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[2018] ZAFSHC 145
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The State v Mokati (10/2018) [2018] ZAFSHC 145 (27 September 2018)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates:
YES/NO
Case
number: 10/2018
In
the matter between:
THE
STATE
And
JOHANNES
MOKATI
Accused
JUDGMENT
BY:
MATHEBULA, J
HEARD
ON:
10, 11, 12, 13, 14, 17,
18, 20, 26 & 27
SEPTEMBER 2018
DELIVERED
ON:
26 & 27 SEPTEMBER
2018
[1]
The accused is appearing before me on three (3) charges viz. rape,
robbery with aggravating
circumstances and murder. These
charges are read with the provisions of
section 51
of the
Criminal
Law Amendment Act 105 of 1997
. They all arise out of the same
set of facts. Before me Mr Johan De Nysschen is appearing for
the state and Mr Pieter
Nel for the accused.
[2]
The accused pleaded not guilty to the charges and indicated that the
applicability of the legislation
on minimum sentences in the event of
conviction(s) of one or all charges has been explained to him.
His counsel read out
a plea explanation which was confirmed by him.
These admissions were recorded as such in terms of
section 220
of Act
51 of 1977.
[3]
The
admissions are as follows:-
Charge
1 – Rape
·
The
accused admits having had consensual sexual intercourse with the
deceased once.
Charge 2 –
Robbery with aggravating circumstances
·
The
accused admits possession of the laptop and tablet belonging to the
deceased.
·
These
items were lawfully handed to him by the deceased and he was supposed
to keep them with him until she had liquidated her debt
due to him.
·
These
items were voluntarily handed to him by the deceased and no weapon in
particular the knife was used.
Charge 3 –
Murder
·
He
denies the cause of death as alleged by the State.
·
He
contends that on medical basis, the correct cause of death should be
cerebral venous sinus thrombosis.
·
He
maintains that there is no causal link between the sexual intercourse
and the correct cause of death.
·
Further,
the correct cause of death is not reasonably foreseeable to a person
in his position nor is it foreseeable on medical basis.
[4]
Prior to leading evidence, the state counsel made an application to
lead hearsay evidence
as provided in section 3 of Act 45 of 1988.
This application was granted provisionally and will be discussed
fully in the
following paragraphs.
[5]
Christiaan Johannes Botha is a police officer with the rank of
Warrant Officer attached
to the Local Criminal Record Centre,
Welkom. On 11 February 2017 he attended the alleged scene of
crime at 48 Le Roux Street,
Theunissen. The property is the
offices of a firm of attorneys namely Hewetson Incorporated. He
was in the company
of among others Warrant Officer Schoeman and the
complainant in life A M. I will henceforth refer to her as the
deceased
not out of disrespect but to avoid confusion. He took
several photographs later arranged into a photo album and drew the
sketch plan. These were handed in as
Exhibit “A”
and “
B”
respectively.
[6]
The deceased pointed out to her different places where the incident
took place. The office
appeared ransacked and she was fearful
to enter the room where it all happened. She only told him that
it happened in that
room and did not enter it. She was
emotional, crying and shivering. At that point she just turned,
walked away and
swore never to return to that office ever again.
Certain DNA material was uplifted and sent to the laboratory for
examination.
He observed certain marks on the floor and that
the carpet was dirty.
[7]
A J M (the deceased’s sister) took to the stand. She
positively identified the
deceased’s workplace as dipicted on
the photographs handed in as
Exhibit “A”.
She testified that the deceased was a receptionist at an attorney’s
firm. Also at the time of the incident she
was betrothed.
She described her as a lovely person who was getting along with
everyone. She was also a sportswoman
who had excelled in a
number of sporting codes. However she had stopped partaking in
sports a year prior to her demise.
She was a fit and healthy
person with no known ailments.
[8]
On 9 February 2017 she arrived at home and found her motor vehicle
already parked.
Her dogs were outside and this aspect was
strange because they were always with her. She proceeded to her
room and found
her slumped on the bed with her head hanging on the
other end. She was crying.
[9]
She tried to engage her in conversation as to what was the problem.
She refused to
divulge anything to her. Later she told her that
someone took her tablet and laptop. At this point she sat
straight
on the bed and cried hysterically. She enquired from
her if that person hurt her but she did not respond. She asked
if that person “did it to her” and she nodded
positively. She added that the person concerned told her not to
tell anyone because he will kill her and the entire family.
[10]
She contacted her fiancé, told their parents and reported the
matter to the police. The
deceased was taken to a local general
practitioner Dr. Lukas de Lange for medical examination.
Thereafter one Constable Prinsloo
came to their residence to obtain
the written statement from the deceased.
[11]
The deceased was taken to Bongani Hospital, Welkom the next day for
medical tests. At the same
time the accused was arrested
and she was relieved a bit. The entire episode had hurt her
deeply and in subsequent
days she spent most of the time in her
room. The period between the 9 to 20 February 2017 the deceased
lost a lot of weight,
could not communicate, spent her time sleeping
and did not eat. Literally she deteriorated and would throw up
all the time
when she attempted to eat.
[12]
On 20 February 2017 just before 6H00am there was a loud voice
emanating from her room. They rushed
in there and found her
lying on the floor. She was experiencing convulsions commonly
known as fits. They rushed her
to the consulting rooms of Dr.
de Lange. She had also become unresponsive to verbal commands.
She was taken to Katlego
Hospital, Virginia in an ambulance and
attended by medical personnel there. She temporarily became a
bit better.
[13]
Her condition turned to the worst in the evening and on advice, they
took her to Pelonomi Hospital,
Bloemfontein. At this stage she
was very weak and had to be helped to do menial tasks. She
could not even walk.
On 22 February she visited her in
hospital. The deceased was not awake and even had no idea of
their presence. The
convulsions were continuing unabated.
It was the last time she saw her alive.
[14]
She recognized the Acer laptop and Vodafone tablet handed in as
Exhibit 1 and 2
as the property of the deceased. In
particular the laptop because she spilled the nail cutex on it.
[15]
Under cross-examination, she testified that the deceased was using
oral contraceptives although she
did not know the name of the
specific pill. The deceased did not suffered from any bulimia,
nausea or blood clotting before
9 February 2017. She was aware
that anti retro virals (ARV’s) were prescribed to her and no
one told the deceased to
stop using contraceptives. She
admitted that the deceased did not tell her the details of the
incident that occurred at her
workplace with the accused.
