S v Hibbers and Another (SS89/2017) [2018] ZAGPJHC 672 (20 December 2018)

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[2018] ZAGPJHC 672
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S v Hibbers and Another (SS89/2017) [2018] ZAGPJHC 672 (20 December 2018)

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OFFICE
OFTHE CHIEFJUSTICE
REPUBLIC
OFSOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL DIVISION,
JOHANNESBURG)
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
20/12/2018
Case
No: SS89/2017
In
the matter between:
STATE
and
MARILEE
HIBBERS
Accused 1
ENLYN
PILLAY
Accused 2
JUDGMENT DELIVERED ON 20
DECEMBER 2018
MATSHITSE,
AJ:
INTRODUCTION
[1]
On a winter day of the 25th June 2016 at around 7:30 in the morning
there lay the lifeless body of an innocent child called
R who was 3
years old, who was found with some burns almost all over his body and
in addition he had some blunt forces injuries
on his body.
[2]
R was the son of first accused and stepson to the second accused.
First accused used to live in Nelspruit with her mother in
one of the
farms and she was in a relationship with R E out of this relationship
two sons were born being J and R. The relationship
of first accused
and second accused started around 2015 she came to stay with accused
number 2 at Naturena Johannesburg.
[3]
Around February 2016 R was injured. Accused number two indicated that
he was injured well he was playing with a bicycle, accused
number 1
then took him to South Rand Hospital where he was diagnosed as having
a 1; ament injury he was then taken to Baragwanath
Hospital where in
he was operated.
[4]
Around March 2016 R had his femur fractured he was then taken to
Rahima Moosa where in the doctor who treated him discovered
injuries
under his eyes under his nipples and on the rib cage he was taken to
Helen Joseph Hospital to be operated upon, he came
back to Rahima
Moosa Hospital for further treatment
[5]
As a result the accused are facing two counts
Count 1
5.1 Contravention of section 305(3)(a)
read with the provisions of
sections 1
,
18
,
305
(6) and
305
(7) of the
Children's Act 38 of 2005
further read with the provisions of
section
92
,
25
, and
270
of the
Criminal Procedure Act 51 of 1977
.
5.2 In that on or about 31st of March
2016 and at or near a place the exact location there of unknown to
the State in the district
of Johannesburg Central accused unlawfully
intentionally abused or deliberately neglected a child R.
Count 2
5.3 Murder read with the provisions
51(1) as well as schedule 2 of the
Criminal Law Amendment Act 105 of
1997
and further read with the provisions of
section 92
,
256
,
258
8
of the
Criminal Procedure Act 51 of 1977
.
5.4 In that on or about 25th day of
June 2016 and at or near the residential premises situated at
Naturena in the district of Johannesburg
Central the accused
unlawfully kill a juvenile male person R.
5.5 Alternatively, to count 1,
Contravention of
section 305(3)(a)
read with the provisions of
section 1
,
118
,
305
(6), and (305(7) of the
Children's Act 38 of 2005
further read with the provisions of
section 92
,
257
and
270
of the
Criminal Procedure Act 51 of 1977
in that on or about the date and or
near the place mentioned in count 1 the accused , unlawfully and
intentionally abused, or deliberately
neglected a child R.
[6]
Further Alternatively to count 2, a contravention of
section 305(4)
read with the provisions of
section 1
,
118
,
305
(6) and
305
(7) of the
Children's 38 of 2005 read with the provisions of
section 92
,
257
and
270
of the
Criminal Procedure Act 51 of 1977
. In that on or about the
date and or near a place mentioned in count 2, the accused unlawfully
failed to provide medical assistance
to a child R well able to do so.
[7]
The provisions of
section 305(3)
of the
Children's Act states
that "a
parent, Guardian, other person who has parental responsibilities and
rights in respect of a child caregiver or person
who has no power
until responsibility and rights in respect of a child but who
voluntarily cares for the child either indefinitely
temporarily or
partially is guilty of an offence if that parent or caregiver or
other person.
(a)
abuses or deliberately neglects the child.....
[8]
In proving its case the state called Dr Hansmeyer, a pathologist who
performed autopsy on the body _of R, Doctor Yachad, who
first saw R
when he was brought to Rahima Moosa Hospital by accused number 2, on
the 31st of March 2016, Captain Makwakwa, the
detective who came to
the scene of the offence where the body of R was found. Captain
Markovich who took from accused number 1
a statement which was
submitted to court and made Exhibit "F" and constable Peter
Munyandizwa a police officer who visited
the scene of the incident.
[9]
Exhibit "A" to "L" were presented as evidence the
court will refer to the said exhibits during its deliberations.
9.1 Exhibits "A" Photo Album
compiled by Constable Magwaza
9.2 Exhibit "B" Affidavit by
Pauledi Chokoe made in terms of
Section 212(7)
of Act 51 of 1977
9.3 Exhibit "C" Affidavit by
Azidowi Nevondo made in terms of Section 212(7) of Act 51 of 1977
9.4 Exhibit "D" Dr Candice
Geraldine Hansmeyer's Affidavit in terms of sections 212(4) and
212(8) of Act 51 of 1977 and
Post Mortem Report
9.5 Exhibit "E" Affidavit
made by Captain Masenyane Makwakwa's
9.6 Exhibit "F" Affidavit
made by Ms Marilee Hibbers (taken by Captain Markovich)
9.7 Exhibit “H” Affidavit
made by Constable Peter Munyandizwa;
9.8 Exhibit "J" Statement
(affidavit) made by Ms Marilee Hibbers in terms of the Provisions of
section 60(11)
of the
Criminal Procedure Act 51 of 1977
made during
her formal bail application at the Regional Court Johannesburg;
9.9 Exhibit "K" Transcript
of the formal bail application which was brought by both accused at
Regional Court Johannesburg;
9.10 Exhibit "L" What's up
messages between Accused 1 and Accused 2 from 27 July 2017 04:20 to
27 July 2017 06:39.
The
two accused testified, on their own without calling any further
witnesses in respect of their respective cases.
SUMMARIES OF EVIDENCE
THE
WITNESSES FOR THE STATE:
[10]
The state called
Peter Munyadizwa
to
come and testify in short he testified that he is a member of the
South African police Serv·ices with the rank of a constable

and he's got 8 years being a police officer and stationed at Mondeor
Police Station he was in the of company of his crew member
Constable
Zwane.
[11]
They went to the accused house they were welcomed by accused number 2
who informed them that he is the child's father. He ask
him what
happened wherein he responded that the child fell into the hot water
in the bathroom the previous night when ask why he
did not take the
child to hospital he told them that he did not have transport and it
was at night and a child was not that much
injured.
[12]
He then took them to where the child was lying they found the child
on top of the bed and the child was fully clothed when
they look at
the child they observed that his legs and feet were burned, his body
was also burned and below his neck he had marks
that he was burned by
something hot. They also found paramedics there they then proceeded
to go and open an inquest case or docket
because the child had fell
into boiling water accidentally.
[13]
There were other people in the house he cannot recall if the mother
of the child was also there it was the paramedics who had
certified
that the child died.
[14]
During the time he was cross examined by accused number one's Council
he was ask if he had touched the clothes of the disease
and whether
the said clothes where fused to the skin of the deceased or whether
they were loose from his skin and he then replied
that the said
clothes were loose and they were not wet or fused to the body of the
child. He was further cross examined by accused
number 2 counsel and
it was put to him that will deny that, he told them that he could not
take the child to hospital because the
he was not badly injured and
he will further deny that, he told them that he could not take the
child to hospital because he did
not have transport and it was
already late.
[15]
The Witness was referred to his statement which he had made involving
the events of this matter on his statement he did not
mention that
the Father of the child had informed him that he could not take the
child to Hospital due to the fact that he did
not have any transport.
[16]
Witness further testified that accused number two was in a fighting
mood, of which he denied that he was in a fighting mood.
He will only
admit that he had a confrontation with the duty officer, Captain
Makwakwa.
[17]
The Witness further testified that after taking off the duvet cover
which was covering the child, he did some inspection on
him that is
when he observed the injuries on his body, he could see that the
forehead of the deceased was burned.
[18]
The other witness for the state was
Masinyane Sam Makwakwa,
a
member South African Police Services holding a rank of a Captain with
an experience of 30 years being a police officer, a detective

attached to Mondeor Police Station. On this particular day he was on
standby duty, he received a call, he went to Naturena scene
of crime
or where the incident took place, he found two police officers they
informed him that the father of the child, being accused
two, said
that the child was burned with hot water.
[19]
They then took him where the child was lying, which was on top of the
bed and further that the child was 3 years old. The Witness
was
further referred to Exhibit A photo number 10 and 11. He was shown
the father of the child where in him inquired from him what
happen,
his demeanour was someone who was nervous and was very aggressive and
he informed him that the child burned himself on
the bath with hot
water while taking a bath until he passed away. He inquired from him
why he did not call someone or even an ambulance
to come and assist
he replied that he did not have any money to enable him to call the
ambulance and he started insulting him he
called him "f...
(word) you do you think that I'm the one who killed the child"
that shocked him. He observed the child
and according to him the face
of the child was burned as well as the child body.
[20]
He was then called to another incident and before he left, he
instructed the two police officer to open an inquest docket.
[21]
During cross-examination he was asked if he did touch the clothes of
the deceased of which he replied that he did not. It was
further put
to him that accused one will come and testify clothes that the
deceased was wearing were damp.
[22]
He confirmed that the he instructed the two police officers to open
an inquest docket on the information that he has received
from the
deceased father that the child burnt himself while taking a bath, and
have no contrary evidence to that fact which would
have indicated
that the child could have been killed.
[23]
During cross examination by accused number 2's counsel it was put to
him that accused number two will deny that he told him
that the child
fell into the hot bath and stayed inside until he passed on. However,
accused 2 will confirm and testify that the
child fell into the bath.
The witness was referred to his statement and it was put to him that
he did not mention on his statement
that accused number two informed
him that the child burnt himself with hot water when he was in the
bathroom, he indicated what
he had written down was just a summary of
what actually happened he did not write each and everything that took
place at the scene
of the incident
[24]
It was put to him that accused 2 will come and testify that the child
was still alive on the 25th of June 2016 on the day of
his passing,
he immediately shouted for the neighbours and calls were made by
members of his family and also by the neighbours
for the paramedics
and further he himself and accused number 1 they, together with the
neighbour tried to perform CPR on the child.
[25]
The Witness was also referred to photo number 10 and 11 of Exhibit A,
he is not sure whether the bed cover was removed or not
as depicted
of photos 1O and 11.
[26]
The next state witness was
Doctor N Yachad,
who indicated that
she qualified at University of Cape Town in the year 2016 on the 31st
of March 2016 she was working as an intern
at Rahima Moosa Hospital
which is a mother and child Hospital dealing with gynaecology,
obstetrics and paediatrics. On this particular
day she was working at
casualty.
[27]
R was brought by one person that she described as a man who was not
overweight or underweight, he was Brown skinned, he had
very little
hair he was bald at the time and that is all she could remember about
this person.
[28]
R came in as an emergency at the hospital, after checking his vital
signs he found that he was stable and R was complaining
of pain on
the femur, he did an assessmen t of femur she discovered that the
were no associate injuries. She discovered a number
of injuries of
varying ages. With regard to associate injuries of the femur, she
discovered there were none which could have happened
at the time of
the injury of his left femur.
[29]
Injuries that she said were older were
1) R had a bilateral infraorbital
contusion;
2) R had some bruising under both
eyes;
3) R had a bruising over the right
nipple;
4) R had a bruising on his left rib
cage.
These
injuries were older than a day or two and she was informed that the
child received the said injuries when he walked into a
door two days
ago. She also discovered a scar on the left elbow and an explanation
that was given was to the effect that he suffered
the said fracture
during the preceding year end 2015 he was treated at Baragwanath
Hospital. In order to get answers to this injuries
she had to prompt
answers from the person who brought the child to the hospital.
[30]
She was given a history that R fell from the tree she indicated that
a fall from a tree can result in other areas of bruising
fractures or
abrasions none of this were present.
[31]
She is not sure whether she stabilized the injury or the fracture.
Thereafter R was referred to Helen Joseph Hospital for further

