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[2021] ZAGPPHC 153
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S v M.S.T (CC10/2020) [2021] ZAGPPHC 153 (23 January 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA (BENONI)
CASE
NO
: CC10/2020
DATE
:
2020.11.23
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
DATE:23/1/2021
In
the matter between
THE
STATE
and
M[…]
S T
ACCUSED
J
U D G M E N T
BROODRYK
,
AJ
: The Court will
now proceed to deliver judgment in the case of the State versus M[…]
S T. Case No.
CC10/2020 in the High Court sitting here at
Benoni.
The accused, a […]
year-old female and a Lesotho citizen residing at [….]
District, Lesotho is charged with two counts
as per the indictment
and I quote:
“
Count
1 is that of murder, read with the provisions of
section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
in that upon or about 18
October 2019 at or near […] Street, […],[…] in
the District of Benoni, accused did
unlawfully and intentionally kill
R L M[…] a […] old male.
Count
2: In that upon or about 18 October 2019 and at or near […]
Street, […] in the District of Benoni, the
accused did
unlawfully and of intent to defeat or struck the course of or the
administration of justice, commit an act to wit pretending
that she
was attacked by three males and that the deceased was kidnapped by
the same persons which act defeated or obstructed the
course or
administration of justice”.
Mr
Maimela, before I proceed, I forgot to ask you, you do not require
this to be interpreted at this time?
MR
MAIMELA
: Not at this time
M'Lord.
COURT
:
At the end when I make the findings that can be interpreted
MR
MAIMELA
: As the court
pleases.
COURT
:
Very well.
The accused pleaded
not guilty and no
section 115
plea explanation was provided.
She exercised her right to silence. Mr Maimela on behalf of the
accused informed the court
that the minimum sentence legislation in
respect of count 1 was explained to her. The accused confirmed
this.
The state called 14
witnesses as follows: (1) M N M[...], the aunt of the
deceased. (2) Dr Fortunato Beccia, the pathologist.
(3)
Dr Spencer Brian Probert, a doctor who treated the accused at the Far
East Rand Hospital. (4) L D M[…], the mother
of the
deceased. (5) T P N[…], a witness who saw the accused on
the 18
th
October 2019
at 14:30. (6) T T K[…], a friend of Siyabonga.
(7) B M[…], a friend of S[…].
(8) S M S[…],
a neighbour implicated by the accused. (9) S V[…], an
aunt of Lerato and the one who found
the needle. (10) M P T[…],
a court interpreter who provided a translation of the screen shots of
the whatsapps sent
by the accused, marked EXHIBIT H. (11) B P
M[…], S[…]’s uncle and the golf player.
(12) Dr Sunday
Joseph Algabodian, a medical doctor who treated the
accused upon her admission at the Far East Rand Hospital on the 18
th
October
2019. (13) S M N[…], he testified in respect of a
section 212
statement, EXHIBIT L, that dealt with the downloading of
the Whatsapps and then lastly, (14) F W M[…], that is the aunt
of Siyabonga.
The accused
testified in her own defence. The normal admissions were made
in terms of the provisions of
section 220
of the
Criminal Procedure
Act 51 of 1977
and embodied in a written document styled EXHIBIT A,
wherein the normal admissions were made, including the causal chain.
It furthermore
referred to EXHIBIT B, the post-mortem report, EXHIBIT C, a photo
album of the scene and EXHIBIT D, a photo album
of where the needle
was found was formerly admitted into evidence.
The following
appeared to be common cause or were not disputed at all:
(1) That the
accused was a child minder for the deceased and had been employed as
such by the mother of the deceased. She
had been employed as
such since 3 April 2018. See in this regard EXHIBIT G, the
service contract.
(2) She had no
other domestic duties and was provided with a bedroom in the house as
well as food and sustenance. According
to the contract, she
would be paid R1 800 per month, but in fact the deceased mother paid
her R2 000 a month.
The
mother of the deceased L M[…] and the aunt M M[…]
worked shifts at the airport. If they worked morning shifts,
starting
at 05:00, the deceased would sleep with the accused in her bed.
(3) The day before,
that is the 17
th
October
2019, the mother of the deceased was not at home. She was away
on a course. The aunt who was working morning
shift the next
day, that is the 18
th
October, she
got up at 03:30 and was about to leave at 04:45 when she heard the
deceased crying. She heard the flask clicking
and the accused
giving the baby milk. The bedroom door of accused was closed at
that stage.
(4) She left the
house that is now M M[…], at 05:10. She locked the door
and the security door. She and Lerato returned
to the house at 15:40
or 15:50 that same afternoon. During the day she called the
accused at 10:35 on the cell phone, however
she could not reach her.
(5) On her
returning to home, they found all was quiet and no one outside.
Usually the accused and the deceased would be paying
outside.
No one answered when they called.
(6) The burglar
door which leads to the house was closed and locked. The door
itself was closed but not locked. There
were two sets of keys
for the house. One was held by the accused and the other one
was held by the aunt M[…].
M[…] opened the
security door. She saw the keys inside the house on the floor
marked X in photograph 3 of EXHIBIT
C.
(9) They walked in
screaming and calling out the name of the deceased, L[…].
(10) The aunt and
the mother of the deceased followed each other into the house.
(11) Accused was
found in the bedroom. She was sitting on the ground next the
cupboard. She was half naked. Her
upper body being
unclothed. When the mother asked her where is the child, the
accused said: “The child had been
kidnapped.”
(12) The accused
complained of stomach cramps and she was in a crouching position.
(13) The accused
had scratch marks on both arms on the inside as well as on her
chest. The scratches were not deep and not
bleeding. On
each arm there was more than one, but less than five per arm.
`
(14) When the aunt asked her where is the child, she stated as
follows: “I
heard voices of people after you left.
One of the voices was that of S[…], a neighbour. She
opened the door.
S[…] was in the company of two other
males. They then overpowered her and pushed her away. She
ran to the room
to fetch the baby and try to abba her on her back.
She said she was fed a poison as well as the child. She did not
say how they were poisoned. They took the child alone with
them.”
(15) The blinds and
curtains at the front of the house were closed. The bathroom
window was open. These blinds and curtains
would normally be
opened by the accused.
(16) Nothing was
missing from the house and it was not ransacked.
(17) A bandaged was
found next to the accused on the floor as well as a whitish powder
next to the cupboard.
(18) That bandage
was usually kept in the top drawer of the cupboard in photograph 27
of EXHIBIT C.
(19) The police and
thereafter the paramedics arrived on the scene.
(20) The accused
was in an emotional state but could talk and she was complaining of
stomach cramps.
(21) The paramedics
then examined the accused, but stated that they could not take her
along as she had defecated on herself and
requested that she be
bathed.
(22) The aunt M[…]
then went into the storeroom, immediately adjacent to the bedroom of
the accused to go and fetch the basin.
(23) This storeroom
is marked A1 and the bedroom of the accused is marked B on the sketch
plan in EXHIBIT C. On photograph
17 and 18 of EXHIBIT C, the
door of the bedroom of the accused is on the left. The orange
door to the right leads to the
storeroom. There are clearly
immediately adjacent.
(23) The door to
the storeroom was closed but not locked.
(24) The deceased
was found on the floor lying on his back on a blanket.
`
(25) She picked up the baby, ran outside of the room and put the baby
on a stretcher.
(26) There was a
bandage over the mouth to the back of the head of the baby, the
deceased.
(27) The paramedics
informed her that the deceased had died.
(28) She also found
the cell phone of the accused under her bed. It was slightly
covered with bedding.
(29) In respect of
photograph 1 and 2 of EXHIBIT C, accused bedroom is the one to the
left. If you scream from there, someone
should be able to hear
you.
(30) The two
bandages that is now the one around the mouth of the deceased as well
as the one found next to the accused and in respect
of some evidence
around the neck of the accused were usually kept in a drawer in the
bedroom of the accused. After the incident,
the bandages were
found not to be there. In all the time, the accused had worked
there for the mother of the deceased, she
had had an excellent
relationship with them and there were no problems whatsoever.
(31) It is common
cause that the deceased died of a fractured neck with asphyxia.
(32) The most
probable mechanism that caused the death is external pressure applied
on the neck as well as asphyxia. The external
pressure would
have to be applied to the mouth and the neck area probably more in
favour of the neck.
(33) There were no
bruises on the muscles of the neck, but for a child of that age, not
much force is required and it can happen
that there is no external
appearance thereof on the skin or the muscles.
(34) There were no
symptoms of poisoning found during the post-mortem as there was no
granules found in the stomach contents or
any indication of gastritis
which means a burning of the stomach wall.
(35) As to the
asphyxia which means a cut-off of blood supply to the body, the
pathologist found superficial petechial bleedings
in the heart and
the lungs consistent with the finding of asphyxia.
(36) As to the
hyoid bone been found intact during the post-mortem, that confirms
that not a lot of force was applied to the neck.
(37) The white
milky substance found in the stomach of the deceased, would have been
there for between four to six hours.
(38) Death would
have ensued very quickly with a fracture of a neck. In respect
of asphyxia, up to three minutes. If
it is a combination of the
fracture and the neck and asphyxia, death would ensue in a period of
less than three minutes.
(39)The deceased
was admitted to the Far East Rand Hospital on 21 October 2019.The
hospital records were handed in by consent as
Exhibit
F.
