha
[92]
,
Dr Panieri-Peter countered criticism by counsel for the State that
her evidence was biased and that she had been selective in
her choice
of interviewed subjects in that that she had not consulted three
specific parties on account of them being State witnesses.
In
its judgment the Court also expressed concern that Dr. Panieri-Peter
read and considered the transcribed evidence of witnesses
but yet
additionally interviewed them and drew adverse inferences therefrom
as to the quality of the evidence rendered by them.
In
my view, the evidence upon which Dr Panieri-Peter formed her opinion
of Mrs Rohde was wholly insufficient, and the contents of
the report
and the reasoning employed in coming to her conclusions that the
deceased was suicidal, and in fact committed suicide,
was biased.
The anonymous views expressed in the report are untestable and
throughout the report reference is made to the
opinions or statements
of unknown persons, the probity of which cannot be determined by this
Court.  Various relatives and/or
friends of the deceased did not
wish to be interviewed.  Clearly divide within the family and
close friends had resulted in
polarized or contrary views as to the
cause of the deceased’s death.  It is common cause that
the deceased had a wide
social circle.  The deceased was a
volunteer counsellor and tutor in disadvantage communities, an avid
member of the gym and
had friends from vastly different social
groups.  This would have allowed this witness to compile her
report from a greater
perspective. Instead the sources of information
seemed to have been limited to persons linked to the accused.
Furthermore the science
upon which a psychological autopsy is based
was not sufficiently explained to persuade the Court that it is
reliable or enable
the Court to assess the probative value thereof.
In
the course of her evaluation of the accused, Dr. Panieri-Peter was of
the view that he gave a consistent account of events of
the weekend.
This evidence is not relevant.  Whilst the purpose is to show
consistency in the statements made by the
accused, these statements
and her evidence to vouch for same, is superfluous.  The accused
had testified before the Court
and the probabilities of his evidence
must be evaluated by the Court.  In
Holtzhauzen supra
the
Court held that statements by the defendant made on previous
occasions to a psychologist adds no greater weight to that which
the
defendant had been testifying to in Court.  The expert’s
guarantee as to the believability of prior statements of
the accused
adds no greater weight to his testimony and falls to be rejected.
Whilst it is so that the accused did not exhibit
a history of
violence towards the deceased, the weekend during which the deceased
died appear to have been different.  I will
deal with that in
the final analysis of the evidence.
Dr.
Panieri-Peters’ “evaluation” of the version of the
accused and her “pronouncement” of the probabilities

thereof is not only an attempt to usurp the exclusive role and
function of this Court to do so, it amounted to a modern day version

of an “oath-helper”.   The 12
th
Century English Court System resorted to adjudication of criminal
liability by the accused taking an oath as to his innocence and

oath-helpers concurring with him. Such expert testimony is to be
rejected without exception.
The
adjudication of the issue in
casu
-
homicide versus suicide
- requires of this Court to determine whether the deceased had ended
her own life or whether the accused murdered her.  Testimony

that the deceased was more likely to murder the accused, is not only
irrelevant to the issue before this Court, but it only serves
to
castigate the deceased, takes the matter no further and can safely in
my view be rejected.
In
S v Ramavhale
1996 (1) SACR 639
(A) the Court held that it is
the duty of a trial Judge to keep inadmissible evidence out, and not
to listen passively as the record
is turned into a papery sump of
“evidence”.  I would add that the Judge as the
gatekeeper of evidence does not
sit back when evidence which is
inadmissible gets woven into or sought to be entered into the
record.  The end result would
be that the Court has to try to
separate scrambled eggs, the yolk from the egg white.  It would
be impossible to do so, resulting
in a miscarriage of justice.
Curtailment
of the expert testimony of Dr. Panieri-Peter is summed up by
borrowing from the analysis of Prof John Wigmore, in his
book:
“Wigmore, Evidence in Trials at Common Law 1917” in
respect of a Court’s decision in similar circumstances:
“
The tribunal is
on this subject in possession of the same materials of information as
yourself; thus, as you can add nothing to
our materials for judgment,
your further testimony is unnecessary and merely cumbers the
proceedings
.”
[93]
In
the matter of
Twine
and Another v Naidoo and Another
[2018]
1 All SA 297
(GJ)
the Court held that
[94]
:
“
In certain
cases of neurological, psychological and psychiatric evidence the
expert is dependent on the honesty of the person who
is the subject
of the assessment for their evidence to be of any probative value to
the court. This problem has manifested itself
many times and the
approach of the courts is succinctly captured in the following
dictum, which while dealing with the evidence
of an expert in
psychiatry is no less applicable to an expert in the sciences of
neurology or psychology:
‘
The weight
attached to the testimony of the psychiatric expert witness is
inextricably linked to the reliability of the subject
in question.
Where the subject is discredited the evidence of the expert witness
who had relied on what he was told by the subject
would be of no
value.’
[95]
Should the subject of
the assessment not testify, it would render the views of the expert
meaningless as it was based on the untested
hearsay of the subject of
the assessment.”
The
accused gave evidence in his own defence which was subject to
examination, cross-examination, re-examination and questions by
the
Court. When the forensic psychiatrist provided her report, she gave
evidence which was provided to her by the accused during
consultation
in preparation of the report. The accused did not testify to certain
“facts”, although he had an opportunity
to do so under
oath. In so doing, Panieri-Peter testifies to evidence on behalf of
the accused that the deceased had displayed
a previous suicidal
attempt and had a genetic predisposition to commit suicide.
This is an attempt to embellish the evidence
of the accused and the
defence having a second bite at the cherry in placing evidence on to
the record.
In
these circumstances, I am of the view that the report of Dr.
Panieri-Peter is inadmissible.  Its worthy of mention, that
even
if I am wrong on any one of the reasons aforesaid for not accepting
this report and if indeed the deceased was a suicidal
risk, this
would not mean that the death of the deceased was as a result of
suicide.  The evidence as a whole must be determined
so as to
support such a finding.
In
Mathebula
v Road Accident Fund
[96]
the Court held that:
“
An expert is
not entitled, any more than any other witness, to give hearsay
evidence as to any fact, and all facts on which the
expert witness
relies must ordinarily be established during the trial, except those
facts which the expert draws as a conclusion
by reason of his or her
expertise from other facts which have been admitted by the other
party or established by admissible evidence.”
I
may conclude with the following notion that a lie repeated 20 times
remains a lie – similarly an uncorroborated or untruthful