[16]
Ella Johanna Prinsloo, a police constable stationed at Theunissen
testified that on 9 February 2017
while on duty she took the
statement of the deceased. During the interviewing process the
deceased was afraid and crying
incessantly. The statement was
handed in and marked
Exhibit
“D”.
This statement was read verbatim into the record and I do not intend
to repeat it. Suffice to mention that the deceased
informed her
that the accused rape her, took her possessions and threatened to
kill her if she divulged the information to any
other person.
[17]
The deceased had told her that her assailant was known to her and
used to work at Bafana Bafana Furnishers.
She (Ella) undertook
to go and look for him. He approached one Nesto who was running
a computer shop in town. The latter
showed him the tablet and
informed her that it was brought by the accused who wanted the
information to be wiped off its memory.
She also saw the photos
of the deceased on it. Nesto also told her about the laptop and
they agreed that he will let her
know when the accused returns to his
shop.
[18]
The accused was arrested by Warrant Officer Rakgosi inside Nesto’s
shop. He was there with
the laptop listening to music through
the headphones. She also confirmed knowing of a receipt
apparently issued by Nesto
to the accused which was handed in as
Exhibit “E”.
[19]
She did see the deceased after the aforementioned day of the
incident. She informed her that
the medication was making her
sick. She also assisted the family on the day she was taken to
Katlego Hospital, Virginia.
She confirmed that she was very
weak. She visited her at Pelonomi Hospital and her condition
had deteriorated to the point
that she had stopped talking
[20]
She conceded under cross-examination that she does not know whether
the version she was given in the
statement was true or false.
Further that the description of the accused was not in the
statement. In their discussions,
she understood her to mean
that there was one sexual act of intercourse between them with
different positions.
[21]
Dr. Lukas de Lange a general practitioner of Theunissen is the house
medical doctor of the Maree family.
He had known the deceased
as a child because she was of the same age as his children. Later
she became his patient.
According to him she was physically fit
and active in sport. She usually came to him for minor
ailments. He is the
author of the two reports handed in as
Exhibit “F” and “G”
. They are
dated 20 February and 29 March 2017 respectively.
[22]
On 9 February 2017 while on a private business in Welkom he received
a call from the deceased’s
mother that the deceased was raped.
He requested her to take her to his consulting rooms. On
arrival the entire family
was hysterical and very angry. After
calming them down he consulted only with the deceased in private.
[23]
The deceased narrated to him that around 16H00pm a man entered
her workplace armed with a knife.
He had sexual intercourse
with her on the table, chair and floor. She requested him not
to ejaculate into her for fear of
venereal diseases or falling
pregnant. When he was done she saw few drops coming from his
manhood falling onto the carpet.
She was dead scared.
[24]
He prescribed to her pills to prevent infection and referred her to
the hospital to be put on Anti-Retroviral
medication. These are
pills for the prevention and management of HIV-Aids. He
prescribed the broad spectrum of medications
for prevention of sexual
disease. He also prescribed Doxycycline and Flagyl. Later
he added Adco-dol, Vomiguard and
Alzam. These were effective
and not costly.
[25]
On 20 February 2017 in the morning he examined the deceased.
Her mother had called informing
him that she had convulsions/fits.
He also witnessed her suffering them as shown on the video clip
handed in as
Exhibit “3”.
He referred her to
Katlego Hospital, Virginia. He administered anti-convulscent
injection to keep her calm for some
time.
[26]
Under cross-examination he testified that when he saw her after her
ordeal, she did not complain about
the headache or stiff neck.
He testified that he was not specifically consulted for that and the
information filtered to
him at a later stage. The cause of
death had nothing to do with her genitals but was confined to her
head. He added
that oral contraceptives can cause blood
clotting. Anti-retrovirals can cause nausea which may lead to
dehydration.
Also severe nausea/clotting can cause cerebral
venous thrombosis.
[27]
He was aware that the deceased was using the following medication
viz. Yaz, Doxycycline 100 milligrams
twice, Fragyl 400 mg three times
a day, Alzam, Adco-dol, Vomiguard, Valium injected and ARV’s.
These medications were
not necessarily taken together. Although
oral contraceptives can definitely cause blood clotting in high risk
patients like
those suffering from hypertension, diabetes etc. the
deceased did not have any of those. He acknowledged that this
kind of
knowledge was not within the grasp of ordinary people.
[28]
Sister Mabel Qhatatsi a Clinical Forensic Nurse examined the deceased
and completed the J88 report
handed in as
Exhibit “H”
.
I will deal with the content of this report at a later stage.
She noticed traces of anal penetration and concluded
that the sexual
intercourse was not consensual. She observed that the deceased
was crying all the time and this clearly demonstrated
that she did
not like what had happened to her.
[29]
She further testified that she did not observe any blunt injury to
her head and that she did not make
recording of any anal
penetration. She mentioned that the deceased was on her
menstrual cycle. She was involved in
the prescription of the
anti-retrovirals to her as it is the standard issue in the
circumstances. These are the Pre Exposure
Profalaxis.
They are used for 28 days and could be used with oral
contraceptives. They are generally considered safe
to use.
She was aware that they can cause extreme nausea and dehydration.
She was also aware that oral contraceptives
can cause blood clotting.
[30]
Dr. Mariane Kotze a medical practitioner with expertise in Clinical
Forensic Medicine testified that
she never saw the deceased but only
watched the video clip and read the clinical notes provided to her.
She commended the
accuracy of the J88 completed by her protégé
Sister Qhathatsi. She stated that as per experience, she noted
that many rape victims did not mention any anal penetration.
This is because they are too embarrassed or forgot about it.
[31]
She testified that with the anal trauma, constipation and bowel
disease should be excluded. In
this matter, there were multiple
tears. This was consistent with anal penetration. As far
as the injuries observed
on the back of the deceased, she confirmed
that they were consistent with the movement on the carpet.
Importantly, she testified
that acute/chronic stress can lower one’s
immunity to certain diseases.
[32]
Under cross-examination she testified that it was always better to
give a combination of medication
to treat a patient in these
circumstances. However, this could also boost chances of blood
clotting.
[33]
The report handed in as
Exhibit “I”
was prepared
by Dr. Pauline Maria van Zyl a Clinical Pharmacologist with expertise
in the field of Pharmacology. According
to her Ativan was
prescribed for acute anxiety. On the effect of Yaz on the
deceased, it was her view that because she had
been using it for
approximately a year, it could not have been expected that it will
have any new side effects. Although
Doxycycline and Flagyl were
used for spectrum of activities, both when used together could have
caused severe nausea and vomiting.
