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[2010] ZAWCHC 647
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S v Swartz (SS09/10) [2010] ZAWCHC 647 (6 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
CASE NO
:
SS09/10
DATE
:
6
SEPTEMBER 2010
In
the matter between:
THE
STATE
and
MANFRED
RAYMOND SWARTZ
JUDGMENT
SAMELA,
AJ
This
is a unanimous decision of the court. The accused, Mr Manfred Swartz,
aged 34, is appearing before a Judge sitting with an
Assessor and Mr
De Villiers appeared for the accused and Ms Engelbrecht appeared for
the state. The accused is charged with four
counts, namely abduction,
secondly rape, third count rape and fourthly murder for a seven year
old female child, Nadine Jantjies.
It
is alleged that on the 15 June 2009 and at or near Wesbank in the
District of Kuils River the accused did unlawfully and intentionally
abduct one Nadine Jantjies, a child of seven years old without the
consent of the parent or guardian and raped her twice, that
is on her
vaginal part and on the anal part which thereafter the said youngster
was murdered. I may also mention then that in respect
of the charge
of rape, that is on second and third counts, as contemplated in
Section 3 of the Criminal Law Sexual Offences and
Related Matters
Amendment Act 32 of 2007. The indictment has indicated, that the
provisions of
Section 51
of the
Criminal Law Amendment Act 105 of
1997
as amended, the Minimum Sentence Act read with Schedule 2
thereto, if the accused is convicted is facing a minimum sentence of
life imprisonment. Similarly with count 4, in the indictment, Section
51(1) of Act 105/1997 read with the Schedule 2, that is when
murder
was planned or premeditated also attracts the minimum sentence of
life imprisonment.
It
is also important to mention that the accused has made certain
admissions in terms of Section 220 of the Criminal Procedure Act,
Act
51 of 1977.
1.
admitted the identity of the deceased as Nadine Jantjies;
2.
admitted the certified copy of the deceased's birth certificate;
3.
confirmed and admitted that the said deceased died on the 15 June
2009;
4.
admitted that the deceased died as a result of strangulation and;
5.
That Dr Tiemensma conducted the post-mortem on behalf of the deceased
on the 17 June 2009 and also admitted the doctor's content
report;
6.
admitted that Dr Tiemensma correctly noted her finding resulting from
her examination of the deceased's body which report was
marked
Exhibit C;
7.
admitted that from the time of alleged commission of the offence up
until the post-mortem was conducted the body of the deceased
did not
further receive any injuries and also admitted that the photos;
8.
That the key to photos and sketch plan depicted a correct version of
the scene where the body was found and also certain items
found on
the scene;
9.
admitted that the photos taking during post-mortem of the deceased
are admitted as Exhibit E and;
10.
that the vaginal, anal, oral and fingernail swabs and hair samples
taken from the deceased on the 17 June 2009 by Dr Tiemensma
during
post-mortem were sealed and correctly packed where it was received
intact by the warrant officer Boltman;
11.Admitted
the blood samples taken from the accused on the 19 June 2009 by Dr D
M Andrew, sealed and thoroughly packed and sent
to the forensic
laboratory at Kuils River and was received by Warrant Officer
Boltman;
12.That
on 17 June 2009, Dr Tiemensma took fingernails and anal swabs and
admitted that for safekeeping and sending the information
all times
was correct;
13.
On
31 June 2009 Warrant Officer Boltman, in charge of the forensic
laboratory, a properly trained forensic analyst in the service
of the
state, compared the samples mentioned in paragraph 12 and came to the
conclusion that the genetic material of the accused
were present in
the vaginal and anal samples of the deceased which was Exhibit F and;
14.
admitted
that the accused made a statement to Supt C J Matthee on the 17 June
2009 where he revealed his involvement in the commission
of the
offences. That statement was hereto marked attached as Exhibit G.
15.
admitted that the statement referred to in paragraph 14 was made
freely and voluntarily without any undue influence and the
accused's
constitutional rights were at all times respected.
This
document then was admitted and allowed into court's record and was
marked Exhibit A.
