S v D.D (K/S 46/2012) [2014] ZANCHC 9; 2015 (1) SACR 165 (NCK) (27 March 2014)

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[2014] ZANCHC 9
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S v D.D (K/S 46/2012) [2014] ZANCHC 9; 2015 (1) SACR 165 (NCK) (27 March 2014)

IN THE HIGH COURT
OF SOUTH AFRICA
[NORTHERN CAPE
DIVISION, KIMBERLEY]
Reportable:
Case
No: K/S 46/2012
DATE:
27 MARCH 2014
In the matter
between:
THE STATE
v
DD
JUDGMENT
Date Heard:
11/03/2013 – 09/12/2013 25/03/2014
Date Delivered:
27/03/2014
KGOMO JP
1. This trial has
been conducted under
s 63
of the
Child Justice Act, No 75 of 2008
,
read with
s 154(3)
of the
Criminal Procedure Act, No 51 of 1977
,
because the accused is a minor of 17 years. When the offences were
committed by a perpetrator on Good Friday 06 April 2012 he
was 15
years and eight (8) months old: date of birth 15 August 1996. A
probation officer conducted an assessment in terms of
s 34
of the
Child Justice Act for
the purpose set out in the relevant provisions
of
s 35
of the same Act. This was carried out before the inception of
the bail proceedings which led to him being admitted to bail on 03

September 2012.
2. At the bail
proceedings, which were formally admitted in evidence, and throughout
the trial in this Court the minor was supported
by his guardian, Mr
Bennie Heckroodt, as stipulated in
s 65(1)
of the
Child Justice Act.
Also
supporting the minor and/or in attendance were his maternal and
paternal grandparents and other close relatives. The media applied

and were permitted, unopposed, to report on the proceedings subject
to stringent conditions, mainly relating to the non-disclosure
of the
identity of the minor. Every care was taken to afford the minor a
fair hearing. See generally Centre for Child Law v Minister
of
Justice and Constitutional Development and Others (National Institute
for Crime Prevention and the RE-Integration of Offenders,
as amicus
curiae 2009 (2) SACR 477 (CC).
3. The State has
arraigned the minor on five counts. It is alleged that on the said
fateful Good Friday on Naauwhoek Farm, Griekwastad
(Griqua Town), he
raped, Ms M, his younger sister of 14 years (Count 1) and also
murdered her (Count 4); that he murdered Mr D,
his father (Count 2);
and Mrs C, his mother (Count 3); and that he defeated the ends of
justice by making a false declaration to
the police that this was a
farm-attack, whereas he was the culprit, to which the police acted
upon with prejudice to the State
and subverted the administration of
justice.
4. Describing the
crimes as I have done sounds insensitive. However relating the minor
to the deceased victims is unavoidable, lest
the portraying of the
events become convoluted or even ridiculous. This will become evident
in due course when the plan of the
house is described, who occupied
which room (including the minor), and where the deceased were when
they were attacked. In the
circumstances keeping the lid on the
identity of the minor has been a nightmare. In fact counsel on both
sides of the divide mused
whether the proverbial horse has not bolted
before the stable shutters were closed. My verdict is: Not at all,
and that is how
it has to stay for the present.
5. The minor was
represented by two experienced counsel, Advv W Coetzee and S Erasmus
(Ms) until their mandate was controversially
terminated just a day
before judgment was due to be delivered on 12 December 2013. No
elaboration is necessary at this stage. The
minor pleaded not guilty
to all the charges and exercised his constitutional right to remain
silent, by not disclosing his defence.
However, through the
cross-examination of the state witnesses it emerged that the minor
admitted that he was at home at the crucial
period, but not in the
house where the three deceased were shot and/or died. He claimed that
he had been in the barn which is about
34 metres from the residence
when he heard the fatal shots fired, perhaps two volleys (series) of
them.
6. The first sign
that something awful had happened was testified to by Ms Martha
Watermond and Ms Abbigail Pieterse. They were
at an outside toilet at
the employees’ living quarters when they saw the minor accused
(also DD) opening the secondary motor
gate used by the workers when
entering the farm from the main road. The main road leads from
Griekwastad (in the North) to Niekerkshoop
(in the South). Ms
Watermond was employed by the minor’s parents. Their living
quarters are 600 metres from the farmhouse.