Avril with a high dose of
estogen could increase the severity of nausea and vomiting.
This was, primarily used to cleanse
the uterus in a chemical way.
[34]
She admitted that people reacted differently to medication.
This is largely influenced by genetics,
nutrition, previous diseases
etc. She testified that it was not standard practice to
prescribe these medication in this manner.
Perhaps the medical
practitioner thought that it would stop nausea and vomiting.
[35]
In her view she could not have discharged the deceased as it happened
at Katleho Hospital, Virginia.
On examining the clinical notes
it was apparent that pressure was building in her brain as noted in
the reports of Dr. Litelu.
She wondered as to why they
(treating medical practitioners) did not introduce medication to
reduce the intra cranial pressure
although it could not have
prevented the formation of the blood clot. The shaking as
evidenced on the deceased could not
be pinned to a specific thing as
it could have been convulsions or expression of non-sympathetic
nerves.
[36]
Under cross-examination, she testified that had the deceased not been
sexually violated she could not
have been put through all the
medications. Accordingly the cause of death is cerebral venous
sinus thrombosis. She
was alarmed that a urine test was not
performed to check the urinary tract infection. In her view
anxiety could also have
had an effect on blood clotting. The
deceased had been anxious since the unfortunate incident on 9
February 2017.
[37]
She conceded that her list of possible causes of clotting was not
exclusive. Inflammation could also
be the cause. It was her
evidence that it is not possible to put the time limit for the clot
to form. It could lie
dormant for some time until triggered by
a series of events.
[38]
Briefly the evidence of Liberty Nesto Matendere is that he is the
owner of Nesto IT Solutions and Network
based in Theunissen.
The deceased was well known to him. So was the accused. The
latter approached him on 9 February
2017 at around 17H00pm in
possession of a Vodafone tablet and a Acer laptop. He wanted to
sell the latter item for R1 500.00.
He informed him that
it had a problem with connectivity to other electronic devices via
Bluetooth. He (Nesto) explained to
him that any tampering with
the software may result in the loss of all the data on the device.
The accused was less bothered
and instructed him to proceed with it
to do so.
[39]
He switched the tablet on and messages written in Afrikaans trickled
in. He scrolled it and eventually
sent a message to one of the
contacts he could recognize on the phone.
[40]
Under cross-examination he vehemently denied any proposition that the
accused left the tablet with
him for safekeeping. He disputed
any suggestion that they were friends with each other. He
confirmed that the accused
attempted to sell the laptop only not the
tablet.
[41]
Professor Richard Nichol an Associate Professor of Psychiatry at the
University of the Free State and
currently the Head of Child Unit at
the Free State Psychiatric Complex is the author of the report handed
in as
Exhibit “M”.
He testified about
different levels of stress and explained that before 30 days period a
person is suffering from Acute Stress Disorder
and if this persist
beyond 30 days period it turns into Post Traumatic Stress Disorder.
The traumatic exposure may lead to
strokes and heart attacks.
[42]
In simple terms he testified that acute stress can lead to a clot in
the corollary veins. In
this matter the clotting system was
activated which later led to the venous sinus thrombosis. The
panic attacks and anxiety
disorder could have fuelled the process.
It was his evidence that stress reduces the immune system of the body
of an individual.
The adrenaline which is released by the
hormones if more than enough is released in the body can affect many
parts of it leading
to strokes, hypertension, stomach ulcers,
irritable bowel syndrome and incessant headaches. In essence
prolonged secretion
after a traumatic event is bad for the body.
It was his view that medication did cause venous sinus thrombosis but
stress
was an important contributing factor.
[43]
Under cross-examination, he admitted that engaging in a sexual
intercourse with a stranger can cause
stress. He was aware that
the deceased did receive counselling although not certain to which
extent. He very much doubted
that given the circumstances, the
deceased could have given consent to a sexual intercourse. He
stated that it was possible
that stress triggered a pre-existing
condition. He testified that this wealth of knowledge that he
traversed could not be
classified as common knowledge to all people.
He agreed with the proposition that the accused could not have
foreseen the
death of the deceased as the ultimate result. He
admitted that he did not dwell on the pre 9 February 2017 period in
his
report though it would have been ideal to do so.
[44]
Dr. Ignatius Stephanus Ferreira a Specialist Forensic Pathologist
conducted an autopsy on the deceased
and was present when photos of
her brain were taken. These were handed in as
Exhibit “O”
and “
P”
respectively. Prior to conducting
this autopsy on the deceased he had performed almost 3 000
autopsies. He repudiated
his colleagues that the cause of death
was superior sagittal venous thrombosis with bilateral cerebral
bleedings. He found
nothing untoward on the genitals of the
deceased and no sign of infection was detected.
[45]
He perused the history of the deceased and after perusing different
records, holding discussions with
colleagues he concluded that the
course of death was complications secondary to rape. He drew
distinction between the course
and mechanism of death. He
explained that in determining the cause of death, the relevant
question is “What led to
the death of the person?”
For example: If a person is hit on the head with a blunt object.
The result will be
the skull fracture and brain bleeding. In
this case the cause of death will be the blunt trauma to the head.
In that
manner there is the causal link between the death and the
incident. The mechanism of death is what one gets. In
this
matter it is a clot. These are incidents where there is a
repeated onslaught on the body eg medication, dehydration,
temperature
etc. The cause starts from elements outside the
body.
[46] He
testified that an examination of the clot in her brain revealed that
it was a relatively fresh
clot of about two (2) weeks.
According to him it was possible to determine the age of the clot.
In his view the most
common clots occurred in the legs and in this
matter it was lodged in the superior sagittal sinus. There was
no drainage
for the blood pumped by the heart into the brain.
This resulted in swelling of the brain in the finite space leading to
the
building up of the pressure there. The progressive
deterioration resulted in certain parts of the brain not getting the
necessary
blood supply. The bleeding into the brain substance
muzzled oxygen into the brain and she suffered convulsions.
[47]
He eloquently explained that the bigger the clot, the more its
effects and thus the more the intra
cranial pressure. He ruled
out the possibility of small clots. In his view the clot will
start and simply progress.
Accordingly there is no evidence of
the dormant clot. It will either grow or dissolves.
[48]
He opined that any medication that gives adverse reaction will
normally do so in the first phase of
the treatment. The longer
that medication is used the less the risk. However the risk
factor will always be there as
opposed to a person not using it at
all. He added that acute stress increases the incident of
thrombosis. Avril is
considered more severe than Yaz. She
was given 4. Inevitably it enhanced the chances of clotting.