(40) Dr Spencer
Brian Probert saw the accused on her discharge on Monday the 21
st
October
2019. The accused had very superficial soft tissue injuries
referring to injuries on the inside of both arms.
See EXHIBIT F
in this regard.
(41) These wounds
were indicative of being self-inflicted due to the pattern and depth
thereof.
(42) The needle
visible in photograph 6, 7 and 8 of EXHIBIT D, could have caused the
injuries to the arms.
(43) No
abnormalities in the blood test of the accused were detected and
there is no indication of any substances being found.
The liver
functions were normal.
(44) These blood
tests did not indicate any substance ingestion which would have
caused a loss of consciousness.
(45) The neighbour,
S S[…] grew up with the mother of the deceased, Lerato and she
knew him all her life. He was referred
to as a family friend.
(46) This S[…]
would at times do odd jobs for the mother of the deceased, such as
washing her car and then be paid therefore.
No amount was
fixed.
(47) T K[…]
and B M[…] were friends of S[…]. On 18
th
October,
they met up with him at his house at about 07:30 to 08:00. They
were in his company for the next five to six hours.
During that
time, they never went to the house of the deceased. Thereafter
S[…] was fetched by P M[…] at about
11:30 to go act as
his caddy while he was playing golf in Springs. L[…],
the mother of the deceased called him there
at 17:00 on his cell
phone to come to her house.
(49). Both T K[…],
B M[…] and B M[…] does not know where S[…] was
between 05:00 and 06:00 of 18 October
2019.
(50) On 19 October
2019, that is a Saturday, one S V[…], an aunt of the deceased
found a needle stuck in a mattress of the
accused bed. See in
this regard EXHIBIT D, photograph 4, 6 and 8. This needle was
stuck into the mattress and it was
under a blanket.
(51). Mpunisi
Patience Chauke, a court interpreter at Benoni, drew up a translation
of EXHIBIT H. That is a screen shot
of the Whatsapps sent by
the accused. Her translation was handed up as EXHIBIT H2.
(52). Dr
Sunday Joseph Algabodian examined the accused on 18 October 2019 at
the Far East Rand Hospital and compiled a medical
report, a J88
marked EXHIBIT K.
(53) Simon
Mukushe Mkukwana. He confirmed a
section 212
affidavit, EXHIBIT L,
which was
inter
alia
about
the relevant Whatsapp messages in EXHIBIT H. The reference to
the time as 04:29:40 am UTC means universal coordinated
time. In
respect of South African time you have to add on to that, two hours.
In other words, in respect of the two whatsapps
that would have then
been made at 06:29 and in respect of a later one which was marked at
04:30:52 would then be at 06:30:52.
(54) Lastly F
W M[…], the aunt of S[…] who lives on the same premises
said she saw him at 07:00 on the morning
of 18 October 2019 when he
went to the toilet, which was right next to the room where she and
her husband were staying. She
could hear his door which was
made of corrugated iron when he opened it as it makes a scratching
sound. She was asleep between
05:00 and 06:00 the morning and
heard nothing. She stated that S[..]’s friends came there
at 07:30. That deals
with the common cause evidence or the
evidence which was not disputed.
From what has been
stated above, it is abundantly clear that the state and the defence
case are largely common cause and the dispute
is really on a very
narrow basis.
I now proceed to
deal with the evidence of the state and defence witnesses outside the
above parameters. I only do so when
I find it necessary for a
further exposition and evaluation of the evidence of the witness
outside the common cause narrative.
I firstly deal with
the evidence of M N M[…]. That is the aunt of the
deceased. Except for the common cause facts
alluded to above,
she was also confronted with a statement EXHIBIT E in some respects.
It was put to her that she did not
refer to the fact in her statement
that she did not say there that she found the accused praying.
She however maintained
that she did find her praying and she did say
so although it is not contained in the statement.
It was put that she
did not state in the statement that the accused said she will not see
her family and the child again.
She however maintained that she
did say so.
It was put that she
never said in her statement that she picked up the child from the
floor upon finding him. She however
maintained that she did
pick up the child and said so. She maintained that no one said
that accused did something to the
child and that she does not know
for a fact that accused killed the child.
She denied that
accused told her that S[…] and his two friends had knives.
She also never told her she was grabbed
and put to the ground.
She also denied that accused told her that she had lost
consciousness. She also denied that
accused told her she saw
“three guys”, snatching the child from the bed. She
maintained that accused had said
she ran to fetch the baby. She
wanted to
abba
the
child on her back and she and the child were then fed the poison.
It was put to her
that accused does not know what the three men did to the child.
She however maintained that accused said
they fed her and the child
poison.
I will then deal
with the evidence of the mother of the child, L M[…] further
to the common cause facts referred to above.
She testified
further that the blinds in the kitchen were closed and that usually
they were opened by the accused. She also
testified that she
found the accused praying in her room. She stated that accused
stated that upon her opening the door,
they… that is now
the attackers, pushed her. She tried to strap the child onto
her back but they forced her
and the child to drink the poison and
they then locked her in the house.
I should pause here
to state that very strangely, I should state that the accused said
that they threw the keys inside the house,
once they had closed the
door and locked the security door and then left.
It was put to her
that the aunt never mentioned such as she did that the accused had a
bandage around the neck. She was however
adamant that it was
around the neck and that the aunt must have forgotten about it.
Her statement dated 23 October 2019 was
put to her and was formerly
proven. EXHIBIT J was handed in. It was put that
there was no reference in paragraph
5 of her statement that the child
was poisoned. She conceded that, but stated that although she
was upset, accused told her
about the child being poisoned. To
her credit, she did use the word “drugged” in paragraph 5
of EXHIBIT J, I
should remark her that the word “drugged”
was spelt D R U G E D. I will return to this later.
She also denied
that accused stated that S[…] and two others charged at them
with knives. She also specifically denied
that the three
grabbed her and threw her on the ground. She denied that the
accused ever used the word “throw”.
It was put that
she was forced to drink a liquid concoction to which she answered
that she, the accused used the word poison.
She also denied
that accused said they took the child from the bed. Upon it
then put that accused would deny killing the
child, she stated that
was just her assumption.
It was put that
accused thought she would die. The witness however replied that
she could have asked assistance from the window
in her room facing
the street plus how could she then manage to send all those
whatsapps. She lastly stated upon a
question of the court that
accused never gave any explanation about the upper part of her body
being naked.
The next witness
which on the face of it is a crucial piece of the puzzle is that of T
P N[…]. She stated that on 18
October 2019, at 14:30 in
the afternoon, she was on her way to one L[…]’s house
(this is now another L[…]),
not the mother of the deceased,
when she passed the house of the deceased. She saw the accused
standing at the small gate
visible in photograph 1 of EXHIBIT C.
She described her,
that is the accused as “the caregiver”. She
described her as being orderly and not disturbed
and dressed in a
short-sleeved T-shirt. She was a lone and uninjured. When
she returned from L[…]’s house
being unsuccessful in her
quest to go and see somebody there, five minutes later, accused was
busy returning i.e. walking to the
house.
Later that same
evening, she heard of the deceased passing. Under
cross-examination she stated that she was one and a half
metres from
the accused when she saw her, the accused for the first time.
She saw her from across the street which was about
three metres
away. She stated that she had seen the accused six to seven
times before.
On one occasion the
accused was walking with her aunt to the mall and at other times she
would see her in the yard. On this
day, she did not speak to
the accused. As she came closer, the accused turned her head
sideways and that she did not greet
her. She made a statement
three weeks later after she was called by Lerato. They did not
tell her anything and she
denied she is making a mistake as to the
identity of the accused and that she is not truthful. She
importantly stated that
the accused did not appear “weak”
to her.
I then need to
summarise the evidence of S M S[…]. According to his
evidence, he was asleep in the main house.
That is where he was
a neighbour to the house where the accused was employed. He
woke up at 07:00. He went out to the
toilet and saw his uncle’s
wife. That is now Winnie Molefe. She requested him
to perform some task as to
cold drinks.
He told the court
that his door is a corrugated zinc door which makes a scratching
sound if you open it. He then went back
into the house to
prepare a case for the cold drinks. He heard someone whistling
and then someone knocked at his window.
It was T[…] and
B[…]. It was then about 07:20.
It is not in
dispute that he then spent the next five to six hours in their
presence. Later,he acted as a caddy for Mr B M[…]
at a
golf course in Springs when L M[…], that is the mother of the
deceased, called him there at 17:00. He went to
her house at
about 19:00.
He denies ever
going to L[…]’s house earlier that day. Under
cross-examination, he stated that he had a very
good relationship
with L[…]. He washed her car on occasions.
Probably two times per week. Although she
owed him money on the
18
th
October
2019, she would pay him “like thanksgiving.” It is
out of gratitude. He stated that if she paid
him R20 he would
be happy with that. Normally however she would pay not more
than R200 per month.
He emphatically
denied the version of accused that he and two “friends”
were at accused place of work. He denied
she heard his voice
and stated that he was not there. He disputed that he and his
friends charged at her, that is the accused,
with knives, followed
her to the bedroom, threw her on the ground, forced her to drink a
concoction and that he and his friends
then took the child.
