Botha v S (901/2016) [2017] ZASCA 148 (8 November 2017)

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[2017] ZASCA 148
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Botha v S (901/2016) [2017] ZASCA 148 (8 November 2017)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case No:
901/2016
In
the matter between
GLOUDINA
JOHANNA BOTHA
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Botha
v S
(901/2016)
[2017] ZASCA 148
(8 November 2017)
Coram:
Cachalia JA
and Mokgohloa, Gorven, Mbatha and Rogers AJJA
Heard
:
15
August 2017
Delivered
:
8
November 2017
Summary:
Criminal
procedure – refusal of discharge in terms of s 174 –
court a quo did not act irregularly by refusing discharge
–
there was evidence on which a reasonable court might convict.
Criminal
procedure – reopening of the State’s case – State
failed to establish grounds for reopening – court
a quo’s
decision to allow reopening irregular (Mokgohloa AJA and Mbatha AJA
dissenting).
Criminal
procedure – whether State proved beyond reasonable doubt that
appellant shot deceased and that deceased did not commit
suicide –
excluding evidence adduced pursuant to irregular reopening, such
guilt established (Gorven AJA, Cachalia JA concurring,
Rogers AJA
dissenting)
On
all the evidence, including evidence adduced pursuant to reopening,
such guilt established (Mbatha AJA,
Mokgohloa
concurring).
Sentence – 12 years’
imprisonment strikingly inappropriate – mitigating
circumstances, including prolonged abuse
– appellant not a
danger to society – matter remitted to trial court for
reconsideration of sentence in terms of s 276(1)(h).
ORDER
On
appeal from:
Northern
Cape Division of the High Court, Kimberley (Phatshoane J, sitting as
court of first instance):
1
The appeal against conviction is dismissed.
2
The appeal against the sentence is upheld.
3
The sentence imposed by the court a quo is set aside.
4
The matter is remitted to the court a quo for it to take the steps
set out in        s 276A(1)
(
a
)
of the
Criminal Procedure Act 51 of 1977
and to thereafter impose
sentence afresh.
JUDGMENT
Mbatha
AJA (
Mokgohloa
AJA concurring)
[1]
The appellant, Mrs Gloudina Botha, was charged and convicted by the
Northern Cape Division, Kimberley on 10 December 2015 on
one count of
murder read with the provisions of s 51(1) of the Criminal Law
Amendment Act 105 of 1997 (the CLA). The court
a quo found in terms
of s 51(3) of the CLA that there were substantial and compelling
circumstances and imposed a sentence
of 12 years’ imprisonment.
With leave of the court a quo, the appellant appeals to this Court
against both conviction and
sentence.
[2]
On Saturday the evening of 10 July 2010 at about 19h00 the deceased
retired early to bed. The appellant joined the deceased
in bed
shortly thereafter. The following morning only the appellant emerged
alive. The deceased had died as a result of two gunshot
wounds to the
head.
[3]
The deceased and the appellant lived on a farm in Kareehoek,
Britstown in the Karoo. The deceased was a prominent and successful

farmer in the area. It emerged from the evidence that the deceased
treated his family with cruelty, in particular his stepsons,

biological son and the appellant. The appellant was always at the
receiving end of his brutality. The deceased was known for his

aggression and cruelty not only to his immediate family but also
within the extended family and in the community of Britstown.
[4]
It is common cause that on a Friday, 9 July 2010, at lunchtime, the
deceased was in a terrible aggressive mood after learning
of the loss
of sheep, which had died after eating a poisonous plant in one of the
camps under the control of his stepson, Pieter.
The appellant and the
deceased left together after lunchtime to go to the camp where the
carcasses were. In his enraged state,
the deceased almost ran Pieter
down with the bakkie, as Pieter had refused to proceed with him to
the camp. It was also during
this trip that he assaulted the
appellant in the presence of Pieter. The appellant was also
traumatised by the reckless way that
the deceased drove that
afternoon as the deceased just drove through the closed gates. Upon
their return at about 18h00 when the
appellant complained to him that
she would never drive with him again, the deceased went berserk, hit
her with a fist on her chest,
slapped her on her face and when she
fell down he kicked her to a point that she wet herself. In his
fuming state that afternoon,
the deceased had driven up to Casper
Byleveldt, his daughter’s fiancée, forcing him against
the wall with his bakkie
to a point that he could not move forward or
backwards. This incident had unsettled Casper to a point that he had
considered leaving
the farm with Loudine. He had no idea what caused
the deceased to act so irrationally.
[5]
The deceased retired very early for bed at about 19h00 after watching
a rugby match. He had been very quiet and morbid the whole
afternoon.
That was the last time that Loudine and Casper saw the deceased
alive. On the morning of 11 July 2010, Loudine and Casper
had left
for Vioolkop farm at about 08h15. Shortly thereafter they received a
call from the appellant informing them that the deceased
had shot
himself. This led to the arrival of Leon van Heerden, who went inside
the farmhouse with Casper and confirmed that the
deceased was dead.
The police arrived and processed the crime scene. Riaan and Nelia
Botha, cousins to the deceased and other members
of the family also
congregated at the deceased’s home.
[6]
As a result of the fatal shooting of the deceased, the appellant was
charged with murder. The State had called a number of witnesses.
It
is unnecessary to delve into their evidence fully.
[7]
The State’s case is based on circumstantial evidence. Therefore
the all enduring of logic as stated in
R
v Blom
[1]
should be applied.
[2]
The appellant went to bed with the deceased and the following morning
he was dead. The appellant tested positive for the primer
residue and
the deceased did not, even though he had allegedly fired two shots to
his head, in the process killing himself. In
the light thereof, the
court a quo concluded that she had a case to answer.
[8]
The appellant related as to what happened when she joined the
deceased in bed. Although they were exhausted, they could not
fall
asleep and the deceased conversed the whole night about various
issues. He relived his early childhood life without maternal
love,
expressed his pain about his sons, Nannie and Phillip who had left
the farm. He expressed his hope that one day when he is
‘gone’,
Phillip would return to the farm. The deceased also appeared to have
come to terms with the fact that Loudine
was to marry Casper, the
farm manager, despite their disapproval of the marriage. They
discussed a number of issues including where
she would live after his
death and the deceased informed her about the letter of wishes left
for her and Riaan Botha, which was
attached to his last Will in the
safe. The deceased had expressed his fear of dying from brain cancer
like his mother, as he frequently
suffered from severe headaches.
[9]
The appellant contended that the conversation continued into the
early hours of the morning when the deceased suddenly complained
of a
severe headache and requested the appellant to get him a disprin from
the kitchen. As it was a bitter cold night, before going
downstairs
she remarked to the deceased that his hands were very cold and the
deceased responded that his hands were also prickly
as if they had
needles in them. The appellant suggested that he wear the gloves that
he received as a gift from a friend, which
she assisted him to put
on.
[10]
The appellant then proceeded downstairs to the kitchen and on her way
back to the bedroom, carrying a tumbler containing the
dissolved
disprin, she heard a gunshot whilst at the top of the staircase. She
entered the bedroom and went to sit next to the
deceased on his side
of the bed. She noticed a trickle of blood behind the deceased right
ear. The appellant enquired as to what
happened and the deceased
responded by saying that he suffered a stroke. The deceased then
lifted his head and drank the dissolved
disprin, whilst he held the
firearm in his right hand.
[11]
The appellant tried to remove the firearm from the deceased hand, but
failed due to her arthritis. She testified further that
the deceased
told her to let go of the firearm, lest she causes danger to herself.
[12]
The appellant could not recall for how long she sat next to the
deceased, but she testified that the deceased enquired about
the
whereabouts of their children and that the deceased was completely
incoherent at that stage. The deceased then pointed the
firearm at
the appellant, told her to run and call their children. The appellant
changed out of her night clothes, dressed herself
in civilian
clothing and went out of the bedroom to call Loudine.
[13]
As she was descending the steps, but before reaching the front door,
she heard the gunshot go off for the second time. She
immediately
returned to their bedroom and on the bed she noticed a lot of blood
and the deceased had sustained a head wound. The
appellant sat down
next to the deceased, took the firearm from his hand, opened it to
see if all the cartridges had been fired
and checked how many rounds
of ammunition were left in the firearm.
[14]
The appellant then removed the gloves from the deceased hands in
order to check for a pulse, but soon realised that the deceased
was
dead. The appellant touched the deceased’s face, put the
firearm down and walked out of the bedroom to call Loudine.
[15]
On Loudine and Casper’s return, they waited in Casper’s
house, until the arrival of Leon and the Police. It was
the
appellant’s evidence that before they entered Casper’s
house, she requested Casper to go to their bedroom in the
farmhouse
to fetch a bundle of her night clothes, which were lying on the floor
at the foot of the bed. These night clothes were
placed in the
washing machine by the appellant. The appellant confirmed relating to
Nelia Botha a few days later, that she had
found the pair of gloves
that the deceased wore the night of his death, from the washed
laundry, amongst her night clothes.
[16]
At the plea stage the appellant offered no explanation in terms of
s 115 of the Criminal Procedure Act 51 of 1977
(the CPA),
preferring to exercise her right to remain silent. However, it became
apparent early during the cross-examination of
the state witnesses,
that the appellant’s defence was that the deceased committed
suicide.
[17]
In criminal proceedings the State bears the onus to prove the
accused’s guilt beyond a reasonable doubt. The accused’s

version cannot be rejected only on the basis that it is improbable,
but only once the trial court has found on credible evidence,
that
the explanation is false.
[3]
The corollary is that, if the accused’s version is reasonably
possibly true, the accused is entitled to an acquittal. The

appellant’s conviction can only be sustained after
consideration of all the evidence, and her version of the events is
found
to be false.
[18]
The exact time of the shooting was never canvassed during trial.
However, it can be accepted that the shooting of the deceased
could
not have been during the early hours of the morning when it was still
dark, due to the fact that it was not disputed that
the appellant’s
phone call to Loudine was after 08h15 in the morning on 11 July 2010.
Had the shot been fired in the early
hours of the morning, Loudine
would have heard it.
[19]
The appellant could not explain how the gloves that she had removed
from the deceased’s hands, after he allegedly shot
himself
ended up in the pockets of her night gown. There was no explanation
as to why she had to remove both the gloves to check
for a pulse. If
she had removed the gloves, one would have expected them to have been
placed on the bed or on the floor, or on
the side of the bed which is
the side where the deceased was lying. No gloves were found on the
crime scene. Her version is that
the gloves must have found their way
onto the pile of discarded nightwear. For this to be true she must
coincidentally have thrown
the gloves towards the end of the bed on
the deceased side, so that they landed on the night clothes. At no
stage did she testify
that she threw the gloves away from the bed but
her evidence was that she removed the gloves only. More confusing was
how the gloves
found their way into the pockets of her nightgown, as
she had changed into civilian clothes before she went downstairs and
before
the deceased shot himself for the second time. The version of
the appellant is improbable if not false.
[20]
More improbable was her evidence in that she suggested that the
deceased put on gloves in bed, instead of telling him to put
his
hands under the blanket. The appellant’s version is improbable
as Loudine and Leon had testified that the deceased never
wore gloves
even at day time.
[21]
The appellant failed to explain why she did not seek help or
assistance from her daughter, who was supposedly in the house,
if
indeed the shooting occurred in the early hours of the morning. Her
conduct after the firing of the first and second shots is