statement made through an expert does not detract from the reality
that it remains a lie or an unsubstantiated statement.
16.16
DR. PERUMAL AND
DR. LOFTUS
:
Their
testimonies were lengthy. Both produced copious amounts of academic
literature, based on which they proposed possible hypotheses
for each
of the injuries which the deceased had sustained.  Crucially
though, their findings did not account for a number
of injuries noted
at the first autopsy.
Dr.
Perumal sought to remedy this defect by handing up a second report,
Exhibit ”JJJ” drafted 4 June 2018, which he
had drafted
after having heard evidence by the State pathologists and the
accused. As a result, this report was not put to the
State
witnesses.  Having performed his autopsy on the 1
st
of August 2016, surely all of the injuries observed – as well
as the interpretation of such injuries – ought to have
been
expressed in the first report.  That was, after all, the report
tendered during the trial proceedings and no indication
ex facie
the report suggests that the post-mortem report was incomplete or a
preliminary finding. That he did not do so, is undoubtedly

mischievously misleading.  He also failed to mention that the
specialised technique employed, (the bloodless field neck
dissection),
could not be repeated at a subsequent autopsy – a
fact he attempted to escape by suggesting that the advantage of his
extensive
experience rendered his testimony immune to this
difficulty.  He did, however, concede that he could not dispute
the findings
of the first autopsy as regards the injuries to the soft
tissue of the neck.  In my view Perumal deliberately avoided any
sound bites in his report which would ring the bell of injuries not
consistent with suicide.
As
pointed out by Dr. Khan, Dr Perumal’s initial report also
appeared to have accepted the provided history – suicide
by
hanging – as fact.  Injuries to the face and neck, which
he had not interpreted in his initial report, were described
during
testimony as being associated with resuscitation.  Curiously, he
stated that such injuries must be carefully interpreted,
on account
of their similarity to throttling injuries.
The
above calls into question his credibility, and the reliance this
Court can place on his evidence.
The
principle value of his testimony appears to be in the concessions he
made: that he could not exclude the possibility of manual