He stated that he
has never had a problem with the accused and did not know why she
would accuse him. He disputed T[…]’s
evidence that
he was asleep when the latter knocked his window. He said he
was awake. He specifically disputed the
assertion that he and
his friends went to the place of the deceased to rob, because he was
not happy with his payment. He
also denied that he and his
friends attacked the child as “a way of revenge”.
I must pause here
to already state that I find this an amazing and startling
assertion. Attacking a child to get revenge on
someone else.
He did not dispute the assertion of the accused that she loved the
deceased, plus that she had no reason to
attack the child and stated
that the family of the deceased treated accused well.
On questions of the
court, he again repeated that he was still asleep after 05:00 of 18
October 2019. He usually only gets
up at 07:00. He also
stated that there was no formal arrangement as to him being paid by
L[…].
The evidence of Dr
Spencer Brian Probert then requires some further elucidation except
to the common cause facts already referred
to above. During
2019, he did his internship at the Far East Rand Hospital after he
had obtained his medical degree.
His MBChB in 2018 following a
BSc which he had obtained in 2014 at the University of the
Witwatersrand.
As stated during
2019, he did his internship at the Far East Rand Hospital. He
started there in January 2019. By 18
October 2019, he had
treated a high number of assaults cases. Poisoning was not so
common but substance abuse is. He saw
the accused on a discharge on
21 October 2019. His evidence is to the effect that the
injuries on the inside arms are very
superficial and consistent with
something else than a knife attack. The needle visible in
EXHIBIT D, photograph 6, 7 and
8, he finds that it is possible that
that could have caused the scratches.
He noted that the
depth and the pattern of the scratch wounds were more indicative of
being self-inflicted. He found that
the accused was malingering
as to her alleged stomach ache. There was no tenderness on
examination. Her vital signs
were normal, so there was no
indication of any stomach pain. He also stated that there was
no loss of consciousness noted.
Her liver and kidney functions
were normal, so there was no indication of the impact of any
poisonous substances.
Under
cross-examination, he agreed that he did not have much experience,
but that he had in this case discussed his findings with
his
seniors. It was put to him that the accused does not know how
the scratches were inflicted, but they were not self-inflicted.
He stated that due to the pattern of her scratches, it was suggestive
thereof that it was self inflicted.
Upon
being put that she was forced to drink an unknown substances, he
answered that that her blood tests did not indicate same.
As to the evidence
of Dr Fortunato Beccia, the pathologist. His evidence was not
disputed at all. I then turn to the
evidence of Dr Sunday
Joseph Algabodian. He testified as to an examination of the
accused upon her admission. He also
completed a J88 which is
marked EXHIBIT K. I need to refer to his evidence in some
detail.
He stated that he
received his first degree in Nigeria. That is in 2002 and that
was a Bachelor of Medicine degree.
In 2007, he received a post
graduate diploma in ophthalmology and he received his third degree
here in South Africa which was a
diploma in general practice.
In 2014 /. 2015, he obtained a diploma in occupational health and
safety in Cape Town.
His fifth medical degree, was a Master of
Science in medicine, majoring in emergency medicine from the Wits
University which he
completed in the year 2019. As to the
diploma, he received in general practice, that was from the
Foundation for Development
in Pretoria and the diploma in
Occupational Health and Safety was with the Oxbridge Academy in Cape
Town.
He stated that he
has an effective 18 years of medical practice. In October 2019
he was a full-time employee of the Department
of Health and he was
assigned to work in the Far East Rand Hospital and a senior emergency
medical officer. A J88 report
was shown to him marked EXHIBIT
K. He indicated that he had completed this report on the 19
th
October 2019
after seeing… After examining the accused on the 18
th
October
2019.
The examination was
on the 18
th
at 19:30 in
the evening. He stated that in the course of his work, in the
emergency unit, saw one T M[…] S. That
is the accused
before court. This examination was done in the presence of
other junior medical doctors. The patient
came in with a
history of being injured and forced to drink and he queried that as a
poison.
He stated that the
accused was quite conscious and alert and orientated in time, place
and person. When he examined her, clinically,
she was stable.
Her vital signs were stable and she showed multiple superficial
injuries on both her upper limbs, on the
outer surface anteriorly.
On question of the court, he indicated that that referred to the
inside of the arms in the area
of the elbow.
He stated that the
pattern of this injury and the irregularity and the depth of the
injury arose suspicion in his part because if
it was inflicted by a
third party, most of the injury would have been on the outer parts of
the arm and not so regular as it was
found to be in this case.
He stated that she
came in and pretended to be having some severe pain, excruciating
pain on the upper part of her abdomen and he
indicated that she sort
of held her arm over her abdomen and was crouched over. She was
then examined and he found nothing
to correlate with the degree of
pain she complained of.
He testified that
he saw the powder which she claims to have drunk and that was seen on
her left shoulder. Mostly importantly
not in her mouth
He described that this white powder was dried, powdery and soft.
A whitish powder.
He stated that when
he ties the history of no abdominal pain and saying that she drank
something, to him there was no evidence that
there was anything in
that which went through her or so as far as to her stomach that could
cause some form of poison, so he made
the final diagnoses which he
noted in the J88 and where he stated “multiple superficial
injury with a question mark.
Query, attempted self-suicide”.
So, which implies that those injuries were self-inflicted and they
were very superficial
which can be caused by a very small object such
as a pin.
In summary he
stated, that he wish to say that this is a case of a patient who came
alleging that she was assaulted with self-inflicted
wounds on herself
with no clinical evidence suggestive of being assaulted by a third
party or be forced to drink anything that
resembles the poison.
He stated that as
to the superficial wounds on the arms, he meant that it was not
bleeding profusely and it was like scrape wounds.
He stated
that it made him suspicious that these wounds were on the inside of
the arms and not the outside. Asked about her
level of
consciousness. He stated from admission to the time she was
taken to the ward, her level of consciousness was alert
conscious and
alert over 50 by way of a medical grading. He stated that on
the last page of EXHIBIT K, he made some notes
on the sketch and he
stated that he refers to the marks on the arms.
He was referred to
the fact that there is also a note in respect of the stomach and he
stated yes, that is correct, he noted a tender,
that place is called
supra pubic. That was the tenderness he had referred to.
That is mild tenderness. He was
put to him by the state that
another doctor who had discharged her had testified that there was
nothing in the blood results of
the blood test. That was with
reference to Dr Probert.
He stated that yes,
it is so, that before they would refer the accused to a medical team,
they would run some basic tests to check
if there were any problems
with the liver or the kidneys. He stated that these blood tests
and the outcome thereof confirmed
his clinical examination that there
was no poison that she had ingested or that somebody had forced her
to ingest.
He was then
cross-examined by Mr Maimela at length. He confirmed that he
was the one who had examined the accused upon her
admission to
casualty. He was asked what did she say was the problem.
He stated that she told him that she was forced
to drink? some poison
and that somebody also inflicted an injury on her hands.
He also confirmed
that upon his examination of the accused, he discovered minor wounds
on her limbs. He was then asked about
the wound on the chest
and he stated that there was no wound on her chest. The only
thing is that she was holding her chest
that she is having a severe
pain that she suffering from a severe pain on her upper abdomen.
He stated that he
had marked it in the last page of the J88 as tender and he stated
again supra pubic that that area is called supra
pubic region in
medical terms and when he said tender, he meant that when he touched
her, you know when a person winces, that he
is feeling pain. He
stated “okay, you appear to be tender”, but when he
matched it up with her clinical picture,
it did not correlate.
He stated that the
mark he had fixed on the chest was not a physical wound. He
just referred to that upper part of her stomach.
He also stated
that the poison that is most common in this environment does not
cause abdominal pain. He stated that most
of these poisons are
organo phosphates or blue deaths. The do not cause abdominal
pain. Rather what they cause is continuous
profuse vomiting and
diarrhoea and they would be salivating. They would be unable to
breathe.
He also stated that
their vital signs would not be very stable. The blood pressure,
the pulse, the pulse rates and the respiratory
would not be as stable
as when they would normally examine someone. Advocate Maimela
then questioned him about so called
excessive vomiting that is
self-induced. He stated that yes, that could cause upper pain,
but he also stated that excessive
vomiting is a consciously induced.
It depends on the
course. Vomiting can induce pain on the upper part of the
abdomen, but that vomit must accompany blood,
because there is a tear
between the junction of the stomach and the oesophagus and that is
where the pain comes from and on the
question of the court he stated
that he found no blood. He stated that well there was no vomit
and there was no blood.
As to, he was then
questioned by Mr Maimela at length about the vomiting. He
stated that classically when we see a patient
in the case that when
they vomit, you see that the vomit flow from their lower abdomen down
onto the body. That is the front
part of the body, but he
stated in this case when accused came in there was a powdery
substance on her left shoulder as he had
indicated on the J88 when he
state witness her. He stated that that bothered him as to where
he found it.
He stated that it
bothered, because if you say somebody forces you to drink poison and
thereafter you try to vomit, you will not
consciously choose on your
left shoulder. He stated that when they see a case of suspected
para-suicide or that somebody
attempted himself or herself self-harm
or self inflicted injuries, they would normally admit such
persons to be observed for
over 12 to 24 hours.