inconsistent with the conduct of a reasonable person placed in the
same situation.
[22]
There is also a question as to where the firearm came from. The
appellant claimed not to have seen it anywhere in the room
before
coming back after the first shot, yet she heard the sound of a
gunshot. It may have been in the deceased’s bedside
cabinet,
but the deceased was found lying on her side of the bed where there
is no drawer or cupboard. Therefore the deceased could
not have
hidden the revolver inside the bedside table, which had no drawer.
The irresistible inference to be drawn is that she
was in possession
of the firearm.
[23]
Notwithstanding that the deceased shot himself for the second time,
she carefully removed the duvet cover and placed it on
a chair, just
to sit next to the deceased instead of assisting her husband . She
sat on the bed and counted the cartridges left
in the firearm,
instead of trying to get medical assistance for the deceased. More
improbable, however, is her conduct after the
shooting in that she
took only the night clothes that she wore on the night in question
and placed them in the washing machine,
whereas the clothes that she
wore the previous night lay in an untidy heap in the same room. If
she was sensitive about the untidiness
of the clothing and underwear
being seen by police officers, it is surprising that she asked her
daughter’s fiancée
to fetch her underwear and night
clothes only and not the clothes of the previous day, which lay on
the floor. Casper had denied
that he had removed her night clothes
from the bedroom at all. This is contrary to the evidence of Casper.
According to Casper
he never removed her night clothes from the
bedroom at all.
[24]
The version given by the appellant that she saw a trickle of blood
behind the deceased’s ear without mentioning the presence
of
the wound is improbable. The appellant testified that she sat next to
him on the bed and tried to take the firearm from his
hand. This
would have given her an opportunity to observe the wound on the side
of his head, particularly since she heard a gunshot.
[25]
It is also common cause that though the key of the safe was kept in
various places in the house, the deceased returned the
keys to the
appellant on the Saturday. There is no evidence that indicates that
at any stage prior to the deceased retiring to
bed, he had asked her
for the key.
[26]
The appellant went to great lengths to cover her actions by inventing
the gloves story. The fetching and washing of her night
clothes which
coincidentally included the gloves in the pockets of her nightgown
and also making sure that she relates this to
Cornelia Botha, being
her version as to what occurred on that fateful night. The conclusion
that one comes to is that the appellant’s
version was false and
in those circumstances it cannot reasonably be the truth. There are
many improbabilities in her account coupled
with the contradictory
evidence from Casper and Cornelia regarding the gloves issue.
[27]
Having considered the totality of the evidence, the probabilities and
improbabilities, it is my view, that her version is false.
The trial
court cannot be faulted for rejecting her version as well.
[28]
The letter of wishes dated 20 June 2010, with a heading ‘
Brief
van wense
aan
trustees’ and addressed to 'Koekie en Riaan’ was read by
Riaan and the appellant the day following the death of
the deceased:
It records as follows:
‘
Brief
van Wense aan Trustees
Koekie
en Riaan
1.
Begrawe
my in rante sonder enige seremonie so gou as moontlik.
2.
Kinders
Verdeling Inkomste:
Lo-Ami
– Kareehoek. Estorte en Botterkraal
Loudine
– Plotpan
Pieter
– Good Hope en Wit Baku
Flip
– Wildebeeskuil Brakendam
Koekie
– Lang Memieskloof
Kareehoek
almal wat hulle deel bydra tot die in standhouding van die plaas en
dit moet instand gehou word soos ek dit gelaat het.
Koekie kan in die
hoof huis bly so lank as wat sy wil en daarna sal dit instand gehou
word vir die hele familie.
Elke
een sal moet of sy stuk voltyds boer anders sal dit deel van die
Kareehoek opset word en die een sal sy inkomste verbeur indien
een op
Kareehoek bly sal hy sy deel van sy inkomste op sy stuk kan kry as hy
dit goed bestuur. Jo-Ami kan deeltyds op Kareehoek
Estorte woon en sy
hoef nie op haar stuk in SA woon nie. Geen een sal sy of haar huis
aan iemand kan verhuur nie, maar indien een
van sy of afstammelinge
daarop voltyds boer sal hy geregtig wees op sy inkomste. Koekie ken
haar deel en Kareehoek verhuur as sy
wil of een van die kinders kan
dit vir haar boer.
Die
een wat op Kareehoek bly + een van die ander wat ‘n deel van
die bokke dan kan ook daar in deel. Ek sal dit graag wel
laat behou
vir die nageslag.
Flip
sal moet sy voornneme bewys om deel van die besigheid te wil word
anders sal ek wil hê hy moet uit gesluit bly ek voel
hy was
onder vreemde druk wat hy aan my gedoen het, maar as hy dit wil
volhard vir sy vrou vrou en kind respekteer ek dit en sal
nooit die
seer kan vergeet wan hy aan my gedoen het nie, al het ek hom so
bederf tot nadeel van die ander kinders nie.
Nannie
ek voel vir jou jammer dat jy my heeltemal as stief Pa verwerp het en
het gehoop jy sou my vergewe het vir wat ek aan jou
gedoen het, maar
jy het self jou ma wat soveel vir jou en Pieter opgeoffer het verwerp
ek hoop jy maak met haar vrede sonder om
eers terug te verwag en net
vir haar te gee wat jy oor jare nie gedoen het nie.
Ek
hoop een of almal sal die ideale wat ek vir die familie gehad voor te
sit en gelyk maar ook hierdie pragtige besigheid vorentoe
te vat.
God
het my vergewe ek hoop almal van julle sal die ook kan doen.
Liefde
Nico’
[29]
The letter of wishes spoke directly to its recipients, ‘Koekie’
and Riaan. The letter stated where the deceased
wished to be buried
without ceremony, dealt with the estate and distribution thereof and
ended with a note that God forgave him
and that he hoped that they
will be able to forgive him too.
[30]
It was argued on the appellant’s behalf that the letter of
wishes supported the suicide scenario as against a homicide.
The
letter of wishes was only written on the advice of the deceased’s
accountant Mr Swiegers, otherwise it would have been
non-existent.
The contents of the letter were in line with the wishes of the
deceased. It does not in any way suggest that the
deceased wished to
commit suicide.
[31]
The trial court made credibility findings in respect of the state
witnesses. In
S v
Pistorius
[4]
this Court expressed itself as follows:
‘
It
is a time-honoured principle that once a trial court has made
credibility findings, an appeal court should be deferential and
slow
to interfere therewith unless it is convinced on a conspectus of the
evidence that the trial court was clearly wrong.
R
v Dhlumayo and Another
1948 (2) SA 677
(A) at 706;
S
v Kebana
[2010]
1 All SA 310
(SCA) para 12.’The trial court has the enviable
benefit of being steeped in the trial.’
[5]
[32]
Accordingly, I am satisfied that the court a quo’s approach to
the credibility finding of the State witnesses’
evidence was
correct. In the absence of any suggestion that the trial court in
assessing the credibility of the State witnesses
was wrong, this
court is unable to interfere with the court a quo’s finding.
[33]
I now turn to the questions of law raised in the appeal. First,
whether the appellant was entitled to be discharged at the
close of
the State’s case in terms of s 174
[6]
of the CPA and second, whether the court a quo committed an
irregularity when it permitted the State to reopen its case and lead

further evidence. If the answer is in the positive, (in both
scenarios), what the effect of such irregularity should be.
[34]
The question whether the court a quo should have granted a discharge,
entails an exercise of a discretion by the court a quo,
which
discretion must be exercised judicially.
[7]
It is my view that the court a quo correctly exercised its discretion
as the credibility of the witnesses play a very limited role
in the
s 174 application.
[35]
As to the second question of law, this Court in dealing with a
similar situation in
S
v Ndweni & others
[8]
said the following:
‘
An
applicant seeking to re-open a case and lead further evidence will
generally be required to satisfy the following requirements:
(a)
There
should be some reasonably sufficient explanation, based on
allegations which may be true, why the evidence which it is sought
to
lead was not led at the trial.
(b)
There
should be a
prima
facie
likelihood
of the truth of the evidence.
(c)
The
evidence should be materially relevant to the outcome of the trial.’
[36]
The court a quo may in the exercise of its discretion and at any
stage of the proceedings, grant leave to a party to the proceedings

to re-open its case. The State provided sufficient reasons for the
application, such as the inexperience of the State advocate,
which
led to the failure to call certain material witnesses. The State
indicated that it had started with the re-examination process
of the
exhumation of the deceased’s body as the doctor who conducted
the first autopsy was not a pathologist. The State also
intended to
recall certain state witnesses. This application, which was brought
after the refusal of an application to discharge
the appellant,
cannot be said to be supplementing the State’s case. It was in
the interest of justice that the truth be told.
The court a quo had
already ruled that the appellant had a case to answer. In these
circumstances there was no prejudice to the
appellant in the
re-opening of the State’s case.
[37]
With regard to sentence, a
n
appeal court will interfere with sentence only on named grounds. One
of these is where the trial court materially misdirected
itself.
[9]
[38]
The appellant was sentenced on the basis that the murder was
premeditated in terms of the provisions of s 51(1) of the
CLA,
which prescribes a minimum sentence of life imprisonment. The court a
quo stated that this emanated from ‘inferential
reasoning,
supported by objective facts’ which, it was said, established
that: the deceased was asleep when he was killed;
that the appellant
must have read the letter of wishes (as she had access to the keys of
the safe); and that the killing of the
deceased was motivated by
greed as she wished to have control over the family finances.
[39]
I do not agree with such a conclusion as there is no evidence to
support that she armed herself with a firearm, planned to
kill the
deceased and that she had prior access to the letter of wishes. It is
therefore clear that premeditation was not established
and that the
court a quo committed a material misdirection in this regard. The
appellant should therefore have been sentenced in
terms of s 51(2)
of the CLA. This requires a minimum sentence of 15 years’
imprisonment absent substantial and compelling
circumstances
warranting a reduction. In fact no one knows how the events of the
night unfolded except the appellant. The killing
of the deceased
could have been premeditated or not premeditated. That leaves this
court at large to consider the sentence afresh
and giving the benefit
of the doubt to the appellant.
[40]
The court a quo found the following substantial and compelling
circumstances to exist. It highlighted the advanced age of the

appellant (67 years old at the time of the offence), that she had no
previous brushes with the law, was residing in a retirement
village
in Kimberley, that there were far reaching effects of the death of
the deceased on the appellant’s relationship with
her family
and that it was very unlikely that she would commit a crime of this
nature in the future.
[41]
A synopsis of the appellant’s emotional and physical state was
completely disregarded by the court a quo. The court a
quo over
emphasised the seriousness of the offence by stating that ‘the
sentence to be imposed should send out a clear message
that the crime
of murder would not be countenanced, particularly if it involves
premeditation’. The court a quo ignored the
evidence of the
appellant, Pieter, Phillip, and Dr Panieri-Peter, a specialist
forensic psychiatrist, with regard to the abusive
behaviour of the
deceased towards her and other family members. Both the appellant’s
sons testified of the prolonged abuse
meted on the appellant by the
deceased and related their own personal experiences of abuse at the
deceased’s hands. It is
significant to note that the intensity
of the abuse was of such a nature, that it resulted in Nannie and
Phillip leaving the farm
for good.
[42]
The appellant is now 70 years old and alienated from most of her
family. She ultimately had to leave the farm in January 2012,
and, in
February 2012, was admitted to a psychiatric ward in Kimberley and
still remains under the care of a psychologist and a
psychiatrist. Dr
Panieri-Peter stated that she suffers from severe post- traumatic
stress disorder, generalised anxiety and depression.
Since she left
the farm, Loudine has never visited her. She has virtually no assets.
The death of the deceased led to the breakdown
of the relationships
between her and her daughters. As the conviction has been confirmed
by this Court she will be destitute as
she may not be entitled to any
inheritance under the deceased’s will and will have no source
of income and she has virtually
no assets.
[43]
This Court was referred to
S
v Ferreira
[10]
,
where the court imposed a wholly suspended sentence. The approach to
take where a women offender had been abused was there stated
to be:
‘
It is
something which has to be judicially evaluated not from a male
perspective or an objective perspective but by the Court's
placing
itself as far as it can in the position of the woman concerned, with
a fully detailed account of the abusive relationship
and the
assistance of expert evidence such as that given here. Only by
judging the case on that basis can the offender's equality
right
under s 9(1) of the Constitution of the Republic of South
Africa Act 108 of 1996 be given proper effect. It means
treating an
abused woman accused with due regard for gender difference in order
to achieve equality of judicial treatment. “Sexual
violence and
the threat of sexual violence goes to the core of women's
subordination in society. It is the single greatest threat
to the
self-determination of South African women.” It also,
therefore, means having regard to an abused woman accused's

constitutional rights to dignity, freedom from violence and bodily
integrity that the abuser has infringed.’
[11]
[44]
In
S
v Potgieter
,
[12]
this court imposed a non-custodial sentence after the trial court
convicted the accused for murder and sentenced her to seven years’