treatment, he had to be seen by an orthopaedic surgeon. After he was
treated at Helen Joseph Hospital, he was returned back to
Rahima
Moosa Hospital for further treatment and stabilisation.
[32]
After the child was returned back to Rahima Moosab hospital she gave
the social worker a statement she indicated that the patient
had high
index of suspicion of non-accidental injury. The reason she had this
high index suspicion was the femur fraction by itself,
more so when
it happened to a child of between the ages 0 and 3. The other thing
that raised her suspicion was the number of injuries
that he had
sustained previously of varying ages as well as the elbow fracture
which had been treated in a different Hospital.
She did not know what
happened to the said report, since it was the last time that she saw
the child at that time.
[33]
She further confirm that the bone of a child is pliable. That is, it
is hard to break the bone of a child than it is to break
the bone of
an adult, in order to break a child's bone, it will require a high
velocity impact which can be sustained from falling
from a high wall,
also be sustained from torque falling from a different angle can also
cause a fracture injury or a non-accidental
injury. She further
testified that if a person had a fractured femur or something like
that one will expect to find some bruising
in the area of the hands
trying to protect themselves from the fall.
[34]
During the time that she was examining the child she realised that
the child was very calm he was not screaming was not crying

excessively he was very withdrawn and this surprise her as this was
not expected from the child who was seriously injured or an
injury of
a femur. And in her experience a child is expected to scream or any
person who is injured or had his femur broken he
will experience a
terrible pain an unbearable pain.
[35]
The father of the child was speaking a lot to him and he was overly
attentive to the child and this surprised her also since
the father
was not reacting like a normal parent who had his child injured who
wanted to know more of what is going to happen and
the steps that
will be taken to correct the injury. During cross examination by
first accused counsel it was put to her that accused
one and two were
not married and they were in a long term relationship they had
different surnames and accused number 2 was not
the biological father
of R.
[36]
She was further ask if she had experience that if the child's surname
is different from the person who brought the child to
the hospital,
the child will not receive any attention, of which the witness
indicated that she has not experienced that and according
to her they
always treat the child no matter who brought the child to Hospital.
[37]
It was fed put to the witness that the reason why they brought the
child to the hospital is that the couple were taking care
of one of
their friends house and that Rahima Moosa Hospital was closer to
where they were residing at the time of which she replied
that she
did not know that. She further confirmed that a femur fracture on a
child of the age between 0 and 3 it automatically
comes to her
attention as a suspicion of abuse.
[38]
She was then asked with regard to the bruises on the rib cage
underneath the eye, and on the nipple, she confirmed that it
is
possible if a person walk on a closed door to receive those injuries.
She further testified that accused number two was ask
if he knows
anything about the injuries on the rib cage and the nipple bruising
he indicated that he does not know anything about
them.
[39]
She further testified that once the child has been admitted at
casualty to be transported to Helen Joseph Hospital and back
is done
by to the hospital and if admitted in a ward of the Hospital it is
the responsibility of the physician or surgeon who takes
over and who
decide to discharge or not to discharge the child from casualty. It
was put to her that there was an investigation
which was conducted by
the social worker, who came to the accused place, and said she is not
taking the matter any further, she
felt that there was no abuse a
proper and reasonable explanation was given to her.
[40]
With regard to those injuries of varying ages, of which she had noted
earlier, she confirmed that they were not of the same
date as that of
the femur fracture. She further testified that it might be possible
that there might not be any associated injuries
if a person falls
from a tree.
[41]
During cross examination by accused number two counsel it was
confirmed that it is accused two who took the child to the Hospital.

She confirmed that it was her first case of dealing with femur
injuries. According to her and her studies any femur fracture is

associated with high index suspicion of non-accidental injury and she
always look for signs of non-accidental injury.
[42]
She went on to testify that regardless of any other associated
injuries as indicated above she would have still escalated the
matter
due to the fact that the behaviour of gentleman who brought the child
to the hospital and how the child behaves with the
fracture it just
made her feel uncomfortable.
[43]
The reason why she said the child was out of character was that
generally when she deals with children who had fractures they
are
more uncomfortable, they scream they cry in this case the child was
very quiet very dorsal he did not complain and this child
was
withdrawn despite being so injured.
[44]
It was put to her that R was a quiet and strong child who will not
always cry over everything and he presented a very quiet
resilient
character
[45]
The next state witness was
Ms Delia Markovich,
she testified
that her rank is that of a captain, stationed at Mondeor Police
station on the 1st July 2014 she was ask to come and
take a statement
from the mother of the child who passed on at Naturena which was in
connection with an inquest docket which has
been opened of the
passing of a child at under case number Mondeor Case 476/7/2016.
[46]
She met accused number 1 who was in the company of her mother and
another lady whom she does not know her. Upon arrival they
wanted to
open a case against accused number two. Accused 1 ask if accused two
can attend the funeral of the child she replied
that there is no way
the police can stop accused 2 from attending the funeral she informed
them that it was only through a a protection
order that they can only
be stopped accused 2 from attending the funeral. However, it can only
be done on Monday the 4th of July
2016. Accused one then received a
phone call of which she answered it, at that stage she was angry and
aggressive she then said
she cannot stop her from opening a case.
[47]
She then replied that she can, assist her, in opening a case, but
that does not mean that it will stop accused 2 from attending
the
funeral. She then agreed to open a case of attempted murder against
accused 2. They then proceeded to another office where
in accused
1proceeded to make a statement. She was making notes while accused 1
was speaking, after that she wrote it neatly. She
then told accused
number one that she can read it or she will read it back to her of
which she did read it back to accused number
1. The case that was
open was Mar 33/7/2016. She was no longer involved with the matte1.
[48]
She was cross examined by accused number 1 thereafter accused number
2 also cross-examined her.
[49]
Accused 2 put it to her that he will come and testify that he was
never charged with attempted murder, he will further inform
the court
that accused number 1 came back to him voluntarily.
The
main State witness was
Dr Candice Geraldine
Hansmeyer (Dr Hansmeyer ):
[50]
Dr Hansmeyer's CV as to her qualifications, experience in autopsies
and medico­ legal experience was placed on record.
She obtained a
Bachelor of Medicine in Surgery in 2005 from the University of the
Witwatersrand also known as WITS. She also obtained
a Masters in
Medicine in 2015 again from Wits, she also obtained a fellowship from
the College of Forensic Pathologists in South
Africa in 2014.
FC4PATHSA, that is her speciality qualification.
[51]
She is currently in the employ of the Department of Health and Social
Services. She was first employed by the Forensic Pathology
Services
in 2011. She has conducted about 2,500 autopsies of which a ball park
fig1.1re would be about 15% have been children estimating
or
approximating about 370 odd children or paediatric autopsies.
[52]
Dr Hansmeyer referred to her chief post mortem report and explained
certain of her observations made therein which was accepted
in court
as EXHIBIT D with two annexes, Annexure A, being a photo album and
Annexure B being a radiology report. In terms of that
report she
conducted a post mortem on the 28
th
of July 2016 in
respect of body number 13812/2016, the body which is not in dispute
being that of R.
[53]
As per standard procedure of the Department, any child case that is
regarded as irregular, two pathologists are then asked
to look over
the case together and in consultation with each other. In this case
Dr Moeng attended the post mortem examination
as a second
pathologist.
[54]
An irregular case may as an example be a case of a child that has
died suddenly and unexpectedly, this is a phenomenon known
as
S.U.D.I. Sudden Unexpected Death in Infancy. Also, in a case where
the history has been given and seems to incongruent with
the post
mortem findings, the post mortem examination.
[55]
When they start with their post mortem examination which includes an
autopsy, they start off the session by receiving a case
docket.
Housed within the case docket is an SAP180 which is the form that the
police fill in at the scene of death, this form will
give you (them)
the demographics of the individual, the place of death.
[56]
The demographics which included the identity of the individual, it
also made provision for mechanism of death for example blunt
force
injury versus sharp force injury or possible natural cause of death,
this includes suicide, homicide or undetermined or accidental
and
lastly it made provision for the personal belongings that are found
on the deceased or in the possession of the deceased.
[57]
The report will then also contain a form that is filled out by the
forensic officers who are then send to pick up the deceased
from the
scene of death. She will peruse the said report prior to the post
mortem examination which includes the external investigation

examination as well as the performance of the autopsy and the
performance of any ancillary tests. Prior to the performance of the

autopsy one is fairly limited by what is written in the forms, for
example before the performance of this autopsy all that she
had was a
very scanty information filled in on both the SAP180 and the, the
form filled in by the forensic pathology, forensic
officer that went
to fetch the deceased.
[58]
Once one had perused the docket, case file, one then will proceed
into the autopsy suite where the body has been laid out and
they can
then start the performance of the post mortem examination, which
includes amongst other things viewing the body, undressing
the body
and doing a physical examination of the external wounds and injuries.
[59]
At the time of the post mortem examination when she viewed the body,
she realized that she was dealing with more than just
burns to the
body.
[60]
At that time she decided or elected to send the deceased for a
skeletal survey. She explained that a skeletal survey is a series
of
X-rays that are taken of the deceased before the start of the autopsy
process.
[61]
The reason they do this is so that they should exclude any
arti-factual wounds or fractures. All their skeletal surveys are