In addition
antibiotics and ARV’s were added. These drugs
course dehydration and vomiting. There was always a lurking
possibility
that the effect thereof may be adverse. The
resultant dehydration caused her blood to become thicker and
sluggish.
The inactivity of the deceased during this time
preferring to spend time sleeping did not help. The body needs
movement to
function properly. Given all these possibilities,
in his words he said “I cannot say which one broke the camel’s
back”. Certainly it was a combination factors.
[49]
He conceded that on examining the body of the deceased he did not
find anything signifying assault,
rape or indecent assault. He
repudiated the cause of death as determined by Dr. van Zyl and
categorically stated that out
of all the experts he is the only one
qualified to determine the cause of death. None of them are
experts on the cause of
death. Lastly he lamented the fact that
the medical system was not perfect in dealing with the deceased.
[50]
The unique circumstances of this matter is that the deceased despite
laying the charge against the
accused, died before the accused had
his day in court. Prior to her death she had the divulged certain
information to several people
namely her sister, Constable Ella
Prinsloo, Dr. Lukas de Lange, and Sister Mabel Qhatatsi. It is on
this basis that the state counsel
moved an application for the
admissibility of hearsay evidence.
[51]
In terms of section 3 of Act 45 of 1988, hearsay evidence means
evidence, whether oral or in writing
the probative value of which
depends upon the credibility of any person other than the person
giving such evidence. The section
reads as follows:-
“
Hearsay
evidence.- (1) Subject to the provisions of any law, hearsay evidence
shall not be admitted as proceedings, unless-
(a)
each
party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b)
the
person upon whose credibility the probative value of such evidence
depends, himself testifies at such proceedings; or
(c)
the
court, having regard to-
(i)
the
nature of the proceedings;
(ii)
the
nature of the evidence;
(iii)
the
purpose for which the evidence is tendered;
(iv)
the
probative value of the evidence;
(v)
the
reason why the evidence is not given by the person whose credibility
the probative value of such evidence depends;
(vi)
any
prejudice to a party which the admission of such evidence might
entail; and
(vii)
any
other factor which should in the opinion of the court be taken into
account’
is of the opinion that
such evidence should be admitted in the interest of justice.”
[52] In
S v
Ramavhale
[1]
the
court held that “
a
judge should hesitate long in admitting or relying on hearsay
evidence which plays a decisive or even significant part in
convicting
an accused, unless there are compelling justifications for
doing so”
.
[53]
I now turn to deal with the individual requirements as provided in
section 3 of Act 45 of 1988 which
must be taken into consideration
before evidence of this nature is rendered admissible.
[54]
Nature of the proceedings
The complainant is
deceased in this matter. Undoubtedly the events leading to her demise
were triggered by events following the
sexual encounter with the
accused on 9 February 2017. However, that does not mean that the
accused is guilty of any offense. However,
it will be in the interest
of justice to admit such evidence because this matter is important to
the parties involved in it.
[55]
Nature
of the evidence
In this matter, it was
recorded as an admission in terms of section 220 of Act 51 of 1977
that the deceased and the accused engaged
in a sexual intercourse
though it was consensual. In this regard the accused must give his
version of the events.
[56]
Purpose
for which the evidence was tendered
This evidence is
necessary to prove that the accused did not have the necessary
consent to have sexual intercourse with the deceased.
In essence that
he committed the crime that he is charged of.
[57]
In Ramavhale the court said that “the inquiry under his head
should proceed under heads namely
(a) the reliability and
completeness of the deceased’s words, and (b) the reliability
and completeness of whatever it was
that the deceased did say.”
[2]
[58]
The
reason why evidence is not given by the person whose credibility the
probative value of such evidence depends.
It is a fact that the
deceased met her untimely death on 24 February 2017 at 10H15am.
[59]
Prejudice
The accused will suffer
no prejudice at all. I take cognizance of the fact that the accused
is represented by an experienced counsel.
Further that there is no
opposition in the main against the admissibility of this evidence.
[60]
For these reasons I ruled that hearsay evidence tendered by the state
is admissible.
[61]
The accused took to the stand in his defence. He testified that
on 9 February 2017 at 15H53pm
he went to the deceased’s
workplace. Prior to this visit he had been there on two (2)
other occasions, in the morning
and at 12H00pm. The deceased
kept on postponing him. The purpose of his visits was to
collect the debt that was due
and payable to him. He had fixed
her laptop sometime in September 2016 for R1 500.00 because
someone had spilled cutex
on its keyboard. Shortly prior to
setting off for her workplace, he was smoking outside his workplace
when she waved to him
that he could come. Indeed he went.
On arrival he outstretched his hand to receive his money. The
deceased reciprocated
by kissing him and he responded positively to
this. She proceeded to close the door behind them and the
kissing continued
in the reception area. They pushed each other
to the adjacent room while they continued kissing each other.
The deceased
removed his stripe T-shirt and his pants.
Thereafter she removed her shirt, short jeans and lastly her
panties. While
this was happening there was no discussion
taking place between them.
[62]
He took off his boxer shorts and they engaged in a sexual intercourse
on the carpeted floor.
It was only one sexual act and according
to him the deceased had given her consent through her conduct as well
as verbally.
After their sexual encounter he left for his
workplace. At no stage did he enter her workplace armed with a
knife.
The Vodafone tablet and the Acer laptop were removed per
consent of the deceased. She gave him permission to hold onto
these
items until the following Monday when she will be in a position
to pay him.
[63]
The reason why he went to Nesto after the sexual encounter with the
deceased was that he wanted to
leave the items with him for
safekeeping. He was weary to carry so many items with him
home. However, he was annoyed
by Nesto who wanted him to sell
the laptop to him. He decided to leave with it. He left
the tablet behind with him.
[64]
Under relentless cross-examination he conceded that he did not inform
his counsel about the version
relating to the cutex. He had
taken the laptop with him because he was facing eviction where he was
staying. He wanted
to show his landlady that he was not lying
that some people were owing him money. He was confronted with his
warning statement
made to the police on the day he was charged which
differed markedly with the version he gave orally in court. His
only explanation
was that there was a miscommunication between
himself and the police officer who took down the statement. He
denied ever
being in a position to foresee that the death of the
deceased may follow consequent to his actions. The defence case
was
closed without calling further witnesses.