imprisonment. It was assumed in favour of the accused that over a
period of six years she was subjected to assaults, humiliation
and
psychological abuse by the deceased. She was a first offender and had
four children. The Court set aside the trial court’s
sentence
and remitted the case to the trial court to consider a fresh sentence
after complying with the provisions of s 276A1(a)
of the CPA.
[45]
In
S
v Larsen
,
[13]
the appellant had been sentenced to five years’ imprisonment,
half of which had been conditionally suspended, for murdering
her
husband. This court set aside the sentence and remitted the case to
the court a quo for the reconsideration of the imposition
of sentence
after complying with s 276A 1(a) of the CPA.
[46]
In
S
v Samuels
[14]
the following was stated
:
‘Sentencing
courts must differentiate between those offenders who ought to be
removed from society and those who, although
deserving of punishment,
should not be removed. With appropriate conditions, correctional
supervision can be made a suitably severe
punishment, even for
persons convicted of serious offences’.
[15]
The appellant certainly does not fall within the category of persons
who need to be removed from society. Imprisonment could, and
probably
would, have a devastating effect on her, particularly taking into
consideration that over a period of 30 years she was
subjected to
assaults and abuse by the deceased. I am of the view, in all the
circumstances, that consideration should be given
to the imposition
of a sentence under s 276(1)
(h)
.
Since the provisions of s 276A(1)
(a)
of the CPA must be complied with before consideration of such a
sentence can take place, it is necessary to remit the matter to
the
court a quo to comply with these provisions and to consider the
sentence afresh.
[47]
In the result the following order is made:
1
The appeal against conviction is dismissed.
2
The appeal against the sentence is upheld.
3
The sentence imposed by the court a quo is set aside.
4
The matter is remitted to the court a quo for it to take the steps
set out in s 276A(1) (
a
)
of the
Criminal Procedure Act 51 of 1977
and to thereafter impose
sentence afresh.
____________________
YT
Mbatha
Acting
Judge of Appeal
Rogers
AJA (dissenting)
Introduction
[48]
In my view the appellant’s
appeal against her conviction should succeed. As I shall presently
explain, I consider that the
court a quo acted irregularly in
allowing the State to reopen its case. I shall deal with the
implications of that decision at
the end of my judgment. First, I
shall address the question whether on the remaining evidence the
State proved the appellant’s
guilt beyond reasonable doubt, a
question which I answer in the negative. In discussing the remaining
evidence I disregard the
trial court’s assessment of the
witnesses’ credibility for two reasons: (i) Firstly, the court
a quo made some unfair
criticisms of the evidence adduced by the
defence witnesses while not subjecting the evidence of the
prosecution witnesses to the
same critical scrutiny. The court’s
assessment was not balanced. (ii) Second, the court a quo’s
credibility assessment
may have been affected by the additional
evidence adduced by the State pursuant to the reopening.
[49]
As appears from my
colleague’s judgment, there are only two possibilities as to
how the deceased died: either he committed
suicide or the appellant
shot him. If it was the latter, intention to kill must inevitably be
inferred, given that two shots were
fired to the head from close
range. The question is whether the State proved beyond reasonable
doubt that the deceased did not
commit suicide.
Background
[50]
The case – both in
regard to conviction and sentence (though in the event I do not reach
the question of sentence) –
cannot be understood without some
appreciation of the family history. Since the members of the extended
family share the surnames
Botha or Van Zyl, I shall after their first
mention refer to them by their first names, meaning no disrespect.
[51]
The deceased and the
appellant were both 61 at the time of the former’s death. They
got married in January 1976. This was
the deceased’s first
marriage and the appellant’s second. She had two sons from her
previous marriage, Pieter and Nannie
van Zyl. From the marriage
between the appellant and the deceased three children were born:
LoAmi, Loudine and Phillip. LoAmi relocated
permanently to the United
States in 1999.
[52]
The evidence revealed that
Nico was a domineering and manipulative man who was cruel,
emotionally and physically, to his family
and workers. While he could
be charming to outsiders, he was prone to fly into terrible rages. He
had to have his own way and would
never admit to being in the wrong.
He was an unrelentingly hard worker and expected his wife, stepsons
and sons to follow his lead
for meagre remuneration and little
appreciation. He fell out with his brother Arno and his stepbrothers
Charl and Johan. The latter,
who was one of the defence witnesses and
who for a while had a farming partnership with the deceased,
described how the deceased
sought to control those around him,
including Johan and Johan’s wife. Johan still had nightmares
about the deceased’s
abusive behaviour.
[53]
The deceased wanted his
sons and stepsons to be involved in his farming empire but strictly
on his own terms. As boys Nannie and
Pieter suffered considerable
cruelty at his hands. As young men they both started employment with
Nico in the mid-1990s. He was
often abusive to them. After one such
incident in 2003, when Nico told Nannie that he was useless and
should get off the farm,
the latter packed his things that very
night, left Kareehoek and never had anything more to do with his
stepfather. Pieter was
subjected to similar invective. He testified
that he and his wife Alanda stayed on the farm because he had young
children.
[54]
Nico’s son, Phillip,
very much the apple of his eye, took up residence at Kareehoek in
2004. He married his wife, Zane, that
year. Following the birth of
their first child in April 2008, Zane developed severe postnatal
depression and required hospitalisation
in Bloemfontein. Nico’s
attitude was that it was all in her head and she should get over it.
He resented any time Phillip
took off to be with his wife. Matters
came to a head later that month after Phillip returned to the farm
from Bloemfontein. Nico
verbally abused Phillip, assaulted him and
threw rocks at his car when he tried to drive away. Phillip put his
packed bag back
into the car, drove off and never spoke with his
father again. His father’s attempts to hound him led to Phillip
launching
high court proceedings for an interdict against any
communication from his parents. This interdict was granted despite
opposition.
The interdict was against the deceased and the appellant
– Phillip, who was called for the defence, testified that if he
had not included his mother as a respondent, the deceased would have
made her life a misery in his endeavours to get at him.
[55]
Although the deceased was
the cause of it, Phillip’s departure was a huge emotional shock
to him. He was often tearful and
spoke of killing himself. Pieter and
Alanda testified that about a month after Phillip’s departure
they were visiting the
deceased with their grandson. Alanda found the
deceased sitting in his study, the gun safe open and a rifle on his
lap, weeping
inconsolably.
[56]
At around this time
Loudine moved back to Kareehoek to assist her parents. In the latter
part of 2009 Casper Byleveldt commenced
employment for the deceased
as farm manager. Not long afterwards Loudine and Casper began a
romantic relationship and became engaged
in February 2010. Pieter and
Alanda were living on another farm forming part of the deceased’s
empire.
[57]
The letter of wishes which
the deceased wrote on 20 June 2010 is quoted in full in my
colleague’s judgment. This day, a Sunday,
was Father’s
Day. Phillip testified that he sent his father an SMS, saying that he
had forgiven him for all the hurt he had
caused. This was the only
contact he had with his father after leaving Kareehoek in April 2008.
On the same day Zane sent the deceased
and the appellant a photograph
of their granddaughter. This contact with Phillip may well have
reopened the deceased’s emotional
wound and account for the
writing of the letter of wishes and its maudlin tone.
7
- 10 July 2010
[58]
This provides the
background, of necessity cursory, to the more important events of the
days immediately preceding the deceased’s
death. Pieter’s
youngsters spent about ten days with the deceased and appellant in
late June/early July 2010. The deceased
enjoyed this period with his
grandsons but became tearful when the time came to return them to
Pieter. According to the appellant,
on the evening of Thursday, 8
July 2010, the deceased was very depressed after having returned the
children to Pieter. He told
her that he sensed he would never see the
grandchildren again. He expressed his fear of being diagnosed with
brain cancer, brought
on by a growing bone deformity he had noticed
on the right side of his head.
[59]
Before this, on Wednesday
7 July 2010, the deceased had spent some time in conversation with
his cousin and very close friend, Riaan
Botha, on the latter’s
farm in the same district. Riaan and his wife Cornelia were among the
witnesses for the State. The
deceased was visibly upset when Riaan
asked whether there had been any contact from Phillip. The deceased
said that he had made
a mistake in bringing his sons back to
Kareehoek – he should have left them to drive trucks. He told
Riaan that Pieter would
not be getting a salary increase for the next
two years. He discussed various plans he had: arranging Loudine’s
wedding,
a livestock auction and trips to Botswana and the United
States. There was also some reference to his will though Riaan could
not
remember the details.
[60]
Riaan and the deceased
were accustomed to speak on the phone virtually every day. Riaan, who
had returned to Gordon’s Bay
with his wife, testified that over
the period Thursday to Saturday he tried on several occasions to
phone the deceased but received
no response. Because this was unlike
the deceased and because the deceased seemed to have been downcast on
the Wednesday, Riaan
told Cornelia on the Saturday evening that if he
did not hear from him on the Sunday he intended to drive back to
Kareehoek.
[61]
On Friday 9 July 2010 the
deceased started out in a depressed mood. This switched to a
frightening rage after the deceased learnt
that about 50 sheep had
died from eating a poisonous plant. The deceased told the appellant
that this was Pieter’s fault.
After lunch he forced her to
drive with him to where Pieter was busy with some workers. He drove
like a man possessed. He instructed
Pieter to get into the bakkie and
show him the sheep’s carcasses. A worker climbed onto the back.
The deceased swerved recklessly
from side to side, saying he did not
mind if they crashed. He stopped at one gate for the worker to open
it, and drove off, leaving
the worker stranded. He slapped the
appellant and asked why she stayed silent. The appellant was shaking
from anxiety. At the next
gate Pieter got out and refused to get back
in. The deceased tried to run him over, driving over a fence when
Pieter jumped over
it. Eventually he stopped the bakkie, got out and
struck Pieter. The latter told the deceased that he was bitterly
disappointed
by his behaviour. They spoke for a few minutes after
which the deceased calmed down.
[62]
They then drove together
to view the carcasses. After a long discussion about the future of
the farming operations, the deceased
said to Pieter (in Afrikaans),
‘This time I can’t go on, take your people, go home’.
According to the appellant,
the deceased told Pieter that he did not
want to carry on, he was tired, he and the appellant just wanted to
rest.
[63]
The deceased and the
appellant drove back to the house. The appellant said she was
traumatised by the events and told the deceased
that she would never
drive with him again. He went berserk, punching her in the chest and
slapping her in the face. When she fell,
he kicked her on her back.
She was so frightened she wet herself. (When she gave this evidence
she became overwrought.)
[64]
On the Friday evening
Pieter phoned Mr Harry Rich, the family lawyer, to tell him of the
day’s events and to ask whether Rich
would be able to assist
him if anything similar were to happen again.
[65]
On the same day the
deceased also took out his anger on Casper. The latter testified that
in the late afternoon the deceased drove
into the shed where he was
working. The deceased pinned Casper to the wall with his bakkie so
that Casper could not move one way
or the other. Casper described the
deceased as being very unsettled and cross – he did not know
why. Pieter testified that
on the Friday evening Loudine phoned to
tell him of this incident.
[66]
The deceased remained in a
bad mood on the Saturday. He spent most of the morning in his study.
At one stage he came out while the
appellant was feeding the lambs.
He asked her for the key to the safe because he wanted to check his
financial statements. He kicked
one of the lambs and instructed the
workers to take the lambs to the ewes’ pen, telling the
appellant she would never again
rear a lamb.
[67]
The appellant testified
that during the course of the Saturday morning Loudine told her that
she and Casper would be leaving the
farm because they were scared of
the deceased. Loudine put her hands on her mother’s shoulders
and said that she should understand
that the deceased was a very sick
man. The appellant told Loudine that she should relax, that her
father would calm down over the
weekend and that they should not make
an overhasty decision. The appellant’s evidence in this regard
is consistent with Pieter’s.
He testified that at around 07h30
on the Sunday morning (ie before any report that the deceased had
shot himself) he phoned Loudine
to talk about recent events. She
asked Pieter what he was going to do. She said that she and Casper
had already packed their things
and were going to leave Kareehoek
later in the day. He told her to think carefully about her decision.
[68]
During the Saturday
afternoon Loudine and Casper came over to the main house to watch
rugby with the deceased and the appellant.
According to the
appellant, Loudine said to her mother that she did not understand why
the deceased had invited them over when
he had insulted them earlier
in the day. The deceased was withdrawn and muttered to himself, as he
usually did when he was in a
bad mood. The appellant felt that he was
on the verge of an outburst. The appellant did not help  with
the braai. After the
rugby finished, at about 19h00, he went up to
his room without eating. This was the last time that Loudine and
Casper saw him alive.
They left the house at around 20h30 to see to
some goats that were giving birth. Loudine returned to the main house
at around 22h00
and slept in her room next door to her parents’
room.
Dr
Panieri-Peter’s assessment
[69]
It is clear that the
deceased was a troubled and troubling personality and that he was in
a state of heightened agitation in the
days immediately preceding his
death. The defence called, as an expert witness, Dr Panieri-Peter, an
experienced psychiatrist.
She compiled a psychological and
psychiatric profile of the deceased and the appellant, based on
evidence before the court (she
was the last to testify) and on
extensive additional collateral information. The trial court said
that her expert opinion could
not carry weight because it was
premised on factual evidence of poor quality from family members ‘who
had an axe to grind
with the deceased’.
[70]
I disagree. The evidence
of Johan, Pieter, Alanda and Phillip reads well and was largely
unchallenged. In regard to his treatment
of the appellant, her
evidence is likewise not open to serious criticism. It is clear from
the transcript that Loudine and Casper,
who testified for the State,
sought to downplay the deceased’s unpleasant personality. For
example, Casper in chief did not
mention the incident in the shed and
described his working and social relationship with the deceased as
very good. When he was
cross-examined with reference to one of his
docket statements, he initially gave a watered down version of the
incident before
conceding that his written statement was correct.
During cross-examination he continually claimed not to be able to
remember things.
He confirmed, though, that he and Loudine had
discussed leaving Kareehoek on the Friday evening because of the
deceased’s
conduct. He said they decided not to leave because
on the Saturday the deceased had apologised. Loudine, who testified
before Casper,
denied having been told about the incident in the shed
and denied that she and he had ever discussed leaving the farm. Apart
from
being very unlikely, her evidence is not only at odds with
Casper’s but with Pieter’s, who testified that on the
Friday
evening Loudine phoned him to tell him of the shed incident.
In this respect I am satisfied that her evidence was not truthful.
[71]
Riaan described the
deceased as rigid and inflexible. He conceded that when the deceased
was younger he used to assault his workers.
When it was put to him
that the deceased also did not hesitate to assault his own children,
Riaan replied that he never saw this
and would not be part of a smear
campaign against the deceased. Riaan was very close and
self-evidently loyal to the deceased.
It is quite conceivable that he
did not suffer or witness the worst of the deceased’s behaviour
yet he nevertheless discerned
certain important characteristics
identified by Dr Panieri-Peter.
[72]
It would not have been
feasible for all the collateral information contained in Dr
Panieri-Peter’s report to have been the
subject of direct oral
evidence at the trial. That information was, however, consistent with
direct testimony of similar behaviour.
To some extent, the matter
speaks for itself. There must have been something very wrong for
Nannie and Phillip to abandon Kareehoek
and cut themselves off
completely from the deceased and for Phillip to institute high court
proceedings against his parents.
[73]
Dr Panieri-Peter testified
that her method for building up her profiles by way of collateral
information accorded with accepted
psychiatric practice. The State
had its own psychiatrist, Prof Labuschagne, present during her
testimony. Neither her method nor
her diagnoses were attacked in
cross-examination. The prosecution merely sniped at the underlying
factual material. However, there
would have had to be a conspiracy on
a grand scale to create the overall picture drawn by Dr
Panieri-Peter. She explained that
none of the collateral sources was
psychiatrically knowledgeable yet the information they provided was
‘incredibly consistent’
and fitted a known psychiatric
pattern, something which in her view added enormous weight to the
information.
[74]
When it was put to Pieter
in cross-examination that he was exaggerating, he retorted that he
doubted whether he had been able to
convey even ten percent of the
misery which the deceased had heaped on the family. This is borne out
by the collateral information
contained in Dr Panieri-Peter’s
report. It is truly an appalling indictment. Dr Panieri-Peter’s
conclusions did not
rest on the accuracy of each minute detail but on
the general picture. The court a quo did not have adequate grounds
for rejecting
it.
[75]
According to Dr
Panieri-Peter, the deceased met the psychiatric criteria for
narcissistic personality disorder with features of
dependent
personality disorder. He also met the criteria for psychopathy and
antisocial personality disorder. Furthermore there
was substantial
evidence to indicate that he was mentally ill – it is likely
that he suffered a mood disorder throughout
his life, with
overwhelming evidence that he was profoundly depressed in the last
two years of his life, something which may have
been exacerbated by a
physical ailment he suffered in April/May 2010. Many of the risk
factors for suicide were present. According
to Dr Panieri-Peter, an
even greater risk was a femicide-suicide combination.
[76]
As to the appellant, her
life had quickly changed after marrying the deceased. He was jealous
and did not wish her to have an outside
life. He thwarted early
attempts on her part to leave the farm with her children. Her life
became a routine of extraordinarily
hard work with minimal external
social interaction. She displayed the characteristics typical of an
abusive marriage – powerlessness,
inaction and silent assent.
She simply survived from day-to-day. At no stage was her behaviour
suggestive of reaching a ‘boiling
point’: she had no
emotional outbursts or rages and expressed no intention of changing
her life. She displayed no signs of
being savvy, manipulative or
strategic. In short, Dr Panieri-Peter did not regard her as a likely
candidate for killing her husband.
[77]
With reference to the
letter of wishes, which the defence sought to portray as a ‘suicide
note’, Dr Panieri-Peter said
that it accorded with her view of
the deceased’s personality and depressed state, though she
explained that in psychiatry
there was no such concept as a ‘suicide
note’. My colleague refers to the evidence of Mr Swiegers, the
deceased’s
accountant. Because this evidence was adduced after
the State reopened its case, I disregard it. One may take judicial
notice,
however, of the fact that where a testator has created a
testamentary trust in his will, it is not unusual for him to express
non-binding
wishes in a letter to the trustees. All the same, this
particular document was an unusual one. Quite clearly it was not
drafted
with professional assistance. It travelled beyond mere wishes
for the administration of his testamentary trust. I accept that when