performed by the paediatric radiology department at the Charlotte
Maxeke Academic Hospital.
[62]
She then re-bag the body, body bag and then handed the body over to a
forensic officer to transport to the hospital for a radiological

examination. Therefore, the post mortem examination was then only
concluded the following day.
[63]
It is also their common practise within their department to then call
the investigating officer in whose jurisdiction or whose,
who is
responsible for the case to attend the autopsy and the performance of
the post mortem examination. It was therefore on the
2ih of June that
she telephonically notified the investigating officer of the
possibility of this case being regarded as irregular
and therefore
requested his attendance during the performance of the post mortem
examination.
[64]
What she learned from the skeletal survey that she had not picked up
on examination was the fact that the deceased had a left
mid femoral
fracture. Furthermore, she also learned that he had a left
pneumothorax. She had already seen that there had been some
sort of a
surgical intervention to the elbow which was confirmed by a, the
comment of a left medial distal humeral corner fracture.
[65]
She testified further that she did meet up with the family of the
deceased if she remember that two women were then escorted
to her
office by a security guard. One of the individuals was the mother who
appeared distraught, upset, followed by a second individual
who she
then gathered was the grandmother or a mother, she was not sure
whether it was paternal or maternal. She might have been
the maternal
grandmother because she said she should explain to her daughter what
the cause of death was.
[66]
At that stage she explained that there was no cause of death as the
post mortem had not been done and that if she wanted to
see the
deceased, she was more than welcome to view the deceased. She further
added that if she needed any further information,
she was to contact
the investigating officer.
Dr
Hansmeyer then referred to her chief post mortem report and explained
certain of her observations made therein
[67]
As stated above at the time of performing R's post mortem
examination, as she had conducted approximately 2500 post mortem