The
accused pleaded not guilty on counts 1, 2 and 3 and as I have
explained pleaded guilty on count 4, that is the murder count.
The
plea of guilty on count 4 in terms of Section 112 of the Criminal
Procedure Act 51/1977 as amended was read into the court's
record and
the state accepted the plea and the accused was found guilty
accordingly. It was allowed and admitted into the court's
record and
was marked Exhibit H.
The
accused on counts 1, 2 and 3 has made the following plea explanation;
on count 1 he denied that he had committed the crime of
kidnapping
although he admitted that he had no consent from the parent or the
guardian of the child and also informed the court
that he had no
prior intention to rape the deceased on count 2 and 3 although he
informed the court that he had a sexual intercourse
with the deceased
after the deceased had been strangled by him, that is after the
deceased had died and he in fact informed the
court that he is guilty
in terms of Section 14 of Act 32/2007, hereinafter called the Sexual
Offences and Related Matters, not
guilty to rape and also explained
then that in respect of count 4, though he pleaded guilty to murder,
he had no premeditated plan
to kill the deceased.
The
state called the following witnesses to give a
viva
voce
evidence,
Dr Tiemensma, Ms Fransina Jantjies, the deceased's mother, Lorenzo
Smith, Mr Thomas Baar, Warrant Officer Rietman Boltman,
Ms Elnette
Sarels and Colonel C G Theron.
Dr
Tiemensma confirmed that she conducted a post-mortem on the
deceased's body on the 17 June 2009 and produced a report. Her
findings
were that the cause of the death was consistent with the
strangulation. Regarding the deceased's genital organs, the doctor
told
the court that there was blood present in the vulva, vagina and
anus. The external genitalia showed lacerations with surrounding
contusions at the six o'clock position. The hymen was lacerated.
Extensive laceration and contusions of the internal lateral vaginal
walls were evident. No injury to the cervix was seen. The anus showed
superficial radial laceration at the six o'clock position.
No injury
to the rectal causa could be demonstrated.
Under
cross-examination, she confirmed her evidence-in-chief. The doctor
testified further with certainty that at the time the deceased
was
raped she was still alive. She could not tell the court with
certainty whether hands or cord was used in the strangulation
and
could not exclude the possibilities that both the hands and cord
might have been used to strangle the deceased. Answering a
question
from the bench the doctor testified that she was of the opinion that
the deceased had undergone severe pains due to her
age and severe
injuries received in her genitalia and neck before she died. The
doctor's post-mortem report was admitted into the
court's record and
marked Exhibit C.
Ms
Fransina Jantjies, the deceased's biological mother confirmed that
she knew the accused who resided with his mother and wife
at the back
of her house. She also confirmed that the deceased was seven years
old and confirmed the correctness of the deceased's
certified birth
certificate marked Exhibit B. She told the court that she never
trusted the accused who used to make some funny
remarks to her
saying, amongst other things, that she was his wife and these funny
remarks made her to warn her two children not
to play nor accept any
gifts from the accused. On the day of the incident she was preparing
to go to work as she worked an evening
shift when she realised or
noticed that the deceased was missing as she was not playing with
other children at the usual street
corner house. Together with
friends they searched for the child, but in vain. As the search
continued, one Mr Mark Smith informed
her that the deceased left with
the accused. She went back home to the accused's wendy house and
asked him about the whereabouts
of the child. The accused was already
in bed, looked normal to her, twice the accused replied that he did
not know the deceased's
whereabouts and on the third occasion the
accused informed her that he left the deceased at the stop street.
Police were called
and the accused was arrested. The following day
the naked body of the deceased was found. Under cross-examination she
confirmed
her evidence-in-chief.
Lorenzo
Smith, a youngster, a 13 year old, testified
in
camera
assisted
by his parent, Mr Mark Smith. Lorenzo testified that he knew the
accused as they used to call him by a nickname called
"goat man"
and told the court that the accused resided at the deceased's place.
He told the court that on the day in
question at the back of the
church whilst playing with his brother and the deceased, accused
came. He called the deceased and
asked her to walk with him to the
shop as he would buy her sweets. The deceased refused and the accused
promised to buy her sweets
and chips. The deceased then left with him
and that was the last time he saw her. This witness was not
cross-examined.