It was put to him
by Mr Maimela that whether he agrees that if the injuries that he
found or which he saw on her limbs whether it
is possible that they
were inflicted while she is un conscious referring or whether she is
unconscious, referring to the wounds
on her arms. He stated
that in his clinical examination, that there was no evidence that the
accused, this patient had lost
any consciousness.
He stated that
right from the time she was attacked, she was conscious and alert to
the time of the presentation when he saw her.
He stated that
when she came she was conscious and alert, orientated in time, place
and person and was able to communicate with
him and if the patient
had suffered some form of unconsciousness that there would be some
indication of a loss of memory, which
he did not find in this case.
It was then put to
him that the accused would say that she was forced to drink poison
just after 05:00 early in the morning and
then Dr Algabodian only saw
her around 19:00 when she had regained consciousness. He stated
that when a patient drinks poison,
a type that renders them
unconsciousness, it would start acting between 50 and 30 minutes and
that if the so called patient induced
unconsciousness in this
patient, referring to the accused, there is no ways that she would
have regain consciousness before coming
to the hospital.
He once again
confirmed that he did not find any indications that she had lost
consciousness. He was specifically asked that
whether in his 18
years of practice he has ever treated a patient who has consumed blue
death and he stated that he had seen them
every day. He was
asked how long does it take for a person who has consumed blue death
to regain consciousness, to which
he answered for that, before a
person has consumed blue death to go into unconsciousness, it would
take a minimum of 30 minutes.
And he further
stated that if such a patient lapses into unconsciousness, there is
no way that the patient would regain consciousness
without using an
antidote and being stabilised or else the patient would have died.
He stated that in respect of this particular
patient, referring to
the accused, that there was no evidence that she had vomited.
It was put to him
that if a person had lost consciousness 10 hours before he was
examined, that he would not be able to pick that
up that he had lost
consciousness. To that he answered that now we are talking of
chemical poisoning and if chemical poison
induces a loss of
consciousness, the patient will pass out or die.
He stated that
clinically she would have died because the degree of poison that
would case unconsciousness is targeting five major
organs in the body
that are responsible to keep life stable. He confirmed that she
would have been dead if she had lost consciousness
due to chemical
poison.
It was then put to
him by Mr Maimela that the reason why the accused person did not die
from the poison is because she vomit it
out. To which he
replied that that means, she never lost consciousness and that if she
is telling the court that she lost
consciousness, then she is telling
a lie. It was then put that the accused would come and testify
that she was forced to
drink a concoction that she felt weak and she
also felt drowsiness and this was put to Dr Algabodian. He gave
the following
answer and I quote just to show the spontaneity
thereof. His answer was referring to Mr Maimela “My
brother, even if
anybody could drink a cup of blue death now, in the
next 10 to 15 minutes, the person will still be talking. He
will not
feel dizzy or unconscious immediately.
He then went
further and stated that the patient will still be active going
around, because first of all, this poison goes and stays
in the
stomach. Mr Maimela then put it to him, that she will further
give evidence that she does not know what was mixed
in the
concoction. It could have been blue death, mixed with
methylated spirits or anything else poisonous. He stated
that
clinically, when he examined this patient, there was no evidence of
any chemical poison ingestion.
He was asked how he
came to the conclusion that she had not consumed any poisonous
substance, he stated well they took blood samples
in this regard.
Clinically, she did not… There was no indication that
she had been poisoned and the blood samples
also did not…
The blood samples or a chemical investigation did not indicate any
poison. The liver was stable.
The kidney was stable and
there was no trace. If they assess something such as blue
death, that would have been visible in
the blood samples, but the
blood samples did not show it.
He confirmed that
when it was put to him, the earlier evidence of Dr Probert when asked
in re-examination by Ms Scheepers that the
blood tests were performed
and no abnormalities were found in the blood tests, Mr Maimela then
asked the question that the accused
will… No sorry, this
previous reference to Ms Scheepers was as to something which Mr
Maimela had put. It was
not re-examination .
Mr Maimela lastly
put that the accused person would come and give evidence that she
does not know how she sustained the injuries
that he saw on her
limbs, to which Dr Algabodian testified that in the course of his
medical training and experience, he had attended
a course in forensic
medicine, injuries and both injuries and assault representation.
He stated that self-inflicted injuries
are mostly found on the outer
surface of the body that is facing the patient. In other words
where the injury intruded by
a third party as in when somebody is
assaulting you, that is what they call the body as an unconscious
defence mechanism, that
makes you to even put your forearms out and
this injury will not form regular patterns, so he can confidently
state that the injury
he found on this patient which he examined, was
self-inflicted because (1) it is regular and (2) it is superficial.
That
concluded his cross-examination.
On the question of
the court, he was referred to EXHIBIT C, photograph 27 that indicated
the position where the accused was found
and on it was visible a
white substance. He commented that the only thing he could say
that it was similar to the substance
he had found on her shoulder.
More on that, he could not say. That concluded the evidence of
Dr Algabodian
I see it is now
11:45. The court will adjourn for 15 minutes.
MS
SCHEEPERS
: As it pleases
the court.
MR
MAIMELA
: As it pleases the
court.
COURT
ADJOURNS
: [10:37]
COURT
RESUMES
[10:53]
COURT
:
Accused may be seated.
I then proceed with
my judgment. Before the adjournment dealt with the evidence of
Dr Algabodian. The next witness I
need to deal with is M P
T[…]. She is a court interpreter here at Benoni
Magistrate's Court. She has been an
interpreter for five
years. She has attended a four week’s court at the
Justice college. She interprets from
various languages
including Southern Sotho, the language the accused speaks, hailing
from Lesotho. She provided a translation
of the screen shots
visible in EXHIBIT H. The translation was marked EXHIBIT H2.
Under
cross-examination, she stated that she grew up in Kagiso and although
her mother tongue is Shangaan, 90% of the people there
speak
Sesotho. As to the Whatsapp of 06:42, EXHIBIT H, her
interpretation in respect of the Whatsapp, she did not agree with
the
translation that the translation does mean the person close to my
heart and not the wound in my heart. She was adamant
in respect
of the latter.
As to the Whatsapp
of 06:52, in ‘H2’ she conceded that the interpretation
“P[…] is not going to pick my
dead body/corpse”
but rather “pick up my remains”. Any other state
witnesses not dealt with in a further
summary will become evident
when I deal with their evaluation. That concluded the evidence
of the state.
Mr Maimela then
called the accused to the stand. She started testifying on
Wednesday the 4
th
November
2020. She testified that she is a Lesotho citizen who came to
South Africa in 2014. She had been working for
the mother of
the deceased Lerato for almost two years. They had a good
relationship and she described her as almost a sibling.
On the
night of 17 October 2019, the deceased slept with her. On the
morning of 18
th
October
2019, the aunt, that is M M[…], the first state witness went
to work after 05:00. The mother of the child,
L[…], was
not there.
Once the aunt had
left, she was on the bed asleep, but cold hear what was happening.
After 05:00, she heard a knock and the
voice of S[…].
She unlocked and opened the door and the burglar door. She saw
[…] and two other males
who had knives with them. Their
faces did not appear to be happy and they looked in a fighting mood.
She ran to the
bedroom and they followed her into the bedroom. S[…]
however remained in the kitchen. The two
males grabbed her and
pressed her down. S[…] came from the kitchen with a
jug. It contained some liquid.
He gave it to the other
two males to let her drink it. S[…] took the child from
the bed and took the child out of
the bedroom. They held
her arms and with their hands pressed open her mouth. She
swallowed.
After that, she
felt being stabbed with something sharp on both arms on the inside.
Thereafter, she felt dizzy and her tongue
was stuck. He knees
were cramped and she saw everything in darkness. She heard the
voice of one of the males who stated
“where is the money”.
She could not speak.
These two then left
her bedroom. She was dressed in her pyjamas. S[…]
had left with the child, before she was
forced to drink the liquid.
She could see in the darkness when the two left the bedroom.
She was left on the floor.
She could not scream. She
crawled and managed to get a hold of her cell phone. She
recalled that the phone was under
her pillow. She was now
shaking. She Whatsapped her sister R[…] in Lesotho.
She could not remember the
time. She Whatsapped her sister as
she felt that she was dying. She could not Whatsapp L[…],
because she saw
her friend S[…] taking the child and fleeing
with the child.
Her thoughts were
that S[…] was saving the child and I emphasise “and he
wanted her to be killed.” She
thought the plan was with
L[…] to save the child so that she could be attacked.
She could not understand that as he,
referring to S[…] was a
friend to Lerato. She could remember the contents of the
Whatsapp.
She told her sister
to tell P[…], that is her younger brother to come and pick up
her corpse, because she felt she was dying.
When L[…] and her
aunt found her, she had excess stomach cramps. When she was referred
to photograph 27 in EXHIBIT C, with
the white substance on the floor,
she confirmed that that was her room.
She stated that her
upper body was in fact naked when she was found. She was weak
and felt her body sweating and burning.
As to the needle, visible in
EXHIBIT D, photograph 6, she does not know how it got there or who
put it there, but it is her bedroom.
Startlingly, that
is now Lerato and her aunt, did not ask her where the child was. They
asked her nothing. Upon questions being
put to her by Mr Maimela,
during evidence-in-chief, he looked like a dentist extracting teeth
at that stage. She remembers
telling Lerato three males
attacked her after being asked where the child was. She
surprisingly answered that she told S[…],
their sibling, when
the latter undressed her later that day that “they” –
I emphasise plural, had taken away
the child.