7. Whereas it was
suggested in cross-examination and testified to by the minor that he
took that route to warn the workers, the
version that I accept from
these two ladies (more pertinently Ms Watermond’s) is that the
minor drove up to the gate, opened
it, and on seeing them when he
returned to his vehicle (an Isuzu van), only then did he report that
they must make way because
his family has been killed. They, and a
few others, panicked and drove away in Jan Ludick’s white 1400
Nissan van. Ludick
is Ms Pieterse’s husband.
8. I want to say
this at this early stage about Ludick’s van. The minor could
not have missed seeing it. The undisputed evidence
is that it stood
next to the gate, outside the farm, facing the said main road. As it
took off its rear wheels spun leaving track-marks
on the gravel
surface. The police photographer Sgt Mongale took a photo of the
track-marks (Exh F photo 6) on Saturday 07 April
2012. What is
surprising is that the defence suggested that the getaway attacker’s
vehicle could have left those tyre marks.
During the inspection in
loco the defence was silent on the presence of Jan Ludick’s van
on that spot. The only inference
is that the minor did not instruct
his counsel about it for spurious motives.
9. I also want to
get out of the way a further aspect on which much time was spent by
the defence in cross-examining every police
witness and some other
witnesses. Jan Ludick’s van suffered a deflated tyre pressure
when the farm workers and their friends
heeded the minor’s
warning to flee to safety. The vehicle was abandoned not far from the
farm. A bloodstain was left on the
steering wheel and the body-work.
The defence suggested that it could have been the attacker’s
getaway vehicle and blood.
DNA genetic material swabs taken were
ineffectual for forensic testing. It turned out that the blood
emanated from Jan Ludick who
got cut on his hand when he fixed the
exhaust pipe of his vehicle earlier in the day. There should have
been nothing suspicious
to the minor about all this.
10. The sleepy
hamlet of Griekwastad (which does have a church) was rocked to its
knees when a fresh-faced 15 year old boy burst
into the police
station shortly before 19h00 on that Friday, 06 April 2012, and
reported that his parents and sister have been
murdered on Naauwhoek
Farm, about 10 km to the South, and that he is the sole survivor. A
lot of time was spent by the defence
in a valiant attempt to show
that the minor could not have been so categorical about the deaths.
From the overwhelming evidence
of the people he spoke to, mainly
relatives who were near and dear to him, and the police I find that
he was indeed categorical.
11. From the
evidence of W/O Wildt who was in charge of the Charge Office (now
called the Community Service Centre (CSC), Consts
G B Kutoane and J M
Langa the minor was very emotional, his face and both hands were
bloodied and bore a fresh scratch mark on
his neck. His first report
was that his “pa en ma en sussie so pas doodgeskiet is op die
plaas Naauwhoek.”
12. The police
testified that W/O Rooi, now unfortunately deceased, knew the minor
and his parents. He took the minor to an inner
office to calm him
down. The minor washed his face and hands in a hand-basin in the
police courtyard. He discarded the bloodied
T-shirt next to the
basin. He was therefore, for some time, unclad on his upper body.
Photographs 1-9 of Exh B. The minor, on his
own volition, left the
CSC and was followed by W/O Rooi. On their return W/O Rooi carried a
.22 rifle and a .357 revolver. These
firearms were retrieved from the
Isuzu van that the minor drove, and was parked in front of the police
station. All these are matters
which are common cause or not disputed
or are accepted by me as evincing the truth. The scenes described
here were also pointed
out during the inspection in loco which was
conducted there on 18 March 2013.
13. It is common
cause that the aforesaid firearms were the property of the minor’s
murdered parents and that they are the
murder weapons in respect of
all the deceased. How the minor came in possession of these weapons
is a matter deferred for later
discussion.