[65]
It is trite law that the State bears the onus to prove its case
against the accused beyond reasonable
doubt. This does not
imply that the State must prove its case beyond all doubt. In
matters of this nature, it is a
norm that the court will be
confronted with mutually destructive versions. The correct approach
was authoritatively explained in
S
v Chabalala
by
Heher AJA (as he then was) writing for an undivided bench in the
following manner:-
“
The trial
court's approach to the case was, however, holistic and in this it
was undoubtedly right:
S
v Van Aswegen
2001
(2) SACR 97
(SCA)
.
The correct approach is to weigh up all the elements which point
towards the guilt of the accused against all those which are
indicative of his innocence, taking proper account of inherent
strengths and weaknesses, probabilities and improbabilities on both
sides and, having done so, to decide whether the balance weighs so
heavily in favour of the State as to exclude any reasonable
doubt about the accused's guilt. The result may prove that one scrap
of evidence or one defect in the case for either party (such
as the
failure to call a material witness concerning an identity parade) was
decisive but that can only be an
ex
post facto
determination
and a trial court (and counsel) should avoid the temptation to latch
on to one (apparently) obvious aspect without
assessing it in the
context of the full picture presented in evidence. Once
that approach is applied to the evidence
in the present matter the
solution becomes clear.”
[3]
[66] On
the other hand the accused person is under no obligation to prove
his/her innocence. These
principles were instructively laid in
S v V
[4]
as follows:-
“
It
is trite that there is no obligation upon an accused person, where
the State bears the
onus
,
'to convince the court'. If his version is reasonably possibly true
he is entitled to his acquittal even though his explanation
is
improbable. A court is not entitled to convict unless it is satisfied
not only that the explanation is improbable but that
beyond any
reasonable doubt it is false. It is permissible to look at the
probabilities of the case to determine whether the accused's
version
is reasonably possibly true but whether one subjectively believes him
is not the test. As pointed out in many judgments
of this Court and
other courts the test is whether there is a reasonable possibility
that the accused's evidence may be true”.
This undoubtedly imply
that the admitted hearsay evidence may be taken into consideration
when evaluating the total evidence.
[67]
It is common cause that the accused approached the deceased at her
workplace around 16H00pm on 9 February
2017. Sexual intercourse took
place between them. Thereafter the accused left in possession of the
Vodafone tablet and Acer laptop
belonging to the deceased. The
question to be answered is whether the complainant gave the consent
to sexual intercourse and permission
that the accused may remove her
possessions from her? I will deal first with the evidence relating to
the sexual intercourse.
That evening her sister found her
slumped forlornly in her room. She had to persistently ask her what
was wrong. She told her about
her property that was taken by some
person. Intermittently she burst out in tears. Her response to the
question whether “that
person did it to her”, was
answered positively.
[68]
Although she did not use the word rape, but it is clear that they
were talking about sexual intercourse
that occurred under such
circumstances. This is demonstrated by the reaction of the entire
family to the news. Her fiancé
was notified, the police were
contacted for assistance and the family doctor was also jolted into
action. Their emotional outpourings
simply displayed that of people
in distress. Normal people do not report incidents of
consensual sexual intercourse to the
police. It is a private matter
between two (2) consenting adults. Logic dictates that this was a
reaction to an unwanted event.
I hold a considered view that
the absence of the use of the word “sexual intercourse”
or “rape” is not
fatal to that extent that it can be said
that she was not violated. Obviously her nodding to the question
“whether he did
it to her” triggered the chain reaction
that followed thereafter and the conclusion that she was sexually
molested.
[69]
The deceased informed her medical practitioner that a man armed with
a knife had sexual intercourse
with her at three (3) different places
in the office of her employer. It was repeated to Constable
Ella Prinsloo. That
he was armed and subdued her resistance
with it. She informed her that he had sexual intercourse with her on
the chair, table and
floor. It was also relayed to Sister Qhatatsi
that she was penetrated by a man known to her on 9 February 2017 at
16H00pm who had
a knife and he placed it on her neck. There can
be no better corroboration in this regard.
[70]
The accused’s version is that he was surprised by the amorous
showing of the deceased towards
him. He simply reacted to it and it
led to them having sexual intercourse. He was totally taken aback by
her.
[71]
Perhaps it is opportune to examine the version discussed above.
·
The
deceased and the accused were known to each other. Although the
deceased did not know his name.
·
They
were not in any platonic/intimate relationship. The deceased was
engaged to her fiancé.
·
On
the day in question she was on her menstrual cycle.
·
Her
conduct after this ordeal is reminiscent of a person who was put
under duress to have sexual intercourse with the accused.
·
She
had to endure the ordeal of receiving medication, relaying her story
to her family and police. If she had done this willingly
she could
have simply walked away from it and continued with her life. I come
to this conclusion because the deceased must have
been sexually
active because she was taking oral contraceptives.
[72]
The accused’s version is fraught with weaknesses and
improbabilities. The accused was a
poor witness with many
versions littered with contradictions.
·
Prior
to 9 February 2017, he had just been released on 6 February 2017 from
incarceration. He had this long outstanding debt which
only on that
day that he decided to collect. If that is the case he needed money
more than any commodity. The difficulty with the
version of the debt
is that it was only disclosed late in the trial. It is indeed an
afterthought.
·
The
accused gave a version to the police in his warning statement. He
told the police that he was surprised by the deceased when
she
emerged from an adjacent room stark naked. She called him and he went
to her and had sexual intercourse. This is in contrast
to his version
under oath. The version had changed that the deceased started by
kissing him and they pushed each other to the adjacent
room. There
she undressed him and herself. The material contradiction in these 2
versions weakens his case. I have no qualms to
reject it as false.
·
Throughout
it was presented as if the deceased was repaying her debt with sexual
favours. This is contrary to the version
of the accused that it
happened for no reason at all.
[73]
Consistent with the proven facts, I am satisfied that the only
inference to be drawn is that the accused
intentionally and
unlawfully had sexual intercourse with the deceased without her
permission. These facts in my view are of such
a nature that they
exclude every reasonable inference save the one that I have drawn.
[5]
[74]
The next instalment on this matter is whether the accused penetrated
the deceased both anally and vaginally.
Further whether the accused
raped the complainant more than once or not.
[75]
I will commence with the issue whether the accused penetrated
the complainant anally or not.
This aspect was not relayed to her
sister and/or Dr. de Lange. It appears that it was only noted as an
observation by Sister Qhatatsi
in completing the J88. However, she
did not record it as an aspect conveyed to her by the deceased. The
only explanation by Dr.