Immediately
thereafter she said, “I was saying S[…] took the
child.” She amazingly did not speak to L[…]
or the
aunt. She does not remember discussing anything with Lerato and
the aunt. She only remembers speaking to the aforesaid
S[…].
A drip was inserted in her arm by the paramedics and she was taken to
hospital and thereafter she was placed
on a stretcher by the
paramedics.
She stated that she
loved the child as her own. Her feelings are disturbed and it
haunts her. In hospital, a second drip was
inserted and she confirms
that blood samples were taken of her. One of the doctors told
her that the child had died. A sister
helped her to climb onto the
bed. She was arrested on the 21
st
October
2019. That concluded her evidence-in-chief.
She was then
cross-examination by Ms Scheepers. I find it convenient to deal
with the cross-examination when I evaluate the
evidence later.
I now turn to the evaluation of the evidence. Firstly M[…] and
L M[…], I find it convenient
to deal with them together.
I first deal with the evidence of the aunt, M M[…] and the
mother L M[…].
I found them both
to be impressive witnesses who stuck to their versions under
cross-examination. Their evidence is logical, inherently
probable and
they corroborate each other. Both were also confronted with
their statements in respect of M[…] with
EXHIBIT C and in
respect of L[…] with EXHIBIT J, respectively.
I have considered
the so-called contradictions, but I do not find them to be material
to affect their credibility. Interestingly,
it should be noted that
both statements were taken down by the same officer. It is Detective
Warrant Officer Patrick Obodu on different
dates. EXHIBIT E,
that is the statement of M[…], marked “A2” was
taken on 18 October 2019 at 22:55. That
is the same day as the
incident and the statement of Lerato EXHIBIT J, A19 in the docket was
taken on 23 October 2019 at 13:00.
That is four days later,
which is of course in their favour. The slight difference point
to an absence of collusion.
By way of example,
it was put to Miriam that she did not refer to the accused praying in
her statement, yet she maintained that
she did. That is off-set
by L[…] who corroborated Miriam in her evidence that she heard
the accused praying and also
stated so in her statement. The
accused said “God what is it that I have done?” And
she states so in paragraph
4 of EXHIBIT J. Both denied that the
accused ever told them that attackers had knives. Both
similarly denied that the
accused said she was grabbed and thrown to
the ground. Both are also adamant that although they did not
refer to the word
poison, M[…] used the word unknown
liquid in EXHIBIT E in paragraph 5, while Lerato used the word in
paragraph 5,
in EXHIBIT J, drugged, but drugged spelled D R U G E D.
They were adamant
that accused said that she and the deceased were fed poison. If
I consider the statements, they are not
of the best quality.
Replete with bad grammar and atrocious spelling, the court should be
very careful to overly emphasise
the value of the statements,
especially of such a traumatic event.
Such statements are
also not taken down by way of cross-examination. See in this
regard,
State
v Mafaladiso
2003
(1) SACR 583
, a judgment of the Supreme Court of Appeal at 593e –
594h. See also
State
v Bruiners
1990
(2) SACR South Eastern High Court Local Division 537e.
Similarly, the apparent contradictions as to the one bandage,
Miriam
did not refer to it, but Lerato stated it was in fact found around
the neck of the accused.
It is however clear
on photograph 27 of EXHIBIT C that the bandage was found on the floor
next to where the accused was. So, the
bandage was there. The
contradiction is more apparent than real. I accept the evidence
without any hesitation.
The next witness I
need to deal with is T P N[…]. I watched this witness
carefully and I was impressed with her demeanour
and the quality of
her evidence. It is so that she is a single witness. As to
identification and I must treat her evidence
with caution. Her
identification was made in broad daylight and in ideal
circumstances. One and a half to three metres
away in the
middle of the day in broad sunlight.
Her identification
is also strengthened by the fact that she knew the accused before.
There appears to be no motive to lie
as she really has no interest in
the matter. I find her evidence to be truthful and reliable. I have
no hesitation in accepting
it. That places the accused outside the
house at 14:30, fully dressed and apparently in good health.
She, the accused
did not at that stage report anything such as an alleged kidnapping
to her. If her evidence is true, the accused
was lying about this but
I will deal with that later, when I deal with all the evidence
including the accused
I then deal with
the evidence of T K[…] and B M[…]. These are the
two friends of S[…] who was with him
from approximately 07:20
/ 07:30 to 08:00 on the morning 18 October 2019 and for the next five
to six hours. Both cannot really
say where S[…] was between
05:00 and 06:00 and I therefore do not deem it necessary to discuss
the evidence any further
as it was not attacked. I accept it. I
should add that T K[…] is the one who informed S[…]
about the fact that L[…]
is looking for him. It is
significant to note that both say that S[…] is a person who
loves his sleep and they both
say or one of them said that they
actually woke him up.
I also find it
instructive and strange that it was never put as one would have
expected that they were the two friends with S[…]
as to the
attack next door. The question is who were these two friends referred
to by the accused. This was not put to S[…].
It was only
put that he alone was there. It is clear to this court however
that they both thought it could not have been
S[…] as they
inferred he was sleeping. Both definitely thought so.
The next witness is
S V[…]. She is the aunt of Lerato who found the needle
stuck in the mattress on the 19
th
October 2019
when she was cleaning the room of the accused. Although it was
put to her in cross-examination that the accused
does not know how
the needle got stuck there and then it was also put that she had
never… that is now the accused
used the needle before
that.
Suffice it say that
I accept her evidence as she has no reason to lie and the finding of
the needle itself is not attacked by the
defence. It was just
put that the accused knows nothing about it. This needle will
later prove to be significant as
to the scratches of the inside arms
of the accused.
F W M[…],
her evidence as to the fact that she saw S[…] at 07:00 was not
disputed at all, except for the fact that
she could not unequivocally
exclude that S[…] could have left earlier if he left the door
and he had left quietly.
Her evidence was not disputed.
She was however adamant that she did not hear anything, except for
the above, which I will
deal with on the basis of probabilities
later. I accept her evidence.
As to the witness B
P M[…], the golf player, his evidence is not disputed and I
accept it. S M N[…], his evidence
is of an expert
nature, as reflected in EXHIBIT L, by way of a
section 212
affidavit. His evidence is that the first Whatsapp which was
sent at 04:30 that that should be at 06:30 referring to the
difference in time and international time and South African time.
This evidence was
not disputed and the evidence is accepted. See in this regard
on page 33, the last entry where the address
[…] Street, […]
is provided. It is common cause that is the house where the
incident occurred. See also
in this regard the entry at page 34
of EXHIBIT L, the top entry starting with the words “Keng Hoo.”
I then turn to deal
with evidence of S M S[…]. He is the neighbour who was
implicated… Who was allegedly
implicated in the attack
on the accused on 18 October 2019 and that she saw him after 05:00.
This witness made an excellent
impression on me in the witness box.
He was logically and forthright in his answers and stuck to his
version under cross-examination.
His evidence is also
inherently probable.
The question is,
why would he attack the hands that feeds him and be recognised in the
process with disastrous consequences.
Furthermore, it is not
clear what the purpose of his attack on accused would be. If it
was because he was not happy with
is payment, it does not make sense
as there is firstly no such evidence and it was not put to L[…]
that he was unhappy with
the payment. Secondly, nothing was
stolen or taken from the house, so it was an unsuccessful robbery or
theft of what.
That is not even clear. Thirdly, on all
the evidence, he got on well, not only with L[…] the mother of
the deceased,
but there is also evidence that he looked after the
baby on occasion.
He was a family
friend and there has been no bad blood. Fourthly his initial
answer that he does not remember that Lerato
owed him money is
instructive as it shows that the money was not important to him at
all as it was a mere gratification.
He stated, if you paid him
only R20, he would be happy.
Fifthly, L[…]
testified and this was not disputed that when she related the accused
version about him being the attacker,
he looked surprised.
Sixthly, the motive suggested about the money for a car wash
seemed so insignificant an unconvincing
and highly improbable.
Eighthly on the probabilities he was probably asleep as his friends
seem to believe so. They
alleged he loved his sleep.
According to him, he usually only gets up at 07:00. His aunt W
M[…] testified that
she would normally hear the door open.
She only heard it on that day for the first time at 07:00. She
also saw him
at 07:00. If it happened at 05:00, she heard
nothing. No doubt, the probabilities favour the version of the
Siyabonga
that he was in fact at home of the morning of 18 October
2019 at 05:00 and that he was asleep.
Nine, the assertion
that the child was attacked by him for revenge is a startling and
improbable assertion. Ten, suffice it
to say at this stage that
the later evidence of the accused about S[…]’s role in
the attack kept on changing and that
must lead to a negative
credibility finding, bearing in mind as an important factor in a
holistic approach to the accused, to all
the circumstantial
evidence.
Eleven, even more
damning for the accused is that in her Whatsapp to assist her soon
after the attack, she does not mention S[…]’s
name at
all. To this court, that is the
coup
de grace
.
At the end of the day, I am satisfied that the evidence of Siyabonga
has the ring of truth is inherently probable and that
he has no
reason to lie or that no motive has been shown to attack the
deceased. As I will indicate later, he was just a
convenient
scape goat. I accept his evidence.