Mr
Thomas Baar testified that he knew the accused who resided at the
deceased's place. On the day of the incident he told the court
that
the deceased played with other children in front of his gate. Also,
he saw the accused going up and down severally. He did
not pay much
attention as he had to look after his children as well. Also this
witness was not cross-examined, the evidence was
accepted as such.
Warrant
Officer Boltman testified that he is an expert that interpreted the
DNA analysis in this matter. His conclusion was that
the accused's
genetic material was present in the vaginal and anal samples of the
deceased. Under cross-examination he confirmed
his evidence-in-chief.
His report was admitted into the court's record and marked Exhibit F.
Ms
Elnette Sarels confirmed that she knew the accused for about three to
four months then and also knew the deceased and her mother.
She told
the court that the accused used to visit her house frequently whereby
he would together with her partner, that is Shane,
smoked tik a lot.
She also informed the court that she disliked the accused for no
reason as he never did anything wrong to her.
On the day of the
incident she informed the court that the accused arrived at her place
and she noticed that he looked nervous,
when he nearly fell as he was
assisting her with the fixing of the house roof. Whilst inside the
house one of his children screamed
and this caused accused to burst
in anger saying, amongst other things, that it is parents like her
who neglected their children
whose children got murdered. The accused
was angry and requested Shane to accompany him on a mission to the
garage and then to
Bellville. However, Shane refused. The accused
voluntarily informed her that he was afraid to go back to his home
because the deceased's
mother would ask him about the deceased and
also that there was a missing child at their house. She told the
court that the accused
did not look like a person who had smoked tik.
She testified that when the accused had smoked tik, usually he was
very confident
and bold but at that moment the accused was nervous.
Under cross-examination, she informed the court that the accused used
to visit
her place frequently and would smoke tik with them, that is,
Ms Sarels and Shane. However, she denied that on the day in question
she had smoked tik as well as the weather was windy, and that she no
longer smoked tik as she is now a rehabilitated person.
Colonel
C G Theron is the investigating officer in this case. He testified
that on the 16 June 2009 the deceased's naked body was
found in the
bushes and he is the one who took the warning statement from the
accused. The accused informed him that he had raped
and killed the
deceased. He organised Lieutenant Matthee from Kraaifontein to take
the accused's confession. The warning statement
was admitted into the
court's record and marked Exhibit K and that was the state's case.
The
accused, on the other hand, confirmed that at the time of the
incident he resided at the back of the house in the same yard
with
the deceased's parents and he had good relationship with the
deceased's mother and the other siblings. He stayed together
with his
wife, mother, brother-in-law and his wife. He testified that he was
unemployed and he used to do odd jobs. He very often
went to Mrs
Sarels' place where he used to get tik and smoke it together with
Shane, that is Sarels' partner, and also with Ms
Sarels. He told the
court that he did not have a good relationship with Sarels but he
went there to smoke tik. He told the court
that he used to tik
everyday, every morning, afternoon, evening, that is all the time. He
got the money from stealing and selling
other people's goods and also
friends of his who stole and sold the items that had stolen and
bought tik. On the day of the incident
he testified that he was on
his way to a tuck shop when he saw the deceased playing with other
children. He had asked the deceased
to go back home as she was
playing far away from home, that is at the back of the church, but
she refused. He then requested her
to accompany him to the shop where
he would buy her sweets, which she complied. After buying her chips
he asked her if she would
be going home and she replied in the
negative as she informed him that she would play in the sports field
next to the bushes and
requested him to accompany her to the same.
The deceased then played alone on the sports field as she ran around
and he was watching
her. He called the deceased and strangled her. He
told the court that after strangulation he stood up, walked away,
came back and
lifted the deceased's hands and arms and noticed that
they limped. Walked away again for 10 to 15 paces, came back and had
vaginal
and anal sexual intercourse with the deceased. He could not
dispute the doctor's opinion that when he had sexual intercourse with
the deceased she was still alive because he told the court the
deceased did not scream. He went to the garage to buy tik where
he
smoked with others and returned to his house. He returned to Sarels'
place where he found Shane and then began to smoke tik
again. Ms
Sarels came while they were smoking tik and they all smoked tik,
including Ms Sarels. He told the court further that
on the day of the
incident he had smoked tik in the morning, afternoon, evening and
that Sarels did not smoke tik that evening.