strangulation, or the existence of a pre-existing injury from a digit
(finger) underneath the ligature mark, or that the mark under
the
left eyebrow constituted a separate injury, which could have been
inflicted with a fist bearing a ring, or that the deceased
could have
been dragged from the bedroom into the bathroom and that the cord
around her neck would not have been tight as accused
testified it to
have been.
Perumal’s
misrepresentation of the deceased’s injuries starting with his
report dated 1 August 2016 tendered both in
the bail proceedings and
before this Court as Exhibit E resonates the ever increasing
phenomenon that certain experts tend to protect
the interests of the
group that hired them.  Experts sometimes tend to suffer from
the quest to help find facts beneficial
to the commissioning party
and similarly conceal those features which would point to the
latter’s guilt.
[97]
That being said, I need state that not every expert hired by a party
can be labelled a “hired gun”.  The
same can however
not be said of Dr. Perumal.
Of
the four pathologists who testified in this matter Dr. Loftus was the
only one who did not view the actual body.  His findings
were
entirely based on the original autopsy photos, which he described as
suboptimal.  His testimony was highly academic in
nature and
often scenarios not related to the facts of this matter.  Whilst
Dr. Perumal acknowledged that he was constrained
in the extent to
which he could comment on the initial autopsy by virtue of his own
being a later examination, Dr. Loftus misrepresented
to the Court
that he had done a digital or virtual autopsy and gave his comments
and conclusions accordingly.  When the matter
reconvened after
the July recess, the Court engaged Dr. Loftus on the fact that the
notion of his having performed a digital autopsy
was clearly
misleading; however he refused to concede this to be the case and
continued to insist that the “autopsy”
he performed was
virtual.  This is quite clearly incorrect.
[98]
Dr.
Loftus testified that after taking everything into account, he
believed that “
beyond reasonable doubt”
the
deceased, on that morning, hanged herself in the bathroom.  With
respect to Dr. Loftus, whether or not a fact has been
proven beyond
reasonable doubt, amounts to a judicial determination, which he has
neither the training nor the experience to make.
Through asserting
his views he attempted to argue the case for the defence as an
advocate and failed in his position as testifying
as an expert. His
expert testimony flies in the face of the truism that an expert
witness may not give an opinion to the Court
on an issue of law.
On this issue the United States Court of Appeals (8
th
Circuit) held in the appeal of the matter
Hogan v American
Telephone and Telegraph Co., 1987
that expert testimony ought to
be excluded where the expert uses terms which has a specific legal
meaning.  The terminology
“beyond reasonable doubt”
as expressed in expert testimony is an attempt to instruct the Court
as to the findings of
law, effectively telling the Court how to
decide the matter before it.
Much
was made of the question whether the ligature had been applied ante-
or post-mortem, with both sides relying on their respective
findings
to support their conclusions. In the fracas an important point was
lost.  As stated in Knight’s Forensic Pathology,
pages 170
-171:
“…
it is
unreasonable to expect dramatic changes within minutes in skin
wounds, etc., until progressive hypoxia alters biochemical
processes
and enzyme activity. . . Another problem with differentiating
‘ante-mortem’ from ‘post-mortem’
injuries is
the definition of the moment of death.  Again, lawyers, judges
and coroners tend to assume that death is an event,
whereas, in
reality, it is a
process
. . .”
(Own
emphasis.)
DISCUSSION:
Dr.
Loftus had concluded that the deceased had hanged herself, had not
died instantaneously, was unsuccessfully resuscitated and
died on the
bathroom floor.  The possibility cannot be excluded that she had
been strangled, did not die instantaneously,
that a suicide had been
staged, and that the process of death concluded on the floor.
Both
Drs. Perumal and Loftus insisted that the injuries to the deceased’s
ribs were related to CPR.  Drs. Khan and Abrahams
held that the
injuries preceded CPR attempts, based on their finding of blood in
the stomach and intestines, the ingestion of which
they indicated
must have occurred at least 20-30 minutes prior to death.  As it
relates to the fractures on the right side
of the ribcage, the
timeline becomes an important point to bear in mind:  all the
pathologists agreed that the latest point
at which the deceased could
have died, was 08h28.  The accused testified that he started
performing CPR on the deceased shortly
after Daniels had left the
bathroom, which would have been approximately around 08h30. Thompson
testified that he arrived on the
scene at or around 08h35 and took
over performing CPR.  As a consequence, any CPR related injuries
could not have occurred
prior to 08h30.  At this point, the
deceased would have been dead, and unable to swallow blood, for it to
be found in her
stomach and intestines.
Regarding
the fractures to the left side of the ribcage, as none of the
pathologists found haemorrhaging associated with these fractures,
it
would tie in with the evidence of Thompson, who indicated that he sat
on the deceased’s left side, and performed chest
compressions.
Conceivably then the fractures to the left ribs could have been CPR
injuries, caused after circulation had ceased.
Significantly these
fractures do not have associated haemorrhaging indicative that the
deceased did not have blood circulation
at the time.
This
brings me to the possibility raised during the trial that the
deceased could have sustained the fractures to her ribs during
her
fall in the flowerbed, as she and the accused were returning to their
room.  Dr. Abrahams was adamant in her testimony
that the
fractures to the ribs would have resulted in substantial pain and
that the deceased’s mobility would have been greatly
limited.
Dr. Perumal agreed that someone so injured would have been severely
affected, but stated that he believed the injuries
to have been
either peri- or post-mortem. Dr. Loftus remained a sole postulator of
the theory that the deceased could have sustained
the rib fractures
to her ribs when she had fallen.  In support of this he pointed
to literature and explained that doctors
ought not to adopt a
dogmatic approach in determining the actions or capabilities of
persons who had been injured as the flight
and fight response could
in reality prove otherwise.  He made the example of a soldier
injured on the battlefield who carries
on fighting notwithstanding
otherwise incapacitating injuries.  The deceased was not a
soldier on a battle field and she was
not subject to a fight or
flight response.   The accused had maintained during his
testimony that the deceased gave no
indication of having sustained
injuries to her ribcage, or of having given preference to any side of
her body after she had fallen.
Furthermore, had she in fact
sustained these injuries during the fall, she would have been
incapacitated to such an extent that
walking would have been a
challenge, let alone stretching her arms over her head to affix the
cord to the towel hook, to commit
suicide.  The idea that, in
this state, she could thereafter have gone down into a crouched
position in order to suspend herself
in a partial hanging position so
as to commit suicide, while seriously injured and swallowing blood,
can safely be rejected as
logically impossible.
The
deceased sustained blunt force trauma to the face, more particularly
to the left supraorbital ridge, associated with an abrasion
to the
bridge of her eye, just under the left eyebrow.  It was not
placed into dispute that blood oozed from the abrasion.
Fine
blood splatter can be observed on the photos
[99]
,
as pointed out by Dr. Loftus.  Dr. Khan testified that in his
view the injury was more consistent with a punch with a fist
and that
the abrasion would likely have been caused by a ring.  Whilst
the accused testified that the deceased sustained the
injury when she
fell on the wall of the flower bed, Drs. Perumal and Loftus conceded
in cross-examination that the injury was more
likely to have occurred
from another form of blunt force trauma instead. Exhibit M contains
data extractions by Warrant Officer
van Niekerk recording sms,
whatsapp and iMessage exchanges between various persons during the
weekend at Spier, including the accused
and Jolene. Messages
exchanged between them on the morning of Saturday, 23 July, reads as
follows:
At
09:12:54 Jolene to Jason: “
Nice ring, renew your vows
this weekend?”
At
09:13:29 Jason replies:
“
You made me put it on for your benefit.”
The
inference from these exchanges is that the accused had been wearing
his wedding ring, or a ring, during that weekend.
There was no
suggestion by the defence, or testimony by the accused, to the
contrary.  It would therefore be safe for the
Court to assume
that the accused had worn a ring at the time of the deceased’s
death. Therefore the Court accepts that the
accused wore a wedding
band or otherwise on the day in question consistent with the above
stated injury.
The
accused testified that the deceased had two injuries from having
fallen outside:  that her toe was cut and bleeding and
that he
noted the abrasion on her left eye.  He testifies however that
she only complained of the cut to her toe.  The
blood splatter
pattern on the bed sheet corroborates the fact that she had a
bleeding injury to her toe and is consistent with
the accused’s
version that she was lying on the right side of the bed after she had
injured herself. It is highly unlikely
though, that she had sustained
the injury to her left eye as the accused testified, in light of the
fact that the testimonies of
the pathologists considered such an
injury to be highly unlikely from her fall outside; secondly,
according to the accused she
exclaimed that she had cut her toe.
Had the deceased been injured to her face, bleeding, as is evident
from the photos, she
would have expressed her dismay in that regard
and not only at her toe.  Possibly, as a woman who cared about
and valued her
appearance, she more likely would have focused more
attention and exasperation on her facial injury than her toe.
At the
very least she would have immediately attended thereto by
inspecting it, applying pressure or dabbing the wound.  Abrahams

testified that there was no trace of medication or facial tissue
applied to the abrasion on her eye from which an inference could

otherwise be drawn that she had attended to it after the accused had
fallen asleep.  There were also no items found in the
bedroom or
bathroom suggesting that the deceased had attended to this bleeding
abrasion to her face.  The only tissue paper
found on the
bathroom floor, next to the deceased’s body, was the one used
by Thompson when he wiped blood from her nose
during CPR attempts.
A
blood stain consistent with the abrasion of the deceased’s left
eye brow is, however, found on the pillow case on the bed.
This
was not the pillow case on her side of the bed.  Pillowcase
marked B11 contained blood of both the deceased and the accused.