14. The police
officers aforementioned and their colleagues at the police station
understood the minor to convey to them unambiguously
that these were
farm murders, not merely a farm attack. Nothing was reported
concerning any survivors or possible survivors, bar
the minor
himself. The police machinery clicked into gear. The big guns were
mobilised forthwith. First to be contacted was W/O
Mofokeng, the
Detective Branch Commander, who had just knocked off duty and was on
his way home. As it behoves a dedicated police
officer he made a
U-turn. Next was Capt Jafta, the Station Commander, who answered the
call 150 km away in Kimberley. Then followed
Major General De Waal
(Ms) who was the officer on duty at a Provincial level. The general
is not to be confused with Col De Waal,
the investigating officer,
who features prominently throughout this case. The latter was
dispatched and took charge of the investigation
from the evening of
the murders. A helicopter was commissioned which reconnoitred and
scoured the skies for suspects. Police stations
in the surrounding
areas were put on alert.
This detail is of
particular relevance when the charge of defeating the ends of justice
falls for determination.
15. Ms Henriette
Truter was the Manager of the Proviand Restaurant across the street
from the police station. That Good Friday evening
was a quiet
business day, as far as patrons are concerned. She therefore sat on
the stoep sipping coffee. She saw the already described
Isuzu van
approach at high speed and stopped abruptly in front of the police
station. The minor jumped out and ran up the stairs
towards the
charge office and screamed “[julle] moet kom. Geskiet, geskiet,
almal is dood”. Shortly thereafter he emerged
running with a
police officer in tow. The minor removed what seemed to Ms Truter to
be a firearm from the back seat of the van.
16. Ms Truter
realised that the boy needed some calming down. She prepared a glass
of glucose drink (sugar and water). The police
allowed her to
approach the minor. She found him in the courtyard washing one of his
feet in the aforedescribed washing-basin.
She gave him the glucose
drink. He exclaimed: “Tannie, tannie, dis my sussie se bloed,
sy is in my arms dood”. He later
repeated: “Nee tannie
hulle is almal dood”. And yet afterwards: “Wat gaan van
my word, waarna toe gaan ek nou”.
The point here is that there
was no doubt in the minor’s mind that his immediate family has
been wiped out. The minor later
washed more blood off himself at the
restaurant. There was still blood behind one of his ears which Ms
Truter wiped off. According
to this witness the minor was throughout
very busy texting messages. He enquired from her whether he should
text only his best
friends or all friends concerning the occurrences.
She advised against it all.
17. Under the more
relaxed and conducive atmosphere of the Proviand Restaurant, after
the incident had somewhat sunk in, the minor
related the following
accounts to those who were near and dear to him, who sympathised with
and supported him the same evening.
18. To Pastor Pieter
Otto: He repeatedly stated that all the deceased were dead.
Elaborating, he told the pastor that the family
watched a popular
soapie, Vetkoek Paleis. At the end thereof he went to the barn to fix
something that the pastor could not recall.
It became common cause,
having regard to confirmation by other witnesses and the minor’s
admission, that Verkoek Paleis commenced
at 18h00 and concluded at
18h30. While at the barn he heard shots been fired. He hid for a
considerable but unspecified period
there. When he thought it was
safe he ventured out. His parents were dead. His sister was still
alive. She tried to phone from
the landline. She grabbed him. “Ek
onthou die woorde: ‘Oom, ek het haar weggestoot, die bloed!”’
The minor told him
that he picked up the firearms on his way towards the workers’
gate. “Ek het die wapens hanteer en
ek weet ek moes nie.”
Asked by Paster Otto
who could have done such heinous deed the minor speculated that his
father quarrelled with a Coloured man who
owed him R20 000 for the
sale of a bakkie. He gave a name which escaped the pastor. The minor
retracted the insinuation afterwards.
However he repeated this
suggestion to Col De Waal when he obtained his witness statement. The
name supplied was “Wippie
Deerling” who stays in
Griekwastad. Col De Waal obtained Mr Deerling’s statement. The
latter was not called as a witness
but was made available to the
defence at the close of the state case. Pastor Otto also testified
that in November 2011 the minor
informed him that he only wanted to
farm and nothing else but his father insisted that he equipped
himself academically first.
19. To Mr Bob de
Villiers: The minor said towards the end of the Vetkoek Paleis
programme he went to the barn to put away a knife.