examinations, of which, approximately 15% were children or paediatric
autopsies.
[68]
Dr Hansmeyer's described in detailed and explained the said injuries
found and seen on R as per Exhibit "D".
[69]
In respect of the
external appearance
of the body of Sweet R:
PARAGRAPH 4.1 BURNS
70. As per paragraph 4.1
(of Exhibit D) his body was
at least 60%
Partial and/to Full
thickness burns she explained that:
70.1.1
The severity of a burn depends on the degree of temperature of
the offending substance as well as the time exposed thereto.
70.1.2
A superficial burn is to the top layer of the skin; a partial
thickness burn goes beyond the top layer into the lower layers of
skin and a full thickness burn goes through all the layers of skin
and affects underlying tissues.
70.1.3
20% burn wounds of a child is associated with a high level of
death.
70.1.4
In addition to the burn wounds, R also had "splash marks"
over his lips, nose, chin and forehead as well as "tidal
marks"
on the lateral and dorsal aspects of his feet.
70.1.5
The wounds were not dressed or bandaged.
70.1.6
A burn wound amounting to a 60% coverage of a body would
result in an almost immediate seepage of fluid.
70.1.7
R had not sustained any superficial burn wounds
70.1.8
The burn wounds were consistent with having been caused by hot
water or a hot fluid.
70.1.9
Certain parts of R's body, based on the severity of the
wounds, were exposed to the hot water or fluid for a longer period of
time
than others.
70.1.10
The entirety of the burn wounds was inflicted whilst R was
alive.
70.1.11
Although unable to specify the temperature, the water/fluid
that inflicted the wounds must have been "scolding hot".
70.1.12
Having sustained burn wounds to more than 20% of the surface
area, a body will undergo three processes simultaneously; namely:
A.
Firstly,
there would be a breach of the epithelium
resulting in leakage of fluid, which is referred to as plasma
capillary leak. A 60% surface
area burn would result in significant
loss of fluids.
B.
Secondly,
internally,
the body undertakes various compensatory mechanisms which affects the
adrenal glands, the vessels, the heart, lungs
and other internal
parts of the body. Fluid shifts between cells as they try to maintain
equilibrium.
C.
Thirdly,
the surge
response, which is an inflammatory response, is a process of the body
trying to save itself and working harder to do so,
which can
ultimately lead to the heart failing.
70.1.13 The three-process happening
together is referred to as "burn shock".
70.1.14 The timeframe from sustaining
the injuries until the time of death could be as little as
12
hours.
70.1.15 The pain experienced in
sustaining such wounds would be catastrophic.
70.1.16 Timely medical intervention,
after sustaining such wounds, could have a significant effect on the
chances of death.
70.1.17 R was naked at the time the
burn wounds were inflicted.
70.1.18 Dressing R would have been
significantly painful.
PARAGRAPH 4.2 Abrasion
on the Right Tempora
l
70.2 An imprint abrasion over the
right temporal region (as per Paragraph 4.2). Dr Hansmeyer explained:
70.2.1 The wound is depicted in the
photo on Page 14 of Exhibit "D"
70.2.2 This imprint abrasion is a
blunt force injury consistent with an impact of a hard object with a
rough surface.
70.2.3 This was an acute wound, which
was likely
24 to 48
hours old
PARAGRAPH 4.3
Asemi-circular C-shaped bruise
70.3 A semi-circular C-shaped bruise
over the left forehead (as per Paragraph 4.3). Dr Hansmeyer added:
70.3.1 The wound is depicted in the
top photograph on Page 15 of Exhibit "D".
70.3.2 This injury was consistent with
a blunt force injury.
70.3.3 The bruise was
only a few
hours
old.
PARAGRAPH 4.4
Irregular Faint Bruise Left Forearm
70.4 An irregular faint bruise over
the posterior aspect of the left forearm (as per Paragraph 4.4). Dr
Hansmeyer specified:
70.4.1
This injury is consistent with a blunt force injury.
70.4.2
This injury was
two to three days
old.
PARAGRAPH 4.5 Another
Irregular Faint Bruise
70.5 An irregular faint bruise over
the posterior aspect of the left forearm (as per Paragraph 4.5). Dr
Hansmeyer stated: This wound
was
two to three days
old.
PARAGRAPHS 4.6 and 4.7
A Discoid Bruise on Left and Right Arms Arm
70.6 A discoid bruise over the lateral
aspect of the left upper arm (as per Paragraph 4.6).
70.7 A discoid bruise over the
anterior aspect of the right upper arm. (as per Paragraph 4.7). Dr
Hansmeyer stated, in respect of
wounds 4.6 and 4.7:
70.7.1 These wounds were blunt force
injuries consistent with having been grabbed by somebody on the arm.
70.7.2 The wounds
were fresh
wounds.
PARAGRAPH 4.8 Focal
Bruise the right buttock
70.8 A focal bruise below the right
buttock (as per Paragraph 4.8). Dr Hansmeyer stated:
70.8.1 The focal bruise is consistent
with a blunt force injury.
70.8.2 It was difficult to estimate a
timeframe for this injury, which is depicted in the bottom photo on
page 16 of Exhibit "D".
PARAGRAPH 4.9 Six
Contusions over right upper back
70.9 Six focal contusions over the
right upper back, mid back and left flank (as per Paragraph 4.9). Dr
Hansmeyer explained:
70.9.1 The wounds are consistent with
a blunt force injury.
70.9.2 Due to involvement of the
burns, it is difficult to determine the ages thereof.
70.9.3 These wounds, as well as the
wounds in paragraph 4.8, were inflicted whilst R was alive.
70.9.4 The wounds are consistent with
six separate applications of blunt force.
PARAGRAPH 4.10. Bruise
over right cheek
70.10 A focal bruise over the right
cheek. (as per Paragraph 4.10) Dr Hansmeyer specified:
70.10.1 This bruise is consistent with
a blunt force injury.
70.10.2 This injury is depicted in the
bottom photo on page 17 of Exhibit "D".
70.10.3 The
burn wounds
complicate
any possible
age determination.
PARAGRAPH 10.11 A
Linear scar over Left elbow
70.11 A linear scar over the left
elbow (as per Paragraph 4.11). Dr Hansmeyer stated:
70.11.1 Previous surgical intervention
had taken place.
70.11.2 The eyes are sunken
bilaterally (as per Paragraph 4.13). Dr Hansmeyer, in respect of this
wound, stated:
70.11.3 This indicates that R was
dehydrated.
70.11.4 The dehydration is directly
attributable to the burn wounds.
[71]
The description and discussion of injuries to the
"Skull
and Scalp"
included:
71.1 There is 30 x 50 mm of a focal
haemorrhage over the right occipital region; a focal haemorrhage over
the left forehead; a focal
haemorrhage over the right temporal region
and; a focal haemorrhage over the left parietal region (as per
paragraph 5 of Exhibit
"D").
71.2 The 40 x 43 mm focal haemorrhage
over the left forehead corresponds to the semi-circular C shaped
bruise over the left forehead
(as per paragraph 4.3 of Exhibit "D").
71.3 The 40 x 40 mm focal haemorrhage
over the right temporal region corresponds to the imprint abrasion
over the right temporal
region (as per paragraph 4.2).
71.4 The remaining two focal
haemorrhages were not "picked up on external examination".
71.5 All of the focal haemorrhages are
consistent with blunt force injuries.
[72]
Under the heading
"lntracranial contents"
the
following descriptions and details were provided:
72.1 25ml of clotted blood forming a
subdural haemorrhage situated over the parasagittal region of the
parietal lobes bilaterally;
as well as global swelling of the brain
(as per paragraph 6 of Exhibit "D"). In this regard, Dr
Hansmeyer stated:
72.1.1
A subdural haematoma is a collection of blood below the dura covering
the brain.
72.1.2
An epidural haematoma is a bleed above the dura.
72.1.3
In order to suffer an epidural haemorrhage, a hard-direct force Is
required.
72.1.4
A fall from height comes into this category of a hard-direct force. A
fall from height would however have to be from
at least
3
meters.
[73]
A subdural haemorrhage is caused by a deceleration
acceleration and/or rotational force. Epidural and subdural
haemorrhages can
be caused by blunt force injuries.
The
various degrees of force are:
73.1
Firstly,
a mild amount of
force: is comparable to a simple fall, possibly causing a bruise or
scalp laceration.
73.2
Secondly, a
moderate
amount of force: is comparable to tripping down the stairs and
bumping of the head against a table, which may or may not
cause a
laceration or bruise and is unlikely to cause intracerebral or
cerebral haemorrhages.
73.3
Thirdly,
a severe or large
amount of force: is comparable to a fall from height or a car
accident, which will not necessarily cause a skull
fracture but will
likely cause an intracerebral haemorrhage.
[74]
A child's skull can withstand an enormous amount of force
before it fractures. A
large amount of force
is required to
cause a cerebral haemorrhage. The subdural haemorrhage was inflicted
a
minimum of 24 hours
prior to R's death. All cerebral
haemorrhages require medical intervention.
[75]
Under the heading of
"Chest and diaphragm"
paragraph 10 of Exhibit D states as follows:
75.1 There is a linear fracture of the
lateral aspect of
the eighth rib
of the left chest cavity.
There is evidence of associated haemorrhage of the fracture site and
of the intercostal muscles. There
is no collection of blood-stained
fluid in the chest cavity.
75.2 These injuries were inflicted
whilst R was alive.
75.3 A rib fracture in a child can be
caused by a direct force
or a compression force. Which meant a
lot of force was required to fracture a child's rib. In addition to
the rib fracture and lung
contusions, there was a pneumothorax
present.
75.4 A pneumothorax is a collection of
air in the chest cavity. A pneumothorax, which is regarded as a
surgical emergency, always
requires medical intervention. The
pneumothorax was an acute injury.
[76]
Dr Hansmeyer further testified, in general, that all three of
the individual mechanisms of injury, namely:
76.1 the blunt force head injuries;
76.2 the blunt force chest injury; and
76.3 the burn wounds, could have
individually caused the death of R.
[77]
According to Dr Hansmeyer, R suffered at least 15 separate
applications of force.
[78]
In respect of R's previous elbow injury, Dr Hansmeyer stated:
78.1 The fracture could have been
caused by a blunt force injury, the grabbing or twisting of R arm;
78.2 A moderate amount of force is
required to inflict such a fracture.
[79]
Dr Hansmeyer further testified, in respect of the previous
femur fracture, as follows:
79.1 The femur is commonly known as
the thigh bone.
79.2 A large amount of force is
required to fracture a femur of a child.
[80]
Dr Hansmeyer concluded her evidence-in-chief by stating:
"Again,
looking at the multiplicity of wounds. Different regions, different
wounds,different ages these wounds are consistent
with none
accidental injury syndrome..."
[81]
During cross examination of Dr Hansmeyer by accused 1 counsel,
she was confronted with the following version on behalf of accused
1:
81.1 In respect of the
elbow
injury:
81.1.1 On a Sunday afternoon during
February 2016, whilst she was inside the house caring for their
infant (L), R was outside the
house in the company of Accused 2. She
was informed by Accused 2 that R fell from his bicycle and complained
of pain. She gave
him some medication
81.1.2 Accused 1 took R to the South
Rand Hospital on the Monday morning. Wherein X-rays where taken of
R's elbow and she was informed
that it was a torn ligament. However,
on Thursday R was still in pain, then on Friday she took him to Chris
Hani Baragwanath Hospital,
wherein another X-rays where taken and she
was then informed that R had suffered a fractured elbow and required
a surgery.
81.2 In respect of the
femur
fracture:
On the 31
st
of March 2016,
accused 1 was inside the house caring for the baby (L). Accused 2
came into the house stating R had fallen from
a tree. R was
hospitalised, treated and released.
81.3
Pertaining to R's death and
the discovery thereof:
81.3.1 Accused 1 returned home from
work on the Friday evening at approximately 19:00 when Accused 1 and
Accused 2 had an argument
which almost got physical. During the
argument, accused 2 informed Accused 1 that he "I fucked him up
for good". She
then went to check on R, wherein she saw a
reddish mark on his check, and he look dizzy, disorientated, accused
2 then said the
reddish mark was from the pillow and the reason he
looked disoriented was because he just woken up from sleep. She then
ask R if
he is okay, of which he replied that he is ok.
81.3.2 Again during the night while
accused 2 was sleeping, at around 23:00 on the Friday evening,
accused 1 then went to R and
asked him if he was okay. R replied by
saying "I am fine mummy" (he confirmed that he was okay).
That is when she went
to sleep.
81.3.3 During the night, at an unknown
time, R said he wanted to go to the bathroom. Accused 1 ask his
brother, J, to open up for
him so that he could go outside and relief
himself on the garden, the bathroom was at the main house. They were
sleeping at the
back room. R opened the door and went out of the
room. Accused 1 then fell asleep she does not know what happened to R
up until
the following morning.
81.3.4 Accused 1 was woken up by
Accused 2 at approximately 07:30 on the Saturday morning, when
accused 2 was calling the name of
R. She then rushed to where R was,
at that time R was still on top of the bed she noticed that R was not
breathing properly.
81.3.5 Accused 1 saw a red mark on the
left of R's face. She further noticed that R clothes were damp.
81.3.6 Accused 1 picked R up, put him
on the floor and attempted CPR. Accused 2, and a neighbour,
thereafter also attempted to perform
CPR on R.
81.3.7 It was further put to Dr
Hansmeyer that R did not have any burn wounds at the time Accused 1
spoke to him at 23:00
81.3.8 Accused 1 did not undress R at
23:00 at the time she was checking upon him.
81.3.9 According to Dr Nel's testimony
during the accused formal bail application she had indicated that R
could have been burned
within six hours.
[82.]
Accused 2's version was put to Dr Hansmeyer as follows:
82.1 Accused 2 heard R screaming, as
well as noises that sounded like R was hitting a wall or something.
Accused 2 then rushed into
the bath room wherein he found R in the
hot bath water. After Accused had 2 removed R from the bath. Accused
2 first dried R, with
a towel, thereafter he applied a white ointment
from a tube all over his body.
82.2 When Accused 2 removed R from the
bath, the burn wounds did not appear as red as they do in the photos.
82.3 The bruises and imprint abrasion
might have been suffered by R at the time he was hitting his head on
the tap while falling
into the bath.
82.4 Accused 2 would explain that the
rib fracture might have happened during resuscitation, performing of
CPR on R.
82.5 The wounds described in Exhibit
"D" at paragraph 4.6 and 4.7 could be consistent with the
picking up of R, out of
hot bath water, in a state of panic.
82.6 It was put to Dr Hansmeyer that
she not an expert in reconstructing an accident and in light of the