I then deal with
the evidence of Dr Spencer Brian Probert. As to the evidence of
Dr Probert, I should state that although
he was still inexperienced
as a doctor, he impressed me as a witness. He clearly already
has extensive experience of assault
cases and cases relating to
substances. He provided reasons for all his opinions and he
qualifies as an expert and his evidence
was not really attacked.
I accept his evidence as Dr Algabodian would also later corroborate
it.
As to the evidence
of Dr Fortunato Beccia, the pathologist as I stated earlier, his
evidence is undisputed and I accept it.
I then deal with
the evidence of Dr Sunday Joseph Algabodian. Algabodian saw the
patient on admission on 18 October 2019 and
noted his findings in the
J88, EXHIBIT K. I found him to be an excellent witness.
Well qualified and with 18 years
of experience. A true expert
witness. Of that there can be no doubt. I have no
hesitation in accepting his findings.
If one has regard to his
evidence, it is clear that accused was malingering upon admission and
clinically and chemically did not
present the picture of being
poisoned.
He stated that
there was no clinical signs of losing consciousness and the wounds on
the inside of her arms are self-inflicted and
not due to an assault.
He corroborates Dr Probert as well. The result of the above
expert evidence is of course objectively
speaking… I
repeat that. The result of the above expert evidence is, of
course objectively speaking, fatal to
the version of the accused,
which will be indicated later as she clearly then lied when she
averred that she was injured and poisoned,
but I will deal with that
later.
M P T[…].
I was impressed with this witness and I accept her interpretation as
the Whatsapp in EXHIBIT H sent at 06:42
as there is nothing to
controvert it. What Mr Maimela put is not evidence and accused
never testified about that. As
to the interpretation of the
06:52 translation of the dead body or corpse to with the word
‘remains’ is neither here
nor there as she in any event
conceded the other translation proffered to her. Interestingly
accused in her evidence used
these exact words.
I now turn to deal
with the evidence of accused in some detail. Firstly, I should
make an observation that I watched the accused
carefully throughout
the trial. The trial had started the Monday 26 October 2020.
By Wednesday the next week, 4 November
2020, the accused started
testifying. During the first week of the trial, the accused sat
quietly, confident in the accused
dock. The next week
Wednesday, the moment she climbed into the witness box, her demeanour
and posture changed. Suddenly
she started swaying from side to
side. When that was raised by the court, she stated that she
was “not in a good state”.
When asked again about
the swaying, she answered almost irrelevantly, “my memory goes
back.” The court
then adjourned briefly.
When we came back,
the first question of the prosecutor was “are you okay?”
To which she replied, “yes.”
Her cross examination
continued for some time on 4 November 2020 until after the tea
adjournment which was from 11:30 to 11:45.
Soon thereafter, the
accused continued swaying in the meantime. She suddenly asked
the court to stand down for two
days as she was not “feeling
okay.” She complained of strains at the back of her neck.
The court stood
down until the next day, that is the Thursday the 5
th
November,
after ordering that she be seen by a doctor. According to the
doctor’s report EXHIBIT M, compiled by Dr Pasha,
she was
clinically stable and healthy. As the report was not clear, the
court ordered that Dr Pasha be subpoenaed for the
next day.
That is 6
th
November
2020. In the meantime, she did not continue with the
cross-examination.
Dr Pasha then
testified that there was no medical problem, but as he was not sure
what the court required, he noted that if the
court wants a
psychological and psychiatric report, the accused needed to be sent
to Themba Memorial hospital for such. The
remark was therefore
conditional. As he had completed a basic course in psychiatric
evaluation, he found no psychological
problems in the accused.
Under
cross-examination, he stated with a reference to EXHIBIT M on the
second page that the capital A circled meant assessment
and the
capital P circled meant plan. He said accused… He
was asked whether the accused complained of neck pain.
He
stated that she told the doctor that she had pains on the side of her
neck. When he queried her, she said she was in court
and she
was tired.
He was adamant that
the accused did not need any further evaluation. The court hen
ordered the trial to proceed. When
cross-examination resumed on
that day, that is now the 6
th
November at
09:55, the swaying mirabile stopped. That was just an early
indication of her manipulative nature which was to
come. She
was clearly malingering. Drawing sympathy from the court.
Be that as it may, cross-examination was
completed on that day.
That is Friday the 6
th
November
2020.
As stated, having
watched the accused carefully during the trial, her performance in
the witness box can only be described as pathetic.
She was a
spectacular bad witness. Her evidence was vague and she tended
to give long rambling and irrelevant answers.
She can rightly
be described as a disinterested witness especially when confronted
with incriminating evidence.
She was also most
evasive at time and questions often had to be repeated and she had
then to be instructed by the court to answer
those questions.
She was also a contradictory witness who contradicted her own
evidence as well as her instructions.
At times her evidence was
laughable and absurd and it was akin to a fairy tale. Her
version was not just only improbable
but measured against certain
objective facts, such as the medical evidence as to the poisoning and
the self inflicted scratches,
her version was nothing else than
a pack of lies.
As stated earlier,
the evidence of the accused was fraught with inconsistencies,
vagueness, contradictory, improbable and in fact
a lying version to
such an extent that looking at the merits and the demerits of all the
witnesses that the version just cannot
reasonably possibly be true by
any stretch of the imagination.
Ms Scheepers in her
heads of argument in paragraph 4 referred to certain improbabilities
and I quote from paragraph 4.1:
“
4.1
It is highly improbable that all the witnesses for the state falsely
implicated the accused. All the witnesses indicated
that they
never had any problems with the accused. This can also be seen
in the fact that Ms M M[…] answered to a
question put to her
during cross-examination that she is not saying that the accused
killed the child. She was only testifying
about what she
experienced that day.
4.2
It is respectfully highly improbable that the mother of the deceased,
L M[…] and the neighbour S S[…] planned
the incident.
If they planned it as the accused wants the court to believe that
S[…] has to rescue the deceased and
get rid of accused, the
deceased would not have been killed.
4.3
It is respectfully submitted that it is further highly improbable
that the accused was able to send messages to her sister
in Lesotho,
but not seek help from anyone else in South Africa who will be able
to help her.
4.4.
It is highly improbable with respect, that accused was forced to
drink a concoction that left her unconscious.
Dr Algabodian
testified that if she swallowed any substance that caused her to
become unconscious, she would have died, if she
did not receive the
antibodies.
4.5
It is respectfully submitted that it is highly improbable that the
accused would swallow the substance. It is further
highly
improbable that she would drink a lot of the substance not knowing
what it is.
4.6
It is highly improbable that the attackers will know where to find
any substances in the house that can be used to poison
the accused
and then after they prepared the substance, they will replace the
containers on the exact same spots where they were
initially found.
4.7
It is further highly improbable that the attackers knew where to get
the bandages used to tie around both the deceased
and the accused
mouth and neck respectively.
4.8
It is highly improbable that Siyabonga will commit this offence to
take revenge due to dissatisfaction with money owed
to him and then
nothing was stolen during the incident.
4.9
It is further highly improbable that S[…] will rescue the baby
as part of the plan by him and the mother of the
baby, but then kills
the baby and leaves him inside the house”
I
agree with the submissions in this regard. To that I would add
a few more. Firstly, if Lerato got rid of her, the
accused, she
could not explain who would then look after the child. This is
highly improbable.
When pressed about
her reason why would L[…] would want to get rid of her, her
answer being that it was to rescue the child
and there is no reason
therefore, she became extremely evasive and did not want to answer
the question.
(2) She
conceded that it was easier to fire someone than to kill someone in
her own home, so if it was L[…]’s
plan, it is improbable
to embark on such a course. The accused averment is improbable
and false.
(3) On the
version of the accused, she only heard S[…] saying “knock,
knock.” How she could recognise
his voice from that is
unconvincing and improbable. She appears far too keen to
implicate him as soon as possible.
(4) Her
assertion that when she heard S[…], she thought it might be
M[…], the aunt, that has sent him to pick
up something she
forgot, is a surprising allegation and does not make sense. Not
only is it improbable, but she never testified
about that in chief
nor was it put to M[…] the aunt.
(5) She
stated that she had a long-sleeved pyjama top on. How she could
then feel being stabbed I find highly improbable
especially as we now
know, it was probably caused by a needle or pin and that it was only
scratches.
(6) The
biggest improbability of all is that she opened up for S[…]
without asking what he wanted at that time, 05:00.
Her answer
that she opened, because “he is allowed as a child in the
house” (and he was therefore trusted), flies in
the face of his
subsequent attack on her.
(7) The fact that
she first unlocked and opened the wooden door, then saw the other two
males, but yet continued to open the security
door “quickly”,
sounds highly improbable and nonsensical, especially as she testified
the faces of the two unknown
men changed once she had opened the
burglar door.
(8) Her
assertion that she only saw the knives when they were rushing her, as
they came in (and not earlier when she opened
it), how she could see
that only once she started running away, sounds similar, highly
improbable. In any event, she has
contradicted her
evidence-in-chief where she stated that that she saw them with the
knives already outside once she had opened
the door. She could
not explain the shift from outside to inside the house as to when she
saw the knives. Her answer
when this contradiction was put to
her is not only laughable but improbable.
She compounded the
improbability of the above scenario by suddenly coming up with a
description of these knives, i.e. that they
were okapi clasp knives.
