Van der Westhuizen v S (266/10) [2011] ZASCA 36; 2011 (2) SACR 26 (SCA) (28 March 2011)

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[2011] ZASCA 36
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Van der Westhuizen v S (266/10) [2011] ZASCA 36; 2011 (2) SACR 26 (SCA) (28 March 2011)

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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 266/10
In the matter between:
M
VAN DER WESTHUIZEN
.........................................................................
Appellant
and
THE
STATE
..............................................................................................
Respondent
Neutral
citation:
Van der Westhuizen v S
(266/10)
[2011] ZASCA 36
(28 March 2011).
Coram:
CLOETE, SNYDERS and THERON JJA
Heard:
23 FEBRUARY 2011
Delivered:
28 MARCH 2011
Summary:
Criminal Procedure: the requirement (in
s 32 of the National Prosecuting Authority Act) that a prosecutor
must act impartially,
explained; held that an accused can waive the
prohibition (contained in
s 105A(10)
of the
Criminal Procedure Act,
51 of 1977
) on disclosure of plea-bargain negotiations where no
agreement is reached; held that where a special entry in terms of
s
317(1)
of the
Criminal Procedure Act is
sought on the basis that
cross-examination of a State witness was unjustifiably curtailed, the
court can avoid making a special
entry by recalling the witness for
further cross-examination; the effect of a formal admission made
under
s 220
of the
Criminal Procedure Act decided
and the
circumstances when such an admission may be withdrawn, discussed.
Sentence: Deterrence and retribution do not recede into
the
background as purposes of sentencing where an accused has not acted
with substantial diminished responsibility.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Western Cape High Court (Cape
Town) (Louw J sitting as
court of first instance):
The appeal is dismissed.
______________________________________________________________
JUDGMENT
______________________________________________________________
CLOETE JA (SNYDERS and THERON JJA concurring):
Introduction
[1] On 28 July 2006 the appellant shot and killed his
three children. He was found guilty of three counts of murder by the
Western
Cape High Court (Louw J) and sentenced to 14 years'
imprisonment on each count. Nine years of each of the sentences on
the second
and third counts was ordered to run concurrently with the
sentence on the first count. The effective term of imprisonment was
therefore
24 years. The appellant has appealed, with the leave of the
court a quo, against both his conviction and the sentence imposed.
This judgment addresses two questions:
(1) whether the appellant had a fair trial; and
(2) whether, having consented to
admissions being recorded formally in terms of
s 220
of the
Criminal
Procedure Act (the
CPA),
1
the appellant was entitled, without
more, to lead evidence and advance argument in contradiction of such
admissions.
Fair trial
[2] The submission that the appellant had not been
accorded a fair trial was based on an argument that the prosecutor
had not been
impartial, and on specific instances of alleged
misconduct on the part of the prosecutor and the court.
Impartiality of the prosecutor
[3] I shall deal first with the impartiality of the
prosecutor. The appellant's attorney submitted:
(a) that the prosecutor had called Inspector Koekemoer,
a sniper and part of the special task force deployed at the
appellant's
house after he had shot his children, to give evidence
prejudicial to the appellant when the prosecutor could have called
the hostage
negotiators, especially the senior negotiator
Superintendent Herman Bosman, whose evidence, it was submitted, would
have been less
prejudicial to the appellant and important for the
court to appreciate the appellant's mental state; and
(b) that the prosecutor had not called:
(i) Ronel Arendse, the psychologist to whom Mrs van der
Westhuizen had been referred on the date of the shootings, who was
still
treating her when she gave evidence and whose summary of what
was told to her allegedly differed from Mrs van der Westhuizen's
evidence as to what had happened on the night of the shootings;
(ii) Tanya Swart (a psychologist at Valkenberg and part
of the team that observed the appellant when he was referred there
for an
inquiry into his mental state and a report as contemplated in
chapter 13 of the CPA) whose notes contained material which the
defence
considered to be of assistance to the appellant, which were
used to cross-examine State witnesses and which were handed in as an

exhibit by the defence;
(iii) Ronel Kemp (née Ollewagen), a psychologist
consulted by the appellant and Mrs van der Westhuizen in 2004; and
(vi) Captain Marinda van Zyl, a social worker from the
Employee Assistance Services of the police, whom both the appellant
and Mrs
van der Westhuizen consulted during the year in which the
shootings took place.
[4] The appellant's attorney asked this court to draw
the inference that witnesses that could support the appellant's case,
were
not called; and that the State had gone out of its way to obtain
and place before the court evidence that showed the appellant in
a
bad light. At the heart of this argument is a fundamental
misconception of the duties and function of a prosecutor in a
criminal
case.
[5] Section 179(4) of the
Constitution
2
provides that:
'National legislation must
ensure that the prosecuting authority exercises its functions without
fear, favour or prejudice.'
The national legislation concerned,
is the National Prosecuting Authority Act.
3
Two sections of that Act are relevant
for present purposes, namely s 32 and s 22(6). The former
section provides:
'(1)(a) A
member of the
prosecuting
authority
shall
serve impartially and exercise, carry out or perform his or her
powers, duties and functions in good faith and without fear,
favour
or prejudice and subject only to the
Constitution
and the law.'
The oath and affirmation prescribed
in subsec (2)(a) of the same section also contain the words 'enforce
the Law of the Republic
without fear, favour or prejudice'. Section
22(6) of the National Prosecuting Authority Act requires the National
Director of Public
Prosecutions (in consultation with the Minister
and after consultation with Deputy National Directors and Directors)
to frame a
code of conduct, and provides that such code shall be
complied with by the prosecuting authority.
4
[6] The Code of Conduct for Members
of the National Prosecuting Authority was recently published by GN
R1257 in
GG
33907
of 29 December 2010. It contains the following provisions relevant
for present purposes:
'
B.
INDEPENDENCE
The prosecutorial discretion to
institute and to stop criminal proceedings should be exercised
independently, in accordance with
the Prosecution Policy and the
Policy Directives, and be free from political, public and judicial
interference.
C. IMPARTIALITY
Prosecutors should perform their
duties without fear, favour or prejudice. In particular, they should
─
(a) carry out their functions
impartially and not become personally, as opposed to professionally,
involved in any matter;
(b) avoid taking decisions or
involving themselves in matters where a conflict of interest exists
or might possibly exist;
(c) take into consideration the
public interest as distinct from media or partisan interests and
concerns, however vociferously
these may be presented;
(d) avoid participation in
political or other activities which may prejudice or be perceived to
prejudice their independence and
impartiality;
(e) not seek or receive gifts,
donations, favours or sponsorships that may compromise, or may be
perceived to compromise, their
professional integrity;
(f) act with objectivity and pay
due attention to the constitutional right to equality;
(g) take into account all
relevant circumstances and ensure that reasonable enquiries are made
about evidence, irrespective of whether
these enquiries are to the
advantage or disadvantage of the alleged offender;
(h) be sensitive to the needs of
victims and do justice between the victim, the accused and the
community, according to the law
and the dictates of fairness and
equity; and
(i) assist the court to arrive
at a just verdict and, in the event of a conviction, an appropriate
sentence based on the evidence
presented.'
[7] The Code was not in operation at
the time of the appellant's prosecution but it is consistent with the
United Nations Guidelines
on the Role of Prosecutors
5
as well as the Standards of
Professional Responsibility and Statements of the Essential Duties
and Rights of Prosecutors of the
International Association of
Prosecutors.
6
Clause 13 of the UN Guidelines
provides:
'In the performance of their
duties, prosecutors shall:
(a) Carry out their functions
impartially and avoid all political, social, religious, racial,
cultural, sexual or any other kind
of discrimination;
(b) Protect the public interest,
act with objectivity, take proper account of the position of the
suspect and the victim, and pay
attention to all relevant
circumstances, irrespective of whether they are to the advantage of
the suspect.'
[8] The International Association of Prosecutors'
Standards contains the following provisions relevant for present
purposes:
'
3.
Impartiality
Prosecutors shall perform their
duties without fear, favour or prejudice.
In particular they shall:
carry out their functions
impartially;
remain unaffected by individual
or sectional interests and public or media pressures and shall have
regard only to the public interest;
act with objectivity;
have regard to all relevant
circumstances, irrespective of whether they are to the advantage or
disadvantage of the suspect;
in accordance with local law or
the requirements of a fair trial, seek to ensure that all necessary
and reasonable enquiries are
made and the result disclosed, whether
that points towards the guilt or the innocence of the suspect;
always search for the truth and
assist the court to arrive at the truth and to do justice between the
community, the victim and
the accused according to law and the
dictates of fairness.
4.
Role
in criminal proceedings
4.1 Prosecutors shall perform
their duties fairly, consistently and expeditiously.
. . .
(d) in the institution of
criminal proceedings, they will proceed only when a case is
well-founded upon evidence reasonably believed
to be reliable and
admissible, and will not continue with a prosecution in the absence
of such evidence; throughout the course
of the proceedings, the case
will be firmly but fairly prosecuted; and not beyond what is
indicated by the evidence.'
[9] I pause to emphasise that the concept of
impartiality in the South African code, the UN Guidelines and the
Standards of the
International Association of Prosecutors is not used
in the sense of not acting adverserially, but in the sense of acting
even-handedly,
ie avoiding discrimination; and the duty to act
impartially is therefore part of the more general duty to act without
fear, favour
or prejudice.
[10] Against this local and
international background, it would be apposite to quote from the
judgment of Rand J of the Supreme Court
of Canada in
Boucher
v The Queen
:
7
'It cannot be over-emphasized
that the purpose of a criminal prosecution is not to obtain a
conviction, it is to lay before a jury
what the Crown considers to be
credible evidence relevant to what is alleged to be a crime. Counsel
have a duty to see that all
available legal proof of the facts is
presented: it should be done firmly and pressed to its legitimate
strength but it must also
be done fairly. The role of prosecutor
excludes any notion "of winning or losing"; his function is
a matter of public
duty than which in civil life there can be none
charged with greater personal responsibility. It is to be efficiently
performed
with an ingrained sense of the dignity, the seriousness and
the justness of judicial proceedings.'
The passage has been repeatedly
referred to by that court in subsequent decisions, see eg
Nelles
v Ontario
,
8
CanadianOxy Chemicals Ltd v Canada
(Attorney General),
9
R v Stinchcombe
,
10
Proulx v The Queen
;
11
and it has been quoted with approval
by our Constitutional Court in
S
v Shaik & others
,
12
by the House of Lords and the
Judicial Committee of the Privy Council in
R
v H
,
13
Randall v The Queen
,
14
Benedetto v The Queen; Labrador v
The Queen
,
15
by the High Court of Australia in
Libke v R
16
and by the Supreme Court of Ireland
in
D O v DPP
.
17
[11] The initial remarks of Rand J in
Boucher
in the passage quoted above must not,
however, be misunderstood. In our practice it is not the function of
a prosecutor disinterestedly
to place a hotchpotch of contradictory
evidence before a court and then leave the court to make of it what
it wills. On the contrary,
it
is the obligation of a prosecutor firmly but fairly and
dispassionately to construct and present a case from what appears to

be credible evidence, and to challenge the evidence of the accused
and other defence witnesses with a view to discrediting such

evidence, for the very purpose of obtaining a conviction.
18
That is the essence of a prosecutor's
function in an adversarial system and it is not peculiar to South
Africa:
(a) Lord Bingham said in
Randall
:
19
'
Fairness
A contested criminal trial on
indictment is adversarial in character. The prosecution seeks to
satisfy the jury of the guilt of
the accused beyond reasonable doubt.
The defence seeks to resist and rebut such proof. The objects of the
parties are fundamentally
opposed. . . .
. . . The adversarial format of
the criminal trial is indeed directed to ensuring a fair opportunity
for the prosecution to establish
guilt and a fair opportunity for the
defendant to advance his defence. . . .
(I) The duty
of prosecuting counsel is not to obtain a conviction at all costs but
to act as a minister of justice:
R
v Puddick
(1865)
4 F & F 497, 499;
R
v Banks
[1916]
2 KB 621
, 623. The prosecutor's role was very clearly described by
Rand J in the Supreme Court of Canada. . . .'
and the learned Law Lord then went on
to quote the remarks of Rand J in
Boucher
set out above.
(b) Justice Sutherland said in
Berger
v US
:
20
'The United States Attorney is
the representative not of an ordinary party to a controversy, but of
a sovereignty whose obligation
to govern impartially is as compelling
as its obligation to govern at all; and whose interest, therefore, in
a criminal prosecution
is not that it shall win a case, but that
justice shall be done. As such, he is in a peculiar and very definite
sense the servant
of the law, the twofold aim of which is that guilt
shall not escape or innocence suffer. He may prosecute with
earnestness and
vigour ─ indeed, he should do so. But, while he
may strike hard blows, he is not at liberty to strike foul ones. It
is as
much his duty to refrain from improper methods calculated to
produce a wrongful conviction as it is to use every legitimate means