Mariane Kotze a Clinical Forensic Medical
Specialist is that the deceased might have forgotten or felt
embarrassed about it. Although
that might be, no basis was laid to
come to that conclusion. It is a mere speculation. Both Dr. de Lange
and Constable Prinsloo
were well known to her. She told them
everything and it is unthinkable that such an aspect would be
forgotten or she would be coy
about it. This aspect was not
recorded by the Forensic Pathologist who conducted the autopsy.
In the event of doubt,
the accused is given the benefit of such
doubt. I conclude that the accused did not penetrate her anally.
[76]
The enquiry whether the accused raped the complainant more than once
is a factual matter. Each case
has to be decided on its own facts. In
S v Blaauw, Borchers J set out the approach in the following manner:
“
Each
case must be determined on its own facts. As a general rule the more
closely connected the separate acts of penetration are
in terms of
time (ie the intervals between them) and place, the less likely a
court will be to find that a series of separate rapes
has occurred.
But where the accused has ejaculated and withdrawn his penis from the
victim, if he again penetrates her thereafter,
it should, in my view,
be inferred that he has formed the intent to rape her again, even if
the second rape takes place soon after
the first and at the same
place.”
[6]
Applying
this approach to the facts of this matter, I conclude outrightly that
the accused raped the deceased once not three (3)
times. It was
one continuous act with different positions. The reason for my
conclusion are based on the following:-
·
Constable
Prinsloo took a detailed statement from the deceased about the
incident. She testified that she understood it to be one
sexual act
with different positions.
·
An
equally detailed account of the events was narrated to Dr. de Lange.
He too, testified that he understood the sexual encounter
as one act
with different positions.
·
Counsel
for the defense submitted that the three positions were in the same
place (room) on the chair, table and the floor. There
is no evidence
of the duration of the sexual intercourse nor of any significant
break between the changing of positions or any
other fact to prove
that three separate sexual acts took place. In fact as Dr. de Lange
testified, the deceased informed him that
when the accused was done,
she noticed some sperms dripping from his penis and spilling on the
carpet. This seems to suggest that
one act of sexual encounter took
place. It is clear that these three (3) sexual positions were closely
connected with each other.
Given the circumstances I am unable to
infer that the accused formed separate intent to rape her many times
when they changed positions.
[77]
I now turn to the charge of robbery with aggravating circumstances.
It is common cause that the accused
was found in possession of the
tablet and laptop belonging to the deceased. It is also common cause
that he gained such possession
from 9 February 2017. He left with
them after he had raped her.
[78]
The deceased was consistent in her account of the events of 9
February 2017 relating to how the accused
gained possession of her
tablet and laptop. She told her sister that her assailant left with
them. She did not give details.
Constable Prinsloo, Dr. de
Lange and Sister Qhatatsi corroborates each other regarding the
presence of the knife possessed by the
accused and that he pressed it
against her neck. This account of the events was given to them by the
deceased at different times
and occasions. It is the very knife that
he used to subdue her to succumb to his sexual sadistic attacks. The
overwhelming evidence
is that he had the monopoly of violence at the
scene and could not have left with these items as per her permission.
[79]
The evidence of Nesto Matendere impressed me immensely on this
aspect. He took possession of the tablet
and realized the messages
coming in written in Afrikaans and personal photos of the deceased.
He did not sit back but acted on
his guts that something was amiss.
Perhaps it is this single act of benevolence that led to the accused
being arrested quicker
than he had imagined.
[80]
The accused had brought the tablet to him so that the information on
it could be deleted. He wanted
Bluetooth connectivity with other
devices to be fixed. Nesto stuck to his version and never veered off
it. He denied the version
of the accused as false that the item was
brought to him for safekeeping. He testified that even though they
knew each other they
did not have a platonic relationship.
[81]
The accused’s version lacked credibility and is a concoction of
convenient facts depending on
the question posed to him. He testified
that the deceased owed him money for having fixed the laptop, because
cutex was poured
on its keyboard. The deceased’s sister
testified that she identified the laptop with the marks of the
spilled cutex which
were still visible. It begs the explanation what
is that he fixed given her testimony.
[82]
He continued and testified that he took the items to show to his
landlady that there were people owing
him money. It is not difficult
to know that his landlady will be interested in the settlement of her
rental account not laptops.
It boggles the mind how possession of
these items would have convinced the landlady that she must be
patient and that she will
soon be paid. It remains unexplainable as
to why he so eagerly wanted to take these items on that day.
Minutes after taking
possession of her property he attempted to erase
her information from the tablet and sell the laptop. His conduct
materially contradicts
his version that he was holding them in lieu
of payment. He was doing everything to hide his traces and dispose
them. The
inescapable conclusion is that the accused exerted
force on the deceased armed with a knife and took her Vodafone tablet
and Acer
laptop. His version stands to be rejected as not
reasonably possibly true but false.
[83]
The tragedy that involved the deceased on 9 February 2017 ended with
her death on 24 February 2017.
She never became the same. The
pathologist who conducted the autopsy recorded the cause of death as
“
complications secondary to rape”
as per
Exhibit
“O”.
It is on this basis that the accused is charged
with her murder.
[84]
In our law, murder is described as the unlawful and intentional
killing of another person. It therefore
stands to reason that in
order for an accused to be convicted of this felony, the state must
prove beyond reasonable doubt that
an accused committed an act, (in
this matter rape) that led to the death of the deceased. It must be
established that he had the
necessary intention to kill.
·
The
intent (referred to as
dolus
)
can take the form of
dolus
directus
and
dolus
eventualis.
The state case in this matter is premised solely on the intention in
the form of
dolus
eventualis.
This consists of two (2) parts viz foresight of the possibility
of death occurring and reconciliation with that foreseen
possibility.
[7]
It will be
sufficient that the perpetrator foresee the possibility of death
arising out of his/her actions for the necessary
criminal intent to
exist.
[85]
In its quest to prove its case on this aspect the state relied on the
evidence of three (3) expert
witnesses. Undoubtedly, they are
practitioners of impeccable qualifications, great skill, knowledge
and experience in their chosen
professions. Their immense
contribution geared towards finding the solution of this conundrum is
greatly appreciated.
[86] The
primary function of an expert is to assist the court to reach a
conclusion with regard to matters on which
the court itself does not
have the necessary knowledge to enable it to decide the issue.
[8]
The expert must satisfy the court that he/she is qualified to speak
with authority on the subject matter.
[9]
An expert must satisfy the court that because of his/her special
skill, training or experience, the reasons for his/her opinion
are
acceptable.