Pillowcase marked B13 not only had a blood stain consistent with the
abrasion injury to the left eye, but also a stain consistent
with the
round circular blood stain mark noted on the right upper eyelid.
In between these bloodstains are two smudges of
mascara, consistent
with the mascara on both eyes of the deceased.  Dr. Abrahams
testified that the secondary cause of death
(smothering) was most
probably inflicted by a soft object being placed on the face of the
deceased.  The Court is able to
see for itself that the markings
on this pillow are identical to the markings on the face of the
deceased, as noted at the time
of her death.  The bloodstain on
the left of the pillow, consistent with the abrasion on her left eye,
is imprinted twice
on the pillow, one slightly above that of the
other.  This is consistent with the imprint caused by a repeat
smothering action,
consistent with the pillow being pushed down more
than once in order to sustain the pressure on the face of the
deceased and to
get a further grip in the course of smothering her.
The pillow (B13) was not the pillow on the side where the deceased
had slept.
Further to that it must be born in mind that the evidence
of Captain Joubert was that his interpretation of the bloodstain
evidence
was that the deceased had only been on the right side of the
bed in other words not on the side where the “facial imprint”

pillow was and it is highly improbable that the deceased would sleep
or lie on that pillow with her face sucked or pushed right
into the
pillow especially as she was injured, wearing make-up and would not
be able to breath.  This was by no account a
voluntary action on
the part of the deceased.
Justice
Birss
[100]
made some important observations about findings of fact and expert
evidence.  It shows the importance of primary findings
of fact
and the limitations of expert evidence.  The appropriate
approach is for the Judge to make findings of primary fact
and then
consider the expert evidence.  If one expert’s theory fits
the facts and the other’s does not then the
Court is entitled
to prefer the former over the latter.
The
opinion of the expert is based on scientific probabilities.  The
evaluation and hypothesis employed is given in a vacuum
of the
science to which it applies.  The scientific measure of proof is
the ascertainment of scientific certainty, whereas
the judicial
measure of proof is the assessment of probability.   In
Maqubela v The State
(821/2015)
[2017] ZASCA 137
;
2017 (2)
SACR 690
(SCA) (29 September 2017) at paragraph 6 thereof the Court
found the trial Court misdirected itself in failing to appreciate the

distinction between the two measures of proof, that being, scientific
on the one hand and judicial measure on the other.
The Court
emphasized the legal principles that a Judge must assess the balance
of probabilities by reviewing the whole of the evidence.
It
went on to criticize the trial court for painstakingly measuring up
one expert evidence against the other.
The
evidence, when viewed holistically, paints a vivid  picture: at
07h06 a.m. on Sunday morning, or shortly thereafter, the
deceased’s
sheer indignation at the events as it had unfolded in the prior
hours, would have been further inflamed by the
furore of exchanges
between herself and Jolene.  To sum it up as adding fuel to the
fire is putting it mildly.  The accused
testified that his wife
woke him shortly after 7 o’ clock, enraged and spewing that:
“
Look what your whore has sent me”.
Both the
deceased and the accused would have lashed at out at each other.
It is conceivable that the accused had retorted
with his desire to
end their marriage.  I pause here to state that the evidence in
this matter points to the inescapable inference
that it was at this
point that the “
wrestling match”
, which had
started earlier, had re-ignited.  Heated exchanges on the bed
must have led to physical violence.  At this
point the deceased
is on the right of the accused and in all likelihood he struck a
punch at her, whilst on the bed, hitting her
left eye and causing the
abrasion to her left occipital bridge with his ring bearing fist.
At some point during this “
wrestling match”
the
accused manually strangled the deceased.  The evidence clearly
reveals that the accused manually strangled the deceased
and
smothered her with a pillow and exerted pressure on her chest
resulting in her ribs being broken.  Possibly it was at
this
point that he accused sustained a bleeding defensive wound to his
finger.  For how long he remained in this position
is uncertain,
but when he got up, he devised a plan to set a scene telling a story
of the deceased ending her own life.  The
accused must have
dragged her from the bedroom, across the carpeting, into the
bathroom, causing the tangential injury to her left
arm and shoulder,
the abrasions to her toes, and leaving a faecal smear stain on the
bathroom floor.  He could not lift her
up unaided to wind the
cord around her neck, as she was too heavy, so he would have laid her
flat on the floor, wound the cord
around her neck, retreated to the
bedroom and locked the bathroom door.  The plan was almost
complete, he only needed to cover
his tracks, so he called her cell
phone at 08h02 and at 08h22 calmly called reception requesting
assistance with the locked door.
Thereafter the innocent
bystanders started coming in: first Mr Daniels, to open the door and
make the horrifying discovery; Lee
offering assistance, then Mark
Thompson, who desperately attempted to do what he could and
thereafter attempted to comfort the
accused followed by others.
At
some point after her “discovery” he had attempted to
dress her in her hotel robe, but with her body being unwieldy,
he
could only manage to slip her arms into the sleeves.  In his
haste, he did not notice that the robe was inside-out, and
that the
belt was still on the bed.
Staging:
Playwright
and author George Bernard Shaw (1856-1950) wrote:
“
In order to
fully realize how bad a popular play can be, it is necessary to see
it twice.”
The
evidence indicates that the accused had set a scene to tell the story
that his wife had committed suicide.  He staged her
death as a
play, setting in motion various “actors” as his alibis:
phone records at 08h02 and 08h22, the hotel receptionist,
the
handyman and the “extras” who followed.  It was
after Daniels exited from the stage, that he revisited the
scene with
a change of the stage setting in an attempt to improve the play.
He donned the robe around his wife’s dead
body and changed the
cord from which she had allegedly hanged herself, believing (as he
must have) that his account of events would
triumph over that of an
elderly handyman.  The accused in his own words were used to and
“good” at throwing off
his guilty tracks, ducking and
diving the truth, and concealing his mischiefs is what he was good
at.  He clearly took this
to the next level.
The
views of the pathologists were diametrically opposed as to whether
the ligature had been applied pre- or post-mortem and the
evidence
presented in this regard was substantial. The Court does not have to
determine at which point during the staging process
the accused
affected the ligature imprint on the deceased’s neck.  The
fact that the accused had by this time already
applied the fatal
force to the deceased, makes such a determination unnecessary for the
purposes of this judgment.  The ligature
mark was superficial
and there were no underlying associated injuries which could have
resulted in her death, or which could have
contributed thereto.
By the time the indentation was created, the deceased was, at the
very least, fatally wounded, and death
was inevitable.
The evidence through the
testimonies of various witnesses before the Court illustrates that
the deceased conducted herself with
a tenacious pursuit of her
husband and their life together.  She by all accounts was
relentless in this regard.  Notwithstanding
various occasion,
particularly during the Spier weekend, where she becomes aware of the
continued affair, she nonetheless
remained resilient in her
endeavours.  For example, a cell phone exchange between herself
and the accused on the Saturday
morning shows that she was alive to
the fact that her husband’s affair was not over.
She states at 12:00:25
PM:
“
Thought it was finished.”
He responds at 12:00:37
PM:         “
We are
finished.”
Notwithstanding these
exchanges and evident acrimony around that, they go to have lunch at
Rust En Vrede at Stellenbosch together.
Hours before the gala
dinner, the deceased sent accused a message at 11:23:35 AM:
“
You are a devious fucking bastard!!!!”
They proceed nonetheless
to attend the gala dinner together and she insisted that they leave
together.  Which they do.
I do not infer from the evidence
that her discovery that the deceased sent a message to Jolene was a
revealing moment to her, for
she had by that time already known of
the accused’s underhandedness.  She was not “
apoplectic”
as the accused described her at the moment of catching him
in
flagrante delicto
.  Though she was clearly furious and
agitated, she was by no account disabled by her fury.  She
continued the fortitude
to commit to her goals, that , keeping her
husband in her company and saving their marriage.  This is
confirmed by the evidence
of Farrah Ameermia and Brandon Miller who
were in the room with Jolene when the deceased fetched the accused.
This she exhibits
through following him around on the Spier estate
until he returns with her to their room.  Quite clearly her
actions until
her moment of death were consistent in assuring a life
together for them.  The deceased and the accused from their cell
phone
exchanges and other independent evidence illustrates that their
fights would see-saw between extreme anger which would soon turn
into
a loving and reconciled state.  It was not unusual for the talk
of divorce or termination of their marriage to enter
into the fray of
their argument.  Notwithstanding that it had always returned to
rational talks about their marriage and their
future.  The
suggestion by the accused that his words at 07h06 or shortly
thereafter to the effect that he was “finished”
with the
marriage would not have altered the deceased’s regular reaction
and fortitude as she had exhibited in the past.
It is highly
improbable that with those words and after her message to Jolene that
she would have turned on her heels to the bathroom,
lock the door and
hang herself from the towel hook.  For the sake of completion it
must be said that the evidence proves that
the deceased, beyond
reasonable doubt, did not commit suicide nor does it prove that she
had taken her own life.  The Court
accepts from the evidence
that the accused beyond reasonable doubt murdered the deceased.
MEDICAL
PRIVILEGE:
On
the facts before me there were clearly transgressions of medical
privilege in the collation of the psychiatric forensic reports.