it was written the deceased may have contemplated the possibility of
taking his own life.
[78]
In the circumstances, it
would not have been a matter for surprise, as at 10/11 July 2010, if
the deceased were to have committed
suicide. On the other hand, his
appalling behaviour provided motive for the appellant to want to kill
him. I accept Dr Panieri-Peter’s
assessment that murder would
not have been in keeping with the appellant’s character and
behaviour over many years but she
acknowledged that it was possible
that the appellant might have been pushed over the edge. The two days
immediately before the
deceased’s death were particularly
awful. She had been physically assaulted and degraded on the Friday.
The appellant may
have feared that the deceased’s treatment of
Pieter would cause him and his family to abandon the farming
enterprise and
have nothing more to do with the deceased. She may
also have been worried that Loudine would decamp with Casper, leaving
her completely
isolated from all her children. The prospect of a life
lived solely with the deceased may have pressed down on her more
heavily
on her than his cruel treatment of her.
[79]
Accordingly, and while Dr
Panieri-Peter’s evidence must be given due weight, the case
cannot be adjudicated solely on the
respective psychological and
psychiatric profiles of the deceased and the appellant.
Forensic
pathology
[80]
Insofar as forensic
pathology is concerned, it is common cause that there was a single
entry wound for the two shots in the right
temporal region; that one
shot lodged in the thickened bone of the skull on the right side and
did not penetrate the brain; that
this shot would have left the
deceased neurologically intact so that he could have spoken and moved
his hands after this shot was
fired; that the other shot penetrated
the brain and exited the skull on the left side; and that this
penetrating shot was instantly
fatal though he may still have made
involuntary convulsive movements.
[81]
Both doctors (Dr del Ray
for the  State, Prof Loftus for the defence) accepted that the
findings were compatible with suicide.
Prof Loftus went further,
saying that the findings were ‘highly compatible’ with
suicide, that there was ‘no
scientific reason’ to think
that the wounds were inflicted by someone else but that he could not
exclude the possibility
of murder because ‘there are perfect
crimes’. Prof Loftus did not prepare a written report. From his
oral testimony
I cannot discern a scientific basis for a conclusion
that the shots were more probably self-inflicted than not. The
medical evidence
is compatible with suicide and murder. However, if
one assumes for the moment that the first shot was the one which did
not penetrate
the brain, the agreed conclusion by the two experts
that the deceased would have been able to talk, move and fire a
further shot
is important.
The
appellant’s version of the night of 10/11 July 2010
[82]
The appellant testified
that the deceased could not sleep and kept her awake all night with
his ramblings. He said that although
he was against Loudine’s
marriage to Casper, Loudine should be given a beautiful wedding
because he would not be there. He
asked what the appellant would do
when he was no longer around and she told him, as she had in the
past, that she would want to
stay at Kareehoek. He spoke of his
unhappy childhood. He expressed the belief that if he was no longer
around Phillip would return
to the farm and that the appellant would
be able to unite the children if he was out of the way. He said that
nobody loved him.
He blamed the appellant for failing to persuade
Phillip to come back to the farm. He was depressed about LoAmi’s
permanent
absence. He asked the appellant to forgive him and to ask
the children to forgive him. He said he was tired and did not want to

live anymore. He repeated his anxiety about brain cancer. He told her
that if anything were to happen to him there was a letter
of wishes
in the safe which was an addendum to his will.
[83]
At some stage he
complained that his hands were very cold and felt like pins and
needles. The appellant suggested that he put on
the woollen gloves he
had got from a friend. She fetched them and helped him put them on.
At a later stage he complained of a terrible
headache and asked for
disprin. She went downstairs to the kitchen and dissolved a disprin
in a plastic cup. On her return, and
at the foot of the stairs, she
heard the first shot. She went to the bedroom and saw the deceased
propped against the pillow and
holding the revolver in his right
hand. There was a small trickle of blood behind his right ear. She
believed he had shot himself
but did not know how seriously he was
hurt. She sat down on her side of the bed (the right side, nearest
the wall) and asked him
what he had done. He said he thought he must
have suffered a stroke because of the terrible headache. He lifted
his head and drank
the dissolved disprin. She tried to take the
revolver from him but did not have the power because of her severe
arthritis. At this
stage he had his right hand on the handgrip and
his left hand on the muzzle. He told her to forget about the revolver
because she
might hurt herself. He asked her where the children were.
He told her to take the quad bike to get them. He aimed the revolver
at her and said she should hurry, that he had enough ammunition to
kill both of them. He was utterly incoherent. She was wearing
only
her nightclothes and gown. It was a bitterly cold night. She went
around the bed to his side because that is where her wardrobe
was.
She took off her gown and nightclothes at the foot of the bed, put on
jeans and a top and ran out to call Loudine.
[84]
She went down stairs. As
she reached the front door she heard a second shot. She went back to
the bedroom and stood at the door.
When she heard that everything was
still, she went inside. She saw a large amount of blood. As the
photographs indicate, the deceased
by this stage was lying on her
side of the bed, closest to the wall, half turned to his right side.
This time she sat on his side
of the bed, closest to the door. Since
what she did next is of some importance, I provide the following
translation of her evidence
in chief when she first dealt with this
part of her account:
‘
I
went and sat next to him on the bed, I pulled off the gloves, put
down the revolver, I opened the revolver to see whether he would