to bring about a just one.'
(c) Madame Justice L'Heurex-Dubé
said in
R v Cook
:
21
'Nevertheless,
while it is without question that the Crown performs a special
function in ensuring that justice is served and cannot
adopt a purely
adversarial role towards the defence (
Boucher
v The Queen
,
[1955] SCR 16
;
Power
,
supra
,
at p 616), it is well recognized that the
adversarial
process
is
an important part of our judicial system and an accepted tool in our
search for the truth: see, for example
R
v Gruenke
,
[1991] 3 SCR 263
, at p 295,
per
L'Heureux-Dubé
J. Nor should it be assumed that the Crown cannot act as a strong
advocate within this adversarial process.
In that regard, it is both
permissible and desirable that it vigorously pursue a legitimate
result to the best of its ability.
Indeed, this is a critical element
of this country's criminal law mechanism:
R
v Bain
,
[1992] 1 SCR 91
;
R
v Jones
,
[1994] 2 SCR 229
;
Boucher
,
supra
.
In this sense, within the boundaries outlined above, the Crown must
be allowed to perform the function with which it has been
entrusted;
discretion in pursuing justice remains an important part of that
function.' (Underlining in the original judgment.)
[12] Where an accused is represented,
it is not the function of a prosecutor, as suggested by the
appellant's attorney, to call
evidence which is destructive of the
State case or which advances the case of the accused.
22
The prosecutor is not obliged to play
chess against him ─ or herself. In England, the Privy Council
in the case of
Seneviratne
v R
23
allowed the accused's appeal on a
narrow ground not relevant for present purposes, but rejected the
accused's more general submission
that the Crown had an obligation to
call every eyewitness to the crime by saying:
24
'Their
Lordships do not desire to lay down any rules to fetter discretion on
a matter such as this which is so dependent on the
particular
circumstances of each case. Still less do they desire to discourage
the utmost candour and fairness on the part of those
conducting
prosecutions; but at the same time
they
cannot, speaking generally, approve of an idea that a prosecution
must call witnesses irrespective of considerations of number
and of
reliability, or that a prosecution ought to discharge the functions
both of prosecution and defence
.
If it does so confusion is very apt to result, and never is it more
likely to result than if the prosecution calls witnesses and
then
proceeds almost automatically to discredit them by cross-examination.
Witnesses
essential to the unfolding of the narratives on which the prosecution
is based, must, of course, be called by the prosecution,
whether in
the result the effect of their testimony is for or against the case
for the prosecution
.'
(Emphasis added.)
Madame Justice L'Heurex-Dubé
in
R v Cook
,
25
having quoted this passage, with the
emphasis added, continued:
'This
obiter
ruling,
apparently intended to clarify the existing law in this area, did not
quite accomplish its desired task. Instead, it would
seem to have
heightened the level of confusion. It was primarily the combined
effect of the two portions highlighted above which
has given rise to
the most concern. At first, the Privy Council appears to be approving
of a broad discretion and a reluctance
to impose a need for the Crown
to call witnesses for both sides. In the second portion, however, it
would seem that the Court is
indicating that certain witnesses, those
"essential to the … narrative", must be called in
every case. On the
surface at least, these opposing comments are not
easily reconcilable.'
The learned justice then referred to
the Privy Council case of
Adel
Muhammed El Dabbah v Attorney-General for Palestine
26
and Canadian cases including
Lemay
v The King
27
and
R
v Yebes.
28
In the
Yebes
matter McIntire J said:
29
'The Crown
has a discretion as to which witnesses it will call in presenting its
case to the court. This discretion will not be
interfered with unless
the Crown has exercised it for some oblique or improper reason: see
Lemay
v The King
,
supra
.
No such improper motive is alleged here. While the Crown may not be
required to call a given witness, the failure of the Crown
to call a
witness may leave a gap in the Crown's case which will leave the
Crown's burden of proof undischarged and entitle the
accused to an
acquittal. It is in this sense that the Crown may be expected to call
all witnesses essential to the unfolding of
the narrative of events
upon which the Crown's case is based.'
In
Cook
30
Madam Justice L'Heureux-Dubé
said of this passage, referring back to the second passage emphasised
in
Seneviratne
:
'"[E]ssential to the . . .
narrative" does not mean, as many have attempted to suggest,
that all witnesses with relevant
testimony have to be called by the
prosecution. On the contrary, it refers solely to the Crown's burden
of proof in a criminal
proceeding. Where the "narrative" of
a given criminal act is not adequately set forth, elements of the
offence might
not be properly proven, and the Crown risks losing its
case.'
[13] It is therefore within the
discretion of the prosecutor to decide which witnesses to call as
part of the State case. The duty
of the prosecutor 'to see that all
available legal proof of the facts is presented', in the words of
Rand J in
Boucher
,
is discharged by making the evidence (and not only the witnesses
subpoenaed by the State) available to the accused's legal
representatives.
The South African Code of Conduct for Members of the
National Prosecuting Authority provides in chapter D, which deals
with 'Role
in Administration of Justice':
'2. Prosecutors should,
furthermore ─
. . .
(g) as soon as is reasonably
possible, disclose to the accused person relevant prejudicial and
beneficial information, in accordance
with the law or the
requirements of a fair trial.'
I respectfully agree in this regard
with the remarks of Justice Sopinka who delivered the judgment of the
Supreme Court of Canada
in
Stinchcombe
:
31
'As long ago
as 1951, Cartwright J stated in
Lemay
v The King,
[1952]
1 SCR 232
, at p 257:
"I wish
to make it perfectly clear that I do not intend to say anything which
might be regarded as lessening
the
duty which rests upon counsel for the Crown to bring forward evidence
of every material fact known to the prosecution whether
favourable to
the accused or otherwise
.
. . ."
This
statement may have been in reference to the obligation resting on
counsel for the Crown to call evidence rather than to disclose
the
material to the defence, but I see no reason why this obligation
should not be discharged by disclosing the material to the
defence
rather than obliging the Crown to make it part of the Crown's case.'
(Emphasis by Sopinka J.)
32
I would emphasise, however, that it is not necessarily
sufficient for the prosecutor to tender State witnesses to the
defence at
the end of the State case, nor does the prosecutor
necessarily discharge the duty of disclosure by making available the
contents
of the dossier: if there is evidence which the prosecutor
knows or ought reasonably to suspect is or may be destructive of the
State case, or which tends or might tend to support the defence case,
and which the prosecutor knows or ought reasonably to suspect
is not
known to the defence, it is the prosecutor's duty to bring this
evidence specifically to the attention of the accused's
legal
representatives. It would therefore, for example, not be necessary
for a prosecutor to draw attention to a specific witness's
statement
favourable to the accused in the dossier made available to the
defence, for he who runs may read; but the prosecutor
would be
obliged to inform the defence that a particular witness, who has not
given a statement, might to the defence's advantage
be consulted and
why, and also to assist, where necessary, in making such a witness
available; and the prosecutor would also be
obliged to furnish the
defence with a document which is not in the dossier, which favours
the accused's case or which is destructive
of the State case, which
the prosecutor believes or ought reasonably to believe is not in the
possession of the defence. But the
prosecutor's obligation is not to
put the information before the court.
[14] I therefore conclude that there is no substance in
the argument that the appellant did not receive a fair trial because
the
State called some witnesses, and not others. Nor did the
prosecutor simply make State witnesses not called by the State
available
to the defence: the prosecutor placed on record that he
would assist the defence in locating and consulting with such
witnesses.
And if the appellant's attorney did not insist that
subpoenas issued at the suit of the defence were enforced, that
cannot be laid
at the door of the prosecution.
[15] I turn to consider the specific complaints made by
the appellant's attorney in support of the argument that the
appellant did
not receive a fair trial. For reasons which will become
apparent, it is not necessary to deal with all of them.
Section 105A of the CPA
[16] Plea negotiations as contemplated in s 105A of the
CPA took place between the State and the appellant's legal
representatives.
Nothing came of these negotiations but in the course
of them the appellant's legal representatives furnished the
prosecution with
reports on the appellant authored by a psychiatrist,
Dr Neil Fouché, and a psychologist, Mrs Charlotte Hoffman.
Those reports
were sent by the prosecution to Dr Killisky (a member
of the team at Valkenberg Hospital which inquired into, and reported
on,
the appellant's mental state in terms of chapter 13 of the CPA)
and were seen by Dr Panieri-Peter (a member of the same team) about

two days before she was due to give evidence. She had regard to them
and intended referring to them in her evidence. The appellant's

attorney submitted that this constituted an irregularity inasmuch as
s 105A(10)(a)(i) provides:
'Where a
trial starts
de
novo
as
contemplated in subsec (6)(c)
33
or (9)(d)
34
─
(a) the agreement shall be null
and void and no regard shall be had or reference made to ─
(i) any negotiations which
preceded the entering into the agreement.'
The section contains no reference to
a situation such as the present where there was no agreement, but it
must apply equally in
such a case. Normally, an accused cannot
consent to an incorrect procedure being followed:
S
v Lapping
;
35
but the section contains a proviso in
the following terms:
'Unless the accused consents to
the recording of all or certain admissions made by him or her in the
agreement or during any proceedings
relating thereto and any
admissions so recorded shall stand as proof of such admission.'
The effect of the proviso is that an
accused may waive the protection afforded by the section and agree to
the recording of admissions.
A
fortiori
, then, can
an accused agree to the use of documents brought into existence for
the purposes of s 105A proceedings which do not
contain admissions,
but which are unfavourable or, for that matter, favourable to the
accused. And that is exactly what happened
here.
[17] After Dr Panieri-Peter had read her report into the
record, the appellant's attorney pointed out that the reports of the
appellant's
experts sent to the prosecution as part of the s 105A
proceedings, had come into her hands. The court then adjourned for
the day.
The following morning at the commencement of proceedings the
appellant's attorney said:
'Edele, dit is nog steeds my
submissie dat die verslae was ingehandig in Artikel 105A verrigtinge,
en dat dit bespreek was in daardie
omstandighede. Ek gaan egter, of
ek was gister geskok gewees dat hierdie getuie dit genoem het, dat
hierdie verslae oorhandig aan
haar was. Ek het dit egter met die
Staat bespreek, die Staat het my 'n verduideliking daaroor gegee. Ek
gaan nie beswaar maak dat
sy dan getuienis daaroor gee nie. Indien
daar enige aspekte is wat ek voel wat verkeerdelik genoem word, of 'n
verkeerde afleiding
uit daardie verslae, dan sal ek dit laat uitblyk
in kruisondervraging.'
After further discussions the court, addressing the
prosecutor, said that the appellant's attorney did not object to Dr
Panieri-Peter
continuing with her evidence, obviously by dealing with
the appellant's expert reports, but that he (the appellant's
attorney)
would deal with that evidence in cross-examination. The
prosecutor confirmed that that was so. The learned judge then asked
the
appellant's attorney whether the position as had just been
explained, was correct, and the appellant's attorney confirmed that
it was. Dr Panieri-Peter continued with her evidence but before
dealing with the reports from the defence, said:
'I have deliberately left out
the inconsistencies in this Psychologist and the Psychiatrist reports
about memory. I don't know,
can I comment on those, because that is
also relevant to the inconsistency of memory, but I just want to be
clear, because there
was a dispute about documents. I want to be
clear on that information first.'
The judge then addressed the appellant's attorney and
enquired: 'Ek wil net seker maak wat u houding is daaromtrent.' The
appellant's
attorney asked for an opportunity to take instructions,
to which the judge responded:
'Ja, maar u moet nou besluit,
meneer, watter kant toe u wil gaan daarmee, want ek verstaan u het
dit oorweeg om te sê u het
nie 'n beswaar as daar na verwys
word nie, want u gaan in elk geval daarmee handel in kruisverhoor.
Nou kom dit nou by die punt,
en volgens die getuie is daar belangrike
inligting daarin, feitlike weergawes wat vir haar van belang is om 'n
mening uit te spreek.'
The court then adjourned at the request of the
appellant's attorney and on resumption, the latter said:
'Dit is my instruksies om nie
beswaar te maak teen die getuienis wat gelei word nie, maar versoek
spesifiek dat daar spesifieke
verwysing gemaak sal word na 'n persoon
se verslag . . . . dat die verslae nie in een bespreek word, hetsy
van Charlotte Hoffman
of van Niel Fouché nie, maar indien sy
dan net 'n verwysing sal maak van 'n spesifieke verslag, na wat
verwys word.'
[18] In the circumstances, the proposition that the
appellant did not have a fair trial because reports handed to the
State in the
course of s 105A proceedings had come into the hands of
a State witness and were commented on by the State witness, is
untenable.
The attitude of the appellant's attorney as reflected in
the exchanges summarised above was eminently sensible if the defence
intended
to call the witnesses whose reports had been handed to the
prosecution. It would have been the duty of the appellant's attorney

to put the contents of the reports to State witnesses who could
comment thereon and that included Dr Panieri-Peter. Allowing the