I would be remiss not to add the following.  Medical privilege
still applied, even though the deceased had passed away.

Patient confidentiality is enshrined in law.  The
National
Health Act 61 of 2003
makes it an offence to disclose patients’
information without their consent, except in certain
circumstances.
[101]
Confidentiality is central to trust between practitioners and
patients.  The reason is simple.  Without confidentiality

patients may be reluctant to give practitioners the information they
need in order to provide good health care.
[102]
Confidentiality applies after a patient’s death.
Information should only be disclosed to third parties with the

consent of the deceased patient’s next of kin or executors, or
by way of a subpoena or court order or in the event of public

interest. Rule 13(2)(c) of the Ethical Rules of Conduct for
Practitioners Registered under the Health Professions Act, 1974
[103]
states that confidential information about a deceased patient should
only be divulged ‘
with
the written consent of his or her next of kin or the executor of his
or her estate
’
except where such information ought to be disclosed in terms of a
statute or court order, or the disclosure is justified
in the public
interest.
[104]
In the event of a dispute, the
National Health Act describes
the
order of persons who can give consent on behalf of an incompetent
patient.
[105]
This ought to apply
mutatis
mutandis
determining which next-of-kin relatives should have the right to give
written consent for the publication of personal medical information

of a deceased person.  In terms of the
National Health Act, the
specific order of precedence is a spouse or partner, a parent, a
grandparent, an adult child or a brother or sister of the
person.
[106]
Though
the accused was the surviving spouse of the deceased, he clearly
cannot be considered in these circumstances to be a competent
person
to provide such consent.  He was charged with murder of the
deceased and the medical information he sought to obtain
would be
directly linked to the murder charges of which he is an accused.
The situation would call for consent by the succeeding
next of kin
such as the parent of the deceased and if consent was unreasonably
withheld, the leave of the Court could be sought.
The
accused has a right to conduct whatever investigation he deems fit as
long as it complies with applicable legal framework, required
consent
from the prosecution or leave from the Court.
I
understand Nader’s testimony to be that much of the
conversation she had with Panieri-Peter about the accused and the
deceased
was ‘off the record’ conversations with a
colleague.  She expressed her shock and surprise that these
conversations
were placed before the Court.  Nader’s
testimony was also that she did not communicate to Panieri-Peter that
the deceased
was suicidal.  The contemporaneous notes of
Panieri-Peter were handed up during cross-examination, to which she
became visibly
agitated as she maintained that she had amended it
before signing and returning it to Panieri-Peter.  However, the
changes
she said she made do not appear on the notes.
Nader
gave a written report to Mr. Witz, the attorney of the accused.
The report is dated 18 August 2016.  It set out
various details,
inter alia, the sessions attended, the information provided by Mr.
and Mrs. Rohde and her observations.
[107]
After
she had provided this report, she was requested to meet with Dr.
Panieri-Peter.  Subsequent thereto emails recording