In
the event the expert refers to textbooks, articles or other
publications of others, he or she must affirm such, by showing that
the writer of such is a person of established repute and of approved
experience in that field.
[87]
In conclusion, expert evidence though important is part of the entire
evidence to be taken into account.
This far Satchwell J
cautioned in Holtzhausen v Rood in the following manner:-
“
Finally,
opinion evidence must not usurp the function of the Court. The
witness is not permitted to give opinion on the legal or
the general
merits of the case. The evidence of the opinion of the expert should
not be proffered on the ultimate issue. The expert
must not be asked
or answer questions which the Court has to decide.
”
[10]
[88]
The pertinent question is whether on the facts proved relevant to the
conduct of the accused, he foresaw
that the deceased will die and he
reconciled himself to that event occurring?
[89]
It is common cause that the deceased was on the Yaz contraceptive
pill for at least a year before 9
February 2017. This pill has been
associated with a higher risk for venous thrombosis due to the fact
that it promotes blood clotting.
However, the risk for abnormal blood
clot formation decreases with prolonged use though the specifics of
this aspect were not explained
to any significant effect.
[90]
The deceased was prescribed Doxycycline and Flagyl by Dr. de Lange.
Later ARV’s prophylaxis
and antibiotics were added. After
commencing this treatment she experienced severe nausea and was
taking fluids with great
difficulty. She started vomiting and
diarrhoea followed. Alzan, Adco-dol and Vomiguard were added to
the list by Dr. de Lange.
She was examined by a Dr. Nkabinde on
20 February 2017 at Katlego District Hospital, Virginia. He
prescribed Alluvia which is a
different regimen to the normal ARV
prophylaxis. The only reason proffered by Dr. van Zyl is that
probably the treating doctor
expected that the nausea, vomiting and
diarrhoea will be better on another ARV drug regimen. It is
clear that her condition
worsened until her demise.
[91]
In considering the factors that increased the patient’s risk
for developing cerebral venous sinus
thrombosis, Dr. van Zyl
concluded as follows:-
“
The trigger for
the thrombo-embolic event is most likely dehydration (as indicated in
Dr. de Lange’s referral letter to the
hospital in Virginia and
the doctor at Pelonomi hospital) due to vomiting and diarrhoea, made
worse by the lack of taking enough
fluids. Dehydration
increases the risk for blood clots to form. Nausea, vomiting and
diarrhoea are all known side effects
of anti-retro viral prophylaxis
drugs. Administration of anti-retro viral drugs were essential in
this case to prevent transmission
of HIV in high-risk scenario.
The patient would not have been on these medications if she had not
been raped. The antibiotics
doxycycline and Flagyl are also
known to cause severe nausea and vomiting. Again, these
medications were given to prevent
infection in a high-risk scenario.
The patient would not have been on these drugs had she not been
raped”.
[92]
The state’s case is on the basis that had the accused not raped
the deceased then she would not
have taken the medications. The
deceased was more exposed to suffer venous sinus thrombosis following
the stressful events namely
rape. This is the incorrect approach.
[93]
Given the facts found to have been proved, considering all the
evidence relevant to the issue(s) and
applying the correct legal
test, did the accused act with
dolus eventualis
when he raped
the deceased leading to dire consequences. This matter was
authoritatively dealt the in
S v Humphreys
were the following
was said:-
“
For
the first component of dolus eventualis it is not enough that the
appellant should (objectively) have foreseen the possibility
of fatal
injuries to his passengers as a consequence of his conduct, because
the fictitious reasonable person in his position would
have foreseen
those consequences. That would constitute negligence and not dolus in
any form. One should also avoid the flawed
process of deductive
reasoning that, because the appellant should have foreseen the
consequences, it can be concluded that he did.
That would conflate
the different tests for dolus and negligence. On the other hand, like
any other fact, subjective foresight
can be proved by inference.
Moreover, common sense dictates that the process of inferential
reasoning may start out from the premise
that, in accordance with
common human experience, the possibility of the consequences that
ensued would have been obvious to any
person of normal intelligence.
The next logical step would then be to ask whether, in the light of
all the facts and circumstances
of this case, there is any reason to
think that the appellant would not have shared this foresight,
derived from common human experience,
with other members of the
general population.”
[11]
[94]
Both Drs de Lange and Van Zyl as well as Prof Nichol testified that
the cause of death was not reasonably
foreseeable by a person in the
position of the accused. In this regard it does not pass the legal
requirement that this should
be reasonably foreseeable before a
person can be held liable for the death of another person.
[12]
It also clear from the evidence that the use of different medication
could have independently caused the clotting or worked
against each
other to cause sagittal venous sinus thrombosis. Equally so,
according to all the medical practitioners, although
those tasked
with her care did their best they could in the circumstances, thay
did not meet the threshold of proper medical care.
[95]
Dr. Van Zyl recorded the case of death as venous sinus thrombosis.
Dr. Ferreira as complications secondary
to rape. He refuted the
conclusion of his colleague Dr van Zyl to comment on this aspect.
According to him, none of the other experts
are experts on the cause
of death. He pertinently lamented the fact that the treatment by the
medical system was not perfect. Medication
like wafrin and heparine
which are used to prevent anti-clotting were not administered on the
deceased. The important aspect
of his evidence is his admission
that of all factors, “he cannot say which one broke the camel’s
back. This means
that he could not nail his mast on the
specific cause of her death
[96] Certain
contradictions emerged between the evidence of medical experts.
Dr. van Zyl testified that clots
could form and be dormant until
precipitated by a particular event. This aspect is opposed by
Dr. Ferreira that clots
will form and simply progress. Perhaps
this impasse could have been resolved by a Specialist in Internal
Medicine because
this is a medical condition. I canvassed with
Dr. Ferreira whether the cause of death will still be the same in the
event
it is found that the parties had consensual sexual
intercourse. His response was noncommittal.
[97] I have
no qualms about the imminence of these experts. I have
difficulty with the soundness of the opinion
and logic. It
appears to me that they are intent on establishing the causal link
between the rape and the death of the deceased
without logical
reasoning and underlying theory to sustain the conclusion. I
could not decipher whether their testimony or
opinion was based on
generally accepted opinion in this speciality order specific clinical
references. Prof Nichol based
his report on one Ronald von
Kanel. I have no idea who is this author and whether he is an
authority in his field.
He too did not give a clear answer
about him despite assistance by counsel for the accused as to who you
might be. Importantly
whether the aforementioned author is an
authority in the speciality and can comment as such on this subject.