State to lead such comments in her evidence in chief had the
advantage that the defence could consult its expert witnesses after

her comments were known, and then put the reply of the defence
witnesses to her criticism of their reports in cross-examination,
so
obviating the necessity for an adjournment during cross-examination
to enable the defence to take instructions.
Special entries
[19] The next complaint advanced by
the appellant's attorney was that his cross-examination of Mrs van
der Westhuizen had been unjustifiably
limited by the court a quo, and
that the court had refused to make a special entry in terms of s 317
36
of the CPA in this regard. It is
convenient to consider this point together with the further complaint
by the appellant's attorney
that a statement by Ms Ronel Arendse was
not timeously disclosed to the defence and that the court refused to
make a special entry
in this regard as well.
[20] As I have said, Ms Ronel Arendse is a psychologist,
to whom Mrs van der Westhuizen was referred on the date of the
incident
and who was still treating her when Mrs van der Westhuizen
gave evidence. These facts emerged during cross-examination of Mrs
van
der Westhuizen on Thursday 6 November 2008. After the court had
adjourned, the prosecutor looked at a report from Ms Arendse, saw

that it referred to other reports, obtained those reports from her
and forwarded same to the appellant's attorney because they
contained
references to what had happened during the night of the shootings.
The reports were received by the appellant's attorney
during the
afternoon of Friday 7 November 2008. The following Monday, 10
November 2008, the appellant's attorney asked for a special
entry to
be made in terms of s 317 because the defence had not had an
opportunity to cross-examine Mrs van der Westhuizen on the
alleged
differences between the report and Mrs van der Westhuizen's evidence
on the events of the night in question. The prosecutor
suggested that
Mrs van der Westhuizen be recalled for such cross-examination.
[21] The appellant's attorney had by then indicated to
the court that he would apply for a special entry also on the basis
that
he had been prevented from properly cross-examining Mrs van der
Westhuizen. The court indicated that Mrs van der Westhuizen would
be
recalled for further cross-examination and instructed the appellant's
attorney to cover both aspects ─ the alleged differences

between Ms Arendse's report and Mrs van der Westhuizen's evidence, as
well as any other aspects he wished to canvass with Mrs van
der
Westhuizen which would have given rise to a special entry. The
further cross-examination of Mrs van der Westhuizen stood over
for
three days at the request of the appellant's attorney to enable him
to prepare and other witnesses were called by the State
in the
meantime. Before the cross-examination commenced, the presiding judge
again instructed the appellant's attorney to cross-examine
Mrs van
der Westhuizen on aspects that the latter claimed he had been
prevented from putting to her, in order to avoid a special
entry and
it is clear from the record that the appellant's attorney understood
the court's attitude.
[22] The appellant's attorney then cross-examined Mrs
van der Westhuizen until after the tea adjournment and said to the
court:
'U Edele, dit sluit my
kruisondervraging af.'
The learned judge then said:
'Nou soos ek vroeër gesê
het u het aangedui dat u wil aansoek doen vir spesiale inskrywing dat
wat die kruisverhoor van
hierdie getuie betref daar onreëlmatigheid
was of dat die prosedure in stryd met die reg is. Nou die getuie is
nou hier in
die getuiebank. Is daar enige ander aspekte wat u met die
getuie wil opvat? Wat u vroeër oënskynlik onder die indruk
was dat u nie toegelaat is om behoorlik te kruisverhoor nie.
Onreëlmatig nie toegelaat is nie. Of in stryd met die reg nie

toegelaat is om volledig te kruisverhoor.'
The appellant's attorney began replying, and was
interrupted by the court who said:
'Ja, maar nou wat is nou die
posisie? Is daar nog aspekte wat u meen u nie op 'n onreëlmatige
wyse of strydig met die reg nie
toegelaat is om te kruisverhoor nie?'
The appellant's attorney replied:
'U Edele ek sal dit daar laat.
My instruksies [is] om dit nie verder te kruisondervra.'
The court then said:
'Verstaan ek u dan dat u het die
geleentheid gehad om ten volle, soos u dit sien, te kruisverhoor?'
A further discussion ensued and the court then said:
'Kyk, ek verstaan u het
instruksies, maar u is die regsverteenwoordiger. U moet 'n besluit
neem.'
Again, the court made its attitude clear:
'Want ek wil nie later laat ons
sit met 'n situasie dat daar 'n aansoek vir 'n spesiale aantekening
is dat daar nie behoorlik gekruisverhoor
is nie of dat die
kruisverhoor onreëlmatig of in stryd met die reg gekortwiek is
nie. So as daar is dan moet u dit vir my
noem dat ek ─ dan kan
u vir my toespreek oor die relevansie daarvan en dan kan daar 'n
besluit geneem word. Maar ek kan dit
nie in die lug laat hang nie
meneer. Verstaan u?'
It appears from the record that the appellant's attorney
then had discussions with the prosecutor and Mrs van der Westhuizen
was
cross-examined further, in camera. Thereafter the appellant's
attorney again said that his cross-examination was concluded.
[23] It is unnecessary to consider whether, initially,
the court unjustifiably limited cross-examination of Mrs van der
Westhuizen.
Any irregularity that there may have been in that regard
was cured by the court allowing further cross-examination. The same
applies
to the complaint that the report of Ms Arendse was made
available only after Mrs van der Westhuizen had already given
evidence.
The submission on appeal that the procedure followed by the
court was irregular and that the court was obliged to make the
special
entries, is devoid of authority, logic and merit.
Bias of the judge
[24] The appellant's attorney accused the trial judge of
bias towards the appellant. He did not wish to answer the question
from
the bench whether he relied on actual bias or on facts that
could reasonably give rise to an inference of bias but, when pressed,

he alleged actual bias. I do not propose dignifying this allegation
by analyzing the submissions made in support of it. It is entirely

without merit and the best proof of this is the fact that, as the
appellant's attorney confirmed, no application was made at any
time,
in court or in chambers, for the judge a quo to recuse himself.
[25] Further arguments by the
appellant's attorney in support of the submission that the appellant
did not receive a fair trial
that were contained in the heads of
argument, were either abandoned in argument before us
37
or require no serious consideration.
[26] I therefore conclude that there is no substance in
the submission that the appellant did not receive a fair trial. I
turn to
consider the effect of the formal admissions made by the
appellant.
Section 220 admissions
[27] At the commencement of the trial, the appellant
pleaded guilty to each of the three murder charges. He was then
represented
by an advocate and his present attorney. A written
statement setting out the facts on which he pleaded guilty and signed
by himself,
his advocate and his attorney was read out in full by his
advocate and handed in as exhibit A. The appellant, in response to a
question by the court, thereupon confirmed that exhibit A contained
his plea and explanation of his plea. The following paragraphs
of
that document are relevant for present purposes:
'Ad Aanklag 1
4.1 Ek erken dat ek op 28 Julie
2006 en naby Kingstraat 8, Brackenfell vir Bianca van der Westhuizen,
'n vroulike persoon, gedood
het deur haar een maal met 'n vuurwapen,
te wete 'n Z88 pistool, in die kop te skiet.
Ek erken dat ek geweet het toe
ek so opgetree het dat ek verkeerd optree en dat ek daarvoor gestraf
kan word.
4.2 Ek erken voorts dat die
oorsaak van dood "'n skoot aan die kop is" soos vervat in
die regsgeneeskundige lykskouingsverslag
van Jacob Johannes Dempers.
4.3 Ek erken voorts dat die
oorledene geen verdere beserings opgedoen het na die toedien van die
noodlottige skoot tot die uitvoering
van die regsgeneeskundige
lykskouing.
4.4 Vir doeleindes van
volledigheid erken ek ook dat die identiteit van die oorledene Bianca
van der Westhuizen was.
5.
Ad
Aanklag 2
5.1 Ek erken dat ek op 28 Julie
2006 en naby Kingstraat 8, Brackenfell vir Marius Eben van der
Westhuizen, 'n manlike persoon, gedood
het deur hom een maal met 'n
vuurwapen, te wete 'n Z88 pistool, in die kop te skiet.
Ek erken dat ek geweet het toe
ek so opgetree het dat ek verkeerd optree en dat ek daarvoor gestraf
kan word.
5.2 Ek erken voorts dat die
oorsaak van dood "'n skoot aan die kop is" soos vervat in
die regsgeneeskundige lykskouingsverslag
van Jacob Johannes Dempers.
5.3 Ek erken voorts dat die
oorledene geen verdere beserings opgedoen het na die toedien van die
noodlottige skoot tot die uitvoering
van die regsgeneeskundige
lykskouing.
5.4 Vir doeleindes van
volledigheid erken ek ook dat die identiteit van die oorledene Marius
Eben van der Westhuizen was.
6.
Ad
Aanklag 6
6.1 Ek erken dat ek op 28 Julie
2006 en naby Kingstraat 8, Brackenfell vir Antoinette van der
Westhuizen, 'n vroulike persoon, gedood
het deur haar een maal met 'n
vuurwapen, te wete 'n Z88 pistool, in die kop te skiet.
Ek erken dat ek geweet het toe
ek so opgetree het dat ek verkeerd optree en dat ek daarvoor gestraf
kan word.
6.2 Ek erken voorts dat die
oorsaak van dood "'n skoot aan die kop is" soos vervat in
die regsgeneeskundige lykskouingsverslag
van Jacob Johannes Dempers.
6.3 Ek erken voorts dat die
oorledene geen verdere beserings opgedoen het na die toedien van die
noodlottige skoot tot die uitvoering
van die regsgeneeskundige
lykskouing.
6.4 Vir doeleindes van
volledigheid erken ek ook dat die identiteit van die oorledene
Antoinette van der Westhuizen was.
7. Nieteenstaande die feit dat
ek voor en ten tye van die voorval aan erge depressie gely het en
nieteenstaande die feit dat ek
geen geheue het oor die betrokke
voorval, welke geheueverlies toegeskryf word aan post traumatiese
spanning (stress) disfunksie:
7.1 Erken ek die feite soos
uiteengesit in die klagstaat;
7.2 Erken ek dat alhoewel my
insig beperk was deur die depressie, ek nieteenstaande die beperkte
insig, die verkeerdheid van my
handelinge besef het;
7.3 Erken ek spesifiek dat die
depressie en/of geheueverlies geen regverdigingsgrond daarstel nie
maar slegs verminderde toerekeningsvatbaarheid
daar mag stel;
7.4 Erken dat die geheueverlies
toegeskryf word aan post traumatiese spannings disfunksie en dat dit
nie 'n verweer daarstel soos
uiteengesit in Artikel 77 en 78 van die
Strafproseswet;
7.5 Ek erken dat my depressie en
geheueverlies vanweë post traumatiese spannings disfunksie
volledig met my bespreek is deur
my regsverteenwoordigers,
sielkundige en psigiater, dat ek die omvang daarvan begryp en
weereens erken ek onomwonde dat dit nie
'n verweer daarstel en dat ek
erken dat my optrede verkeerd was en dat ek die nodige insig gehad
het.
8. Gevolglik erken ek dat ek die
nodige vermoë gehad het om tussen reg en verkeerd te onderskei
en voorts dat ek die vermoë
gehad het om ooreenkomstig daardie
onderskeidingsvermoë te handel.'
[28] The prosecutor placed on record that the State did
not accept the allegations in para 7 of exhibit A. For the rest, the
admissions
were accepted. The learned judge a quo noted that there
was no admission that the appellant's conduct was accompanied by an
intention
to kill, but merely that the shots the appellant fired had
caused death and that there was criminal responsibility. The court
then
entered a plea of not guilty on all three counts. In doing so,
it acted in terms of s 113(1) of the CPA which provides:
'If the court at any stage of
the proceedings under section 112(1)(a) or (b) or 112(2) and before
sentence is passed is in doubt
whether the accused is in law guilty
of the offence to which he or she has pleaded guilty or if it is
alleged or appears to the
court that the accused does not admit an
allegation in the charge or that the accused has incorrectly admitted
any such allegation
or that the accused has a valid defence to the
charge or if the court is of the opinion for any other reason that
the accused's
plea of guilty should not stand, the court shall record
a plea of not guilty and require the prosecutor to proceed with the
prosecution:
Provided that any allegation, other than an allegation
referred to above, admitted by the accused up to the stage at which
the
court records a plea of not guilty, shall stand as proof in any
court of such allegation.'
In accordance with the proviso, once the plea of not
guilty had been entered, the admissions in exhibit A stood 'as proof'
of the
allegations admitted.
[29] After the prosecutor had placed on record further
admissions made by the appellant and handed in exhibits to which they
related,
he asked that, despite the fact that the court had recorded
a plea of not guilty, the admissions made in exhibit A should stand