communication between Webber Wentzel Attorneys (c/o Ms. Karin
Prinsloo) acting on behalf of the Medical Protection Society and
Mr.
Witz appear from the record as Exhibit P.
On
5 September 2016, Mr. Witz replied to a request by Prinsloo to direct
communication for Ms. Nader to their offices.  His
email states:
“…
Dr.
Panieri-Peter is a specialist forensic psychiatrist (MBCHB FC Psych
(SA) Crime) and is preparing an
investigation / report on
Mr. Rohde
.  It is important to note that
she
is an independent practitioner and is not attached to either the
prosecution or the defence team.
She is preparing a
balanced view on both Mr. Rohde and the late Susan Rohde….”
Webber
Wentzel Attorneys replied on 5 September 2016 as follows:
“…
.please
advise on whose instructions Dr. Panieri-Peter is acting as you note
that she is not attached to either the prosecution
or the defence
team.  Please further advise for what purpose Dr. Panieri-Peter
is preparing a report in addition please advise
who will be attending
the consultation.... Lastly, please furnish us with a signed consent
by your client, Mr. Rohde authorising
Ms. Nader to consult with third
parties and disclose confidential information pertaining to Mr. Rohde
and the Late Mrs. Rohde.”
To
this enquiry, Mr. Witz replies on 7 September 2016:
“
Dr.
Panieri-Peter has been briefed by the [sic] Mr. Rohde’s team
however, she has been instructed to provide a balanced opinion
on the
matter as her report will be presented to both the defence and
prosecution.  She is preparing a report on the psychological

state of both Mr. Rohde and the late Mrs. Rohde.”
Through
their lawyers, the Medical Protection Society accepted written
consent by Mr. Rohde who gave consent:  “
to Carol Nader
to consult with third parties and disclose confidential information
pertaining to Mr. Rohde and the Late Mrs. Rohde
and to disclose such
information to WCIS Attorneys, my attorneys of record and Dr. Larissa
Panieri-Peter”
.  The consent is signed on 6 September
2016.
Prima
facie there appears to have been a breach of medical professional
ethics in the course of the forensic investigation.
For these
reasons I am directing that a copy of this judgment be referred to
the Health Professions Council of South Africa for
further
investigation as they may deem necessary in an endeavour that
guidelines are provided to their members of the legal framework
that
is applicable when called upon to disclose confidential patient
information and patient records in matters of this nature.
CONCLUSION:
In
the final analysis of all the evidence before Court, I am guided by
various legal principles to determine whether the charges
against the
accused have been proven beyond reasonable doubt.  The
S
v Reddy & Others
[108]
the court held that:
“
In assessing
circumstantial evidence one needs to be careful not to approach such
evidence upon a piece-meal basis and to subject
each individual piece
of evidence to a consideration of whether it excludes the reasonable
possibility that the explanation given
by an accused is true.
The evidence needs to be considered in its totality.  It is only
then that one can apply the
off-quoted dictum in R v Blom
1939 AD 188
at 202-3, where reference is made to two cardinal rules of logic
which cannot be ignored.  These are, firstly, that the inference

sought to be drawn must be consistent with all the proved facts and,
secondly, the proved facts should be such ‘that they
exclude
every reasonable inference from them save the one sought to be
drawn’.”
Proof
beyond reasonable doubt does not involve proof to an absolute
certainty.  It is not proof beyond any doubt, nor is it
an
imaginary or frivolous doubt.  This is the standard that must be
met by the State’s evidence in a criminal prosecution.
No
other logical and reasonable explanation can be derived from the
facts, except that the accused committed the crime, thereby

overcoming the presumption that a person is innocent until proven
guilty.
In
R v De Villiers
1944 AD 493
at 508 – 9 it was held that
a Court should not consider each circumstance in isolation and drawn
inferences from each single
circumstance.  The onus on the State
is not to prove that each separate item of evidence is inconsistent
with the innocence
of the accused, but that taken as a whole, the
evidence is beyond reasonable doubt inconsistent with such
innocence.
In
S v Shackell
2001 (2) SACR 185
(SCA) at 194 the court states:
“
[30]…It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and
that a mere
preponderance of probabilities is not enough.  Equally trite is
the observation that, in view of this standard
of proof in a criminal
case, a court does not have to be convinced that every detail of an
accused’s version is true.
If the accused’s version
is reasonably possibly true in substance the court must decide that
matter on the acceptance of
that version.  Of course it is
permissible to test the accused’s version against the inherent
probabilities.  But
it cannot be rejected merely because it is
improbable; it can only be rejected on the basis of inherent
probabilities if it can
be said to be so improbable that it cannot
reasonably possibly be true.”
[109]
In
State v
Hadebe and others
[110]
the Court enunciated the correct approach for evaluating evidence
with reference to Moshephi and Others v R
[111]
as
follows:
“
The question
for determination is whether, in the light of all the evidence
adduced at the trial, the guilt of the appellants was
established
beyond reasonable doubt.  The breaking down of a body of
evidence into its component parts is obviously a useful
aid to a
proper understanding and evaluation of it.  But, in doing so,
one must guard against a tendency to focus too intently
upon the
separate and individual part of what is, after all, a mosaic of
proof.  Doubts about one aspect of the evidence led
in a trial
may arise when that aspect is viewed in isolation.  Those doubts
may be set at rest when it is evaluated again
together with all the
other available evidence.  That is not to say that a broad and
indulgent approach is appropriate when
evaluating evidence.  Far
from it.  There is no substitute for a detailed and critical
examination of each and every
component in a body of evidence.
But, once that has been done, it is necessary to step back a pace and
consider the mosaic
as a whole.  If that is not done, one may
fail to see the wood for the trees.”
There
is no onus on the accused to prove the truthfulness of any
explanation which he gives or to convince the Court that he is