really have shot everyone, how many rounds were in the revolver, sat
with his hands in mine, I realised he was no longer alive
and I
touched his face and I put the revolver down there and went outside
to phone the children.’
She
was evidently overcome with emotion at this point because the judge
asked whether she wanted to break for a short while. She
chose to
carry on. Her counsel asked her to explain again, more slowly, what
she had done upon entering the room:
‘
I
took the revolver out of his hand and put it down there. I went to
sit with him and removed the gloves to feel whether his pulse
was
still beating. I touched his face, I just sat with him because I just
knew this is the end, I couldn’t help him any more,
and I went
outside to call the children.’
And
in cross-examination, when she was asked why she removed the gloves,
she said:
‘
I
took off the gloves and held both his hands in mine. I sat there for
a few moments and then went out to phone Loudine.’
[85]
She phoned Loudine at
around 08h30. On her version, the shots must have been fired
relatively shortly before this though she testified
that she lost
track of time over the course of the night and early morning. The
court a quo said that the appellant claimed that
it was still dark
when the deceased shot himself. I have not been able to find this
statement in the evidence. It was, of course,
mid-winter and it would
certainly not have been fully light as at 08h15.
Gun shot residue
[86]
At around 11h00 on the
Sunday morning a W/O Odendaal took samples from the hands of the
deceased and the appellant in order to test
for gunshot primer
residue (GSR). This was almost certainly a routine procedure. There
is no indication that anyone suspected murder
at this stage. W/O
Odendaal was not called as a witness and the appellant was not
cross-examined about the taking of the GSR samples.
There is thus no
evidence that she knew that the police were taking samples from the
deceased’s hands or that she was aware
of the purpose of
testing her hands. There was evidence, independently of her own
(including that of the investigating officer,
W/O Davids), that she
was in shock, which on her version would not be surprising. There was
no justification whatsoever for the
court a quo’s finding that
the appellant was ‘putting up a facade for the police to give
the appearance of being shocked’.
[87]
W/O Lesabe testified
regarding the results of the GSR analysis. No GSR was found on the
deceased hands. GSR was found on the appellant’s
right hand
(she is right-handed) but not her left hand. There was no evidence as
to how much GSR was found on her right hand or
as to where on her
hand it was found (fingers, thumb, palm, back). W/O Lesabe and the
defence ballistic expert, Mr Steyl, both
testified that GSR could
come onto a person’s hands innocently. When a shot is fired, a
GSR plume is created with a radius
of about two meters which sifts
down over five to seven minutes. Anybody who is within the plume’s
circumference during that
period may get GSR on an exposed part of
the body. GSR can also be transferred by handling an object
containing GSR – in
the present case, for example, the
appellant’s hand may have been contaminated by touching the
revolver, the gloves (if the
deceased was wearing them) or the
deceased’s hands and face.
Discussion of appellant’s
version
[88]
There are three main
features of the appellant’s account which need to be
considered: the disprin, the gloves and the revolver.
In regard to
the disprin, the prosecutor cross-examined the appellant about the
absence of any sign, in the police photographs
of the bedroom, of the
cup containing the disprin. She said it was a small plastic cup. She
could not recall where she put it down.
The court a quo attached some
significance to this in its judgment. In my view this was not
warranted.
[89]
The investigating officer,
W/O Davids, was one of the first police responders. By the time he
gave evidence the State knew the appellant’s
version in detail
because she had, through her attorney, provided a full exculpatory
statement to the police in September 2010.
Davids was not asked
whether he had seen a plastic cup while inspecting the bedroom. The
State did not call any other police witnesses
who photographed or
searched the bedroom. The photographs are not sufficiently clear or
complete to safely draw the conclusion
that the plastic cup was not
in fact somewhere in the bedroom.
[90]
The court a quo said that
it was ‘inconceivable that the deceased would ask for disprin
and then went about shooting himself
in the head he tried to cure’.
I think this is a misdirection. The court a quo’s reasoning was
that the appellant made
up the story about the disprin as part of an
exculpatory fabrication. But how did this part of her account assist
her suicide version?
If the deceased intended to shoot himself, it
would have been irrational for him to want to drink disprin. If the
appellant wished
to contrive a story, this irrationality would have
been obvious to her. She could have made up a far more plausible
reason for
leaving the room, for example to go downstairs to make
herself coffee. The very oddness of the request, in the context of a
suicidal
person, tends to indicate its truth rather than its falsity.
As to why the deceased made the request, it is possible that he
wanted
her out of the room so that he could shoot himself. If she was
in the room, she might be able to prevent him from doing so. He might

even have wanted to spare her feelings, though such consideration had
not been a feature of his behaviour
[91]
It is true that when she
came back with the disprin, he went ahead and drank it. On her
version, the first shot must have been the
one which lodged in his
skull. The medical experts were agreed that the deceased would have
remained conscious and capable of talking
and of voluntary action. He
had not succeeded in killing himself. He must have been in a state of
great turmoil to take the step
of firing the first shot. The blow to
his head could have caused further confusion. According to the
appellant, he was utterly
incoherent by this stage. One should not
judge an extremely stressful and unusual situation by ordinary
standards of rationality.
I thus do not think that the appellant’s
evidence regarding the disprin can be rejected as false beyond
reasonable doubt.
[92]
What of the gloves? Unlike
the disprin, there might have been a plausible reason for the
appellant to fabricate the story of the
gloves. The State’s
thesis is that it was concocted after she became aware that the
police would be testing her hands and
those of the deceased for GSR.
If she had shot the deceased, she might have thought she would need
to be able to explain why the
police would not find GSR on the
deceased’s hands. The appellant explained the circumstances in
which the deceased came to
put them on. It may be thought to be
peculiar. Again, though, one must bear in mind that on the
appellant’s version it was
a very troubled night. She would
have become increasingly tired. She explained that she just wanted to
do anything that might make
the deceased more restful. My colleague
says that if the deceased’s hands were cold the appellant would
just have told him
to keep them under the blankets. However, and
apart from the danger of applying cool logic to a stressful and
unusual night, not
everyone likes to sleep with their hands tucked
under the blankets.
[93]
Dr Panieri-Peter testified
that a classic symptom of panic and anxiety is pins and needles in
the hands and feet. This is caused
by mild hyperventilation. The
appellant spoke of the deceased having complained of pins and needles
shortly after his death and
long before Dr Panieri-Peter was engaged.
The appellant would not have known that pins and needles were a
symptom of heightened
anxiety. This lends some credence to her
version.
[94]
I should add that it was
not in dispute that the deceased had received a pair of woollen
gloves from a friend as a gift. It was
not suggested that the
deceased would have been unable to fire the revolver with a gloved
hand. (Both the revolver and the gloves
were handed in as real
exhibits.)
[95]
The most problematic
feature of the appellant’s version on the gloves is her removal
of them from the deceased’s hands
shortly after his death and
her explanation for how they landed up in the washing machine. One
might think that, after she encountered
the bloodied scene following
the second shot, she would immediately have left the room to phone
her daughter and summon medical
assistance. On the other hand, it is
difficult to place oneself in her position. She had, on her version,
been through an exhausting
and stressful night, following two
appalling days. Although she had every reason to detest her husband,
her evidence was that she
continued to love him and to feel sorry for
him in view of his difficult childhood. She would have experienced
strong and perhaps
conflicting emotions when she came across his
lifeless body. Although she spoke of feeling his pulse (something
which may not have
required the removal of the gloves, certainly not
both of them), I also gain the impression, from the parts of her
evidence which
I quoted above, that she simply wanted to hold his
hands and touch his face, almost as a farewell. Who is to say that a
woman in
her position would not have done so?
[96]
The gloves were not found
in the bedroom. On the following Wednesday the appellant came across
them when she removed the clean washing
from the machine. As to how
the gloves came to be there, she surmised that they must have been
part of the bundle of nightclothes
which, on her version, she asked
Casper to fetch from the bedroom before anyone else arrived and which
she bundled into the washing
machine. She did not claim to remember
what exactly she did with the gloves. If events really happened as
she testified, I would
not hold it against her that she could not
remember this detail.
[97]
My colleague considers
that it is more likely that she would have put the gloves down on the
bed and that it is a considerable coincidence
for them instead to
have found their way to the nightclothes at the foot of the left-hand
side of the bed. I agree that this is
something of a coincidence but
it is going quite far to say that it is not a reasonable possibility.
She might have tossed them
off the bed when she removed them from his
hands. Or she may have picked them up when she stood up to leave the
room and have dropped
them on the pyjama pile as she went out. In her
state of turmoil, this might have been a reflex action which she did
not afterwards
remember. If she were a dishonest witness, she could
easily have said that she remembered dropping them on the pile of
nightclothes.
[98]
The next stage of her
explanation for the temporary disappearance of the gloves is that she
asked Casper to go and fetch her nightclothes
so that the police
would not find them on the floor. It is not unknown for women to be
sensitive about matters of this kind. The
court a quo found it
‘boggling’ that the appellant would have sent her future
son-in-law to collect her ‘intimate
garments’. I
personally do not find it particularly odd that she would have
preferred Casper, rather than complete strangers,
to deal with the
nightclothes.
[99]
The court a quo remarked
that the appellant was unable to explain why the nightclothes were
removed while her clothes and underwear
that she had been wearing the
previous day were still on the floor, as can be seen from the police
photographs. My colleague mentions
this latter aspect in her
judgment. What this criticism leaves out of account is that, on the
appellant’s version, her nightclothes
were lying at the foot of
the bed on the near side as one enters the bedroom whereas her
clothes and underwear from the previous
day were lying against the
far wall, concealed by the bed. If Casper went into the room, he
would not have seen them without walking
around to the other side of
the bed. The appellant herself, in a state of shock, may not have
thought of those clothes and underwear.
[100]
Casper denied having gone
to the bedroom on his own. He testified that he only went into the
bedroom after a family friend, Leon
van Heerden, arrived. He denied
having removed anything from the room. Casper’s evidence of not
going into the room on his
own is at odds with his first docket
statement, made at about noon on the Sunday. In that statement he
said the following about
the events after Loudine received the
appellant’s telephone call (my translation):
‘
When
we arrived at the farm, [the appellant] was waiting in the road. She
told me that he [the deceased] had shot himself in the
bedroom. I
went and looked and could see that he was lying on the bed and that
the revolver was lying on the bed and that there
was a lot of blood.
I went back outside and Loudine then telephoned Leon van Heerden to
tell him what had happened.’
[101]
This statement was made
less than four hours after the events he was describing. While he may
have been shocked, it is a puzzling
mistake for him to have made. A
reading of the transcript shows that he was a poor witness. I have
already mentioned his initial
evasiveness regarding the incident in
the shed. The court a quo said that Casper was cross-examined with
reference to his five
docket statements and that ‘as the
cross-examination reached its apex and towards its denouement, his
responses degenerated
to “I don’t know” and “I
cannot remember”’. The trial judge said that it did not
follow that
his evidence should be rejected in its entirety,
‘particularly insofar as it is corroborated by other state
witnesses or
same is consistent with the probabilities’. It
seems that she was not particularly impressed by his evidence, for
good reason.
I would add this. It is not correct that his answers
only degenerated as the cross-examination reached its ‘denouement’.