as formal admissions in the trial. The appellant's advocate indicated
that there was no objection to this being done. The court

nevertheless explained the position to the appellant and asked him,
twice, whether he made the admissions; and twice, the appellant
said
that he did. It is quite clear from the record that the admissions
were sought and made in terms of s 220 of the CPA. That
section
provides:
'An accused or his or her legal
adviser or the prosecutor may in criminal proceedings admit any fact
placed in issue at such proceedings
and any such admission shall be
sufficient proof of such fact.'
[30] The distinction between ss 113(1) and 220 is this.
When the plea of guilty was tendered, there was no dispute between
the State
and the defence and hence (to use the words of s 220) there
was no 'fact placed in issue'. Once the plea of not guilty had been

entered, all the allegations in the indictment were placed in issue
(save that in terms of the proviso to s 113(1), the admissions
stood
'as proof' of the allegations admitted) and admissions in terms of s
220 could be made. The difference in effect between
the two sections
is that whilst an allegation, admitted by an accused up to the stage
at which the court records a plea of not
guilty, stands 'as proof' of
such allegation, and therefore forms part of the probative material
before the court, an admission
of a fact in terms of s 220 is
'sufficient proof' of such fact and no further evidence is necessary.
[31] The significance of the
admissions made in terms of s 220 is this: The appellant admitted in
respect of each count, and therefore
three times, that when he shot
each deceased he knew that he was acting wrongfully and that he could
be punished therefor; and
the appellant recorded that he had the
capacity to distinguish between right and wrong and that he further
had the capacity to
act in accordance with such appreciation. The
effect of the admissions is that the appellant acknowledged criminal
responsibility
because the admissions are inconsistent with a defence
of criminal incapacity, whether non-pathological or caused by mental
illness
or mental defect ─ although the admissions are not
inconsistent with diminished responsibility, which is relevant to
mitigation
of sentence. The distinction is explained by Prof Snyman
38
in comparing
s 78(1)
39
anc" HREF="#sdfootnote39sym">
39
of the
Criminal Procedure Act, which
excludes criminal responsibility caused by mental illness or mental
defect, with
s 78(7)
,
40
anc" HREF="#sdfootnote40sym">
40
which allows a court to take into
account diminished responsibility resulting from either cause in
sentencing the accused. The learned
author, with reference to
s
78(7)
, says:
'This subsection confirms that
the borderline between criminal capacity and criminal non-capacity is
not an absolute one, but a
question of degree. A person may suffer
from a mental illness yet nevertheless be able to appreciate the
wrongfulness of his conduct
and act in accordance with that
appreciation. He will then, of course, not succeed in a defence of
mental illness in terms of
section 78(1).
If it appears that, despite
his criminal capacity, he finds it more difficult than a normal
person to act in accordance with his
appreciation of right and wrong,
because his ability to resist temptation is less than that of a
normal person, he must be convicted
of the crime (assuming that the
other requirements for liability are also met), but these
psychological factors may be taken into
account and may then warrant
the imposition of a less severe punishment.'
The same distinction applies where
mental illness is not present, as appears from a number of judgments
of this court eg
S v
Smith
,
41
S v Shapiro
,
42
and
S
v Ingram
.
43
According to these cases, the fact
that the defence of temporary non-pathological criminal incapacity
fails, or is not raised, does
not have the consequence that the
accused must be sentenced as if he/she was acting normally. The
contrary is the case. A person
who acted with diminished
responsibility is guilty, but his/her conduct is morally less
reprehensible because the criminal act
was performed when the accused
did not fully appreciate the wrongfulness of the act or was not fully
able to act in accordance
with an appreciation of such wrongfulness.
[32] The consequence of the
admissions was to put the appellant's criminal capacity beyond issue.
Cameron JA said in
S
v Groenewald
:
44
'An admission
is an acknowledgment of a fact. When proved or made formally during
judicial proceedings, it dispenses with the need
for proof in regard
to that fact.
Wigmore
on Evidence
calls
it "a method of escaping from the necessity of offering any
evidence at all": a "waiver relieving the opposite
party
from the need of any evidence".
45
Section 220
of the Act, accordingly, makes it possible for a contested fact to be
put beyond issue since, once made, the admission constitutes

"sufficient proof" of it.'
Therefore, as pointed out by Rumpff
CJ in
S v Seleke &
'n ander
:
46
'Wanneer 'n erkenning kragtens
art 220 gemaak word, beteken dit dat 'n beskuldigde nie later kan
beweer dat wat erken is, nog deur
die Staat bewys moet word nie. Die
woorde "voldoende bewys" onthef dus die Staat van die las
om die betrokke feit wat
erken is, op enige ander manier te bewys,
tensy die Staat, om spesiale redes, nog ander getuienis omtrent die
feit aan die Verhoorhof
wil voorlê.'
[33] The appellant, having made the admissions formally,
was not entitled to require the State to cross the hurdle the
admissions
were intended to eliminate. And much less was it open to
the appellant, having made the admissions, himself to create a hurdle
by leading evidence inconsistent with the admissions, for the same
reason. But that is precisely what the appellant's attorney,
once the
appellant's counsel had been relieved of his mandate, sought to do.
When the prosecutor put paragraph 7.3 of exhibit A
to Dr
Panieri-Peter, the psychiatrist called by the State, and the witness
had replied 'it is a question of diminished responsibility',
the
judge intervened, rehearsed the facts leading to the State's
non-acceptance of the plea explanation and pointed out that the

appellant's attorney had previously indicated in cross-examination of
State witnesses that he would argue that a verdict of not
guilty
should be returned; and the judge at the end of the case permitted
argument to this effect. The admissions made formally
in terms of
s
220
were simply ignored. None of this should have been allowed.
[34] For so long as a formal
admission stands, it cannot be contradicted by an accused whether by
way of evidence or in argument.
To hold otherwise would defeat the
purpose of
s 220
, eliminate the distinction between a formal
admission in terms of that section and an informal admission which
may be qualified
or explained away, and thereby lead to confusion in
criminal trials. As Viljoen JA said in
S
v
Mjoli
47
in a concurring judgment:
'By reason of the fact that an
admission formally made by or on behalf of the accused is "sufficient
evidence", the effect
is that such fact virtually becomes
conclusive proof against him because the accused himself or his legal
representative on his
behalf has made the admission and any effort by
him or on his behalf to adduce evidence countervailing such fact
would be inconsistent
with his having made the admission.'
[35] There is no authoritative
pronouncement as to how an accused may escape the consequences of a
formal admission, once made.
Rumpff CJ said in
Seleke
after the passage
quoted above:
'Voldoende bewys is natuurlik
nie afdoende bewys (conclusive evidence) nie en kan later deur die
beskuldigde, bv, weens dwang of
dwaling of deur ander regtens
aanneemlike feite, weerlê word.'
In
S
v Daniëls & 'n ander
48
Nicholas AJA and Botha JA adopted
different approaches. Nicholas AJA (having quoted the provisions of
s
220)
continued:
49
'The words
"sufficient proof" relieve the State of the onus of proving
the admitted fact in any other way (
S
v Seleke en 'n Ander
(
supra
at 754G-H)).
In a civil
case the Court has a discretion to relieve a party from the
consequences of an admission made in error in a pleading
(see
Gordon
v Tarnow
1947
(3) SA 525
(A)). So too in a criminal case the Court has a discretion
to relieve an accused from the consequences of a formal admission on

a ground recognised by law. Examples are where an admission was made
as a result of compulsion or mistake (see
S
v Seleke en 'n Ander
(
supra
at 754H)), or
where the making of it has been attended by an irregularity.'
Botha JA said:
50
'Ter wille
van duidelikheid moet ek ook verwys na die analogie wat my Kollega
Nicholas vind tussen die terugtrekking van 'n erkenning
in 'n siviele
saak, soos bespreek in
Gordon
v Tarnow
1947
(3) SA 525
(A) op 531-2, en die moontlikheid om 'n beskuldigde te
verlos van die gevolge van 'n erkenning in 'n strafsaak, soos
bespreek in
S
v Seleke en 'n Ander
1980
(3) SA 745
(A) op 754G. Ek is met eerbied nie oortuig daarvan dat die
analogie volkome suiwer is nie. In 'n siviele saak word die party wat