He reiterated that at the
time he killed the deceased, though he smoked tik, he knew what he
was doing because the tik had little
effect on him. He told the court
that though he did not know why he killed the deceased, he had the
intention to kill her. He confirmed
that he was arrested and made
confession to a magistrate.
Under
cross-examination he told the court that people like Mr Baar wanted
him to be seen on a bad light on account of what he did
and also
denied that on the day in question he walked up and down. He also
denied that he insisted that the deceased should go
with him to the
tuck shop. He confirmed, however, that the deceased was wearing shoes
with laces. He told the court that he strangled
the deceased with his
own hands. He was emphatic telling the court that the doctor lied to
the court that the deceased had abrasions
and did not agree with the
doctor that the deceased had serious injuries as he insisted that the
did not assault the deceased.
Answering a question from the bench, he
told the court that though he loved children very much he decided to
kill the deceased
for apparently no reason. And that was the defence
case.
The
following are common cause. Firstly, the accused in this matter is
Manfred Swartz. The deceased was a seven year old child,
Nadine
Jantjies. Thirdly, the incident happened on 15 June 2009 at Vogelvlei
bush, Wesbank, Mfuleni. The only disputes are whether,
firstly, the
accused abducted the deceased and secondly whether the deceased was
alive when she was raped two times.
Abduction
is defined as when a person, male or female, if he or she unlawfully
and intentionally removes an unmarried minor who
may likewise be
either male or female from the control of his or her parents or
guardian and without the consent of such parents
or guardians
intending that he or she or somebody else married, to have sexual
intercourse with her. The important elements here
are, firstly, the
removal and secondly of an unmarried minor, thirdly, from the control
of his or her parents or guardian and,
fourthly, with the intention
of marrying or having sexual intercourse with a minor and fifthly,
without the consent of the parents
and guardian and sixthly,
unlawfulness and, lastly, intentionally.
While
rape is defined as any person who unlawfully and intentionally
commits an act of sexual penetration with another person without
the
latter's consent. That is Section 3 of the Sexual Offences and
Related Matters Amendment Act 32 of 2007. The important elements
here
are firstly, sexual penetration of another person and secondly,
without the consent of the latter's person and thirdly,
unlawfulness
and, fourthly, intentionally.
Murder
is defined as the unlawful and intentional causing of the death of
another human being. The important elements here being
causing the
death and secondly, of another person, unlawfully and lastly,
intentionally.
Dr
Tiemensma's testimony and the post-mortem report makes it very clear
that the accused raped the deceased while still alive. The
doctor's
report is clear and when testifying in court the doctor was very
impressive. She did not hesitate and was certain in whatever
she told
the court except that she could not tell the court with certainty
whether the deceased was strangled with hands only as
she told the
court that it might be both hands and cord. She was a reliable,
honest and a credible witness.
Ms
Jantjies evidence was clear and straightforward and she is bitter,
understandably, because the accused killed her daughter for
apparently no good reason. She was an honest and a credible witness.
Lorenzo
Smith, though the youngster was 13 years old, was also an honest and
a reliable witness and he was also credible.
Mr
Baar's testimony that the accused was walking up and down and also
that he saw the deceased playing with the children, is accepted
by
the court and on what he testified here in court, the court found him
reliable and credible.
Ms
Sarels' testimony was clear and straight forward. She was also an
honest, reliable and credible witness.
Warrant
Officer Boltman and Colonel Theron's testimonies were clear and I
believe them that they were honest, reliable and credible
witnesses.
I
may just add then that although the State witnesses were single
witnesses in their respective testimonies in court, I must say
each
and everyone's testimony, though treated with caution, was
satisfactory in every material respect and I have no doubt in my
mind
that they comply with the requirements in Section 208 of Criminal
Procedure Act, Act 51 of 1977 as amended.