He heard six shots
being fired from the direction of the house. He was scared and
remained concealed for a while there. He later
investigated and found
his parents and sister sprawled on the floor inside the house:
“Hy het
waargeneem dat sy suster nog gelewe het. Hy het na haar toe gegaan
om haar te ondersteun en in die proses het daar
nou van sy suster se
bloed aan sy hemp gekom en in die proses is sy hemp ook van sy lyf af
geskeur.”
The minor also told
him that he picked up the hunting rifle at the workers’ (the
secondary) gate. He was concerned that his
fingerprints could be
uplifted from the trigger.
20. To Ms Henriëtte
de Villiers: She is the wife of Bob De Villiers and corroborates her
husband on material aspects. What
is noteworthy, though, is that she
adds that: “Hy het ook gesê dat dit gelyk het asof sy pa
opgespring het want hy
het nie meer op die bank by die televisie
gesit nie, hy het op die vloer gelê.”
What is further
significant is that Ms De Villiers testified that the minor gave a
reason why the knife had to be cleaned:
“Hy het gesê
hy wou die mes skoonmaak om hom te gaan bêre omdat die skool
begin en hy nie die volgende dag dit
kon doen nie, daarom wou hy dit
toe doen.”
21. To Samuel
(Junior) Ludwick: Mr Ludwick testified that the minor’s
account that follows was elicited in his presence by
the minor’s
relative, Mr A (Bulletjies) S, who did not testify but attended the
hearing:
“Okay, hy het
begin en gesê hulle het as gesin buite op die gras gewees en
gekyk hoe die koedoes in die vlei loop.
En toe begin `n program op
die TV, Vetkoek Paleis, waarna hulle ingegaan het om te gaan kyk. En
tydens dit het hy toe na die buitegebou
gegaan om iets daar te gaan
doen. En toe het hy die skietlampe gesien wat stukkend is en hulle
begin regmaak en in die tyd het
hy toe skote gehoor. Hy sê en
toe het [sy suster - Ms M] gegil en toe weer skote en hy `n ruk lank
weggekruip en toe na
die huis gegaan---.
Het hy op enige
stadium gemeld terwyl u by was hoe lank hy in die stoor sou gewees
het of nie? --- Ja, hy het gesê plus minus
`n kwartuur, skat
hy.”
He said his sister
“was in sy arms en dis waar sy gesterf het.” His sister
“het dan sy hemp houvas en wat ek aflei
tydens haar laaste asem
het sy seker saamgetrek en toe die hemp geskeur.”
Mr Coetzee, for the
minor, put it to Mr Ludwick that the minor will deny that he said or
heard his sister scream.
The reports set out
in paras 18–21 (above) took place during the evening of the
fatal shootings (06/04/2012).
22. To Ms Martha
Massyn on 13 April 2012: Ms Massyn is the minor’s maternal
grandmother. On this day he told her that whilst
he was at the barn
he heard a volley of gunfire and an apparent lull and then another
volley. After a while he entered the house
only to find his parents
dead but his sister was still alive “en hy het haar net teen
hom gedruk en sy het gesê: Boetie,
ek is lief vir jou, en gaan
nou doodgaan.”
The minor also
informed her that a former farmworker David (later identified as Mr
Kgoronyane) had a squabble with his father, threatened
some time
back, that when farm-murders begin in Griekwastad his (the minor’s)
family will be the first targets. Let me make
short schrift to this
insinuation. Mr Kgoronyane and his employer Mr David Hesselman
testified. When the news reached them that
the minor’s family
were murdered they were several kilometres North of Griekwastad, very
busy with farm work. Mr Kgoronyane
even left his half-cooked food
when he and the Hesselman family hurriedly moved to the safety of
town. The false accusation against
Mr Kgoroyane was totally
unwarranted.
23. To Ms Marianne
Smith, the minor’s paternal aunt, on Saturday 07 April 2012.
She is a botanical
doctor and stays in Stellenbosch, which is where she and her family
received the tragic news that brought them
first to Kimberley and
then took them to Griekwastad on Saturday 07 April 2012. Her parents
lived in Kimberley where she had this
conversation with the minor
that Saturday evening. She was reluctant to traumatise him further
and refrained from asking him what
happened. However, as they
discussed funeral arrangements he kept on saying “tannie kan my
enigiets vra. Ek sal tannie alles
vertel maar oupa-hulle moenie weet
nie, want sussie het nog gelewe.”