'n erkenning gedoen het nie toegelaat om getuienis in stryd met die
erkenning voor te lê nie, tensy hy eers verlof kry om
die
erkenning terug te trek. 'n Soortgelyke standpunt kan op die gebied
van die strafreg in verband met die toepassing van art
220 gehuldig
word (vgl bv, Schmidt
Bewysreg
2de uitg op
217-8), maar na my mening is daar veel te sê vir 'n ander
benadring, ten minste in die geval waar art 220 ter
sprake kom as
gevolg van die toepassing van art 115 uit hoofde van arts 119 en 122.
Om 'n uiterste voorbeeld te neem: 'n beskuldigde
op 'n aanklag van
moord erken, ingevolge die genoemde artikels, dat hy die oorledene
doodgemaak het; by sy verhoor kom daar getuienis
vorendag (hoe ook
al) wat bewys dat hy op die betrokke dag in die gevangenis was en dat
dit onmoontlik is dat hy die oorledene
kon gedood het; maar die
beskuldigde bied geen verklaring aan waarom hy die erkenning gedoen
het nie. Ek kan my dit nie indink
dat enige Hof die weerleggende
getuienis van oorweging sal uitsluit nie, selfs al voer die
beskuldigde nie aan dat hy sy erkenning
gedoen het as gevolg van
dwang, dwaling, onbehoorlike beïnvloeding of dies meer nie.
Artikel 220 se verwysing na "voldoende
bewys" kan nie
beteken dat die Wetgewer beoog het of dat 'n hof sy oë of ore
vir die waarheid moet sluit nie. In die
geval van buite-geregtelike
bekentenisse is dit nog altyd aanvaar dat 'n hof aan die einde van
die saak, selfs waar die toelaatbaarheid
van die bekentenis buite
twyfel is en daar aan die vereistes van art 209 voldoen is, bo
redelike twyfel seker moet wees dat die
bekentenis die waarheid is
alvorens 'n skuldigbevinding geregverdig is (
S
v Mlambo
1975
(2) SA 549
(A) op 554C en
S
v Kumalo
,
31 Augustus 1982 (A), ongerapporteer). Volgens my mening is dit goed
argumenteerbaar dat dieselfde benadering toepaslik is waar
daar in
die samehang van arts 115, 119, 122 en 220 rede ontstaan, op watter
wyse ook al, om die juistheid te betwyfel van 'n erkenning
wat 'n
beskuldigde gemaak het. . . . . As dit so is, sal dit op die feite
van die huidige saak geen verskil maak of beskuldigde
2 se uitlatings
voor die landdros beskou word as erkennings of slegs as
bewysmateriaal nie.'
[36] It may be noted that there is a
fundamental difference between
s 220
of the CPA, and s 15 of the
Civil Proceedings and Evidence Act
51
which provides:
'It shall not
be necessary for any party in any civil proceedings to prove,
nor
shall it be competent for any such party to disprove
any fact
admitted on the record of such proceedings.' (Emphasis supplied.)
[37] In my view, the minimum that an
accused who wishes to lead evidence or advance argument inconsistent
with a formal admission
in terms of s 220 would first have to show,
before being allowed to do so, is that there is an explanation
consistent with bona
fides why the admission was made in the first
place and why he or she now wishes to resile from it. No doubt, as
pointed out by
Botha JA in the passage quoted above from the
Daniëls
case, a court will not in a criminal
matter close its eyes and ears to the truth and convict an accused
based on an admission where
the admission is clearly wrong ─ as
Hiemstra puts it:
52
'The purpose of the process is
and remains to get to the truth, namely what happened, and not to
determine what was said about it';
but that is a far cry from allowing the accused himself
or herself without more to lead evidence or advance argument contrary
to
an admission he or she has formally made.
[38] In the present matter the appellant's attorney
delivered further heads of argument, in response to a request by the
court,
on whether, in view of the admissions contained in the
appellant's plea explanation formally recorded in terms of s 220,
he
was entitled to argue that the appellant was not criminally
responsible for his actions in shooting the three deceased. The
appellant's
attorney submitted that the appellant had made the
admissions in circumstances where:
(i) he had loss of memory in respect of the shooting
incidents;
(ii) he had a defence available when he pleaded;
(iii) he is a lay person in psychiatry and psychology;
(iv) he pleaded on the advice of his legal
representatives, who are not experts in the fields of psychiatry and
psychology;
(v) he acted bona fide on the strength of incorrect
findings in expert reports and was guided by the findings therein
contained;
and
(vi) there was prima facie an evidential burden on him
to prove his lack of criminal responsibility.
First, this explanation is irreconcilable with the
admission by the appellant in para 7.5 of his plea explanation that
his mental
state had been fully discussed with him by both of his
legal representatives and his psychiatrist and his psychologist, and
that
he fully appreciated its ambit. Second, there is no factual
foundation for the submission that at the time he pleaded, the
appellant
had a defence. The appellant's attorney relied for this
submission on the report of the psychiatrist consulted by the
appellant,
Dr Neil Fouché. In that report Dr Fouché
wrote:
'It would, therefore, be fair to
conclude that this gentleman, for the period preceding the incident
on 28 July 2006, was mentally
ill and that his mental state certainly
impaired his functioning and judgment.'
The word 'impaired' connotes
'rendered worse', 'damaged' or 'weakened'
53
or, to use the word in s 78(7),
'diminished'. It does not mean 'excluded' or 'prevented' and the
report cannot be read as meaning
that the appellant was, by reason of
his mental state and as required by s 78(1) of the CPA or the defence
of temporary non-pathological
incapacity,
54
rendered 'incapable' of appreciating
the wrongfulness of his acts or acting in accordance with such
appreciation at the time he
shot the three deceased.
[39] It is unfortunately necessary,
although the law is clear, to deal with the submission by the
appellant's attorney that impairment
sufficed to bring his client
within the provisions of s 78(1)(b). For that submission, reliance
was placed on the following passage
in Burchell
Principles
of Criminal Law
55
in the section headed 'Capacity to
act in accordance with such appreciation (self-control)':
'The test was originally
described melodramatically as the "irresistible impulse"
test. However, the description was misleading
since the illnesses
concerned did not necessarily manifest themselves in impulsive
actions. Further, the notion of "irresistible"
suggested
that the victim had to have been subjected to an overpowering force,
while the true issue is whether his normal capacity
for self-control
has been substantially impaired.'
But the paragraph immediately following the paragraph
just quoted begins:
'The formulation of this test of
insanity in South African law requires that the mental illness or
defect should have caused the
accused to be incapable of acting "in
accordance with an appreciation of the wrongfulness of his act".
The general effect
of
s 78(1)(b)
of the
Criminal Procedure Act is
thus that although the accused was capable of appreciating (and even
if he did appreciate) the wrongfulness of his act, he is still
not
criminally responsible if at the time of its commission he suffered
from mental illness or mental defect which made him "incapable

of acting in accordance with" such appreciation.'
Section 78(1)
is clear in its terms:
for it to be applicable, the accused must have been 'incapable' of
either appreciating the wrongfulness
of his or her act or omission or
of acting in accordance with an appreciation of such wrongfulness.
That is the very distinction
between
s 78(1)
, and
s 78(7)
which
provides for the situation where the accused's capacity to appreciate
the wrongfulness of his or her act or omission or of
acting in
accordance with such appreciation, was 'diminished' by reason of
mental illness or mental defect. A similar distinction
exists in
regard to the defence of temporary non-pathological criminal
incapacity. Smallberger JA said in
Ingram
:
56
'The guilt or
innocence of the appellant depends upon whether, as put forward in
his defence, he was suffering from a temporary
non-pathological
incapacity when he shot the deceased and was therefore criminally
unaccountable for his conduct. Accountability
in this context depends
upon a person's ability to (1) distinguish between right and wrong
and (2) exercise restraint or control
over his or her actions which
are unlawful. If either of these psychological characteristics is
absent
the person
concerned would not be criminally responsible for his conduct (S v
Laubscher
1988 (1) SA 163
(A) at 166F-J).' (Emphasis supplied.)
And Kumleben JA said in
S
v Smith
:
57
'In the light of this evidence
it cannot be said that at the critical time the appellant was bereft
of her senses or was not on
any other ground criminally responsible
for her actions.
Having said
this, it is nevertheless clear that her shooting of the deceased was
the final result of a prolonged period of sustained
and mounting
mental strain, of which the deceased was the cause. Whether it was
the result of anger, frustration or humiliation,
or more than one of
these emotions, is immaterial. What is plain is that they must have
substantially reduced her power of restraint
and self-control. This
fact, though highly relevant to the question of sentence, cannot
affect her criminal liability. The conviction
of murder was, in my
view, fully justified.'
58
[40] The appellant on his own version as recorded in his
plea explanation exercised a fully informed choice. And he made no
mistake.
He knew exactly what he was doing. He also knew what the
consequence was ─ this was spelt out in his plea explanation
over
and over again: he had no defence based on his alleged mental
state.
[41] The position is therefore that the appellant has
advanced no acceptable explanation consistent with bona fides as to
why he
should be relieved of the consequences of his formal
admission. I accordingly conclude that the trial should have been
conducted,
and that the appeal should be approached, on the basis
that the appellant was able to appreciate the wrongfulness of his
acts and
act in accordance with such appreciation; and that the only
issue, which is relevant solely to sentence, is the extent to which

he acted with diminished responsibility. In any event, however, as my
colleague Snyders has demonstrated, the defence raised by
the
appellant is without merit. I concur in her judgment.
Order
[42] The appeal is dismissed.
________________
T D CLOETE
JUDGE OF APPEAL
SNYDERS JA (CLOETE and THERON JJA concurring):
[43] Despite the appellant’s admission of criminal
capacity at the commencement of the trial, full ventilation of that
issue
was allowed by the trial court. The appellant persisted in that
defence during the trial and on appeal by contending that the
evidence
entitles him to an acquittal in terms of
s 78(6) of the Criminal Procedure Act
51 of 1977 (the Act).
59
In order to avoid any
possible prejudice to the appellant I
will now explore whether the evidence shows that it is reasonably
possibly true that the appellant
had no criminal capacity at the time
that he committed the crimes in question.
60
[44] On Friday evening of 28 July 2006 the appellant, a
superintendent in the South African Police Service, shot and killed
his
three children with his service pistol. All three children,
Bianca, a nearly 17 year old cerebral palsied girl, Marius Eben, an

almost six year old boy, and Antoinette, a 19 month old toddler, were
asleep in their beds when they were shot in their heads by
their
father. Bianca was a child from the appellant’s previous
marriage of whom he enjoyed custody. The two younger children
were of
the appellant’s marriage to police captain Charlotte van der
Westhuizen to whom he was still married and with whom
he was still
living at the time of the incident.
[45] The appellant claims amnesia in
relation to the critical events of that evening.
61
As a result of this claim his wife
was the only witness that gave a version of the shooting. Insofar as
the appellant does remember
certain facts, his version does not
present a materially different scenario. Mrs van der Westhuizen’s
version is reconcilable
with all the objective facts and contains no
inherent improbabilities. She was a good witness that testified
spontaneously, realistically,
maturely and to the point. She
withstood prolonged and harrowing cross-examination. Criticism of her
evidence as untruthful and
overly dramatic is without any merit.
The trial
court
was correct in accepting her version of the events as satisfactory in
all material respects.
[46] The Van der Westhuizen couple had a long standing
history of marital discord. It manifested yet again that Friday
evening.
The appellant was discontent because Mrs van der Westhuizen
arrived later than he expected her to, from work. Their differences

did not develop into a full argument, but rather silence filled with
portent. She and the children went to bed early whilst he
continued
with a do-it-yourself project. During the course of the evening he
discovered that she had given him a dishonest explanation
for her
lateness. She told him that on her way home she had had to turn back
because she had forgotten Antoinette’s milk
that she had bought
earlier that day, at her office. He discovered this to have been a
dishonest explanation because he checked
the vehicle’s odometer
reading and knew that she had only travelled a sufficient number of
kilometres that day to have travelled
to work and back home.
According to him, this made him very angry, sad, frustrated and
disappointed. In truth she had volunteered
to work late, but because
her relationship with her work and colleagues had become such a
hugely contentious issue in their marriage,
she did not feel free to
tell him the truth.
[47] Shortly before 10 o’clock that evening the
appellant went to the main bedroom where his wife was sleeping. He
woke her
and insisted that she make a choice between him and her job.
She responded irritably that it was not a matter of choice and that

she wanted to go back to sleep. He insisted that she make a choice
and she refused. He then jumped to the conclusion that her lack
of
response amounted to her choosing her job and he verbalised that
conclusion. He got off the bed, switched on the light and went
to the
gun safe with keys in hand. He unlocked the safe and took out his
service pistol. Still in bed, she asked him what he was
going to do.
He repeated that she had chosen her job. He took her mobile telephone
from the bedside table next to her, walked out
of the bedroom and
shut the door. She jumped up and followed him. When she opened the
door he was in the passage next to the door
of the two girls’
bedroom. He switched on the passage light, repeated to her that she
had made her choice and said that she
was going to have to bear the
consequences of her choice. He lifted the firearm, cocked it, turned
and entered the girls’
bedroom. He switched on the light and
walked inside. He first walked to Bianca’s bed, and aimed the
firearm at her head.
Mrs van der Westhuizen entered the bedroom. The
appellant looked at her and shot his eldest daughter in her head. He
turned, lifted
his hand over the railing that prevented Antoinette
from falling out of bed and shot her in her head, after again
repeating to
Mrs van der Westhuizen that she had made her choice and
that she was going to bear the consequences of her choice. He did all
of
this despite her screams of protestation.
[48] The appellant walked calmly past
Mrs van der Westhuizen, went down the passage, switched on a further
light in the passage,
and also the light of their son’s
bedroom. She followed him, screaming at him to stop. He waited for
her to enter Marius
Eben’s bedroom, and when she did, he shot
their son in his head. He looked at her and shouted: ‘You see,
now your children
are dead’.
62
[49] The appellant handed Mrs van der Westhuizen’s
telephone back to her and said she would probably now telephone her
superior
officer, Senior-Superintendent Brand, for help. She went
back to her bedroom and dialled Brand’s number. The appellant
came
to the bedroom door with both of his mobile telephones in his
one hand and the firearm still in the other. He told her not to fear