innocent.  Any reasonable doubt regarding his guilt must be
afforded to the accused.
[112]
See
S v
Jaffer
1988 (2) SA 84
(C)
where the Court held:
“
The test is
whether there is a reasonable possibility that the accused’s
evidence may be true. . . the court does not have
to believe the
accused’s, still less does it have to believe it. It is
sufficient if the court thinks that there is a reasonable
possibility
that it might be substantially true.”
In
unpacking evidence on a piecemeal basis, the Court has to consider
the strength and weaknesses in the evidence and consider the
merits,
demerits and the probabilities.
[113]
In
S v Kubeka
1982 (1) SA 534
(W) at 537 F-H, the Court held in
regard to the version of the accused:
“
Whether I
subjectively disbelieved him is, however, not the test. I need not
even reject the State case in order to acquit him.
. .  I am
bound to acquit him if there exists a reasonable possibility that his
evidence may be true.  Such is the nature
of the onus on the
State.”
I am satisfied therefore,
taking into account the entire conspectus of the evidence that the
State had discharged the onus resting
upon it to prove the guilt of
the accused beyond reasonable doubt.  The accused’s
version cannot reasonably possibly
be true and is accordingly
rejected.  In short the accused is found guilty as charged in
terms of both counts 1 and 2.
The manner, cause of death and
the nature of the injuries sustained showed that the accused had the
direct intention to kill the
deceased.
In the result the verdict
is as follows:
Count 1: Murder -
Guilty
Count 2: Defeating or
obstructing the administration of justice - Guilty
_________________________
SALIE-HLOPHE, J
The Chief Registrar of
this Court is directed to forward a copy of this judgment to the
HPCSA (Health Professions Council of South
Africa).
[1]
CPR is the abbreviation for cardio pulmonary resuscitation
[2]
Exhibit B, Bundle 2 – photos depicting the room and faecal
stains on the floor outside the room
[3]
Scene report - pg. 2 par 5 (a) / photo 6
[4]
Exhibit D, Bundle 2 : Annexure C number 12
[5]
Photo 12
[6]
Photo 15 and 16 – Annexure C
[7]
Photos 25, 26 and 27 – Annexure C
[8]
See
item 6 on the post-mortem report
[9]
Exhibit
D, Annexure A, Photo 23 & 24 (stain on bedroom floor marked as
B9
[10]
Exhibit
D, Annexure A, Photo 3 – blood stains on duvet cover and sheet
marked B10 & B12
[11]
Exhibit
D, Annexure A, Photo 2 – belt on bed hanging off on the left
of bed
[12]
Exhibit
D – bundle 1 – Chief post mortem report
[13]
Exhibit B – photos 83 – 236 depicts the
autopsy
photos
[14]
Exhibit
B – photo 108
[15]
Exhibit
D, Annexure C, Photo 12 – scratch marks to the right lower jaw
running transverse with associated haematoma
[16]
Exhibit
B, photos 198 – 205
[17]
Exhibit
B -
photo
216 shows a fracture which would have occurred ante-mortem (before
death).
[18]
Exhibit
B – photo 233 & 234
[19]
Exhibit B – photo 173
[20]
Exhibit
B – photo 143
[21]
Exhibit B -
Photo
144
[22]
Second
autopsy was performed in Johannesburg 8 days post death on 01 August
2016.  The report is dated 16 August 2016.
[23]
Exhibit
E – Page 4 – under “NB:”
[24]
Handwritten
statement (not commissioned) by Angela Norton  marked as
Exhibit G1
[25]
Handwritten
statement (not commissioned) by Diane Holmes marked as Exhibit H1
[26]
Van der Spuy made extensive reference to literature and the death
time interval calculation called the nomogram.
[27]
An affidavit by this witness dated 27 September 2016 and marked J1
was handed in as well as a bundle of documents with an affidavit

(A60) market as J2.
[28]
The defence was present and conversations between the accused and
the defence were excluded from the report.
[29]
This room was adjacent to Room 221
[30]
He
subsequently learnt that it was one of the investigating officers
[31]
Exhibit
K
[32]
This
was the last communication transmitted from the cellphone of the
deceased
[33]
Annexure Q page 43, 44 & 45
[34]
This
message was unread.
[35]
The amount of outgoing and incoming calls made between accused and
Jolene were:
·
February 2016 104 outgoing calls and 120 incoming calls from the
accused
to Jolene.
·
March 182 incoming calls and 544 outgoing calls.
·
April 154 incoming calls and 222 outgoing calls.
·
May 186 incoming calls and 125 outgoing calls.
·
June 198 incoming calls and 125 outgoing calls.
·
July 199 incoming calls and 94 outgoing calls.
[36]
Exhibit
N – Statement under oath by Jane Newcombe – dated 22
July 2017 – paragraph 13
[37]
Exhibit
N –  paragraph 17
[38]
Exhibit
N –  paragraph 16
[39]
Exhibit
N – paragraph 9
[40]
Exhibit
O, page 45 – Extractions of conversations between the deceased
and the accused between 1 January and 24 July 2016
– handed up
by Adv. Mihalik.
[41]
Exhibit
P – Carol Nader typed notes from the Rohde file
[42]
Exhibit
P -  Private and Confidential Report – Mr. and Mrs. J.
Rohde dated 18.8.2016
[43]
The
handwritten notes of Dr. Panieri-Peter dated 12 /09/2016 were handed
up by
defence
and
marked as Exhibit Q.
[44]
Exhibit P – Statement under oath by Carol Nader and
commissioned June 2017 – paragraph 21  including 21.1 –

21.4 – Nader sets out that in the execution of her duties at a
primary healthcare level she has the skills to screen and
identify
mental health challenges
[45]
Exhibit
D - Bundle 2 -  Annexure H – photos 4 - 7 marked with
blue indicators as B13-1 a, b and c.
[46]
Exhibit
B – post mortem photos – Photo 113, 115 & 116 as
well as Exhibit D – post mortem report –
paragraph
4.3.24
[47]
[47]
Exhibit
D – Bundle 2 – Annexure A – photos 3 , 4, 12, 13 &
15
[48]
Exhibit
D – bundle 2 – Annexure A – photo 21
[49]
This
is the pillow pointed out by Dr.Abrahams containing 2 mascara marks
and blood stains of the deceased. The pillow case was
on the left
side of the bed where the accused slept.
[50]
The
bathroom door of Room 221 was placed before the Court as an exhibit.
[51]
Room
441 as per inspection in loco
[52]
Mabeta
gave
evidence for the State.
[53]
Cellphone
records show messages exchanged between the deceased and Jolene,
last of which was at 07:06 am on Sunday
[54]
Cellphone
records show that accused replied to Miller at 07:06 am on Sunday
[55]
Exhibit QQ -
Statement
under oath by Mavis Dingalibalu who was stationed at the
switchboard.
[56]
Accused
testifies in detail regarding the events of the morning of his
arrest and the period thereafter when he was remanded in
custody. He
was released on bail subject to various conditions the following
Tuesday, 29 August 2017.
[57]
Record
page 2356 – accused testified that the knot around the neck
(later clarified as the noose) was
very
tight
[58]
Exhibit
JJJ – Letter from Dr. Perumal addressed to Attorney Daniel
Witz dated 4 June 2018 titled: “Medico Legal Report
–
State v J Rohde”
[59]
The
state pathologists denied that there was a mark at the back of the
neck when they conducted their autopsy and that this mark
would have
been sustained by the body after the first autopsy
[60]
Khan
testified that in light of the fact that the findings were
overwhelmingly pointing to the cause of death, further tests were