(9) Of course
the knives landed her in even further trouble as she could not
explain the improbability thereof where they
were when she described
them grabbing her at the wrist and she could not say what had
happened to the knives in the meantime.
The fact that one of
them also held his hand over her mouth is even more improbable.
This scenario of them holding her by
her hands does not leave any
possibility that they could have knives at that stage.
(10) The
concoction she was forced to drink was smelling and bad, yet she
drank it all. That is a highly improbable
action. The
fact that the jug is nowhere to be seen on the photographs is just
another glaring improbability.
(11) She
could not explain the glaring improbability, if she was lying on the
ground with her fists held in front of her,
how they were then able
to “stab” her as she alleged she felt it.
(12) We know
now it was not stab wounds, but self inflicted scratches on the
inside of her arm. It is in any event
improbable that she could
have sustained them if her hands were held in front of her as if she
was defending herself as she alleged.
She could not explain
this. In fact it can be factually found to be a lie and her
description must therefore fall by the
way side as impossible.
She conceded it was
put to S[…] that he and his friends came to the deceased place
to rob them and she told her advocate
so. I pause here to state
that I find this choice of words “friends” interesting.
Why would she describe
them as friends. His friends were B[…]
and T[…]. Yet apparently, they were not there.
Quare, who
were they?
It was put to
Siyabonga that they went to the deceased place to rob and as stated,
she told her advocate so. When asked why
it was not put as a
result of taking revenge and whether she told her advocate so, she
became extremely evasive and did not want
to answer the question.
Clearly it was not put as such and as it is such an important part of
her version, the mere fact
that it was not put, must lead to a
negative credibility finding in that regard.
(14) She
could not remember if her hands were tied, which is already strange
and improbable, but then she could not explain
where the bandages
came from. Her answer that she did not see is not only
improbable, but false. The bandages were
clearly there.
See EXHIBIT C, photograph 27 as well as the fact that the bandage
around the mouth of the deceased was never
disputed in evidence.
(15) Her
totally inability to explain why she did not call for help or contact
the police. Her answer being “It
did not come to my
mind.” It is so ridiculous, it must be rejected.
Her reference and concern for the baby is
belied by the whatsapps as
there is absolutely not reference to the baby in it. Not much
needs to be said as to her explanation
that the word “blackmail”
in EXHIBIT H, was meant to be an attack. It is rejected out of
hand as to be improbable
and false. In fact, I find it is a
lie. The fact that the “blackmail” is used in the
vernacular, she could
not explain as well as the fact that there was
no reference to S[…]’s name being mentioned in the
Whatsapp, EXHIBIT
H. The fact that according to her, neither
M[…] or L[…] asked her where the child is, cannot be
true, as it
is just not reasonably possibly true. It is so
improbable.
There are far more
improbabilities, but the above would suffice. Ms Scheepers in
paragraph 5 of her heads of argument, briefly
deal with some
contradictions in the version of the accused. I quote from
paragraph 5.1 to paragraph 5.3:
“
5.1
accused version that the mother of the deceased, planned this
incident was never put to any of the witnesses in order
for them to
answer to it.
5.2
the accused testified that the witness S S[…] stayed in the
kitchen while the other two men followed her to the
bedroom and that
he only came to the bedroom later, carrying a jug filled with a
substance which he gave to the two men to give
to her. That was
never her instruction to her legal representative as it was put to
the witnesses that all three men followed
her to the bedroom and that
S[…] was the one that forced her to drink the substances.
5.3
it was accused instructions to her legal representative which
instruction was put to the witnesses that accused does not
know how
she sustained the injuries on the her arms. The accused however
testified that while the men were busy forcing her
to drink the
substance, it felt like she was stabbed by a sharp object.”
I
agree with these submissions made by Ms Scheepers and I find
accordingly. It is significant that both in respect of M[…]
and L M[…], both were adamant that the accused used the word
poison in describing what she was forced to drink. By
the time
she testified, she stayed very far away from the word poison and said
she was forced to drink a liquid or words such as
a concoction.
Clearly it is an
inference, because she was now aware of the medical evidence in that
regard as to the ingestion of poison.
In fact, it is not only
significant, but once again, she clearly told the court a lie.
I reject her whole version of being
attacked by S[…] and his
two friends on the morning of 18 October 2019 just after 05:00 and
that she was forced to drink
poison.
I reject her
version of being forced to drink anything and especially not poison
by S[…] and his cohorts. I reject
her version that she
was ever attacked by knives and that caused the injuries to her arms
on the inside. There were no knives.
The court finds that
as a fact. I find that the wounds on her arms were
self inflicted and on a balance of probabilities
was caused by
the needle visible in photograph 6 – 8 of EXHIBIT D. I
reject her version that S[…] kidnapped
and took the deceased
from her bed and out of the house. I found that S[…] was
not there and was in fact at his home
sleeping.
I reject her
version that the accused ever lost consciousness although I must
state that under cross examination, she vacillated
so much
between whether she had lost consciousness or not, that it was not
clear exactly what she was trying to say to the court.
I reject her
version that she was not seen outside the house at 14:30 on 18
October 2019 by T P N[…]. I find that she
was there
dressed in a short-sleeved T-shirt. I specifically find that
stepping back and looking at all the evidence in totality,
that
accused deliberately lied about the following: Being attacked
by S[…] and his friends, that she was forced to
drink a
poison, that she was injured in the attack on the inside arms by the
attackers. That S[…] kidnapped the child,
that she did
not know that the deceased was still in the house and that she lied
about causing the death of the deceased.
I then need to make
some findings: As to that this case is based on circumstantial
evidence. Before I ever do that,
I need to set out the legal
position dealing with circumstantial evidence as well as the proof of
intent and motive.
I first deal with
circumstantial evidence. (1) Circumstantial evidence is
not necessarily of less value that direct
evidence. In certain
circumstances, it can carry more weight than direct evidence.
See in this regard,
State
v Tshabalala
1966
(2) SALR 297
(AD) at 299B – C. (2) Deductions are
made from circumstantial evidence and therefore logical rules must be
followed
in order to avoid speculation. (3) The court must not
consider each circumstance in isolation. In
Rex
v de Villiers
1944
(AD) 493 at 508 – 9, Davis AJ of Appeal was reported to have
said the following:
“
But
I should not leave this point without dealing shortly with an
argument pressed upon us by Mr M[…], that in a case depending
on circumstantial evidence, ‘the court must take each factor
separately, and, each of them is possibly consistent with innocence,
then it must discard each in turn’
This
argument is fallacious.
It
is in the first place inconsistent with my brother
Watermeyer
in
Rex v Blom
1939 (AD) at p 202:
‘
The
proved facts should be such that they exclude every reasonable
inference from them, save that one sought to be drawn.’
It
is not each proved fact that must exclude all
other
evidence, the facts as a whole must do so.
I
then refer to the quotation of
Best Evidence
the 5
th
edition:
‘
Not
to speak of greater number; Even two articles of circumstantial
evidence- though each taken by itself weigh but as a feather,
join
them together, you will find them pressing on the delinquent with the
weight of a mill-stone… It is of the utmost
importance
to bear in mind that where a number of independent circumstances
point to the same conclusion, the probability of the
justness of that
conclusion is not the sum of a simple probabilities of those
circumstances, but the compound result of them.’
See
also
Evans
in respect of
Pothier on Obligations
(paragraph 2.242 and
Wills on Circumstantial Evidence 7
th
Edition page 46):
“
The
court must not take each circumstance separately and give the accused
the benefit of any reasonable doubt as to the inference
to be drawn
from each one so taken. It must carefully weigh the cumulative
effect of all of them together, and it is only
after it has done so
that the accused is entitled to the benefit of any reasonable doubt,
which it may have as to whether the inference
of guilt is the only
inference which can reasonably be drawn. To put the matter in
another way; the Crown must satisfy
the court, not at each
separate fact is inconsistent with the innocence of the accused, but
that the evidence as a whole is beyond
reasonable doubt inconsistent
with such innocence.”
This
is all still a quotation from
Rex v de Villiers
1944.
(4) When reasoning
by way of inference, there are:
“
There
are two cardinal rules of logic”
Which
have to be followed, as set out by Watermeyer, Judge of appeal in
Rex
v Blom
1939 (AD) 188 at 202 – 203:
“
(1).
The inference sought to be drawn must be consistent with all the
proved facts. If it is not, the inference cannot
be drawn.
(2). The
proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn.
If they do
not exclude other reasonable inferences, then there must be a doubt
whether an inference sought to be drawn is correct.”
(5). The
application of these rules was reinforced by Smallberger, acting
judge of appeal, as he then was in
State
v Mtsweni
1985
(1) SALR 590
(AD) at 493E:
“
[Afrikaans]
[02:08:57]”
The
opmerkings
from Lord Wright in
Caswell v Powell Duffryn and
Associated Colliers Limited
(1939) 3 All England Reports
722 at 733: “[Afrikaans] [02:09:40]”
“
Inference
must be carefully distinguished from conjecture or speculation.
There can be no inference unless there are objective
fact from which
to infer the other facts which is sought to be established. In
some cases the other facts can be inferred
with as much practical
certainty as if they had been actually observed. In other
cases, the inference does not go beyond
a reasonable probability, but
if there are no positive proved facts from which the inference can be
made, the method of inference
fails and what is left is merely
speculation or conjecture.”