as he was not going to shoot her. He then left. Moments later when
Mrs van der Westhuizen tried to leave the house she discovered
that
he had locked her inside the house with the dead children.
[50] Hours after the appellant had shot his children and
whilst hiding in the garden, he shot himself. He put the pistol under
his
chin and pulled the trigger, but missed all vital organs.
[51] The appellant was referred to
Valkenburg psychiatric hospital in terms of s 78(2) for enquiry and
report in terms of s 79 of
the Act.
63
Dr Panieri-Peter, the specialist
psychiatrist appointed by the Medical Superintendent of Valkenburg on
the panel that was to enquire
into the mental condition of the
appellant, presented the unanimous findings of the panel in court.
The experts made the following
findings in terms of s 79 of the Act:
‘
79(4)(b)
1. Clinical Diagnosis: not mentally ill
2. He is NOT certifiable in term
of the Mental Health Act.
79(4)(c) He is fit to stand
trial in terms of Section 77(1).
79(4)(d) He
was able to appreciate the wrongfulness of the alleged offence, and
act accordingly.’
64
[52] Dr Panieri-Peter did not hesitate to express her
professional opinion on the facts available to her during the enquiry
and
as supplemented during her evidence. She held the view that the
appellant, at the time of the commission of the murders, was able
to
appreciate the wrongfulness of his actions and was able to act in
accordance with that appreciation. The trial court accepted
those
findings.
[53] In this court the appellant
repeated a gratuitous attack on the integrity of Dr Panieri-Peter. As
the trial court did, I find
no foundation whatsoever for such an
attack. It is regrettable that
professionals
in conducting a trial should perceive the need for gratuitous attacks
on the integrity of a professional expert witness
who properly
performs a vital function in the interests of the administration of
justice. Dr Panieri-Peter expressed her opinions
in a firm, clear,
well motivated and reasoned manner. By doing so she fulfilled the
function of an expert witness to the letter.
65
[54] The expert witnesses that testified for the
appellant did not challenge her conclusion that the appellant had
criminal capacity
when he murdered his children. Dr Fouché, a
psychiatrist, testified on behalf of the appellant. The appellant was
referred
to Dr Fouché for treatment at the end of August 2006
by the physician who treated him after he shot himself. Dr Fouché

entered into a therapeutic relationship with the appellant for a
period of approximately two years. A therapeutic role is
substantially
different to the forensic role Dr Panieri-Peter and her
colleagues were called upon to perform. The inherent difference
between
the two functions is obvious. As therapist Dr Fouché
was expected to accept information furnished by the appellant to him

and provide therapy on the strength thereof, whereas Dr Panieri-Peter
was meant to investigate, question and enquire with a view
to
objectively and factually ascertain the appellant’s mental
health at the time of the incident. This distinction serves
to
illustrate why there is a substantial difference in objectivity when
the views of the two psychiatrists are compared.
[55] Despite that distinction Dr Fouché did not
come to a conclusion that the appellant did not have criminal
capacity when
he committed the murders. In his report, compiled
during November 2008, he addressed a substantially different issue to
that contained
in s 78(2) of the Act, as his conclusion reflects:
‘
79(4)(b)
1. He has a Recurrent Depressive Disorder current episode mild Post
Traumatic Stress Disorder of moderate severity
Abnormal Bereavement Process.
2. He is not certifiable in
terms of the Mental Health Act.
79(4)(c) He is fit to stand
trial according Section 77(1).
79(4)(d) He has the ability to
appreciate the wrongfulness of the alleged offence and act
accordingly.’
[56] Dr Fouché in his report
addressed the appellant’s mental condition prior and subsequent
to the incident. The latter
is not particularly helpful when criminal
capacity at the time the murders were committed, is considered. In
relation to the former
he accepted that the appellant suffered from
depression and anxiety prior to the incident and stated that the
appellant’s
ability to act in accordance with his appreciation
of wrongfulness was impaired. He repeated this view during cross
examination,
but then explained it to mean that the appellant had the
ability to distinguish between right and wrong, but was unable to act
in accordance with that distinction. He formed this view because the
appellant, after he shot his children, tried to commit suicide.
Dr
Fouché felt that an attempt to commit suicide is indicative of
the absence of the ability to act in accordance with insight
into
right and wrong. The difficulty with this view is that it again
relates to the period after the appellant shot the children
whereas
the true investigation should focus on the time prior to and at which
he did so. Dr Fouché’s attempt to typecast
the events
surrounding the murders as an extended suicide is not supported by
any evidence, not even that of the appellant.
66
He conceded that his evidence in this
regard was a mere theory to try and understand why the appellant did
what he did.
[57] Dr Fouché’s evidence reveals that he
was not fully comfortable in dealing with the concept of criminal
capacity
and the distinctions drawn in s 78(1) of the Act. He
struggled to express a consistent and clear opinion on the
appellant’s
ability or inability to have acted in accordance
with his appreciation of right and wrong. Towards the end of his
cross examination,
Dr Fouché reverted to the position that the
appellant’s ability to have acted in accordance with his
appreciation
of right and wrong was seriously diminished, not absent.
It is fair to say that Dr Fouché spoke rather loosely and was
not
qualified to venture a forensic view from his therapeutic
perspective, but even so, he did not advance the view that the
appellant
did not have the ability to act in accordance with his
appreciation of right and wrong. Dr Fouché’s evidence,
with
all its shortcomings, was the highwater mark of the appellant’s
defence.
[58] Mr Scholtz, a clinical psychologist, was consulted
by the appellant during November 2008 on an ad hoc basis to make a
clinical
assessment of him. His report does not address the
appellant’s criminal capacity. It states that the appellant
suffered from
clinical depression and post traumatic stress disorder
prior to the incident. His report is based on information from the
appellant
obtained during one three-hour consultation. During that
consultation Mr Scholtz explained that he had deliberately refrained
from
enquiring from the appellant about the events of the evening,
for fear of losing his objectivity. In his report he states:
‘
Clinical
Depression and Post Traumatic Stress Disorder can significantly
effect a person’s personal, social and occupational

functioning. It could also lead to a degree of distorted thinking and
impaired judgment.’
[59] Mr Scholtz also testified. Understandably he was
hesitant to express a firm view on the appellant’s criminal
capacity
on the strength of his consultation. His strongest evidence
for the appellant was that the appellant’s ability to act in
accordance with acceptable norms was probably diminished because he
suffered from depression and post traumatic stress at the time
of the
incident.
[60] All the expert witnesses were confronted with the
facts that the appellant relies on for his persistent contention that
he
had no criminal capacity. None of the expert witnesses changed
their opinions to support the appellant’s contention. At best

for the appellant their evidence supports a view that his ability to
act in accordance with an appreciation of wrongfulness was
impaired
or diminished. In para 39 of my colleague Cloete’s judgment it
is made clear that the argument that impairment is
sufficient for a
finding in terms of s 78(1)(b) is without any substance. The trial
court’s finding of diminished criminal
capacity was not
challenged by the State on appeal. It is therefore not necessary to
consider the contrary opinion of Dr Panieri-Peter.
[61] The next enquiry is to ascertain whether the trial
court should have rejected the unanimous s 79 finding and the
unanimous
view of the expert witnesses in favour of a finding that
the appellant did not have the ability to act in accordance with his
appreciation
that what he was doing was wrong.
[62] The attorney for the appellant argued that the
appellant suffered from a pathological incapacity that negated his
ability to
act in accordance with his appreciation of the
wrongfulness of his actions. He argued that the depression, anxiety
and post traumatic
stress disorder that he suffered from each
constituted a pathology. The submission was further that the
existence of a pathology
taken together with the fact that the
murders were irrational and contrary to the appellant’s loving,
kind and soft hearted
personality, compels the conclusion that the
appellant had no ability to control himself. The argument went so far
as to state
that once it is accepted that the appellant suffered from
a pathology it becomes irrelevant whether his actions in committing
the
murders appeared deliberate and goal directed.
[63] The latter contention is to be rejected because of
the wording of s 78(1). The section prescribes that two
questions be
answered irrespective of whether the appellant suffered
from a pathological or non-pathological condition at the time of the
commission
of the murders. That the appellant appreciated the
wrongfulness of his actions was never disputed. His actions before,
during and
after the murders need to be scrutinised to determine
whether he was able to act in accordance with his appreciation of
wrongfulness.
[64] The attorney on behalf of the
appellant strongly relied on
S
v Kavin
1978 (2) SA
731
(W) and
S v
McBride
1979 (4) SA
313
(W) as analogous to this matter. This reliance is unfounded. In
both those cases the panel of psychiatrists made a unanimous report

in terms of s 79(4) that the accused, at the time that the crime that
was committed, was unable to act in accordance with an appreciation

of wrongfulness. In
Kavin
it was reported that the accused
suffered from ‘[s]evere reactive depression super-imposed in a
type of personality disorder
displaying immature and unreflective
behaviour . . . [which] produced a state of dissociation’. In
McBride
the
unanimous report was that the accused suffered from endogenous
depression.
[65] The appellant introduced evidence of all the stress
factors that operated in his life leading up to the incident. Much of
this
evidence was common cause or undisputed and even insofar as
disputed, was taken into account in the appellant’s favour by

the trial court. The appellant occupied a stressful position of
leadership in the SAPS. He held the rank of superintendant and
was
stationed at a large and very busy police station, Claremont, in the
Western Cape. Due to duties that frequently took his commanding

officer away from the station the appellant was in effect the
commander of the station. He was described by many witnesses as a

perfectionist in his work. Dr Fouché and Mr Scholtz supported
that evidence in that they found him to have obsessive-compulsive

personality traits which caused him to expect a very high level of
performance from himself. The extensive duties he was expected
to
perform and his own requirement to do so to perfection placed a great
deal of stress on him. As his workload increased he reached
the stage
that he simply could no longer perform all his duties or could not
perform at the level he wanted to. This state of affairs
caused him
to feel out of control which in turn caused him a measure of
depression and anxiety. He was no longer the calm, kind,
strict
perfectionist that tried to be everything to everybody in his
workplace. From about December 2005 he was seen to behave

uncharacteristically at work by hitting his head against the wall,
being abrupt with colleagues, being forgetful, rushing around,

gripping his chest in pain, looking worn out and stressed, locking
himself in his office, being withdrawn and being irritable and

impatient.
[66] The appellant’s experiences as a policeman
during his entire career contributed to his emotional condition and
depression.
Throughout his career, in the day to day execution of his
duties he encountered very traumatic events. Some of those involved
colleagues,
to whom he was emotionally close, being killed virtually
next to him. He was shot at on numerous occasions and on several
occasions
his life was endangered in other ways.
[67] The appellant's marriage was another source of
depression and anxiety. There existed long standing marital discord
between
him and his wife. She was stationed at the Kuils River police
station. He had enormous difficulties with the way she managed her

working hours and they had constant arguments about that. The
appellant resented his wife working any form of overtime without

insisting on either payment or time off as compensation as he
believed she should have. However, not only did she regard her
situation
as an administrative officer as being different to his, she
was reluctant to do what he wanted. She enjoyed her career and walked

the extra mile voluntarily and with good results. She progressed to
the rank of captain in a short period of time and had an excellent

relationship with her colleagues and commanding officer. These
relationships were a source of resentment for the appellant who

perceived that she obtained more joy and satisfaction from those
relationships than from her marital relationship. The evening
that he
shot the children it was her relationship with her work that figured
prominently in his decision to kill them.
[68] The appellant started suspecting his wife of having
an extra-marital relationship. Although he never confronted her with
this
and it objectively appeared that he was wrong, he subjectively
believed it and silently gathered many pieces of information in
support of his belief. He testified that she was verbally and
physically abusive towards him and the children and recounted many

examples of her behaviour.
[69] Taken with his obsessive-compulsive personality
traits the appellant experienced his disintegrating marriage more
keenly than
would objectively be expected. It motivated him to do
irrational things to her in an attempt to dissuade her from following
her
own head but rather succumb to his wishes. He took away the keys
of their only vehicle, her means of transport to work, or removed
the
rotor from the engine after she had come home late from work. He did
this under the pretext of needing the car to be available
at home in
the event of an emergency arising with Bianca, his cerebral palsied
daughter who regularly developed emergency health
issues. He hid the
battery of her work laptop computer when he felt that she had spent
too much time working over the weekend,
depriving the family of her
time. He also did so after she charged the battery of the computer at
home, using the electricity that
he was paying for. He locked sweets
in the safe when he decided that she ate too many of them. He took
away her credit and bank
cards when she spent her own money, even her
bonus, contrary to their agreed financial planning.
[70] The trial court accepted the evidence by and on
behalf of the appellant about all of the stresses, strains and
anxieties that
affected him in the period preceding the killing of
his children. In a benevolent approach to the appellant the trial
court did
not pay any attention to the dramatic development of the
appellant’s version during the course of the proceedings. This
development
took place in two respects. First, the allegations of
violent and abusive behaviour of his wife increased and became more
serious
as the trial progressed. Second, the seriousness and extent
of the stresses and strains that influenced him escalated during the

proceedings. I will similarly ignore those inconsistencies. The trial
court accepted that these factors caused the appellant to
have been
depressed, anxious and suffering from post traumatic stress disorder.
The evidence of Dr Panieri-Peter and Dr Fouché
was that it is
recognised in their field of discipline that post traumatic stress
disorder only arises for victims of traumatically
fearful and
threatening events and it was unlikely that the appellant suffered
from post traumatic stress disorder prior to the
incident. The trial
court ignored this evidence and found that the appellant suffered
from post traumatic stress disorder prior
to the event. There was,
however, no cross-appeal.
[71] The facts that provide a clear picture contrary to
that of a man that behaved uncharacteristically and out of control,
and
therefore without criminal capacity, were also taken into account
by the trial court. As mentioned earlier in this judgment, the

appellant consistently and persistently over a period of years took
action to punish his wife and try and manipulate her into doing
as he
wished her to do. He felt justified in his behaviour because of what
he perceived to be her errant behaviour. His manipulative
behaviour
became increasingly serious. During March 2006 an incident occurred
that motivated Mrs van der Westhuizen to obtain an
interim interdict
against the appellant in terms of the Family Violence Act 116 of
1998. She was late from work because she had
taken Antoinette to the
doctor after fetching the children from crèche. The appellant
was furious when she came home later
than expected. She noticed that
he had been drinking. He refused her the use of the car to go to a
chemist to buy the medicine
that the doctor prescribed. His verbal
aggression scared her. She asked a neighbour to take her to a friend.
She telephoned her
parents to fetch her from her friend and take her
to the chemist. After the medicine had been collected her parents
took her home,
where an altercation occurred between the appellant
and her father. The appellant was aggressive and she described him as
drunk.
He locked his wife, her parents and the sick child out of the
house whilst the other two children were with him inside the house.