The minor recounted
that the family sat on the lawns that late Good Friday afternoon.
They entered the house through the back door.
His father then spoke
to his (the minor’s) paternal grandmother telephonically. He
went to and was in the barn when he heard
gunshots and thought: “Ah,
plaasaanval.”
On re-entering the
house after a while he found his parents dead. His sister grabbed
him, tore his T-shirt and scratched his neck.
She was busy dying and
told him that she loved him. His shirt was bloodied. He changed it
and returned to the barn. On reaching
the Isuzu van he heard a second
round of gunfire. He said he had forgotten about this second round of
gunfire and only told the
police about it on Saturday morning
(07/04/2012). The second series of gunfire shocked her.
“Adv Cloete
(State Counsel): Hoekom was dit vir u skokkend? --- Want daai mense
was – die indringers was in die omgewing
van die huis terwyl -
of selfs in die huis terwyl [die seun] `n skoon hemp aangetrek het.
Het u toe dit met
hom bespreek hoekom u hierdie mededeling skokkend gevind het? --- Ja,
ek was verbaas en het gesê [seun],
maar besef jy hierdie mense
was saam met jou in die huis. ‘Dit kan wees tannie, ek dink dis
moontlik.”’
Ms Smith testifies
further:
“Ek het eers
toegelaat dat [die seun] vir my die hele storie vertel voordat ek aan
hom vrae begin stel het. En my eerste vraag
was [seun], hoe dink jy,
daar was geen vensters en goed stukkend nie, hoe dink jy het daar
mense in die huis gekom. En hy het gesê
tannie, ek dink dis toe
ons koedoes gekyk het, het hulle by die agterdeur ingekom en in die
huis weggekruip. En toe sê ek
maar waar sou hulle weggekruip
het, toe sê hy in die hoofslaapkamer en in die badkamer, die
hoofslaapkamer se badkamer.
En toe sê ek maar [seun] in daai
tyd is niemand toilet toe nie? Het julle nie gaan hande was voor ete
nie, want jou ma –--
was baie gesteld op higiëne, moes
altyd handjies was voor ete. En toe trek hy sy skouers op, toe sê
hy ek weet nie tannie,
dalk het hulle tussen die bed en die
vensterbank weggekruip in die hoofslaapkamer.”
Ms Smith proceeds:
“En hy het
gesê my pa het daar by die eetkamertafel gelê. Sy woorde
was: ‘Dit het gelyk of pa wou keer
en toe het hy gegly in die
bloed en geval.”’
Subsequently:
“Ek het gevra
[seun], het die honde nie geblaf nie. Toe sê hy die honde het
vroeër die middag toe hulle na die
koedoes wou kyk, onder by die
perde geblaf.”
It is common cause
that the minor’s guardian, Mr Bennie Heckroodt, and his wife
were in the house at this time but not part
of the conversation. Mr
Heckroodt is on the list of witnesses but did not testify. He advised
the minor with the legal team throughout
the trial.
24. To Ms Elizabeth
Vermaak, also the minor’s paternal aunt:
Ms Vermaak
corroborates her sister’s (Ms Smith’s) account on what
the minor said and what happened at their parental
home in Kimberley.
She adds that the minor reported to them that he had consulted a
psychologist earlier that day (07/04/2012).
That he informed the
psychologist that he was aware that a trust has been created for
himself and his late sister and wanted to
know from her how the
inheritance will now devolve. She informed him that under the
circumstances he stood to inherit everything.
He told the
psychologist that: “Ons Steenkamps word gou kwaad, maar ons
word ook gou goed.” The minor did not elaborate
at the time and
would not furnish any context when he testified. This evidence was
not objected to by the defence. The minor was
also cross-examined on
this aspect without any demur. The ambit of
s 36(1)
of the
Child
Justice Act is
wide. It provides:
“
s 36
Confidentiality of information obtained at assessment
(1) Any information
obtained at an assessment is confidential and-
(a) May only be used
for any purpose authorised by this Act, including at a preliminary
inquiry; and
(b) Is inadmissible
as evidence during any bail application, plea, trial or sentencing
proceedings in which the child appears”.