On the contrary, and whereas his evidence in chief (a brief six
pages) was helpfulness personified, his resort to evasive answers

began three pages into a 54-page cross-examination.
[102]
The family dynamics
following the deceased’s death must be borne in mind. This was
a family divided. Pieter and Phillip supported
the appellant and
ultimately testified for her. According to Dr Panieri-Peter, the
appellant was able to reconnect to some extent
with Nannie following
the deceased’s death but he divorced himself entirely from
family affairs and wanted nothing to do
with the criminal trial.
LoAmi was in America and uninvolved. Loudine and Casper, who got
married in October 2010, assumed active
control of the farming
enterprise. Both of them testified for the State.
[103]
By not later than the
beginning of 2011, Loudine and Casper were adopting the position that
the deceased had not committed suicide
but been murdered by the
appellant. It was in March 2011, and by way of his third docket
statement, that Casper for the first time
claimed that he had not
entered the bedroom until Leon van Heerden arrived. Unsurprisingly
the appellant’s residence at Kareehoek
became intolerable and
she moved to a retirement village in Kimberley in January 2012,
suffering a nervous breakdown shortly afterwards.
She is completely
estranged from Loudine and the latter’s children. If the
appellant were convicted, she would presumably
lose any benefit from
the deceased’s estate in accordance with the principle that the
bloody hand may not inherit. Loudine
and Casper stood to gain
financially from her conviction. Loudine at some stage laid a charge
of murder and theft against Pieter
(unrelated to the deceased’s
death).
[104]
Loudine did not directly
corroborate Casper’s evidence on the question whether he went
into the room before anyone else arrived.
To the extent that her
evidence tends to support his, I have already explained why I think
she was untruthful about their intentions
to leave the farm because
of the deceased’s behaviour. In general, her testimony is
characterised by evasiveness. Her docket
statements and evidence in
chief were designed to maximise suspicion against her mother with
some grudging dilution in cross-examination.
[105]
I have considered whether
the appellant’s version about the removal of the nightclothes
is undermined by Cornelia’s.
When the police arrived on the
Sunday morning, they took charge of the bedroom. They locked it when
they left because the second
bullet had not yet been found. It was
located the next day during the post-mortem examination, and the key
was returned to the
family on the Monday afternoon. Cornelia
testified that she was the first person to enter the bedroom. She
claimed to have seen
the appellant’s maroon flannel pyjama
pants and her pyjama top with a paisley pattern.
[106]
In cross-examination,
however, it was put to Cornelia that the pyjamas she was describing
were those the deceased had worn on the
Friday night. Although she
did not think that the pyjamas she saw were men’s pyjamas, her
response to this proposition was
that if the appellant said that the
pyjamas were his, she could not contest it. In other words, it does
not appear that she had
actual knowledge as to whose pyjamas they
were, even though in chief she had described them as the appellant’s.
[107]
Perhaps due to an
oversight on counsel’s part, the appellant was not led on this
aspect of Cornelia’s evidence. The
matter was not taken up with
the appellant in cross-examination and the court a quo did not
mention this aspect in its judgment.
It was not suggested that the
appellant’s nightclothes were anywhere to be seen in the
undisturbed scene as photographed
by the police. The appellant’s
clothes from the previous day can be seen in one of the photographs
against the wall on her
side of the bed while the deceased’s
clothes from the previous day can be seen just to the right of the
door as one enters
the bedroom. By the time Cornelia entered the room
on the Monday, the police had moved everything. If the appellant knew
that her
nightclothes were still lying on the bedroom floor, she
would hardly have made up a version that Casper had removed them
before
the police arrived. Since the matter was not properly
explored, I do not think it would be right to allow Cornelia’s
inconclusive
evidence to tilt the balance.
[108]
On the State’s
theory of the case, the deceased was not wearing gloves at the time
he was shot. If this were true, one might
have expected to find GSR
on his hands unless they were tucked under the bed clothes throughout
the time that the GSR plume was
settling. That is possible though it
was not the way the deceased was found by the police.
[109]
In all the circumstances,
and while the appellant’s version about the gloves may be
regarded as improbable and as resting
on some coincidences, I do not
think it can be rejected as false beyond all reasonable doubt.
[110]
There are some other
aspects of the appellant’s version that need to be mentioned.
If the appellant had murdered her husband
but wanted to create a
scene consistent with suicide, one would have expected the revolver
to have been positioned in the deceased’s
right hand or in a
position where it might have fallen after the deceased fired the
fatal shot. In fact, the revolver was found
underneath the deceased’s
left hand. Apart from the fact that the deceased was right-handed,
the position was not even consistent
with a left-handed grip –
the revolver was lying in a reversed position. On the appellant’s
version, she removed the
revolver from the appellant’s right
hand and examined it before putting it down on the bed. This could
well account for the
way in which it was found. Her conduct in
examining the revolver may seem surprising but this too she would
have realised if she
were trying to concoct a plausible version. As
with the disprin, the strangeness of her behaviour in connection with
the revolver
may indicate that she was relating what actually
happened rather than trying to fabricate a plausible story.
[111]
A similar observation may
be made about the position of the deceased’s arms and hands.
They were both stretched out rather
unnaturally towards the left side
of the bed, being the side where the appellant says she sat when she
removed the gloves and held
his hands. There does not seem to have
been any arranging of the body to make things look like suicide. The
arms and hands are,
though, in the position they might have been if
the appellant had moved them slightly to remove the gloves and then
hold his hands.
[112]
Then there is the fact
that, according to the medical evidence, the bullet that lodged in
the deceased’s skull would not have
rendered him unconscious
and would have left him able to talk and move. If the appellant shot
him and wanted to make it look like
suicide, she would not have shot
him twice unless this were necessary, since laypeople, if not
forensic experts, would regard a
suicide with two shots to the head
as rather unusual. It would have been foolish to fire a second shot
if the first one was fatal
since this might eliminate suicide as a
possibility. If her first shot was the non-fatal one, it would have
taken a few moments
for her to realise that she had not killed him.
And if he was not rendered unconscious, he would not have remained in
a position
which allowed her to place a second shot precisely through
the same entry wound as the first. He would have resisted. And if her

first shot was the fatal one, she would have had no need to fire a
second shot at all.
[113]
On the other hand, if the
deceased was intent on suicide but found that his first shot had not
had the desired effect, he might
well have chased the appellant out
of the room and then placed the revolver in the same position and
fired a second shot. In this
respect, therefore, the medical evidence
lends some support to the appellant’s version.
[114]
Then there is the fact
that the deceased was found lying on the appellant’s side of
the bed. It was not suggested that she
could have dragged him there
after he died or that she would have had any reason to do so.
Furthermore the position of the bloodstains
and the track of the
bullet which exited the deceased’s skull on the left side were
consistent with his having been there
when the fatal shot was fired.
The deceased must thus have voluntarily moved to that side of the bed
at some stage in the night.
The appellant could not recall how he
came to be there. She did not say, and it was not suggested to her,
that she did not got
into bed that night on her usual side. They had
lived in this house for many years and I think we may take judicial
notice of the
fact that married couples generally have fixed sides on
which they sleep.
[115]
This suggests that the
deceased could only have moved to the appellant’s side of the
bed after she got up, which on her version
would either have been
when she fetched the gloves or the disprin. The appellant recalled
that when she returned to the room with
the disprin, she sat on her
side of the bed and held the cup for him as he drank. It is thus
distinctly possible that by then he
had already fired the first shot,
that he shifted to her side of the bed to receive the disprin and
that after chasing her out
of the room he fired the second shot, thus
completing his suicide.
[116]
If this is what happened,
it might also explain where the revolver came from. On the deceased’s
side of the bed was a bedside
cabinet in which the deceased might
have concealed the revolver. (On the appellant’s side of the
bed, by contrast, there
was just a bedside table. No revolver could
have been concealed there.) The deceased had asked the appellant for
the gun safe key
earlier in the day, purportedly to examine financial
papers. He may well have removed the revolver at that time and put it
in his
bedside cabinet. He might have been on his side of the bed
when he fired the first shot but on her side by the time he fired the

second. While this involves a measure of conjecture, the appellant on
her version was out of the room when the two shots were fired
and
could not be expected to provide direct evidence of all the events.
The State did not provide a more plausible explanation
for how the
deceased’s body landed up where it did.
[117]
The appellant’s
evidence that she did not have the strength to remove the revolver
from the deceased’s hands after the
first shot due to arthritis
finds support in Dr Panieri-Peter’s testimony. Dr Panieri-Peter
said that she could observe the
bony deformities caused by the
appellant’s osteoarthritis and that the appellant’s
general practitioner confirmed that
she had suffered from this
condition for some years. Dr Panieri-Peter testified that the
appellant had been unable to open a bottle
of drinking water in her
office.
According
to Dr Panieri-Peter, the appellant told her that when the deceased
acquired the revolver about 15 years previously he
had tried to teach
her how to shoot it but she struggled with it as it was heavy and she
was not interested in shooting.
[118]
Finally, there is the fact
that the appellant described two shots separated in point of time.
She could not accurately recall how
long she remained in the bedroom
after returning there with the disprin. One would think, though, that
at least five minutes or
so must have separated the two shots. Again,
this is somewhat unusual but why make it up if it were not true? If
she wanted to
fabricate a plausible tale, she could have said that
two shots were fired in short succession while she was out of the
room on
the first occasion.
[119]
The trial court said that
the ‘reasonable inference’ could be drawn that the
appellant gave the deceased sleeping tablets
and that he was probably
asleep when he was shot. Apart from the fact that these formulations
fundamentally misapprehend the nature
of the criminal onus, the
judge’s propositions are not consistent with all the proved
facts, in particular the evidence that
there were two shots and that
one of them, which was almost certainly the first shot, would have
not incapacitated the deceased.
[120]
The State was required to
prove the appellant’s guilt beyond reasonable doubt. The only
part of her testimony where improbability
or coincidence really looms
is her version about the removal of the nightclothes and her surmise
as to how the gloves must have
found their way onto the discarded
nightclothes. Particularly in the face of other evidence suggestive
of suicide, including Dr
Panieri-Peter’s testimony, the
improbability of her version about the removal of the gloves is not
so great as to justify
a conclusion that it was false beyond
reasonable doubt. I thus think the court a quo erred in convicting
her.
Discharge at end of State’s
case
[121]
In view of this
conclusion, it does not really matter whether the court a quo should
have discharged her at the end of the State’s
case. The two
State advocates who initially prosecuted the case conceded that there
was not a prima facie case. The court a quo
was not bound by this
concession. Unlike my colleague, however, I prefer not to justify the
court a quo’s refusal of discharge
with reference to the
court’s discretion. Where there is a single accused facing a
single charge, I doubt if a trial court
can really be said to have a
discretion whether to grant or refuse discharge. If there is no
evidence on which a reasonable person
might convict, the accused
should be discharged. In the present case, there probably was
evidence on which a reasonable person
might have convicted. The
appellant’s counsel had put a detailed version to the State
witnesses which, if it was false insofar
as the gloves are concerned,
was strongly suggestive of a guilty mind. Casper had denied fetching
the appellant’s nightclothes.
Credibility does not normally
feature at the stage of discharge. In the absence of testimony from
the appellant, a reasonable person
might have accepted Casper’s
evidence.
Reopening of State’s
case
[122]
In regard to the reopening
of the State’s case, the position is as follows. The
prosecution was initially handled by Mr
Makaga
leading Mr Rosenberg. The
witnesses for the State were (in order) Loudine, Riaan, Dr del Ray,
Cornelia, Casper and W/O Davids. The
defence witness, Prof Loftus,
was interposed after Dr del Ray. This covered the period 12 to 20
November 2012. The defence applied
for discharge which was argued on
21 November 2012. On 29 November 2012 the court a quo refused
discharge. Although the defence
was ready to proceed, Mr Makaga was
unavailable, as a result of which the case was postponed to 4 March
2013.
[123]
By 4 March 2013 Messrs
Makaga and Rosenberg had been replaced by Ms A van Heerden and Mr Q
Hollander, seemingly because their seniors
thought that the case had
not been prosecuted with sufficient vigour. On 4 March 2013 the State
indicated that it wished to apply
to reopen its case. The court a quo
postponed the matter to 29 April 2013 with directions for the State
to serve its application
by 2 April 2013. The State failed to deliver
a written application. At the appearance on 29 April 2013 Ms van
Heerden was permitted
to move her application orally despite this
non-compliance and despite opposition from the defence.
[124]
The transcript of the
submissions made on 4 March and 29 April 2013 do not form part of the
appeal record but it appears from the
court a quo’s ruling that
Ms van Heerden sought permission to call (i) fresh expert medical
evidence pursuant to an exhumation
of the body which had not yet
occurred; (ii) expert ballistic evidence from W/O Dicks, which
would require the court to release
to him the revolver which was by
then a real exhibit; (iii) evidence from W/O
Ntloko
,
a handwriting expert; (iv) evidence from two new lay witnesses, Leon
van Heerden and Johan Swiegers; (v) additional evidence
by
recalling Loudine and W/O Davids.
[125]
The court a quo reserved
its decision and granted the application to reopen on 18 June 2013.
The trial resumed on 5 August 2013.
At the commencement the defence
applied for a special entry to be noted in terms of
s 317
of the
Criminal Procedure Act for
an alleged irregularity in the form of the
court’s decision to allow the State to reopen its case. On the
following day the
court a quo delivered its ruling, refusing to make
the special entry. The evidence of Leon van Heerden and Loudine was
led on 6
and 7 August 2013. Ms van Heerden then applied for a
postponement because the handwriting expert was sick and opposed
motion proceedings
relating to the exhumation of the body had not
been finalised (Phillip, not the appellant, was the person who
opposed the exhumation).
Despite opposition from the defence, the
court a quo allowed the postponement.
[126]
The trial only started
again on 11 August 2014 when the evidence of W/O Dicks, Dr Denise
Louwrens and Swiegers was led and the State
closed its case for a
second time.
[127]
The reopening of the case
had the result that the State’s case was only finally closed 21
months after the court a quo refused
to discharge the appellant.
Including the time taken up by the application to reopen and the
application for a special entry, the
duration of the trial was
extended by six court days at additional cost to the appellant.
[128]
My colleague has, with
reference to this court’s decision in
S
v Ndweni
, set out the
matters which a court must consider in deciding whether to permit a
reopening. These matters are not cast in stone
(
S
v Felthun
[16]
)
but a court must nevertheless consider them in the judicial exercise
of its discretion.
[129]
In the case of the new
expert medical evidence and the new ballistic evidence, the
application to reopen the case did not meet any
of the requirements
mentioned in
Ndweni
.
Indeed, the State’s application in these respects was not so
much an application to reopen the case as an application for
a
postponement to allow further forensic investigations to be
undertaken which might or might not lead to new relevant evidence.
In
the nature of things, the State did not know whether anything useful
would be ascertained. In my view this was utterly irregular.
The
trial began about two and a half years after the alleged murder. The
State should not have prosecuted the case if by then it
did not have
sufficient evidence.
[130]
According to the court a
quo’s ruling, Ms van Heerden submitted that the medical
evidence presented thus far did not ‘ventilate
pertinent
aspects of the case’, that Prof Loftus had not been thoroughly
cross-examined, that the new evidence would ‘demonstrate