When she begged him to open the door he told her to choose between
her work and her parents on the one hand and him on the other.

Ultimately one of the appellant’s superiors, Director Roberts,
spent hours reasoning with him to calm him down and only in
the early
hours of the morning did he allow his wife and the sick child back
into the house. The appellant was persuaded to leave
with Roberts for
the rest of the night. The interim interdict that Mrs van der
Westhuizen obtained after this incident was withdrawn
by her during
May 2006 after the appellant apologised for his behaviour.
[72] On the evening of 20 July 2006 whilst in bed with
his wife the appellant told her that he had been contemplating
burning the
house down with him inside, but only after informing the
fire brigade and the insurance that he had started the fire. Such
action
would obviously have left her and the children without a home
and without any financial recompense.
[73] On occasion the appellant telephoned and had a
meeting with Mrs van der Westhuizen’s commanding officer,
Brand, a superior
officer to him, and sought to interfere in his
wife’s working conditions. His interaction with Brand resulted
in her demanding,
via his superiors, an apology from him for his
disrespectful treatment of her. The appellant apologised.
[74] The evening of the murders was no different to many
others. The long-standing disagreement between the appellant and his
wife
about her working hours re-surfaced. They both seemed to have
resolved rather to keep quiet than fight about it. He was having a

few drinks, as was his habit. He continued working on a
do-it-yourself project after she and the children had gone to bed. He
was looking forward to the celebration of his birthday in two days’
time and the company of guests whom they had invited for
the
occasion. He was also looking forward to receiving his bonus and was
pleased that his dream of purchasing a double cab bakkie,
the fruit
of years of financial planning and discipline, was within his grasp.
According to him his wife’s lie about having
had to return to
work to fetch the milk she had forgotten only became apparent to him
after she had gone to bed. This, he said,
provided the trigger that
made him very angry, to the extent that he felt a glowing sensation
over his whole body. It also made
him feel despondent and hurt.
Whether this so-called trigger event occurred later rather than
earlier in the evening as told by
his wife is immaterial. The
appellant at no stage claimed to have acted in a state of sane
automatism induced by this trigger.
Quite the contrary, he still
remembers going back into the house, putting his glass in the
kitchen, going to the bedroom and removing
the firearm from the safe
and the fact that his firearm jumped in his hand when he shot Bianca.
[75] He also remembers asking his wife to make a choice
between him and her work. They put this at different times in
relation to
the first shot that he fired, but for reasons already
mentioned, that is irrelevant. According to him her answer, which he
interpreted
as a choice for her work, again brought the warm glow all
over his body. The appellant acted in a manner that illustrates
deliberate,
reasoned and complex behaviour. He put a choice to her
and when her answer was not what he wanted to hear he commenced
behaviour
that resulted in the ultimate punishment for her. He took
her mobile telephone, preventing her from telephoning for help. He
opened
and closed doors and switched on lights as he went. He waited
for her to arrive in the bedrooms of the children before he pulled

the trigger. He ignored her screams and pleas to stop. The horror of
his first, nor for that matter his second, shot did not throw
him off
course. He kept on repeating to her that his actions were the
consequences of her choice. He told her that she should not
fear as
he was not going to shoot her. He only handed her mobile telephone
back to her after all three children were killed and
then, in line
with his resentment about her work and good working relationship with
Brand, he remarked that she was probably going
to telephone her
commanding officer for help. This remark, given the context, was an
ironical taunt. The appellant then locked
his wife in the house with
the dead children and went and hid in the back garden.
[76] From his position of hiding he telephoned several
people and told them that he had shot his children. He telephoned a
friend
and colleague that was invited for his birthday celebrations
and told him that the event had been cancelled because he had shot

his children. He told his commanding officer that he was not prepared
to go to jail. He misled the police as to his position and

ultimately, when they found him, and the task force moved in, ready
to shoot him if necessary, the appellant shot himself under
the chin,
more than three hours after he killed his children. At no stage after
the murders and before he shot himself did the
appellant act in a
surprised, shocked, bewildered or distraught state as would have been
expected had the realisation of what he
had done only dawned on him
after his actions were complete.
[77] The manner in which the appellant executed his
children, his behaviour and communication during and after the
incident and
the ordinariness of the events earlier that evening all
indicate that the appellant acted in a controlled, deliberate and
reasoned
manner in perfect keeping with his usual pattern of
behaviour viz-a-viz his wife. The trial court’s finding that
the appellant
was criminally capable when he murdered his children is
consistent with all the evidence and cannot be faulted.
[78] The trial court accepted in the appellant’s
favour that he acted with diminished responsibility. A finding as to
the
degree of diminution was not expressly made. A finding that the
degree of diminution was substantial or severe, is not possible.
At
best, it is borderline and the appellant received the benefit of any
doubt. The appellant did not find himself in a position,
as in all
reported cases of diminished responsibility, where he faced a choice
– to continue suffering emotional pressures
or act against the
person creating that pressure. His situation is in reality no
different to that of an accused that relies on
many mitigating
factors.
[79] The fact of diminished responsibility was accepted
by the trial court as a substantial and compelling circumstance
within the
meaning of
s 51(3)
of the
Criminal Law Amendment Act 105
of 1997
. That is why the prescribed minimum sentence of 15 years’
imprisonment for each of the murders was not imposed.
[80] The appellant’s attack on the sentence was
that it is shockingly inappropriate in the circumstances. In support
of this
contention the appellant’s attorney specifically
referred to the following circumstances: he had already suffered
enough
and will continue to suffer because he killed his own
children, he was not to blame for the state of diminished
responsibility
that he was in, his remorse was not adequately taken
into account, he is a suitable candidate for correctional supervision
and
private treatment for his depression and related issues would be
more effective outside of prison in a more supportive and conducive

environment.
[81] The trial court dealt with each and every
mitigating factor, including the circumstances emphasized on appeal.
A repetition
of all those facts is unnecessary and I will confine
this judgment to mentioning the ones that give the balanced picture.
[82] The appellant was a 44 year old police
superintendant at the time of the incident. He has had a very
successful career. He
was respected by all his colleagues. He was
known as a disciplined, dedicated, astute police officer. He insisted
on discipline
at his police station from all his subordinates, but
always acted fairly, reasonably and even-handedly. He had the
community’s
interests at heart and showed that by dedication
beyond the call of duty. He devoted himself to the community policing
trauma centre
attached to the Claremont police station. He was always
ready and prepared to assist colleagues with personal issues.
[83] The substantial support that he has received since
the incident from friends, former colleagues and members of the
community
bears testimony to the high regard in which he is held.
Many witnesses testified to what a good man he is and what a
dedicated,
loving father he was.
[84] In the performance of his police duties over his
years of service he had encountered many situations that left him
with distressing
emotional impressions. He had lost colleagues in the
line of duty and encountered several life threatening situations.
[85] The demands of his job became inordinate and
overbearing. What he used to do with dedication and care became a
source of stress.
He felt he could no longer perform his functions in
the manner he wanted to. The deterioration of his marriage
relationship also
caused him distress. The problems between him and
his wife were of long standing. No prospect of improvement was
evident. As a
result of his obsessive-compulsive personality traits
these circumstances caused him depression, anxiety and post traumatic
stress
disorder.
[86] Since the incident the appellant has lost the life
he knew previously. He resigned from the police force, he lost his
wife
and children, his home, hopes, dreams and ambitions. There is no
doubt that the appellant has been experiencing a great deal of

sorrow. He will no doubt continue to suffer for he has to live with
the knowledge that he murdered his children.
[87] Whatever level of depression he
experienced before the incident, it has been deepened by the
consequences of the incident.
He suffered a serious head injury,
albeit by his own hand. He has been receiving psychiatric treatment
since shortly after the
incident and continues to be in need of such
treatment. It was argued that he would be unable to receive
appropriate treatment
in prison and that the prison environment is
not conducive to his full recovery. To succumb to such an argument
would place the
emphasis of the sentence exclusively on the
appellant’s interests. Requiring psychiatric treatment is
hardly a reason not
to be imprisoned. The prison authorities are
statutorily obliged to provide the necessary health care to inmates.
67
Mr Joseph, the regional coordinator
of health services within the Department of Correctional Services in
the Western Cape, testified
that psychiatric and psychological
services are available to inmates. His evidence in this regard was
uncontroverted and confirms
the practical implementation of the
statutory duty.
[88] The evidence before the trial
court was that the appellant is an appropriate candidate for
correctional supervision. That does
not mean for a moment that
correctional supervision would be an appropriate sentence in the
circumstances. The appellant’s
attorney relied on
S
v Marx
68
for the submission that correctional
supervision would be an appropriate sentence. The attempted analogy
is completely inappropriate.
In
Marx
it was found that the accused acted
with severely diminished responsibility when he shot his wife after
she had been unfaithful
to him, humiliated, belittled and emotionally
taunted him over an extensive period of time.
[89] I accept, as the trial court did, that the
appellant deeply regrets the death of his children. It is however
alarming that
he has persistently tried to put some blame for the
incident on his wife. He also continues to claim that he was not to
blame for
the depression, anxiety and post traumatic stress disorder
that influenced his actions, firstly, because factors and events
external
to him put stresses and strain on him and secondly, that
because of his particular personality traits he responded to those
stresses
and strains in a way that caused the diminished
responsibility.
[90] During her cross examination it was put to Mrs van
der Westhuizen that she contributed to the incident and could have
avoided
it. During the hearing of this appeal the appellant’s
attorney again argued that not only was the appellant not to blame
for the condition that motivated him to commit the murders, but that
his wife and the SAPS could have avoided the incident. This
attitude
resonates with the reason why the appellant killed his children –
to punish his wife for a choice she seemingly
made.
[91] Despite years of reflection and
treatment, the appellant does not realise that the way he handles
life needs to change to avoid
a similar incident. Everyday life for
the average individual presents stresses and strains. The appellant
is never going to escape
that reality. If he continues to blame
others and to handle those stresses and strains inappropriately he
continues to present
a potential danger to those closest to him and a
similar situation could present itself in the future. In view of his
lack of insight
and relatively minor degree of diminished
responsibility, deterrence and retribution as purposes of sentencing
do not recede into
the background as in cases of substantial
diminished responsibility.
69
[92] Although we are not necessarily to blame for our
personality traits, we are expected to live appropriately despite
them. If
we do not, the consequences of our aberrant behaviour are
punished. The appellant knew best how the stresses and strains of his