not necessary in their view
[61]
(1554) 1 Plowd 118
at 124.
[62]
Sir
Richard
Francis Burton
(19 March 1821 – 20 October 1890).
[63]
Holtzhauzen
v Roodt
1997 (4) SA 766
(WLD) at 771H- 773C. See also
Twine
v Naidoo
2017
JDR 1732 (GJ) at para 18.
[64]
Holtzhauzen
(supra)
at 772C.
[65]
[1975] 1 All ER 70 at 74.
[66]
See footnote 4 supra.
[67]
Holtzhauzen
(supra)
at 772H.
Menday
v Protea Assurance Co. Ltd
1976
(1) SA 565
(E) at 569E-F.
[68]
Davie v
Edinburgh Magistrates
1953
SC 34
at 40.
[69]
Ibid
.
[70]
[1993] USSC 99
;
509 U.S. 579
(1993).
[71]
The
Decision Makers’ Dilemma: Evaluating Expert Evidence,
Lirieka Meintjies-van der Walt,
(2000) 13 SACJ 319
at 327
[72]
Twine
(supra) at para 18(c) and
Holtzhauzen
at 773B.
[73]
National
Justice Compania Naviera S.A. v Prudential Assurance Co. Ltd (“The
Ikarian Reefer”)
1993 (2) Lloyds Reports 68 at 81.
[74]
Holtzhauzen
at 772I.
[75]
National
Justice Compania Naviera S.A.
(above)
at 81.
[76]
Holtzhausen
(above) at 773C.
[77]
See
Holtzhauzen
(above) at 773C and
Twine
at para 18(k).
[78]
Section 34 of the Constitution: “
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
[79]
A forensic Psychiatric Report was handed to Court at the
commencement of the evidence of Dr. Panieri-Peter and Dr.Loftus gave

evidence without a report, save for a flow chart that was handed up
to the Court at the commencement of his testimony.
[80]
See
S v Sauls
1981 (3) SA 172
(A) and Stevens v S [2005] 1 ALL SA 1
(SCA).
[81]
Exhibit P
[82]
1981 (3) SA 172
(A)
[83]
A respectful way of referring to a man in Afrikaans
[84]
Affidavit dated 15 March 2018 by candidate attorney Mr. James
Michael who assisted Mr. Daniels c/o Cliffe Dekker Attorneys -
[85]
S v Shaw 2011 JDR 0934 (KZP)
[86]
Accused’s blood was on top/side surfaces of duvet and pillow
case/Not the bedsheet or inside of duvet cover.
[87]
Psychological Autopsy – A review by Vasudeva Murthy CR –
Al Ameen J Med Sci (2010) 3(3): 177-181
[88]
Ibid.
[89]
Ibid.
[90]
This was a judgment of the Northern Cape Division, Kimberley by
Phatshoane, J.
[91]
Robert Weiss LCSW, CSAT-S is an infidelity and addictions expert
and the Senior vice President of National Clinical Development
for
Elements Behavioural Health
[92]
See footnote 19 supra
[93]
Olicker, M.R. - The Admissibility of Expert Witnesses Testimony –
University of Miami Law Review
[94]
Para
18 (t)
[95]
S v
Mthethwa
[2017] ZAWCHC 28
at para 98.
[96]
(05967/05)
[2006] ZAGPHC 261
(8 November 2006) at paragraph 13
[97]
Mingxiao Du – Legal Control of Expert Witness Bias –
China University of Political Science & Law
[98]
A digital autopsy is a non-invasive autopsy in which digital imaging
technology, such as with Computerized Tomography (CT) or
Magnetic
Resonance Imaging (MRI) scans, is used to develop three-dimensional
images for a virtual exploration of a human body.
– Wikipedia
[99]
Exhibit
“B” photo 101-103.
[100]
Graham & Anor v Campfield & Anor [2017] EWHC 2746 (Ch)
[101]
See section 14 read with section 89(1)(g).
[102]
See
Disclosing
details about the medical treatment of a deceased public figure in a
book: Who should have consented to the disclosures
in Mandela’s
Last Days?
by D.J.McQuoid-Mason,
South
African Medical Journal
Vol 107 (12), December 2017.
[103]
As published as a regulation to the Health Professions Act 56 of
1974 under GN R717 in GG 29079 of 4 August 2006 (as amended).
[104]
Rule 13(1).
[105]
Section 7(1)(b).
[106]
Section 7(1)(b).
[107]
Exhibit P – Client contract with Carol Nader – paragraph
3 titled “Legal Matters” reads at 3.1:
“
The focus of
the practice is therapeutic.  This practice
does not
undertake expert witness work or agree to provide legal
evidence of any kind, be it with regards to custody and divorce
issues
or any other matter.  Assessment reports are intended to
assist parents, teachers and caregivers and identify appropriate

treatment, and not for use in legal matters.  If legal related
services are required a suitable referral can be given on
request.”
[108]
1996 (2) SACR 1 (A) 8 C-E
[109]
See also S v Chabalala
2003 (1) SACR 134
(SCA) at  para 15; S v
Mia and Another
[2008] ZASCA 117
;
2009 (1) SACR 330
(SCA) at  para 12
[110]
1998 (1) SACR 422
(SCA)  at 426 E-H
[111]
(1980 –
1984) LAC 57
at 59F-H
[112]
S v Jochems
1991 (1) SACR 208
(A) and S v V 2000 (1) SACR 453 (SCA)
[113]
S v Trainor
2003 (1) SACR 35
(SCA) para 9 and S v Chabalala
2003 (1) SACR 134
(SCA) para 15