[98] Given
this evidence and taking all into consideration it is patently clear
that it could not have been foreseeable
to the accused that his
action will lead to the death of the deceased. Equally so there
is no nexus that has been established
by the state between his act
and the known results. In the case of doubt, he is given the benefit
of it.
[99] For
these reasons, I conclude as follows:-
99.1
The accused is found guilty on charges one (1) and two (2). He is
acquitted on charge three (3).
Sentence
[100] Sentencing is an
unenviable task to discharge in a criminal trial. This is so
because whatever sentence is meted out
to the accused will not
necessarily be appeasing to all interested parties. However, it
lies within the discretion of this
court to impose a sentence which
is in accordance with the law and guidelines developed in our courts
over a period of time.
In doing so the court must exercise its
discretion judicially in a manner that is just and equitable.
[101] The personal
circumstances of the accused are common cause. The accused is
twenty two (22) years old. He had completed
grade 10 at
school. He is unmarried with one (1) daughter aged two (2)
years. The child is in the care and custody
of her
grandmother. He could not advance at school because of the
death of his parents and financial difficulties that followed
thereafter. Prior to his incarceration he was gainfully
employed at Bafana Bafana Furnishers as a general worker. He
was earning R250.00 per week.
[102] His counsel
submitted that he has been incarcerated since 10 February 2017.
A period of 19 months has elapsed prior
to his sentencing.
Acting on his instructions, counsel conveyed to the mother of the
deceased his sincere condolences and
expressed his remorse for what
occurred on 9 February 2017.
[103] In aggravation, the
state led the evidence of the mother of the deceased.
Tearfully, she recounted what a loving, easy-going
and God-fearing
person the deceased was. She was passionate in her sports and
good at it. She was awarded several medals
for her excellent
performances. She acted as her coach and they spent many hours
together while she was honing her skills.
[104] The deceased was
not only the baby in the family but the centre of attraction.
Her demise had created a void that is
still being felt by the family
to date. This has adversely affected all of them in particular
her father and fiancé.
Her father’s life has been
negatively affected and is deteriorating. It has been an
insurmountable struggle for all
of them to cope in the
circumstances. The devastation caused by the accused’s
ill-considered actions is a bitter pill
to swallow.
[105] On behalf of the
state, it was submitted that the accused has been incarcerated for so
long because of his own doing.
This cannot be considered as a
mitigating factor. The accused was also not appearing in this
matter as a first offender.
He had been sentenced to serve a
six (6) months custodial term for assault with intent to do grievous
bodily harm. He spurned
the window of opportunity afforded to
him.
[106] It is a
well-established principle of our law that the courts must follow the
long developed and followed triad taking into
consideration the
personal circumstances of the accused, the crime and the interest of
the community. In
S
v Banda
it was held that “the triad required the balancing of the
equilibrium and that one element should not be accentuated at the
expense of and to the exclusion of the other”.
[13]
[107] It is so that the
offenses that the accused has been found guilty attracts minimum
sentences of ten (10) and fifteen (15)
years respectively. The
court can only deviate from imposing the said sentences if there are
substantial and compelling circumstances
which can justify the
departure from the prescribed minimum sentence.
[108] It is aggravating
that the accused attacked and violated a defenceless woman. He
did so to her where she was supposed
to be safe viz her workplace.
In
S v
Chapman
[14]
the court emphasized that women must be free to enjoy their rights
like everybody else. The court sternly warned that those
who
commit these crimes will be dealt with a heavy hand without mercy.
Undoubtedly the accused committed heinous crimes targeting
the
vulnerable in society.
[109] On the accepted
evidence, it appears that the accused planned meticulously his
offence. He pounced on her when she was
less expectant of such
an unwanted attention. Having violated her womanhood in the
most ghastly manner he continued to humiliate
her by taking her
property. That was pitiless.
[110] The personal
circumstances of the accused are not extraordinary. He is still
a young man probably with the future ahead
of him. In
S
v Vilakazi
[15]
the court held that “
in
cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background
”.
[111] I find it difficult
on the evidence to accept that the accused is genuinely remorseful.
In
S v
Matyityi
[16]
the following was said:-
“
After all,
before a court can find that an accused person is genuinely
remorseful, it needs to have a proper appreciation of, inter
alia:
what motivated the accused to commit the deed; what has since
provoked his or her change of heart; and whether he or she
does
indeed have a true appreciation of the consequences of those
actions.”
[112] Taking all into
consideration, I am of the view that there are no substantial and
compelling circumstances which can justify
the departure from the
prescribed minimum sentence. I note that the accused had been
incarcerated for some lengthy period.
However, this is largely
due to the fact that he had broken his parole conditions. He
has no one to blame but himself.
Equally I do not intend to
impose sentence on him that will be tantamount to breaking him.
The facts of this matter demand
the imposition of the minimum
sentence as ordained by the Legislature.
[113] In the result, the
following order is made:-
113.1 Charge 1 - The
accused is sentenced to ten (10) years imprisonment.
113.2 Charge 2 -
The accused is sentenced to fifteen (15) years imprisonment.
It is further ordered
that the five (5) years in charge 1 will run concurrently with the
sentence in charge 2. The effective
term of imprisonment will
be twenty (20) years.
M.
A. MATHEBULA, J
On
behalf of the State:
Adv.
J. M. De Nysschen
Instructed
by:
National Director of Public Prosecution
Bloemfontein
On
behalf of the Accused:
Adv. P. Nel
Instructed
by:
Legal Aid
Bloemfontein
[1]
1996
(1) SACR 639
(A) at 649 D
[2]
See footnote 1 para F
[3]
2003 (1) SACR 134
(SCA) at para 15
[4]
2000 (1) SACR 453
(SCA) at 455 A-C
[5]
S v Blom 1939 AD 188
[6]
1999 (2) SACR 295
(W) at 300 C-D
[7]
S v Pistorius
2016 (1) All SA 346
(SCA) para 26
[8]
Expert Evidence in Clinical Negligence – Patrick van der
Heever et Natalie Lawrenson, Juta, 2015 page 16
[9]
Menday v Protea Assurance Co Ltd
1976 (1) SA 569
(E) at 569
[10]
1997 (4) SA 766
(W) at 773 B - C
[11]
2015 (1) SA 491
(SCA) para 13
[12]
S v Van As 1976 (2) SA 921 (A)
[13]
1991 (2) SA 343 (BG)
[14]
1997(3) SACR 341 (SCA)
[15]
2009 (1) SACR 552 (SCA)
[16]
2011 (1) SACR 40
(SCA) para 47