certain flaws in the post-mortem report already filed’ and that
reliance on that report ‘would result in conjecture’.
The
fact that the new prosecutors thought that their predecessors had not
cross-examined Prof Loftus adequately (something which
is not
self-evident from the record) was no justification for reopening the
case. The original prosecutors could only cross-examine
Prof Loftus
in accordance with the evidence of the State’s own medical
expert, Dr del Ray, which is what they did.
[131]
In regard to the new
ballistic evidence, the judge’s ruling contains nothing to
suggest that she was given information showing
how such evidence
might advance the case. Ms van Heerden herself did not know since the
tests had not yet been done. The court
a quo’s ruling says
nothing about the evidence which was to be given by the handwriting
expert.
[132]
In regard to the lay
witnesses, Ms van Heerden apparently said no more that she wished to
call Swiegers to testify regarding the
letter of wishes. The
existence of the letter of wishes, and what it potentially reflected
about the deceased’s state of
mind, were well known to the
State before the trial began. Mr van Niekerk for the defence
submitted to the court a quo that the
State had not disclosed what
Swiegers would say. There was no evidence as to why what he might
have to say was relevant or why
it was not adduced at the proper
time. The court a quo’s ruling records nothing as to what Leon
van Heerden would supposedly
say or why he had not been called at the
proper time.
[133]
In regard to the recalling
of Loudine and W/O Davids, Mr van Heerden submitted that certain
important aspects had been left out
of their evidence when it was
led. Mr van Niekerk for the defence pointed out to the court a quo
that Mr van Heerden had failed
to identify what these important
aspects were or why they were omitted at the relevant time.
[134]
All of the defence’s
objections were brushed aside. Despite citing the relevant
authorities, including
Ndweni
,
the trial court concluded, without any reasoning, that ‘the
information placed before me is sufficient to determine that
the
evidence which the State seeks to adduce would be relevant to the
outcome of the case and may assist the court in coming to
a just
decision’. There was no such ‘information’. The
relevant facts should have been placed before the court
under oath in
accordance with the court a quo’s directions and should have
covered the standard requirements set out in
Ndweni
.
The application to reopen was in my view an abuse which delayed the
appellant’s trial by 21 months at considerable additional
cost
to her.
[135]
In the event, the evidence
given by Dr Louwrens and W/O Dicks was inconclusive and added little,
if anything, to the evidence already
before the court. W/O Davids was
not recalled and W/O Ntloko did not testify, so presumably the State
concluded that there was
in fact nothing material they could add. In
the case of Swiegers, Van Heerden and Loudine, their evidence (or
further evidence),
apart from falling well short of the test of being
‘materially relevant to the outcome of the trial’, was
permitted
without any explanation as to why it was not adduced at the
proper time.
[136]
The reopening application
should have been refused. Apart from the fact that the normal
requirements for reopening were not satisfied,
the stage at which it
was allowed – after the defence had pointed out weaknesses in
the State’s case in the argument
on discharge – created
the distinct impression that the court was allowing the State to plug
gaps in a weak case, not merely
by adducing additional evidence, but
by conducting further forensic investigations with a view to
generating additional evidence
against the appellant. This was unfair
and would have been so perceived by the appellant.
[137]
In terms of
s 322(1)(a)
of
the
Criminal Procedure Act, an
appeal court may allow an appeal if
the court thinks that on any ground there was a failure of justice,
subject to the proviso
that no conviction may be set aside or altered
by reason of an irregularity in the proceedings ‘unless it
appears to the
court of appeal that a failure of justice has in fact
resulted from such irregularity . . .’. In
S
v Moodie
[17]
Holmes JA said that
the following rules could be stated regarding the identical provision
contained in Act 56 of 1955:
‘
(1) The
general rule in regard to irregularities is that the Court will be
satisfied that there has in fact been a failure
of justice if it
cannot hold that a reasonable trial Court would inevitably have
convicted if there had been no irregularity.
(2) In
an exceptional case, where the irregularity consists of such a gross
departure from established rules of procedure that
the accused has
not been properly tried, this is per se a failure of justice, and it
is unnecessary to apply the test of enquiring
whether a reasonable
trial Court would inevitably have convicted if there had been no
irregularity.
(3) Whether
the case falls within (1) or (2) depends upon the nature and degree
of the irregularity.’
The
test mentioned in (1) above has now been simplified – the test
is no longer that of the reasonable trial court but whether
the
appeal court, on the evidence and on the credibility findings (if
any), unaffected by the irregularity, considers that there
is proof
of guilt beyond reasonable doubt (
S
v Yusuf
).
[18]
[138]
Generally speaking, an
irregularity at a criminal trial occurs whenever there is a departure
from those formalities, rules and principles
of procedure with which
the law requires such a trial to be initiated and conducted. The
basic concept is that an accused must
be fairly tried.
[19]
[139]
The above requirements
must now be applied with due appreciation for an accused person’s
rights in terms of s 35 of the Constitution,
in particular the right
to a fair trial, which includes the right to have the trial begin and
conclude without unreasonable delay.
[140]
I have no doubt that the
court a quo’s decision to allow the State to reopen its case
was irregular. In view of my conclusion
that, on the remaining
evidence, the appellant was entitled to the benefit of the doubt,
this is not a case in which it can be
said that the on the remaining
evidence the appellant’s guilt was established beyond
reasonable doubt.
[141]
However, and because other
members of the court may consider that the appellant’s guilt
was established beyond reasonable
doubt by the remaining evidence, I
should add that in my opinion the irregularity was so gross that the
appellant’s conviction
should be quashed without reference to
whether the remaining evidence suffices to sustain the conviction.
This was not a case of
calling one additional witness, as in
S
v Felthun
,
[20]
(where there was in the event no finding that the trial court had
acted irregularly by allowing the State to call the witness in

question on a fairly narrow issue). The irregularity in the present
case resulted in the calling of four new witnesses and the
recalling
of a fifth. About one-third of the evidence adduced by the
prosecution was evidence led after the reopening. Moreover
the State
was given time, during the pendency of the trial, to investigate its
case further in order to generate new evidence.
This caused a lengthy
delay in the completion of the trial and the incurring of substantial
additional cost by the appellant.
[142]
One does not know to what
extent the additional evidence adduced by the State affected the
defence team’s decision to call
the appellant. It is also
difficult to know to what extent the additional evidence coloured the
court a quo’s assessment
of the witnesses. It might be said
that this prejudice can be avoided by disregarding the court a quo’s
credibility findings
but on the other hand the appellant was
entitled, as part of her right to a fair trial, to the benefit of
proper credibility findings
made by a trial judge who actually saw
the witnesses.
[143]
All in all, the way in
which the trial court permitted the State to undertake further
investigations and embark upon a wholescale
adducing of additional
evidence would in my opinion strike a reasonable person as a gross
affront to basic fairness. Justice must
not only be done but be seen
to be done. This is a self-standing basis on which the appellant in
my view is entitled to an acquittal.
Conclusion
[144]
For all these reasons I
would uphold set aside the whole of the court a quo’s order and
replace it with an order acquitting
the appellant.
______________________
OL
Rogers
Acting Judge of Appeal
Gorven AJA (Cachalia JA
concurring)
[145]
I have read the judgments
of Mbatha AJA and Rogers AJA. I agree with Mbatha AJA that the appeal
against conviction should be dismissed.
I agree with her judgment on
sentence and the order proposed. I disagree with her that the
re-opening of the state case was not
irregular. I agree with Rogers
AJA that it was irregular but I disagree that the irregularity was of
such a nature that the proceedings
were thereby vitiated. The effect
should be to disregard the evidence led after the reopening. If this
is done, no failure of justice
takes place. I disagree with Rogers
AJA that the version of the appellant was reasonably possibly true. I
write to give additional
reasons to those of Mbatha AJA why it is my
view that the appellant’s version was false beyond reasonable
doubt and was correctly
rejected by the trial court.
[146]
Rogers AJA has sketched
the factual background clearly. There is only one version of the
events after the deceased and the appellant
retired for the night on
Saturday, that of the appellant. According to her, they did not sleep
at all that night. The deceased
was overwrought and the appellant was
attempting to soothe him. The question is whether her version of what
took place is reasonably
possibly true. Neither Dr Panieri-Peter nor
the forensic experts are able to determine whether the death of the
deceased was as
a result of homicide or suicide. There are factors
which support both conclusions. The answer must be sought in the
probabilities.
[147]
Rogers AJA narrows the
enquiry down to three factors; the cup with dissolved disprin, the
gloves and the revolver. In my view there
are additional factors to
consider. I deal with these below.
[148]
Loudine was in the house
until about 05h00 when she left to assist Casper with feeding. The
appellant was aware that they had left
the farm at around 08h00.
Loudine and Casper would have heard the shots if they had been on the
farm at the time. On the appellant’s
version, therefore, the
shots took place between 08h00 and 08h15 when she phoned Loudine.
This means that everything that happened:
her departure from
the bedroom to fetch disprin for the deceased, her return  and
discovery that the deceased had shot himself,
her leaving of the
bedroom room again after changing her clothing at gunpoint, the
discharge of the second shot, her return again,
the removal of both
gloves, the determination of how many rounds of ammunition remained
in the firearm, her holding the hands and
face of the deceased and
her phone call to Loudine  took place in this fifteen minute
period. Shortly after that, Casper and
Loudine returned. The version
of the appellant was developed in this time. Much of what Rogers AJA
finds plausible in the appellant’s
story, which her counsel
found difficult to defend, is because it is so unlikely that the
appellant would not have dreamed it up
but there was not time to
carefully develop a version. It either happened as she says or it did
not. The unlikelihood of her developing
an improbable version cannot
therefore be a justification for accepting her version. This is
circular argument.
[149]
It is highly improbable
that the deceased donned gloves voluntarily. This version was met
with utter disbelief by Riaan who had
known  the deceased for 35
years and farmed together with him for a period.  In
cross-examination, Riaan’s evidence
that it was laughable that
the deceased acceded to wearing gloves and that he had never seen the
deceased wear gloves, was challenged
on the basis that the appellant
would say that the deceased had worn them during hunting trips and
when it was very cold. She did
not in fact testify to this effect.
Her version as to whether the deceased donned them after she gave
them to him or whether she
assisted him to put them on changed under
cross-examination. This further differed from what was put to Riaan
on her behalf that
she put them on for him.
[150]
It is also highly
improbable that, if he was wearing gloves, the appellant would have
removed them after he had shot himself. The
reason given by her for
removing them was in order to feel for a pulse. For a start, it is
not necessary to remove one glove, let
alone both, to feel a pulse.
Secondly, the evidence of the appellant was that, as she entered the
room after the second shot and
saw so much blood, she immediately
realised that the deceased was dead. In those circumstances, it
beggars belief that she would
remove the gloves. In my view there is
no warrant for the speculation by Rogers AJA that she did so because
she wanted to hold
his hands. She certainly did not give that as a
reason for removing the gloves even though she said that she did hold
both of his
hands in hers after removing the gloves and feeling for a
pulse. Thirdly, there is absolutely no explanation that accounts for
how the gloves came to be with the pile of nightclothes, which she
says she changed out of before leaving the room prior to the
second
shot being fired. Unless she deliberately placed the gloves on that
pile of clothes or gathered them up with the clothes,
there is no
probable way that they could have been washed with the nightclothes.
[151]
The deceased and the
appellant had been tested for gunshot residue and none had been found
on the deceased. This was irreconcilable
with the deceased having
shot himself, unless of course, he had his gloves on at the time. No
mention was made of gloves by the
appellant until after this test had
been done and she explained her version to Riaan and Nelia shortly
after their arrival at about
17h00 on the Sunday. On the following
Tuesday or Wednesday, she said that she made a special call to her
friend Nelia, apparently
to tell her that she had discovered that the
gloves had been washed along with her nightclothes from that night.
She still did
not tell the police about the gloves for a matter of
months. Her version of how the deceased came to be wearing them, why
she had
removed them from the deceased’s hands after the
shooting, how they came to be placed with the nightclothes she had
changed
out of and how no-one saw them until they emerged from the
wash is quite simply unbelievable. This is all the more so if, as she