This evidence was
not proffered by the psychologist but was volunteered by the minor.
The evidence does appear to be admissible
and a court may not exclude
relevant and admissible evidence. However, I will leave this question
open and attach no weight to
the evidence for present purposes.
25. The following
facts, factors and circumstances militate strongly against a
stranger-intruder having committed the murders. Some
aspects to be
dealt with go much broader and are not confined to a
stranger-intruder. These matters have to be looked at individually,

severally and cumulatively.
26. First: It is
common cause that each one of the three deceased were shot and killed
with the .22 rifle and the .357 revolver,
the property of the minor’s
parents. Dr Fouchè testified that, and this was common cause
and even conceded by Mr Coetzee,
for the minor, that all the deceased
were first shot with the .357 revolver in their bodies. These
gunshots were not fatal but
would have immobilised or incapacitated
them. However, the teenage girl could still have been able to move
around. In order to
kill them each one of the deceased was
subsequently shot in their heads, the minor’s parents were shot
in the back of the
heads.
27. Second: The
firearms were in the main bedroom, occupied by the minor’s
deceased parents and less than four (4) metres
from the minor’s
bedroom. The indications are that the shooter could not have had both
firearms with him contemporaneously
and must have returned to the
main bedroom to fetch the .22 rifle. Two shooters would not have
waited for each other to finish
shooting before the other took
his/her turn. The defence admitted in their heads of argument that
the shooter must have been familiar
with surroundings and even with
the layout of the house.
28. Third: These
firearms were kept in a safe which was kept locked, although the keys
were apparently left on top of the safe or
nearby. During the evening
in question the police found the safe open with the keys dangling
from the safe keyhole. Exh B, photos
79 and 80. The photos depict
several firearms still in the safe. These would have been rich
pickings for intruder farm-murderers.
29. Fourth: The
police found the front door bolted and chained. No access could have
been gained by the intruder through this door.
The backdoor (the
kitchen door) was found open. The lights were on and the TV was
playing. The minor and his defence suggested
that the intruder must
have slipped into the house through the front door unobserved because
the family was relaxing on the lawns
at the back of the house. They
hoped to watch koedoes roaming in the valley. The family exited and
re-entered the house through
the backdoor. There is no possibility
that the intruder, apparently a lone-ranger, could have entered the
house through the back
door unnoticed. The dogs would certainly have
barked. This was testified to by the deceased’s family and
friends: Ms Smith;
Mr Paul Botha; Mr Jannie Ludick; and Police
officer Mohitlhi who had to interrupt the video recording of the
crime scene as the
dogs would not leave him alone.
30. Fifth: The
intruder could not have broken into the house because the front door
and windows were intact. There was no forced
entry. Irrespective of
how the intruder may have entered the house, the defence suggested
that the family prevented the unwelcome
guest from making his/her
escape when they entered the house to watch the programme Vetkoek
Paleis which commenced at 18h00 and
concluded at 18h30. What the
intruder would have been looking for or waiting for or wanted to
achieve up to this point truly escapes
me. The minor could not
explain this phenomenon in evidence either nor could Mr Coetzee in
argument and attorney Bode subsequently.
31. Sixth: The minor
variously reported to a number of witnesses that he went to the barn
when Vetkoek Paleis was in progress but
more assertively after
watching its tail-end. This signifies, in the latter event, that he
went to the barn after 18h30. It is
common cause that the following
cellphone communications or attempts to do so took place just before
and after the three deceased
were gunned down. Capt Moller of SAPS,
a communication analyst and forensic cellphone examiner, testified as
follows on this aspect:
a) At 17h49 the
minor’s father made a cellphone call to his father (the minor’s
grandfather) lasting 22 minutes;
b) At 18h34:14 the
minor’s mother texted a message to her sister, Mariëtta
Massyn, enquiring innocuously about flights;
c) At 19h02 a text
message was received from Ms Sunnet Boshof on the cellphone of the
minor’s mother, which went unanswered;
d) At 19h06 a missed
or call forward was received from Ms Elsa Van Niekerk and at 19h20
from one Romie on the cellphone of the minor’s
mother. On the
evidence, at this stage the deceased were all already dead;
e) The statement in
(d) above must be correct because the police evidence and phone
records show that at about 19h00 the minor was
at the Police Station,
reporting the murders;
f) State counsel
must accordingly, be right, and Mr Coetzee has fairly conceded, that
the intruder/murderer must have been in the
house for at least 45
minutes (17h49 – 18h34). To what end?