fact that she was not present,
she cannot exclude the possibility of
an accident. Had Accused 2 inflicted the burn wounds intentionally he
would also have suffered
burn wounds.
[83]
Dr Hansmeyer replied in short to the versions of accused
83.1 That she was adamant that the R's
injuries on his elbow and femur where intentionally caused, since his
bones where flexible
it required a strong force to break them.
83.2 Regarding the bruises on his body
some of them were caused earlier than the time he was burned. Also,
that a bath tap will
cause more of a laceration than a blunt force,
also a bath could cause such blunt forces. Some blunt forces where to
severe to
have been caused by a falling into a bath, they fall under
severe or large force which must have been applied on his head to
cause
such injuries.
83.3 Regarding the burns on his body
he must have been held inside the body, that is why his back was the
most burnt, and one can
see from the photos that he had lifted his
feet up and that is why the area around his pelvic, private part was
not much burned.
Due to the severity of the burns this should have
resulted in the immediate leakage of fluid from R's body and after a
short while,
while the body is trying to balance its self would have
resulted in R's being disoriented and going into a state of "burn
shock".
83.4 She further testified that due to
the total injuries that R had suffered to she differs with Dr Nel's
opinion that R could
have died within 6 hours as alleged but he
should has died within 12 hours.
There
after state closed its case.
DEFENCE WITNESSES:
ACCUSED 1’S CASE
[84]
Accused 1 gave evidence to the following effect:
84.1 She is R's biological mother and,
at all times relevant to the charges, she has other three other
children, R E is the biological
falj1er of J and R. J was born on the
9th of March 2010 and R was born on the 1st of October 2012. Accused
2 is the biological
father of both of the other two remaining
children a girl and a boy.
84.2 R was in and out of hospital from
the age of 2 months until he was 1 year old. She and R E ended their
relationship in 2014,
leaving her, accused 1, looking after both
boys, J and R.
84.3 She moved in with Accused 2, in
Johannesburg, during February/March 2015. They stayed at Accused 2's
mother's residential place,
at Naturena.
84.4 Accused 2 was affectionate
towards J and R and he took them as his biological children, he
looked after them very well th re
was no point wherein, she could
suspect that accused 2 might be abusing them. She was comfortable
leaving her children with Accused
2.
84.5 L was born on the 1]1h of
December 2015, in South Rand hospital. After the birth of L, she
moved into a bedroom in the main
house. The two boys shared the room
with her and L. And later, accused 1 and L went to reside with
accused 2 at the back room,
of which that room was left to the two
boys.
[85]
In respect of
R elbow injury,
accused 1 testified that:
85.1 On a Sunday afternoon in February
2016, R was riding his bicycle in the yard with his brother J, in the
presence of Accused
2. (Accused 1 in cross­ examination, having
looked at an old cellular telephone, realised that R actually
sustained the elbow
injury during January 2016.). She was in the main
house caring after their little daughter L. She heard R crying and
went outside
to investigate.
85.2 She found R crying with Accused 2
comforting him. They then told her that R fell off from his bicycle.
She noticed that R's
elbow was hurt and the skin was scratched, she
give him Stopain, at around 16:00/17:00. R however continued playing
for a while
after the incident.
85.3 The next morning, she became
worried about the swelling to the elbow, she then took R to South
Rand Hospital at approximately
08:00. After X­ rays were taken, a
Doctor informed her that R had torn a ligament. R was not admitted in
Hospital. She noticed,
on the following Thursday, that the elbow
started swelling again.
85.4 She made the necessary
arrangements, to take R to Chris Hani Baragwanath Hospital on Friday.
X rays where taken and a Doctor
eventually informed them that R had a
broken his elbow and required surgery.
85.5 R was admitted in hospital and
eventually underwent the operation 2 days later. R spent 4 days in
hospital. Although R did
not have a complete cast, he had to rest for
6 weeks.
[86]
In respect of the
fractured femur,
accused 1 testified that:
86.1 On the 31st of March 2016,
accused 1, R, J, L and Accused 2 temporarily stayed at Accused 2's
cousin's house, the location
thereof was unknown to her.
86.2 She and L were asleep in the
bedroom. Accused 2 woke her up, at approximately 14:00, and stated
that R fell from a tree. R
was laying on the bed crying and confirmed
that he fell from the tree.
86.3 Accused 2 contacted his cousin
who transported them, Accused 2 and R to hospital. R was admitted in
hospital and Accused 2
returned to the house at approximately 22:00.
Accused 1 visited R at least 2 or 3 times a week at hospita
[87]
In respect of the other bruises, as testified to by Dr Yachad, she
stated:
87.1 She noticed the bruises under R's
eyes and put an ice pack on it. Accused 2, and R, explained that the
bruises were sustained
when R ran into a sliding door. The bruises
under the eyes were seen by her the day prior to R falling out of the
tree.
87.2 She noticed the injury near the
right nipple and left ribcage on the day R fell out of the tree.
[88]
She testified that a social worker was appointed to investigate
possible abuse of R. The Social Worker informed her that she
could
not find anything untoward.
[89]
Approximately a week after R was discharged from hospital another two
persons attended the house making further enquiries about
potential
abuse. The two persons informed her that they considered the matter
closed as they could see the boys were happy.
[90]
Accused 1 testified about the events of the
23rd of June 2016
by
stating:
90.1 when she was at her place of
employment and R was home ill accused 2 was taking care of him. Upon
her arrival at home, she
found aunty Marleen, in the presence of R
and J, who informed her, accused 1, that the boys had already eaten.
90.2 Like she does every evening she
then supervised the bathing of R and J, and bathed L.
90.3 The boys slept in the middle
bedroom in the main hou.:;e where she put them to bed at 20:00.
90.4 They, herself and accused 2 slept
outside at the backroom together with L she did not have any
suspicion of poor treatment
of R, by Accused 2.
90.5 She had an argument/ disagreement
with Accused 2 however she could not recall what was the disagreement
all about, but it never
became physical. This led to Accused 2
leaving the room and going outside to work on his bakkie. He only
returned back into the
room after she had fallen asleep.
90.6 The following morning she did not
wake up the boys as J was on school holidays and R was off sick due
to flu. She requested
Accused 2 that he should assess if R was well
enough to attend school (creche). She proceeded to her place of
employment.
[91]
Accused 1 described the events of the
24th and 25th of June 2016
as follows:
91.1 She arrived back home around 7:00
pm, J opened the garage door for her. Who, J, went and sat on the
couch next to R, who was
sleeping. She was not concerned about R
being asleep since she was aware that R was sick and had taken
medication.
91.2 She went to hang up her handbag
when Accused 2 approached her from behind and handed L to her.
Accused 2 was immediately aggressive
and pushed her into the corner.
91.3 Accused 2 pushed his fists into
her neck/chin he and informed her that he would show her what it is
to be bitter
91.4 She was too scared to call for
help and merely did Vvh1t Accused 2 told her to do. Accused 2 was
extremely upset and using
profound language. Accused 2, later,
pressed her onto the bed and pushed his finger into her face.
91.5 Once L was asleep, she asked
Accused 2 if she could go and smoke. Accused 2 agreed. At this point
she was outside the room
standing by the door, R and J were on the
couch sleeping, L was also sleeping and Accused 2 was sitting on the
bed.
91.6 Accused 2, whilst looking at R,
then said "/
fucked him up for good this time".
She
immediately went to R, woke him up and asked if he was okay. R
confirmed that he was. At that point, she noticed a red mark
on the
left side of R face. The said mark was near the middle of his temple
toward his ear.
91.7 She was under the impression that
the red mark was as a result of R sleeping on his left side. She
confronted Accused 2, who
merely stated that R was sleeping.
91.8 At that time R was fully dressed
she only saw his face. She was satisfied that R was okay, and she
proceeded to set on the
bed.
91.9 Accused 2 was continuously
aggressive towards her and repeated his threats about showing her
what it was to be bitter. Accused
2 did not allow her to freely move
around the room. Accused 2 later turned off the television and stated
that he is going to sleep
she was also allowed to go to sleep
91.10 She then waited until accused 2
was sleeping and it is only then that she went to check the "boy"
R again who once
again confirmed that he was okay. She then went to
sleep. Later during the night, the exact time is unknown to her, she
heard R
calling J, she enquired from R what was wrong. R said he
wanted to go to the toilet. She told him he could go.
91.11 She saw R standing up and
opening the door but was not sure where he went. Since they were all
sleeping at the back room,
in the past whenever R wanted to pass
water, he would go in the garden to do that. She then went back to
sleep,
91.12 The following morning on the
25
June 2016
at around
7:30
she was woken up by the anxious
voice of accused 2 calling saying "R! R!". She jumped out
of bed and went to the sleeper
couch. R face looked completely
different to the night before. There was a mark on his right cheek
that was not there the night
before.
91.13 She picked up R and ran outside,
screaming for help. As R was wearing long sleeved t-shirt and long
pants, she did not see
the injuries on R's body. It was at this stage
that she noticed the feet of R as he was no longer wearing any socks
on his feet.
She did not pay attention to R hands at that stage.
91.14 The injuries that she saw on R
were not present when she had seen him at 23:00 the previous night.
She was not aware if R
was already dead in the morning but his lips
were blue and he was not breathing.
91.15 She took R back into the room,
placed him on the floor and attempted to perform CPR. She asked
Accused 2 to call someone or
to do something. She went outside
leaving Accused 2 and R in the outside room, going to the main house
to seek help from aunty
Marleen.
91.16 Aunty Marleen and Blake, accused
2's brother, woke up. Blake said he would call a paramedic. She and
aunty Marleen went to
the outside room and found Accused 2 performing
CPR on R. Whilst Accused 2 was busy with the CPR, she noticed some
air that came
out of R nose.
91.17 A neighbour arrived and also
performed CPR on R. She then asked Accused 2 what happened to which
Accused 2, angrily responded
by asking "what do you mean what
did I do?" R was moved into Blake's room.
91.18 The paramedics arrived and after
being busy with R for approximately 15 minutes they said that R had
died. While the paramedic
was still present, the police arrived.
91.19 Accused 2 took the police into
the house and showed them where R was (laying). Accused 2 took the
police into the bathroom
and explained that R fell into the bath and
burnt himself. This was the first time Accused 1 heard this
explanation.
91.20 One of the police officers who
attended the residential premises said to Accused 2 that he was
negligent, causing Accused
2 to become angry. She did not get
involved with the police, due to the confrontation. R body was
collected and removed.
[92]
Accused 1 testified about the events that transpired after R death:
92.1 R biological father was informed
of his death and visited the residential premises on the same day of
the passing of R. Mr
RE and Accused 2 had confrontations with each
other and they had to be separated from one another as they wanted to
fight each
other.
92.2 It was decided that J should
leave with his biological father Mr R E. A lady who identified
herself as Ms Michelle Pelser from
Community Policing Forum arrived
at the house saying he had come to remove L from them.
92.3 She, in the company of her
mother, went to the Johannesburg mortuary where Dr Hansmeyer said she
could not tell her anything
and denied her the opportunity to see R
body.
92.4 She met with her family,
including her father, at Irene Mall. She told them that she did not
know what happened to R but explained
the events of the 24th of June
2016 to them. She further explained to then how Accused 2 had treated
her during the week of passing
of R.
92.5 Accused 1 explained that she
enquired from Accused 2 why he said those words and did the things he
did. She specifically related
to her family how she asked Accused 2
about his statement "I fucked him up for good this time".
92.6 Accused 2 initially informed her
that he was merely trying to scare her but then later denied making
such a statement. As she
was relating the whole event to her family
she then, realised something didn't make sense.
92.7 She contacted Michelle Pelser who
made arrangements for Accused 1 to attend Mondeor S.A.P.S. Accused 1,
her mother and fa1ther
as well as her father's wife, met Captain
Markovich at Mondeor S.A.P.S.
92.8 Captain Markovich was under the
wrong impression that Accused 1 intended to confess her involvement
in R death. She informed
Captain Markovich that she was there to open
a case against Accused 2.
92.9 She contacted her sister who
informed her that the police cannot refuse her to open a case against
accused 2. She returned
to Captain Markovich and they eventually went
into another office where she made her statement.
92.10 Captain Markovich initially took
notes and then wrote the affidavit
(Exhibit "F").
After
completing writing, it, she offered her if she wants to read it or
she can read it for her, of which she read it back to her
[93]
She took exception to paragraph 2 of Exhibit "F" as it did
not reflect what she told Captain Markovich. She expressly
stated
that she agreed with the content of paragraph 6 of Exhibit "F".
[94]
She confirmed the content of the affidavit she presented during her
bail application.
(Exhibit "J")
she further
submitted a copy of the record of the bail proceedings as
Exhibit
"K".
She later, produced a document of a "Whatsapp"
conversation between herself and Accused 2. (Exhibit "L")
There
after accused 1 closed her case without calling any further witnesses
ACCUSED 2'S CASE
[95]
He agreed with Accused 1's description of how their relationship
started and progressed. Rand J referred to him as "daddy".