reality were impacting on him and made him feel. He was the only one
who could have known how necessary it was to take appropriate
action
to help him in the circumstances. He was no stranger to seeking
professional help to cope with emotional issues. He did
so shortly
after his first divorce when he took time off work and consulted a
psychologist for depression. He had been to consult
psychologists
with Mrs van der Westhuizen for problems they experienced during the
course of their marriage. He was devoted to
the trauma centre
attached to his police station where the main focus was the provision
of emotional and psychological assistance
to victims of crime. The
SAPS had and still has a dedicated emotional and social services unit
available to its members. His evidence
that he sought help form
various professionals prior to the incident but was either turned
away or ignored rings hollow in the
circumstances.
[93] I am satisfied that the trial court took all
possible mitigating factors into account and explored all the
relevant facts in
arriving at the sentence it imposed. If only the
mitigating factors and the interests of the appellant are taken into
account one
could conceivably arrive at a sentence that does not
amount to long term imprisonment. However, if only the aggravating
circumstances
are considered it is evident that a sentence of life
imprisonment would potentially have been appropriate.
[94] The crime that the appellant
committed is abhorrent and the enormity of it can hardly be
over-emphasized. His three defenceless
children were executed in
their sleep by their own
father,
a policeman, despite the screams of protestation by their mother.
Unlike any other reported case of diminished responsibility
they, the
victims, did not contribute in any way whatsoever to any of the
stressors that the appellant said caused him to take
their lives. The
only explanation for their murders came from the appellant’s
own mouth as he was murdering them. He punished
his wife. The
appellant has never tried to explain his actions. During his evidence
in the trial he said he wanted to shoot himself
and only went to the
children’s rooms to say goodbye to them. How, why and when his
intention changed so that he took his
ire out on his innocent
children, he has never even tried to explain.
[95] The appellant has in fact achieved what he set out
to achieve. He has caused his wife the ultimate agony, as her
evidence revealed.
For the rest of her life she will have to contend
with the horrific images of what occurred. Not surprisingly she, too,
has been
under continued psychological treatment since the incident.
[96] There is no question that the nature of the
appellant’s crimes requires the imposition of long term
imprisonment. By
imposing a sentence of one year less than the
prescribed minimum of 15 years’ imprisonment on each of the
murders and ordering
nine years of the sentence on two of the
convictions to run concurrently with the other, the trial court
adequately provided for
all of the mitigating factors and the
diminished responsibility it found proved. There is no basis upon
which this court is entitled
to interfere.
________________
S SNYDERS
JUDGE OF APPEAL
APPEARANCES:
APPELLANTS: M de la Harpe
Instructed by Legal Aid Board, Cape Town
Legal Aid Board, Bloemfontein
RESPONDENTS: M O Julius
Instructed by The Director of Public Prosecutions,
Cape Town
The Director of Public Prosecutions, Bloemfontein
1
51
of 1977.
2
Constitution
of the Republic of South Africa, 1996.
3
32
of 1998.
4
Which,
in terms of s 4 of the Act, comprises the National Director, Deputy
National Directors, Directors, Deputy Directors and
prosecutors.
5
Adopted
by the 8
th
United
Nations Congress on the Prevention of Crime and the Treatment of
Offenders, in Havana, 27 August to 7 September 1990.
6
Adopted
in Amsterdam in April 1999.
7
Boucher
v The Queen
[1955] SCR 16
at 23-4.
8
Nelles
v Ontario
[1989] 2 SCR 170.
9
CanadianOxy
Chemicals Ltd v Canada (Attorney General)
[1999]
1 SCR 743
para 25.
10
R
v Stinchcombe
[1991] 3 SCR 326
p 10.
11
Proulx
v The Queen
2001 SCC 66
,
[2001] 3 SCR 9
para
41.
12
S
v Shaik & others
[2007] ZACC 19
,
2008 (1)
SA 1
(CC) para 67.
13
R
v H
[2004] UKHL 3
,
[2004] 2 AC 134
,
[2004] 1
All ER 1269
(HL) para 13.
14
Randall
v The Queen
[2002] UKPC 19
,
[2002] 1 WLR 2237
(PC) para 10.
15
Benedetto
v The Queen; Labrador v The Queen
[2003] UKPC
27
,
[2003] 1 WLR 1545
(PC) para 54.
16
Libke
v R
[2007] HCA 30
;
(2007) 235 ALR 517
para
71.
17
D
O v DPP
[2006] IESC 12.
18
The
South African Code for Members of the National Prosecuting Authority
makes it clear in para D1(e) that 'throughout the course
of the
proceedings the case should be firmly but fairly and objectively
prosecuted'.
19
Above,
n 14 paras 9 and 10.
20
Berger
v US
(1935) 295 US 78
at 88.
21
R
v Cook
[1997] 1 SCR 113
, (1997) 114 CCC (3d)
481 (SCC) para 21.
22
It
has been held in Zimbabwe that the converse is the case where an
accused is not represented:
Smith v
Ushewokunze & another
1998 (3) SA
1125
(ZSC) at 1130J-1131H;
1997 (2) ZLR 544
;
1998 (2) BCLR 170.
23
Seneviratne
v R
[1936] 3 All ER 36.
24
At
pp 48-49.
25
Above,
n 21 para 25.
26
Adel
Muhammed El Dabbah v Attorney-General for Palestine
[1944]
AC 156.
27
Lemay
v The King
[1952] 1 SCR 232.
28
R
v Yebes
[1987] 2 SCR 168.
29
Para
28.
30
Above,
n 21
para 31.
31
Above,
n 10 p 15.
32
This
passage was approved in
Cook
above, n 21 para 36.
33
'If
the court has recorded a plea of not guilty, the trial shall start
de novo
before another presiding officer: Provided that the
accused may waive his or her right to be tried before another
presiding officer.'
34
'If
the prosecutor or the accused withdraws from the agreement as
contemplated in paragraph (
b
)(ii), the trial shall start
de
novo
before another presiding officer: Provided that the accused
may waive his or her right to be tried before another presiding
officer.'
35
S
v Lapping
1998 (1) SACR 409
(W) and cases
cited at 411g-412h.
36
Section
317(1) of the CPA provides:
'If an accused is of the view that any of the
proceedings in connection with or during his or her trial before a
High Court are
irregular or not according to law, he or she may,
either during his or her trial or within a period of 14 days after
his or her
conviction or within such extended period as may upon
application (in this section referred to as an application for
condonation)
on good cause be allowed, apply for a special entry to
be made on the record (in this section referred to as an application
for
a special entry) stating in what respect the proceedings are
alleged to be irregular or not according to law, and such a special

entry shall, upon such application for a special entry, be made
unless the court to which or the judge to whom the application
for a
special entry is made is of the opinion that the application is not
made
bona fide
or that it is frivolous or absurd or that the
granting of the application would be an abuse of the process of the
court.'
37
Those
in regard to the calling of Koekemoer and Joubert and the
non-production or late production of documents by the State.
38
Criminal
Law
5 ed (2008) para 12 at 176-7.
39
'A
person who commits an act or makes an omission which constitutes an
offence and who at the time of such commission or omission
suffers
from a mental illness or mental defect which makes him or her
incapable─
(a) of appreciating the wrongfulness of his or her act
or omission; or
(b) of acting in accordance with an appreciation of the
wrongfulness of his or her act or omission,
shall not be criminally responsible for such act or
omission.'
40
'If
the court finds that the accused at the time of the commission of
the act in question was criminally responsible for the act
but that
his capacity to appreciate the wrongfulness of the act or to act in
accordance with an appreciation of the wrongfulness
of the act was
diminished by reason of mental illness or mental defect, the court
may take the fact of such diminished responsibility
into account
when sentencing the accused.'
41
S
v Smith
1990 (1) SACR 130
(A) at 135b-e.
42
S
v Shapiro
1994 (1) SACR 112
(A) at 123c-f.
43
S
v Ingram
1995 (1) SACR 1
(A) at 8d-i.
44
S
v Groenewald
2005 (2) SACR 597
(SCA) para 33.
45
John
Henry Wigmore
Evidence in Trials at
Common Law
, revised by James Chadbourn
(1972) vol 4 para 1058.
46
S
v Seleke & 'n ander
1980 (3) SA 745
(A)
at 754F-H.
47
S
v Mjoli
1981 (3) SA 1233
(A) at 1247B-C.
48
S
v Daniëls & 'n ander
1983 (3) SA 275
(A)
49
At
298G-H.
50
At
318C-319A.
51
25
of 1965.
52
Kruger
Hiemstra's Criminal Procedure
sv
s 220.
53
OED
2 ed vol VII.
54
See
the authorities quoted in the next para below.
55
3
ed (2005) p 382 and see also p 378.
56
Above,
n 43 at 4E-G.
57
Above,
n 41 at 135E-G.
58
See
also
S v Kalogoropoulos
1993
(1) SACR 12
(A) at 24b-c and 25i and the dissenting judgment in
DPP,
Transvaal v Venter
[2008] ZASCA 76
;
2009 (1) SACR 165
(SCA) para 51.
59
An
acquittal in terms of s 78(6) presupposes a finding of a lack of
criminal responsibility in terms of s 78(1).
Section 78(1) is quoted in footnote 39 above.
Section
78(6) reads: ‘If the court finds that the accused committed
the act in question and that he or she at the time of
such
commission was by reason of mental illness or intellectual
disability not criminally responsible for such act – (a)
the
court shall find the accused not guilty; or (b) if the court so
finds after the accused has been convicted of the offence
charged
but before sentence is passed, the court shall set the conviction
aside and find the accused not guilty,. . . .’.
The rest of
the ss deals with the directions a court would be capable of making
regarding the detention of such an accused in
a hospital,
institution or conditions of release.
60
The
trial court applied the usual standard of proof in criminal cases to
avoid the appellant’s objections to the provisions
of s 78(1A)
insofar as those could potentially have been applicable.
61
Whether
the appellant actually has amnesia is not an issue on which the
trial court had to make a finding as it does not constitute
a
defence. At worst for the appellant it may reflect on his
credibility and at best it may be a mitigating factor. The
psychiatrist
that testified on behalf of the State, Dr
Panieri-Peter, questioned the claim of amnesia, primarily due to the
patchiness and
inconsistency of the appellant’s recollection
being irreconcilable with amnesia. The psychiatrist, Dr Fouché,
and
clinical psychologist, Mr Scholtz, that testified on behalf of
the appellant, accepted his claim without question.
62
Direct
translation of Mrs van der Westhuizen’s evidence: ‘Sien
jy, jou kinders is nou dood’.
63
Section
78(2) reads: ‘If it is alleged at criminal proceedings that
the accused is by reason of mental illness or mental
defect or for
any other reason not criminally responsible for the offence charged,
or if it appears to the court at criminal
proceedings that the
accused might for such a reason not be so responsible, the court
shall in the case of an allegation or appearance
of mental illness
or mental defect, and may, in any other case, direct that the matter
be enquired into and be reported on in
accordance with the
provisions of section 79.’
Section
79 is a lengthy section that deals, inter alia, with the composition
of the panel for the purpose of the enquiry, the
committal of the
accused to a psychiatric hospital for that purpose, the furnishing
of information to the panel and the nature
of the report.
64
Section
79(4) reads: ‘The report shall – (a) include a
description of the nature of the enquiry; and (b) include a

diagnosis of the mental condition of the accused; and (c) if the
enquiry is under section 77(1), include a finding as to whether
the
accused is capable of understanding the proceedings in question so
as to make a proper defence; or (d) if the enquiry is
in terms of
section 78(2), include a finding as to the extent to which the
capacity of the accused to appreciate the wrongfulness
of the act in
question or to act in accordance with an appreciation of the
wrongfulness of that act was, at the time of the commission
thereof,
affected by mental illness or mental defect or by any other cause.’
65
Insofar
as it is necessary to refer to the purpose of opinion evidence by an
expert witness and the approach a court is to adopt
regarding such
evidence, I draw attention to the following authorities:
S
v Adams
1983 (2) SA 577
(A) at 586C;
S
v Kleynhans
2005 (2) SACR 582
(W) at
585a-g;
Coopers (South Africa) (Pty)
Ltd v Deutsche Gesellschaft Für Schädlingsbekämpfung
Mbh
1976 (3) SA 352
(A) at 371G-H.
66
Crudely
described as
a parent wanting to take his own
life and killing his children because he does not want to leave them
behind in a helpless state.
67
Section
12
of the
Correctional Services Act 111 of 1998
.
68
S
v Marx
2009 (2) SACR 562
(ECG).
69
S
v Shapiro
1994 (1) SACR 112
(A).