testified, she asked Casper to fetch the pile of clothes because the
gloves would perforce have been on top of that pile or at
least
highly visible next to it.
[152]
As regards the
nightclothes, the appellant claims that Casper removed them at her
instance. It is improbable that she would have
limited her request to
these as her underwear from the previous day was lying elsewhere on
the floor of the room, which she did
not ask him to remove. She was
aware that the police, and others, were going to enter the room and
search it. An unnatural death
had occurred and she must have known
that investigations would be done or, at the very least, that the
body would be removed and
people would enter in order to say their
last farewells. Her selective treatment of the nightclothes can only
be so as to justify
her having removed them from the scene and then
washed them. If, as is likely, she shot the deceased while wearing
the nightclothes,
she would have to have washed them to remove
evidence to that effect, whether GSR or blood.
[153]
The appellant could give
no cogent reason for why the cup in which the disprin was supposedly
dissolved does not appear in the photographs.
On her version, she
arrived in the room, sat on her side of the bed and the deceased,
lying on his back with the firearm resting
on his chest, had clearly
shot himself. Despite this, she recounted that he said that he had
suffered a stroke and did not confront
him with his actions, let
alone immediately leave to obtain assistance. She simply gave him the
disprin. The deceased, still gripping
the firearm, lifted his head
from the pillow and took the cup. The cup then disappeared without
trace. Apart from the ludicrous
picture of a person having shot
himself in the head drinking disprin for a headache, the entire
version is utterly improbable.
[154]
Not only that, but the
appellant would have had the court believe that the deceased
threatened to shoot both of them, on one of
her versions, and the
whole family on another. He chased her away to call the children. If
she could calm him, she would surely
have attempted to persuade him
to relinquish the firearm. If, as she says, he was so irrational, she
would immediately have fled
to seek help without changing. She was
aware that the children were not on the farm and could only be called
telephonically. She
did not tell him this. Instead, she decided to
change out of her nightclothes at gunpoint with a threatening husband
who she said
she believed was about to shoot her to the extent that
she could not reason with him. This, too, beggars belief. All she
would
be able to do was make a phone call and this did not require
her to leave the house. In addition, she claimed to have done so
because
it was very cold. What she exchanged was nightclothes and a
dressing gown for jeans and a top. She could not explain why this
outfit
would make her warmer. The version is simply an attempt to
explain why she changed out of her nightclothes and washed them.
[155]
Once she heard the second
shot, she has no coherent version. She was scared to re-enter the
room because the deceased had threatened
to shoot her and she had
still not done his bidding. She could not have known that the shot
she heard had killed him. She could
not explain why she entered the
room despite this risk after she had been chased from the room at
gunpoint in the belief that he
would carry out his threat. In
addition, it is clear that Loudine impressed on her not to go into
the room again until they returned
out of fear for the consequence.
Such fear could only arise if the appellant was not sure that the
deceased was dead. But her version
is that she had entered the room
and, either at the door realised that he was dead, or established
this clearly by removing the
gloves and feeling his pulse. By the
time she phoned Loudine, there was no risk that the deceased was
alive, much less in a position
to harm anyone. There is no
conceivable reason for why everyone stayed out of the room until Leon
arrived and that Leon and Casper
went to establish whether or not the
deceased was in fact dead.
[156]
The explanation of the
appellant for why she took the firearm from the hands of the deceased
and checked the number of rounds is
bizarre in the extreme. By this
stage, the appellant knew that the deceased was dead. I can conceive
of no probable reason for
a person whose husband has shot and killed
himself for counting rounds of ammunition to establish whether the
deceased had been
capable of carrying out his threat. It is an
obvious attempt to explain away the GSR on her hand. Her story of the
gloves is likewise
her attempt to explain why none was found on the
hands of the deceased despite his having allegedly shot himself
twice. It is also
noteworthy that she changed her version of whether
she first checked the firearm or first removed the gloves. Initially,
she was
clear that she checked the firearm first. Under
cross-examination, she was asked why she checked the firearm before
feeling for
the pulse of the deceased and establishing that he was
dead. She then for the first time said that she could see from the
amount
of blood that the deceased was dead, but also then claimed
that she did not remember in which order she had carried out these
two
actions.
[157]
She had administered
sedatives to the deceased on occasions before that night without his
knowing it. Her testimony was that she
did so when there was likely
to be an eruption of emotion of the part of the deceased. Her
testimony is that, from the Saturday
afternoon, she could see such a
build-up
.
And yet, during the night in question, with their not having slept a
wink and with the deceased having been so agitated and irrational,

she did not do so. Far more probable is that she in fact did so and
shot him after these took effect. The evidence of both Riaan
and
Nelia that she told them that during the night she had twice given
the deceased sleeping tablets was also never challenged.
[158]
The key for the safe is
another improbable factor. The evidence of her friend and confidant,
Nelia, is that the appellant had it
in her jeans pocket. This she
denied but there is nothing to impugn Nelia’s version on this
aspect. In fact, the appellant’s
evidence was that it was her
invariable practice to keep the key on her person. There is also no
reason to reject Nelia’s
version that the appellant told her on
the telephone on Tuesday or Wednesday that she had found gloves in
the pockets of her dressing
gown. The latter aspect was denied by the
appellant but Nelia would not have simply manufactured this. The
appellant had to deny
it because, on her version, she removed the
gloves from the deceased at a time that she had already changed out
of her nightclothes.
The appellant took Nelia into her confidence and
there is no indication that Nelia set out to falsely implicate the
appellant.
It is highly unlikely that the deceased had taken the
firearm from the safe that afternoon and stored it in the bedroom and
there
is no way he could have fetched it while the appellant fetched
disprin.
[159]
It is also far more likely
that the appellant would have been able to shoot the second shot into
the precise entry point in the
head of the deceased as the first shot
than would the deceased.
[160]
All in all, there are far
too many gross improbabilities for it to be held that the version of
the appellant is reasonably possibly
true. It was properly rejected
as false.
[161]
I have said that the
application to reopen the state case should not have been allowed.
None of the factors previously recognised
as founding such an
application were present. No others were proffered by the state in
support of the application. The grant of
this application thus
amounted to an irregularity. The effect of such an irregularity has
been dealt with clearly over the years.
In
S
v Naidoo
,
[21]
the approach was explained in the following terms:
‘
There
are irregularities (fortunately rare) which are of so gross a nature
as
per
se
to vitiate the trial. In such a case the Court of Appeal sets aside
the conviction without reference to the merits. . .
On the other hand
there are irregularities of a lesser nature (and happily even these
are not frequent) in which the Court of Appeal
is able to separate
the bad from the good, and to consider the merits of the case,
including any findings as to the credibility
of witnesses. If in
the result it comes to the conclusion that a reasonable trial Court,
properly directing itself, would
inevitably have convicted, it
dismisses the appeal, and the conviction stands as one on the
merits.’
The
approach does not differ materially from that of s 35(5) of the
Constitution,
[22]
dealing with improperly obtained evidence, which provides:
‘
Evidence
obtained in a manner that violates any rights in the Bill of Rights
must be excluded if the admission of that evidence
would render the
trial unfair or otherwise be detrimental to the administration of
justice.’
The
basic question has been correctly distilled by Rogers AJA in citing
S
v Yusuf
,
[23]
‘on the evidence and on the credibility findings (if any),
unaffected by the irregularity, is [there] proof of guilt beyond

reasonable doubt’?
[162]
I respectfully differ from
Rogers AJA on this point. It is clear that the evidence led as a
result of the irregularity must be excluded.
The question is whether,
once this is done, the guilt of the appellant is established without
reasonable doubt. The analysis undertaken
above does not rely on any
evidence led after the state reopened its case. In my view, excluding
such evidence, the guilt of the
appellant was established beyond a
reasonable doubt. The reopening of the case therefore does not lead
to a vitiating irregularity
such that the appeal should succeed. The
appellant was correctly convicted of murder and the appeal against
conviction must be
dismissed.
_____________________
T
Gorven
Acting
Judge of Appeal
APPEARANCES:
For
appellant:
J G Van Niekerk SC (with N Sieberhagen)
Instructed
by:
Engelsman Magabane Inc, Kimberley
Lovius Block Attorneys,
Bloemfontein
For
respondent:
A H Van Heerden
Instructed by:
The Director
of Public Prosecutions, Kimberley
[1]
R
v Blom
1939
AD 188
at 202.
[2]
‘
(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.’
[3]
S
v V
2000
(1) SACR 453
(SCA) at 455B.
[4]
S
v
Pistorius
[2014]
ZASCA 47
;
2014 (2) SACR 314
(SCA).
[5]
Para
30.
[6]
‘
If,
at the close of the case for the prosecution at any trial, the court
is of the opinion that there is no evidence that the
accused
committed the offence referred to in the charge or any offence of
which he may be convicted on the charge, it may return
a verdict of
not guilty’
[7]
In
S
v Lubaxa
2001 (2) SACR 703
(SCA) para 18, this Court held that where ‘.
. .
accused
person (whether or not he is represented) is entitled to be
discharged at the close of the case for the prosecution if
there is
no possibility of a conviction other than if he enters the witness
box and incriminates himself. The failure to discharge
an accused in
those circumstances, if necessary
mero
motu,
is in my view a breach of the rights that are guaranteed by the
Constitution and will ordinarily vitiate a conviction based
exclusively upon his self-incriminatory evidence.’
[8]
S
v Ndweni & others
1999
(2) SACR 225
(SCA) at 227E; S v De Jager
1965 (2) SA 612
(A) at
613A-B.
[9]
S
v Malgas
2001 (1) SACR 469
(SCA) at 478.
[10]
S
v Ferreira & others
2004
(2) SACR 454
(SCA);
[2004] 4 All SA 373
(SCA).
[11]
Para
40, references omitted.
[12]
S
v Potgieter
1994
(1) SACR 61 (A).
[13]
S
v Larsen
1994
(2) SACR 149 (A).
[14]
S
v Samuels
2011
(1) SACR 9 (SCA).
[15]
Para
10.
[16]
S
v Felthun
[1999]
ZASCA 4; [1999] 2 All SA 182 (A).
[17]
S
v Moodie
1961
(4) SA 752
(A) at 758E-H.
[18]
S
v Yusuf
1968
(2) SA 52
(A) at 57C-F.
[19]
S
v Xaba
1983
(3) SA 717
(A) at 728D-E.
[20]
Fn
16 above.
[21]
S
v Naidoo
1962
(4) SA 348
(A) at 354D-H.
[22]
Constitution
of the Republic of South Africa, 1996.
[23]
S
v Yusuf
1968
(2) SA 52
(A) at 57C-F.