g) As far as the
minor is concerned he made a voice call at 17h59 that lasted four (4)
seconds to Mr Cornelissen which must have
been put down (or dropped)
according to Capt Moller. The minor’s next call was to his
grandfather at 19h02 which lasted 115
seconds. He was then already in
town;
h) In my view, the
State’s postulate, based also on the exercise carried out by
Col De Waal, the minor could not have been
in the barn for 10-15
minutes or at all. At 18h34 his mother was still alive. Add 15
minutes to 18h34 and it puts you at 18h49.
Capt Japhta received a
call from W/O Wildt at about 19h00. It leaves virtually no time for
hiding a second time in the barn and
driving the 10 km stretch from
the farm to Griekwastad, at whatever speed. Hiding in the barn can
therefore be safely discounted.
This point Mr Bode fairly conceded.
32. Seventh: The
aforegoing convoluted explanations had to be given by the minor
because, irrespective of where the four family
members were seated
when they were watching Vetkoek Paleis from 18h00, there is no way
that an intruder could have sneaked into
the main bedroom undetected.
This is so because access to all four bedrooms can only be attained
via the open-plan living area
(kitchen, TV-room, sitting-room and
dining-room) into a single passage. In any event why would an
evil-minded intruder bent on
murder want to sneak into the bedrooms?
Mr Coetzee conceded during oral argument that the suggestion has its
difficulties. My
observation during the inspection-in-loco was
exceedingly helpful in this regard. No store can be placed on Mr
Bode’s utter
conjecture on this aspect.
33. Eighth: Placing
himself in the barn is pivotal to the minor’s defence. This is
so because if this is not where he was
during the murders then he
must have been in the house with his parents and sister when they
were killed. If I have to be extremely
charitable to the minor I
would have to find that he witnessed the shooter eliminate his
family; a less charitable view would be
that he was in cahoots with
the shooter; or, the least charitable scenario would be that he must
have pulled the triggers of the
smoking guns that he later that
evening delivered to the police. This is how the minor tripped
himself up:
(a) He went to the
barn to phone a friend. The proved fact is that his call to
Cornelissen went unanswered at 17h59. This was before
Vetkoek Paleis
started;
(b) He went to the
barn to clean and/or to put away his knife and/or the knife had to be
put in the safe. This knife must have been
very special. Something
curious is that amongst the three things that the minor reported
missing was his father’s knife.
It won’t even cross a
ruthless murderer’s mind to take only a knife and leave several
firearms, unless the knife was
studded with diamonds and he knew it;
(c) He went to the
barn to fix a searchlight (hunting lamp). A slight variation to Mr
Ludwick was that when he was at the barn,
for whatever reason, he
decided to fix the searchlight. When the police arrived at the scene
the lights in the house were on but
the barn was in darkness. The
barn-lights were in working condition because the police switched
them on. The minor responded to
my enquiry by stating that he
intended working on the searchlight in the barn, but did not have to
switch the barn-lights on because
he moved to one of the windows.
According to the uncontested evidence of Dr Nicola Loaring, who has a
doctorate in Astrophysics
from the University of Oxford in the United
Kingdom (UK), and employed as a professional astronomer at the SA
Astronomical Observatory,
sunset on the Naauwhoek Farm on 06 April
2012 was at 18h18. As far as the degree of illumination was concerned
civil twilight ended
at 18h42 and the full moon rose at 17h55. The
atmospheric conditions were good. Without any additional artificial
light one could
(in the open) have seen clearly for at least 28
yards.
It is axiomatic that
it would have been much darker in the huge barn with comparatively
small windows, which I observed during the
inspection in loco,
although they were not measured. Photos 195 and 196 of Exh “B”
depict them. According to the minor
the two opague sliding doors were
opened only wide enough to allow him access into the barn. This would
have compounded the poor
visibility indoors.