Though it took J slightly longer to do so. But with regard to R it
was spontaneous, he never ask them to call him daddy, they did
that
on their own.
[96]
Him and accused 1 would argue with one another, on numerous
occasions, about Accused 2's ex-girlfriend. He described Accused
1 as
being paranoid in that regard. He felt like he could no longer take
the strain of the continuous arguments. The trust relationship

between them was severely affected.
[97]
Regarding the previous elbow injury Accused 2 stated:
97.1 He was working underneath the car
while R and J were playing on a bicycle. Accused 1 was inside the
house. He heard the bicycle
fell and R "coming down". He 2
picked R up, consoled him and took him inside to Accused 1. He
returned outside and was
unsure what Accused 1 did further to R.
97.2 He could not recall the details
of how, when and where R was taken to hospital. He denied having
inflicted the elbow injury.
[98]
In respect of the fractured femur:
98.1 Both Accused, with the 3
children, were house sitting. He was outside cleaning a motorbike and
R was also playing outside.
J was watching television inside while
Accused 1 and L were sleeping.
98.2 Accused 2 heard a bang and
immediately ran to R, he was crying, but not as much as when he fell
in the bath. He could feel
that R leg was swaying different. As he
only had the motorbike, he called a friend to transport R and himself
to hospital.
98.3 The staff at the hospital, having
seen his driver's licence, noted R surname as Pillay. The bruises to
R eyes were inflicted
when R ran into a glass door while chasing
kittens out of the house. He was unaware of the other injuries on R
body. He denied
having inflicted the femur fracture.
[99]
Accused 2's version of events relating to R death can be summarised
as:
99.1 He had an argument with accused
1, about his ex-girlfriend, on the Thursday evening, which was left
unresolved.
99.2 R and J both stayed home from
school, on the Friday, as they were sick, while Accused 1 went to
work. They had breakfast and
then the boys watched a movie. He was
working on the car and at one stage R come and enquired what he was
doing.
99.3 In the afternoon he decided to
bath the boys before Accused 1 got home. Having instructed J to get
their pyjamas ready, he
and R went into the main house he opened the
hot water tap but only opened the cold-water tapa a little bit.
99.4 He instructed R to get undressed
while he went to fetch J. As he was walking down the passage, he
heard a banging noise and
the sound of something falling into water.
He immediately turned back to the bathroom. The banging continued.
99.5 He found R standing in the bath
with his arms reaching up. He grabbed R out of the bath and realised
that the water was very
hot. He noticed that the cold-water tap was
closed.
99.6 He took R to the outside room,
dried him with a towel and applied an ointment for burns all over his
body. He then asked R
what was he doing to make him fell into the
water, he said he wanted to reach the stone on the side of the bath.
99.7 Bath time was cancelled and R
dressed himself in underpants. Bun, having arrived with L, told R and
J that they must get dressed
as it was cold. Once R and J had worn
their pyjamas, they, along with Accused 2 who was holding L, watched
a movie.Rand J were
on the couch, while he sat on the bed with L.
99.8 Later J opened the door for
Accused 1 on her return from work. R was already dozing off at that
point.
99.9 The previous day's argument
between him and accused 1 continued. He put one of his fists on
Accused 1's cheek, to show that
he could also use his power over her.
99.10 Accused 1 asked, in a sarcastic
manner, whether she may go and smoke. As Accused 1 was standing
outside smoking, he was seated
on the bed with L lying behind him, he
then said that "our relationship is fucked for good this time."
99.11 After this exchange, he then
informed Accused 1 that R had fallen in the bath and she must check
on him, which she did. Accused
1 enquired from him what was wrong
with R. Accused 2 responded by saying that R was sleeping and had
just woken up. They kept out
of each other's way. He was in and out
of the room until he went to sleep at about 21:30.
99.12 He, at an unknown time, heard
Accused 1 telling R that he could go to the toilet. He woke up, on
the 25th of June 2016, and
noticed R was lying off the couch. He then
called Rand he did not respond, rushed to him, picked him up, placed
him on the floor
and attempted CPR.
99.13 Accused 1 was hysterical. He
noticed some air coming out of R. He stopped doing CPR and Accused 1
shouted at him to do something.
Accused 1 picked up R and ran outside
to his mother at the main house.
99.14 He went across the road to look
for a paramedic and he went to his neighbour's house. The neighbour
was not home, but his
uncle telephonically contacted the paramedics.
He went back to the uncle to make sure that the paramedics were on
their way.
99.15 He returned to find his mother
removing R socks. Accused 2, having looked at photos of R burn
wounds, said the burns were
not initially as bad as they appeared in
the photos.
99.16 In denying having caused R blunt
force injuries, he explained that R would often bump himself and not
complain. R would only
inform them of his injuries if he was
bleeding. He checked on R after he fell in the bath, he did not
complain about any pain at
that stage.
[100]
In respect of the events that unfolded after R death, Accused 2
stated:
100.1 Accused 1 stayed with her family
for a few days. Accused 1 changed the venue of R funeral without
informing him.
100.2 Accused 1 wanted to return home
but her family would not allow it. They continued having contact with
each other. Accused
1 starting asking legal/formal questions
regarding R injuries.
100.3 He was unable to can fetch
Accused 1, as her family would not accept him due to his race.
Accused 1 later returned home unannounced.
100.4 He confirmed the Whatsapp
messages as per Exhibit "L", but unable to recall content,
believed Accused 1 had deleted
certain messages. Although Accused 2
used the words "I killed R" he maintained, contextually, it
was not a confession.
100.5 Accused 2, in spite of his
allegations in Exhibit "L" held the view that Accused 1 was
a good mother that did not
abuse alcohol.
100.6 As a parent yes at one stage he
did previously discipline R, by striking him on his buttocks. After
R's death, on an unknown
date, he once hit Accused 1 as she was
disrespecting him and "making herself cheap" while
intoxicated.
There
after accused 2 closed his case without calling any further
witnesses.
ARGUMENT BY BOTH THE
STATE AND DEFENCE
[101]
Counsel for the State and the Counsel for Accused 2 filed their
written heads of argument sometimes back, however accused
1 attorney
only filed his head on the day of address on conviction. The court
appreciate the written heads of arguments. Counsel
for the state
succinctly summarised the evidence and the court is highly
appreciative of that. The State and the defence addressed
the court
on conviction and they each summarised their arguments on record, the
court will not repeat every submission made on
their written
arguments and or during their summations in court save to state that
the court where necessary will refer to some
of the points raised on
their arguments.
ISSUES IN DISPUTE
[102]
he sole issue for determination by this court is did the accused
jointly or individually unlawfully and intentionally directly
cause
the death of R or through their negligence caused the death of the
deceased (R). There is no direct evidence that any or
both of the
accused caused the death of the deceased (R), the court has to draw
inference (s) from the evidence(facts) that both
or anyone of the
accused deliberately caused the death of R. That is, State relies on
circumstantial evidence in proving the guilt
of both the accused.
[103]
The Court take cognisance of the warning that has been echoed in
several decided cases that a distinction must be drawn between
the
drawing of inferences and in making assumptions when dealing with
circumstantial evidence. Like what was stated in
S v
Cooper
1976 (2) SA C75
(7)
in which it was stated that:
"When triers of
fact come to deal with circumstantial evidence and inferences to be
drawn there from, they must be careful
to distinguish between
inference and conjecture or speculation. There can be no inference
unless there are objective facts from
which to infer the other facts
which are sought to establish. 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 reasonable probability. But if there are no
positive
facts from which the inference can be made, the method of inference
fails and what is left is mere speculation or conjecture.
"
EVALUATIONS
AND FINDING
[104]
It is the duty of the State to prove the case against the accused
beyond a reasonable doubt, a conspectus of all the evidence
is
required. Evidence that is reliable should be weighed alongside such
evidence as may be found to be false. Independently verifiable