The
accused, on the other side, was evasive and could not clearly tell
the court exactly what he did and the reason or reasons
thereof.
He looked down while state witnesses testified and when it was
his turn, he never looked at his counsel, the state
advocate, nor to
the court. He answered very often before the questions were even
completed. The court is of the view that the
accused was very
economic with the truth, that is, he is an outright liar whose
versions on counts 1, 2 and 3 can be hardly believed.
He was a
dishonest, untruthful, unreliable and not a credible witness and the
court rejects his version.
Ms
Engelbrecht submitted that the accused unlawfully and intentionally
enticed the minor deceased from the control of her parent
or guardian
without the parent or guardian consent with the intention of having
sexual intercourse with her.
Mr
De Villiers replied to Ms Engelbrecht's submission by submitting that
at a place where the deceased was, surely was out of the
control of
either the parent or the guardian and the accused did not entice the
deceased by promising to buy her sweets and chips
and the accused
cannot be guilty of either kidnapping or abduction. I disagree. I am
of the view that, firstly, the parent was
in control of the deceased
at all material times. Secondly, I agree with Ms Engelbrech's
submission that by promising to buy her
sweets and chips, the accused
enticed a young child of seven years old to go with him to the tuck
shop. The deceased trusted
the accused. The accused did not get
the permission from the parent or guardian to go with the deceased to
the tuck shop. When
the accused led the deceased to the bushes next
to the sports field, I agree with Ms Engelbrecht that he had surely
the intention
to rape and kill her.
Ms
Engelbrecht, furthermore, submitted that the doctor's testimony and
report were clear. The accused did not rape the corpse as
he claimed
but raped the deceased while still alive. Mr De Villiers countered
that submission by arguing that the court cannot
take the doctor's
opinion alone. It has to look at the totality of the evidence at its
disposal and decide. I agree that the court
has to look at the
totality of the evidence at its disposal. However, in the absence of
any other contrary expert evidence, the
doctor's report and testimony
are persuasive. I find that the accused raped the deceased whilst she
was alive.
Finally,
Ms Engelbrecht submitted that by walking up and down the accused
showed that he had a plan in mind, namely to rape and
kill the
deceased and not to buy her sweets and chips as he would like us to
believe.
Mr
De Villiers argued that the state has accepted the plea that the
accused had no premeditated plan, it cannot now change.
I
agree. He submitted further that the killing was a spur of the
moment. I disagree.
The
accused, on his own version told the court that he watched the
deceased playing in the sports field alone, that is running around,
and after a while decided to call her and strangled her. Surely the
killing was not a spur of a moment.
In
this matter it is clear that the accused enticed the young child of
seven years old away from other children she was playing
with, by
promising to buy her sweets and chips without the child's parent's or
guardian's consent. Contrary to his version that
he loves children
very much, he decided to lead the young unsuspecting victim to a
place where the accused had sexual intercourse
with her without her
consent and kill her in a cruel, inhuman and degrading fashion by
strangling her. If one looks at the deceased's
photos, especially
Exhibit E, photos 5 and 6, one can see that a cord or similar object
was used, agreeing to a certain extent
with the doctor, and also that
perhaps a cord was also used in addition to what the accused informed
the court, that he used hands
in killing this young defenceless
child. The doctor unequivocally told the court that looking at the
deceased's age, undoubtedly
the deceased suffered severe pains before
her untimely death.
I
am of the view that the state, in respect of counts 1, 2 and 3, that
is abduction, two times rape, has proved its case beyond
reasonable
doubt and the accused is therefore found:
GUILTY
ON COUNT 1
,
that is abduction.
GUILTY
ON COUNT 2
,
that is rape, and
GUILTY
ON COUNT 3
,
that is rape.
You
have already been found
GUILTY
ON COUNT 4
,
that is murder in terms of your plea. In other words, the accused has
been found
GUILTY
ON ALL COUNTS
,
1, 2 3 and 4.
SAMELA,
AJ