Then
further on, the same quotation at 594 of the
Mtsweni
judgment
[Afrikaans] [02:10:50]
In other words the
mere fact that the accused is found to be a liar does not necessarily
mean he has committed the offences.
I then turn to deal with
further aspect as to the proof of motive and I refer here to the
well-known minority judgment of Malan,
AJA in
Rex
v Mlambo
1957
(4) SALR 727
(AD) where he is reported to have said the following
about the proof of intent in such circumstances at 737 C to F:
“
Proof
of motive for committing crime is always highly desirable, more
especially so where the question of intention is an issue,
Failure to
furnish absolutely convincing proof thereof, however, does not
present an insurmountable obstacle because even if motive
is held not
to have been established, there remains the fact that an assault of
so grievous a nature was inflicted upon the deceased
that there have
resulted either immediately or in the course of the same night.
If an assault “using the term
in its widest possible
acceptation is committed upon a person which causes death, either
instantaneously or within a very short
time thereafter and no
explanation is given of the nature of the assault by the person whose
knowledge it solely lies, a court
would be fully justified in drawing
the inference that is was of such an aggravated nature that the
assailant knew or ought to
have known that death might result.
The remedy lies in the hands of the accused person and if he chooses
not to avail himself
thereof, he has only himself to blame if an
adverse verdict is given.”
Then
at 738 a-d:
“
in
my opinion, there is no obligation upon the crown to close every
avenue of its escape which may be said to be open to an accused.
It is sufficient for the Crown to produce evidence by means of which
such a high degree of probability is raised, that the ordinary
reasonable man, after mature consideration, comes to the conclusion
that there exists no reasonable doubt that an accused committed
the
crime charged. He must in other words, be morally certain of
the guilt of the accused. An accused`s claim to the
benefit of
doubt when it may be said to exist, must not be derived from
speculation, but must rest upon a reasonable and
solid foundation
created either by positive evidence or gathered from reasonable
inferences which are not in conflict with, or
outweighed by, the
proved facts of the case. More over if an accused deliberately
takes the risk of giving false evidence
in the hope of being
convicted of a less serious crime or even, perchance, escaping
conviction all together and his evidence
is declared to be false and
irreconcilable with the proved facts, a court will, in suitable
cases, be fully justified in rejecting
an argument that
notwithstanding that the accused did not avail himself of the
opportunity to mitigate the gravity of the offence,
he should
nevertheless receive the same benefits as if he had done so.”
Ms
Scheepers, Mr Maimela I need another 15/20 minutes. Can I
proceed or must we adjourn at this stage?
MS
SCHEEPERS
: I have no
objection if we proceed M'Lord.
MR
MAIMELA
: I have no
objection M'Lord.
COURT
:
Thank you.
I then turn to make
the following factual findings:
1. Accused
was the only person in the house with the deceased shortly after
05:00 on the morning of 18 October 2019.
She was found in her
bedroom at 16:00 that same day. Her hands were not tied and her
upper body was naked.
2. The
deceased was found in a storeroom marked A1 in EXHIBIT C,
immediately adjacent to the bedroom of the accused,
marked ‘B’
in the sketch plan EXHIBIT C. He was found there by
Miriam Mnguni soon after 16:00 on 18 October
2019. The deceased
was lying on the floor.
3. There was
a bandage around the mouth of the deceased to the back of the head of
the deceased.
4. The
deceased died of a fractured neck with asphyxia.
5. The cause
of death was caused by external pressure supplied to the mouth and
neck area.
6. There were
no signs of poisoning found in the deceased body at the post-mortem.
7. Death
would have ensued very quickly with the fracture. With asphyxia it
would be less than three minutes. If there
is a combination of
the fractured neck an asphyxia the time would be less than three
minutes.
8. The house
was locked and the keys were found inside on the floor marked ‘X’
on photograph 3 of EXHIBIT C.
9. Nothing
was missing or stolen from the house.
10. The
blinds and curtains at the front of the house was closed. They
were usually opened by the accused. From
the window, to the
left of the house visible in photograph 1 of EXHIBIT C, if you scream
from there, you will be heard.
11. A bandage
was found around the neck of the accused and this bandage is visible
on the floor next to where she was found
next to the cupboard in
photograph 27 of EXHIBIT C.
12. The
accused was found praying saying “God what is it I have done?”
13. Both the
bandages found around the mouth of the deceased, around the
neck of the accused and on the floor next to
the accused, came from a
cupboard in the room of the accused.
14. The
accused was found to have self inflicted scratch marks on the
inside of her arms. The needle visible in
photograph 4 of
EXHIBIT D was found in her room stuck inside her bed.
15. The
accused was found not to show any signs of poisoning. She was
not poisoned.
16. S[…]
and his two friends did not attack her on the morning of 18 October
2019 just after 05:00. The deceased
was not kidnapped and taken
by S S[…]. He and his two friends were not in the house
at the time. The court finds
he was at home sleeping.
17. Accused
was seen at 14:30 on 18 October 2019 outside the house at […]
Street […] by Tshwarelo Petunia Ntuli.
Accused was
wearing a short-sleeved T-shirt and was physically normal.
18. She sent
Whatsapp messages, the first at 06:29 on 18 October 2019 as per
EXHIBIT H and the translation, EXHIBIT H2. (This
is just a remark.
The contents of these whatsapps are ominous. They for example
refer to the word “blackmail”,
but there is no
explanation given therefore. The court cannot make any finding
in that regard.)
19. The
accused lied to M[…] and L M[…] about being attacked by
S S[…] and two friends at 05:00 on the
morning of 18 October
2019. She lied about being forced to drink poison and or being
poisoned. She lied about the deceased
being kidnapped by S
S[…]. She lied about being injured on her inside arms
and she lied about the knives. She
also lied about not being
outside the gate at 14:30 on 18 October 2019.
Bearing in mind all
of the above, the only reasonable inference from the proved facts to
the exclusion of all other inferences is
that the accused and she
alone is responsible for the death of the deceased.
It matters not that
there appears to be no clear motive and that it is not known exactly
how the deceased was killed as our law
does not require the same.
The contents of EXHIBIT H, the screen grab of the Whatsapp messages
and H2 the translation thereof,
is ominous.
“
My
heart bleeds. It is better I die than being blackmailed.”
She later refers to
her dead corpse and also refers to boys being paid. The word
blackmail also appeared in the vernacular.
Usually blackmail
and kidnapping is found hand in hand, but there is no explanation by
the accused in this regard as she does not
even use the word
kidnapping in EXHIBIT H.
With reference to
the earlier case of
Rex
v Mlambo
,
the accused had the key in her pocket to tell the court what really
happened. She chose not do so and she must now suffer
the
consequences thereof.
As to the form of
attention, according to Dr Beccia who performed the post-mortem
examination EXHIBIT B, external pressure must
have been applied to
the mouth and neck area but he states more in favour of the neck.
With a fracture to the neck, death
would have ensued very quickly and
with asphyxia, up to three minutes. A combination thereof would
take less than three minutes.
Bearing that in mind, the only
form of mens rea can be that of
dolus
directus
.
In this regard I refer to the case of
Rex
v Lewis
1958
(3) SALR 107
, a judgment of the appellate division.
This case deals
with strangulation and I quote from a judgment of Malan, Judge of
appeal:
“
If
death had been caused by strangulation, it would have involved the
application of pressure to the windpipe for a period of from
three to
five minutes and would have had to be sufficiently severe to exclude
air from the lungs completely for that period.”
I
then quote further with reference to the actions of the accused.
In that case, Malan, Judge of appeal stated further:
“
His
decision to apply pressure to the throat, was therefore, a deliberate
act designed to be effective and in order to be effective,
it had of
necessity to be severe, continuous and of some duration.”
Momentary
seizure followed by immediate release
would
obviously have served little or no purpose.” I
quote
further:
“
The
inherent danger of the application of pressure to the throat and neck
for even a very brief period, must be present to the mind
of even the
most dull witted individual and, apart from explanation, in
performing such an act, the assailant either realises this,
or
recklessly disregards it's probable consequences. The application of
pressure manually as in the case before us is an aggravating
circumstance, because the assailant throughout not only fully alive
to the degree of force exerted by him he is, by reason of his
manual
contact with the throat, warned of the victims reaction to the
pressure applied.”
The accused has
been charged with murder in respect of count 1 read with the
provisions of
section 51(1)
of Act 105 of 1997. That means
planned or premeditated murder. On the facts before me and Ms
Scheepers and Mr Maimela,
both concede this, I find that there has
not been any planning. A conviction of murder read with the
provisions of section 51(2),
that is murder other than planned
murder of Act 105 of 1997, should follow.
As to the second
count, there can be no doubt that the accused should be convicted of
defeating or obstructing the course of justice.
Accused must
stand.
Ms T[…], you
are convicted of:
(1)
Murder read with the provisions of section 51(2) of Act 105 of 1997.
(2)
Defeating or obstructing the course of justice.
BROODRYK,
AJ
JUDGE
OF THE HIGH COURT
DATE
:
2021.01.23
For
the State : Adv S Scheepers instructed by the
Director of
Public Prosecutions, Gauteng
Division,
Pretoria
For
the Defence : Adv Maimela