evidence, if any, should be weighed to see if it supports any of the
evidence tendered. In considering whether evidence is reliable,
the
quality of that evidence must of necessity be evaluated, as must
corroborative evidence, if any. Evidence, of course, must
be
evaluated against the onus on any particular issue or in respect of
the case in its entirety.
S v Trainor
2003 (1) SACR 35
(SCA) para
[9].
APPLICABLE
LEGAL PRINCIPLES:
[105]
The concept "circumstantial evidence" has become virtually
synonymous with the landmark decision of the case of
S
v
Blom
1939 AD 188.
This decision has been quoted in several
cases and it had stated clearly that certain rules of logic have to
be complied with once
inferences are called for. At page 202 it is
stated that:
"In reasoning by
inference there are two cardinal rules of logic which cannot be
ignored: (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 the inference sought to be drawn
is correct.
"
EXPERT EVIDENCE:
[106]
As the court had indicated above that the main witness for the State
was Dr Hansmeyer, who performed an autopsy of R's body
and she was
testifying in her capacity as an expert, the State has also made a
submission that also Dr Yachad's evidence be accepted
as that of an
expert. Our law has through various decided cases developed
principles applicable to the admissibility of expert
opinion
evidence.
Holtzhauzen v Roodt
1997 (4) SA 766
(WLD) at 771H- 773C.
See also
Twine v Naidoo
2017 JDR 1732 (GJ)
at
para 18. The list is not exhaustive.
[107]
The court must be of the opinion that the person is an expert and
competent to testify as an expert. The expert testimony
must comply
with three basic requirements:
(a) The basis for the expertise: the
expert's qualifications, experience, expertise and knowledge must be
put before the court.
(b) The basis for the opinion and
reasons for the opinion must be put before court, which must be based
on the facts in the case.
(c) The opinion of the expert must not
displace that of the court - the prime function of an expert is to
guide the court to a correct
decision on questions falling within the
expert's specialised field
(S
v Gouws
1967
(4) SA 527
(EC) on 528D)
See also:
R v Vi/bro
1957
(3) SA 223
(A)
and
S
v Haasbroek
1969 (2)
SA624 (A).
[108]
The qualifications of both Doctors, Hansmeyer and Yachad have already
been stated above, same will not be repeated here, safe
in stating
that it was for the first time that Dr Yachad testified before court,
she had shown that she does understand what she
was testifying about.
She mostly testified about what she observed during the time she was
examining R at Rahima Moosa Hospital
when asked for her opinion she
was able to can refer to her studies and what she had read regarding
that fact of which she was
ask to give an opinion on.
[109]
The opinions of both Doctors were based on the facts of case, they
were not one sided because they were called to testify
on behalf of
the State. They were not biased. In the matter of
Stock v Stock
1981 (3) SA 1280
(A),
the Appellate Division at 1296F
held that:
"An expert
...
must be made to understand that he is there to
assist the Court. If he is to be helpful, he must be neutral. The
evidence of such
a
witness
is of little value where he, or she, is partisan and consistently
asserts the cause of the party who calls him."
[110]
These facts are either within the personal knowledge of the expert or
on the basis of facts proved by others. The expert must
properly
identify his or her sources of information and set out a factual
basis upon which the opinion is based.
[111]
Dr Hansmeyer was called to give evidence on her specialization skill
or/and knowledge as a pathologist.
[112]
The court is of the view that both doctors have satisfied the above
guidelines as being expert and as a result the court regard
them as
expert, and their evidence is accepted by the court as that of
experts.
Points not in dispute
[113]
As the whole post-mortem report Exhibit "D" of Dr Hansmeyer
is not in dispute, the court will not over burden the
record with
repeating her evidence safe to summarise those points in which the
Defence did not agree with her findings. However,
the court will
emphasise that her whole evidence is very important to the court. It
is the cracks of the State evidence in respect
of the charge that
they have preferred against the accused.
[114]
It is not in dispute that R suffered the following injuries:
a) He had an elbow injury
b) He had a fracture of the Femur
c) He had a bilateral infraorbital
contusion;
d) He had some bruising under both
eyes;
e) He had a bruising over the right
nipple;
f) He had a bruising on his left rib
cage;
g) He had blunt force head injuries
and about 15 blunt force injuries all over his body;
h) He had a blunt force chest injury;
and
i) He had the burn wounds of up to
60%.
What
is in dispute is did any or both of the accused intentionally caused
the said injuries. Was R abused during his life time or
not?
[115]
According to the evidence whenever the above-mentioned injuries took
place, R will be in the company of accused 2. Accused
1 will only be
informed after the incident had taken place.
The Elbow Injury
[116]
Accused 2 testified that while he was busy underneath his motor
vehicle R was riding a bicycle, and he saw R falling down.
And he
complained about his arm, he then took him to accused 1 who was
inside the house.
[117]
There is no evidence as to how high was this bicycle that R was
riding at the time, he had this accident, the evidence is
to the
effect that while R was riding bicycle he fell and his elbow got
broken. Accused 1 had testified that R confirmed that he
had fallen
from the bicycle.
[118]
However according to Dr Hansmeyer the said fracture could have been
caused by a blunt force injury, the grabbing or twisting
of R arm; A
moderate amount of force is required to inflict such a fracture.
[119]
Which means Dr Hansmeyer is of the opinion that this injury was not
caused by falling from a bicycle but it was caused by
a person, a
human being. Accused 1 testified that she saw some scratches on the
hands of R, however accused, of whom the R was
in his company did not
mention any scratches that he observed. During the testimony of
accused 1, originally when she testified
more so during her cross
examination by the State, she confirmed that she studied Dr
Hansmeyer's evidence, and her evidence was
based on 111:lr testimony,
just denying what she had stated in here testimony. Originally when
Dr Hansmeyer testified it was never
put to her that accused 1 did see
those scratches. Therefore, court does not accept her evidence that
she did see scratches on
R after it was alleged that he fell while
riding a bicycle. Therefore, the court came to the conclusion that
were no associate
injuries, like scratches on the arm or anything
that will indicate that really the child fell from a bicycle.
The Femur
[120]
Also in this aspect while accused 1 was sleeping inside the house,
accused 2 came and informed her that R had fallen from
the tree. When
Dr Yachad examined R she observed that there were no associates
injuries of a person who had fallen from a three.
She testified that
it is expected that if a person or more so a child who fell from a
tree there should be some associates injuries,
like tearing of a
skin, scratches. She did not agree that the child did fall from a
tree, in order for this kind of fracture to
occur, it required a high
height, at least above 1 meter, but also it will depend on the
velocity.
[121]
Dr Hansmeyer further testified, in respect femur fracture, that:
121.1 The femur is commonly known as
the thigh bone.
121.2 A large amount of force is
required to.fracture a femur of a child
[122]
She was also of the same view which was expressed by Dr Yachad that
the said injury could not have been caused by falling
from a tree. It
required a large amount of force to break a femur more so of a child,
thigh bone, which means it can only have
been caused by a human being
The Injuries observed by
Dr Yachad
[123]
When Dr Yachad examined R, she observed that he had these injuries,
he had some bruising under both eyes, a bruising over
the right
nipple and a bruising on his left rib cage which where older than two
days. The explanation that was given to her, more
so with regard to
the bruising's underneath the eyes, was that the child was injured by
walking on to the door.
[124]
Both accused testified that they were aware of the bruises which were
underneath both eyes, and R got them while he was chasing
the kittens
at home, he bumped against the door, as to the others they were not
aware of them or how he got them. Accused 1 testified
that she
observed the bruising's underneath the eyes the previous night,
before R broke his fermur, but the other injuries where
not there.
Which means she wants the court to draw an inference that these other
injuries are "associates injuries" of
a person falling from
the tree. Court cannot draw that inference since is not consistent
with what Dr Yachd testified to that those
injuries where older that
two days, which means they cannot be associated with the falling of R
from the tree.
[125]
The court ask itself how is it possible and if a child hit the door
he will get injured underneath both eyes. Accused 1 testified
that
she was supervising the children whenever they were taking a bath or
when she was washing them, did she not observed or see
those other
injuries? Same with accused 2 who when accused 1 was not present will
wash the two boys, none of them did not observe
this injury.
Events leading to the
Death of R / The injuries that caused the death of R
[126]
Since it has been accepted that any of the injuries could have caused
the demise of R, the court will not go into more details
of those
injuries as it has been testified to by Dr Hansmeyer.
[127]
The factual dispute is was the said injuries deliberately caused or
not. Accused 1 testified that she also wants to know what
actually
happened to her son R. Accused 2 testified that R fell into the hot
water in the bath and during the time he fell he might
have hit his
head on the bath. All this was an accident. Regarding the fractured
rib, it could have happened when they were performing
CPR on R.
[128]
Accused 1 testified that during the night, time unknown, when R
requested to go out to pass water, accused 2 must have followed
him,
then hit him with something on the head to make him unconscious and
thereafter poured him with hot water. That is why she
could not hear
R when he was crying. R could not cry because he was unconscious.
[129]
According to the testimony of Dr Hansmeyer, all the injuries that
where on R, took place while he was still alive, including
the
fractured rib. She also disputed the opinion that the fractured rib
could have happened at the time when CPR was applied on
R. According
to her the rib that was fractured was far away from the chest, where
one, even a clumsy person, will press trying
do CPR. The fractured
rib was the eight rib. She also opined to the effect that a child rib
is elastic, that is, it is not easy
to fracture it. It will require a
strong force and to let it break.
[130]
The same is applicable to a child's bones they are not easy to can
break them. Since the child is still growing therefore
his bones are
pliable and they have a large amount of elasticity. They will require
a strong force to break them
[131]
Accused 2 had testified that he took the boys to go and wash this was
before arrival of accused1 and also of L, who in most
times is
brought home, from creche around 17h00 in the afternoon.
[132]
He opened both taps of water, more of hot water and a little bit of
cold water. He then aske R to take off his clothes while
he went to
look for J who was delaying in bringing their pyjamas.
[133]
The question was there any necessity or urgency to go and look for J,
since he, J, also at the end of the day was expected
to come and take
a bath. What stopped him continuing washing R and only then when he
was done, and if J was still not back then
go and look for him.
[134]
He further testified that he was still inside the house, at the
passage when he heard that R was screaming and making a lot
of noise.
He came back running wherein he found R standing inside the hot
water, and he was surprised that the cold tap was closed.
R had
raised up his arms. He then grabbed him taking him out of the water.
He had grabbed R by his upper arms that is why there
were some thumb
print on his upper arms.
[135]
He then put some lotion/cream all over his body. He then took him to
the back room. R then put his cloths without any difficulty.
R had
some redness but it was not as severely depicted on exhibit "D"
post mortem report and pictures therein.
[136]
The court ask itself since accused 2 found R with his arms raised,
why still grabbed him with his upper arm, why not under
his arm pits,
which the court beliefs that it will give a better grip without
hurting the child on the arms.
[137]
Dr Hansmeyer disputed that the imprint on both arms, where inflicted
at the time that accused' 2 was lifting the child out
of the bath.
However, they are more in line with the person who was pressing,
holding the child down inside the hot water. More
so that the child
was severely burned at the back. Certain parts of R's body, based on
the severity of the wounds, were exposed
to the hot water or fluid
for a longer period of time than others.
[138]
She further disputed that the head injuries that R received could
have been as a result of hitting his head against the bath.
R had
received several blunt force injuries on his head to such extend that
he had cerebral haemorrhage, which must have been caused
by a very
strong force, like when a person is involved in a car accident, a
head on collision, where the impact is very high. R's
brain was
swollen, it was oedematous, and this was not just caused by a mild
fall, it meant it was again caused by a very strong
force.
[139]
There were other several blunt force injuries which R had on his
body, on his arms, back and face, and therefore if one takes
them
cumulatively, and at the minimum they were older than 24 hours before
the passing of R. They were not caused in one single
incident of
falling in the bath.
[140]
When it comes to burns R was burned from partial to full thickness of
60% of his body. Dr Hansmeyer opined that it was no
way that a person
was unable to see those burns. With this degree of burns the child
will be in an excreting pain, and should be
crying hysterically so.
[141]
Dr Hansmeyer indicated the way R was injured, burning blunt force
injuries and the going into "shock" as a result
of burns,
at about 6 hours, without any medical intervention, he should be
starting to be disoriented and also had a leakage of
body fluid and
burn wounds must have started to be visible with immediate effect.
[142]
Based on accused 2 evidence, the time that the R fell into the water,
and what Dr Hansmeyer had testified to that after a
certain time R
must have started, minimum of about 6 hours, when the body parts are
trying to balance itself and without any assistance
from medication R
started to become disoriented, and also when accused 1 check upon
him, wherein she said that R looked like he
was disoriented, the
court therefore do not accept her (accused1) version that accused 2
must have followed R, during the night
when he went to pass water,
then assaulted him and burned him with hot water.
[143]
When did accused 1 became aware that R was burned? According to her
testimony when she got home R was already inside the blanket

sleeping. She testified that after accused 2 had said "I fucked
R for good this time" she went to check upon him and
she only
saw a small reddish mark on his left of his face. It was not so big,
and he spoke to him asking him if he is ok, wherein
R replied that "I
am fine mummy"
[144]
According to exhibit "F", accused 1's, statement that she
had made before Captain Markovich, at paragraph 3 she
said "I
went to R and he
looked very confused his hand was red and his
on(e) side of his face was red
, I asked Enlyn what did you do he
said what do you mean... "
[145]
Again on her affidavit made during her bail application Exhibit "J"
at paragraph 31 thereof "I saw that he
had a red mark on his
face, from his temple to his jaw
it look like he was hit in the
face
, at paragraph 32, she went to say "I asked Emlyn
whether he had something to do with mark on R face, whereby he
replied by
jumping up and yelling at me "what do you mean? There
is nothing wrong with him he is just sleepy"
[146]
On her testimony before court she testified that what she saw on R's
face was just a red mark, however in accordance with
the other two
excepts quoted above from Exhibits L and J is clear that accused 1
was aware or must have been aware that something
was wrong with R as
she wants the court to belief that she did not have any knowledge of
R's conditions, burning or injuries.
[147]
She had testified that accused 2 did not allow her to do anything, as
he was in a fighting mood and was angry with her, but
she testified
that at 23h00 while accused 2 was sleeping she went to check upon the
boys J and R. However, it surprises the court
that she did thoroughly
check R, notwithstanding seeing earlier those markings, red hand and
chick on him (R).
[148]
At exhibit J paragraph 48 she had said that "I have lived in
constant state of fear from my co-accused, whom has repeatedly

beating me since my little boy's death-telling me over and over that
he will kill my other children and if I ever talk to anyone
about
what he did to my son, or if I even try to leave him."
[149]
Accused 2 had a strong influence on accused 1. Accused 1 went to her
parents to stay with them, however at some stage accused
2 came to
her at her place of work, notwithstanding the fact that they parted
not in good terms, it surprises the court that she
then decided to go
back and stay with accused 2 again up until they were arrested.
Accused 1 testified at some stage that during
the time they were
staying together after the passing of R, they discussed this case and
if she answers in a manner that does not
suite accused 2, he will
tell her that will not be right and it will put them in goal.
[150]
Lastly, I wish to refer to Exhibit "L" which is whatsup
messages, in short, the tone in them is that accused 2 is
threatening
or fighting accused 1. At 27/07/2017 06:10 "Marilee: You know
everything you saying is not true. But its okay.
I won't defend
myself against lies. For a long time, I believed and defended you.
Only to learn that you were laying to me......I
am standing up for R
and everything else we had to endure
[151]
27/07/2017 06:39 Emlyn: Ja alcoholic we will see. I have witnesses.
You turned your back ne. That's all you did but I killed
R.......
When
Accused 1 was asked if she did not ask accused 2 what did he meant
when he said he killed R, she said accused 2 said it was
just a
threat nothing else it was not true. The court cannot accept that as
a valid reason, there is, a saying that the truth always
comes out
when people are fighting. Possibilities are accused 1 was constantly
leaving in fear of accused 2. She did whatever accused
2 was telling
her to do. There is, strong possibilities that accused 1 was aware of
what accused 2 was doing to R, however being
afraid that she will
lose her children she did become a party to whatever accused 2 was
doing.
[152]
According to accused 2, he also testified that when he said "I
fucked him for good this time" he did not mean R,
he meant that
their relationship v,·as now fucked up for good. Which the
court find it not to being truthful, if really
their relationship was
fucked up, the court beliefs that after accused 1 had left to stay
with her parents he would not have tried
to make any contact with
accused 1, since he how she felt about his ex-girlfriend, and she
being paranoid in that regard.
CONCLUSION:
[153]
In the final analysis of all the evidence before Court, I am guided
by various legal principles to determine whether the charges
against
the accused have been proven beyond reasonable doubt. In the case of
S v Reddy & Others
1996 (2) SACR 1
(A) 8 C-E
the court
held that:
"In assessing
circumstantial evidence, one needs to be careful not to approach such
evidence upon a piece-meal basis and to
subject each individual piece
of evidence to
a
consideration
of whether it excludes the reasonable possibility that the
explanation given by an accused is true. The evidence needs
to be
considered in its totality. It is only then that one can apply the
off-quoted dictum in
R v Blom
1939 AD
188
at 202-3,
where reference is made
to two cardinal rules of logic which cannot be ignored. These are,
firstly, that the inference sought to
be drawn must be consistent
with all the proved facts and, secondly, the proved facts should be
such 'that they exclude every reasonable
inference from them save the
one sought to be drawn.
"
[154]
Proof beyond reasonable doubt does not involve proof to an absolute
certainty. It is not proof beyond any doubt, nor is it
an imaginary
or frivolous doubt. This is the standard that must be met by the
State's evidence in a criminal prosecution. No other
logical and
reasonable explanation can be derived from the facts, except that the
accused committed the crime, thereby overcoming
the presumption that
a person is innocent until proven guilty.
[155]
In
R v De Villiers
1944 AD 493
at 508 - 9
it was held that a
Court should not consider each circumstance in isolation and drawn
inferences from each single circumstance.
The onus on the State is
not to prove that ea r separate item of evidence is inconsistent with
the innocence of the accused, but
that taken as a whole, the evidence
is beyond reasonable doubt inconsistent with such innocence.
[156]
In
S v Shackell
2001 (2) SACR 185
(SCA) at 194 the court
states:
"[30]...It is
a
trite principle that in criminal proceedings
the prosecution must prove its case beyond reasonable doubt and that
a
mere preponderance
of probabilities is not enough. Equally trite is the observation
that, in view of this standard of proof in
a
criminal case,
a
court
does not have to be convinced that every detail of an accused's
version is true. If the accused's version is reasonably possibly
true
in substance the court must decide that matter on the acceptance of
that version. Of course, it is permissible to test the
accused's
version against the inherent probabilities. But it cannot be rejected
merely because it is improbable; it can only be
rejected on the basis
of inherent probabilities if it can be said to be so improbable that
it cannot reasonably possibly be true.
See
also:
S v Chabalala 2003 (1) SACR 134
(SCA) at para 15; S v Mia and Another 2009 (1) SACR 330 (SCA) at para
12
[157]
In
State v Hadebe and others
1998 (1) SACR 422
(SCA) at 426 E-H
the Court enunciated the correct approach for evaluating evidence
with reference to
Moshephi and Others v R (1980 -1984) LAC 57 at
59F-H
as follows:
"The question for
determination is whether, in the light of all the evidence adduced at
the trial, the guilt of the appellants
was established beyond
reasonable doubt. The breaking down of a body of evidence into its
component parts is obviously a useful
aid to
a
proper understanding and evaluation of it.
But, in doing so, one must guard against
a
tendency to focus too intently upon the
separate and individual part of what is, after all, a mosaic of proof
Doubts about one aspect
of the evidence led in a trial may arise when
that aspect is viewed in isolation. Those doubts may be set at rest
when i! le, evaluated
again together with all the other available
evidence. That is not to say that a broad and indulgent approach is
appropriate when
evaluating evidence. Far from it. There is no
substitute for a detailed and critical examination of each and every
component in
a body of evidence. But, once that has been done, it is
necessary to step back a pace and consider the mosaic as a whole. If
that
is not done, one may fail to see the wood for the trees.
"
[158]
There is no onus on the accused to prove the truthfulness of any
explanation which he gives or to convince the Court that
he is
innocent. Any reasonable doubt regarding his guilt must be afforded
to the accused.
S v Jochems
1991 (1) SACR 208
(A) and S v V
2000
(1) SACR 453
(SCA). See S v Jaffer
1988 (2) SA 84
(C)
where the
Court held:
"The test is
whether there is a reasonable possibility that the accused's evidence
may be true.... the court does not have
to believe the accused's;
still less does it have to believe it. It is sufficient if the court
thinks that there is
a
reasonable
possibility that it might be substantially true."
[159]
In unpacking evidence on a piecemeal basis, the Court has to consider
the strength and weaknesses in the evidence and consider
the merits,
demerits and the probabilities. See the case of S v Trainor and S v
Chabalala referred herein above. Accused 2 testified
that after bath
time was cancelled, while J and R where wearing their pyjamas they
all watched a movie. During the testimony of
accused 1 she testified
to the effect that R was wearing long sleeves t-shirt when she picked
him up from where he was sleeping.
It was further put to the
witnesses, by accused 1 counsel, that when accused 1 picked up R from
the bed, his clothes where wet.
However, the witnesses indicated that
his clothes where dry.
[160]
According to photos 10 and 11 of exhibit "D" R was laying
on top of bed with track suite. The question that the
court ask
itself is what happened to the pyjamas which accused 2 had testified
that R was wearing at the previous night.
[161]
Accused 1 testified that in the morning she was woken up by accused 2
calling R's name, she then rushed to pick up R from
where he was
sleeping and ran outside screaming for help, that is when he realised
that R was injured on his feet, she then brought
him back, applied
CPR on him. However, accused 1 testified that he put R on the ground
and attempted CPR. That is when accused
1 came to pick him up run
with him to his mother in the main house. He went outside looking for
some help, it is only when he returned
that he saw his mother
removing socks from R's feet that he saw the injuries on his feet.
[162]
Dr Hansmeyer had testified that a 60% surface area burn would result
in significant loss of fluids and there would be a breach
of the
epithelium resulting in leakage of fluid, which is referred to as
plasma capillary leak. As a result, the clothes will be
fused to the
body.
[163]
The sequence of events or versions of how R ended up being in the
main house with different clothes are contradictory to each
other.
Probabilities are upon the accused realising that the pyjamas that R
where wearing the previous night have fused on his
body, they must
have removed them, including the socks that he was also wearing and
when removed they must have come out with the
deceased skin. The
accused manipulated the scene, that is why R was placed in the
different room than the one he previously went
to sleep and they must
have also changed his pyjamas and put on him his track suite which
was dry and did not have any seepage
fluids on it.
[164]
In
S v Kubeka
1982 (1) SA 534
(W) at 537 F-H, the Court held
in regard to the version of the accused:
"Whether I
subjectively disbelieved him is, however, not the test. I need not
even reject the State case in order to acquit
him.
.
.
I am bound to acquit him if there exists
a
reasonable possibility that his evidence may
be true. Such is the nature of the onus on the State.
"
[165]
If one takes the totality of the evidence, the court reject accused 2
version that R fell by accident in the bath and also
hurt his head
and body during the time that he fell on it. Dr Hansmeyer found some
injuries on R which were more that 24 to 48
hours, meaning R was
assaulted not only on the day that he was burned. The elbow and femur
injuries, and also the injuries that
were observed by Dr Yachad,
being bilateral infraorbital contusion, bruising under both eyes,
bruising over the right nipple and
bruising on his left rib which
were older than 2 days which meant R was previously and constantly
being assaulted. And that it
was accused 2 who had inflicted those
injuries upon R and he also burned R while he was holding him inside
hot water. In the circumstances
the inference that the court can draw
is that the evidence points out that R was abused during his life
time.
[166]
There is no evidence that Accused 1 had directly participated or she
should have subjectively foreseen that by being afraid
of accused 2
and rr.ore particularly the actions of accused 2 on or about 25 June
2016, by causing the blunt forces that were discovered
during the
performance of the post mortem on R's body and the burning of R with
hot water would result in the death of R. Therefore,
with regard to
Count 2 that is, of Murder, there is no evidence that she
participated in the killing of R or any inference that
can drawn that
she did participate in the killing of R.
[167]
However was accused 1 aware of what was happening to R, was she
negligent or was she party to what accused 2 was doing, she
turned a
blind eye to that. As the court had indicated above that evidence
shows that accused 1 must have been aware or should
have foreseen
what was happening to R. However, being afraid of accused 2, she
became silent, and her salience caused the death
of her son.
[168]
However, as a Parent she deliberately neglected to give R prober
care, notwithstanding the fact that she was aware that R
was being
abused. Or even on the night of the 24th June 2016
[169]
Therefore, the court is satisfied, taking into account the entire
conspectus of the evidence that the State had discharged
the onus
resting upon it to prove the guilt of the accused beyond reasonable
doubt. The accused's version cannot reasonably possibly
be true and
is accordingly rejected. In short Accused 1 is found guilty as
charged in terms counts 1 and in respect of count two,
she is found
guilty of the alternative count and accused 2 is found guilty as
charged of both counts.
[170]
In the result the verdict is as follows:
170.1
Accused 1 is Found guilty of Two Counts of
Contravening the Provisions of Section 305(3) (a) of the Children Act
38 of 2005.
170.2
Accused 2 is Found guilty as charged.
170.2.1
Count 1: Contravening the Provisions of Section
305(3)(a) of the Children Act 38 of 2005.
170.2.2
Count 2 Murder read with the provisions of
section 51(1) of Act 105 of 1997.
_________________________
C
K MATSHITSE
ACTING
JUDGE OF THE HIGH COURT,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances
:
Date
of Trial

29 January 2018
09
February 2018
7,8,9,12,16,19,22,23
March 2018,
09
-13 July 2018
15
October 2018
18
- 20 December 2018
Date
of Judgment
20 December 2018
On
behalf of the State
Adv S Rubin
Instructing
Attorneys
Director of Public Prosecution
On
behalf of Accused 1      Mr C Coetzee/ R W
Smith
On
behalf of accused 2       Adv M
Nemaudzeni