The minor’s
truncated explanation on this aspect has too many loose ends and does
not add up.
34. Ninth: As
pointed out earlier the minor informed at least two witnesses that
whilst he was in the barn he heard his sister scream.
He now denies,
falsely in my view, that he informed anyone that his sister screamed.
The fact of the matter is that the minor’s
sister bled
profusely between the barn and the house (about 16 metres from the
barn). It matters not whether the two loose stones
and the blood
puddle that were soaked in the minor’s sister’s blood,
were at point “N”, pointed out the
same evening by Mr
Scholtz to the official photographer, Mr McAnda, or at point P,
pointed out by the minor on Saturday 07 April
2012. What matters is
that when the first police arrived on the scene Mr Scholtz pointed
out the spot where the dogs were lapping
up the girl’s blood.
What we observed through the window, depicted in photo 196 of Exh
“B”, is that both points
“N” and “P”
and the tree as a fixed point were clearly visible. The front door of
the house, through which
the minor suggested that the intruder might
also have entered the house, is also clearly visible. If the minor
wanted to see what
was happening to his sister at “N” or
“P”, he would have.
35. Tenth: Capt
Marius Joubert of the SAPS attached to the Forensic Science
Laboratory in Cape Town and employed as a forensic biology
crime
scene expert, described the spot (at para 34 Ninth) as follows when
asked whether the grass that was visible on the girl’s

bloodstained T-shirt, where she was found dead next to her mother in
the house, lodged there before or after she bled. The answer
was:
“My Lord, the
bloodstain pattern on the side of the victim, [Ms M] was already
there before she made contact with the grass
and the gravel. Because
blood, its physical characteristics, it has adhesive properties. So
the bloodstain was already there
when she made contact with the grass
and the gravel and they adhered to her bloodstain on her back and on
her side, my Lord.”
36. Eleventh: The
minor acknowledged that he saw the blood at point “N”/
“P” when he left the barn for
the house after he heard
the (initial) gunshots. He said he was too scared to peep through the
window which is directly in line
with the bloodied spot. In my view
the minor adopts this stance to avoid describing the alleged attacker
whom he could not have
missed seeing. The minor curiously shifted the
point where his sister bled, from point “N” by 5.1 metres
to point “P”.
Point “N” creates a problem for
the minor because on emerging from the barn door point “N”
would be more
than 5.1 metres to the left of the bee-line to the
house. Even point “P” is quite a bit to the left of the
bee-line.
The minor does not say what attracted his attention to the
blood, unlike Mr Scholtz who saw the dogs lapping up the blood. On
what
basis then would a touted scared 15-year boy who fears for his
family’s safety spot the blood out of his line of vision. I

would still have had my doubts even if point “P” is
accepted as the correct point of bleeding under the circumstances

sketched by the minor. But the main reason why I reject it as
unreliable is because point “P” was pointed out after
the
objective physical evidence (the bloodstains and bloodied stones) had
been removed. Mr Coetzee fairly conceded that my postulated
approach
on this point cannot be faulted.
37. Twelfth: If the
minor reacted as described by his relatives, and also by the
investigating officer and further when he testified
in court then it
would be fair to say of him the deaths of his family “left him
cold”; indifferent. He saw his father
sprawled and full of
blood. He looks at him and walks past. Next he sees his mother
prostrate and bloodied and adopts a similar
attitude. His beloved
younger sister of 14 years, who was heavily wounded, strains every
sinew, evidently to summon help; even
on the minor’s own
account to Pastor Otto in para 18 (above), reaching out to him for
help, was pushed away. He says he was
repulsed by her blood. How can
a regular hunter be so blood-squeamish. He has his cellphone with
him. He does not call an ambulance
or the police or a relative. All
he can think of is to change his T-shirt which was soaked in his
sister’s blood and drive
some 10 km away purportedly to raise
the alarm. I reject the minor’s statement that his sister would
have told him that she
loved him. The circumstances militate strongly
against such endearment.
38. Thirteenth:
Perhaps one of the most porous suggestions by the minor is that the
farm-attacker would descent on the farm as a
lone-ranger; would come
on foot; would come unarmed; would evade the occupants of the house
to reach the firearms at the furthest
point in the house; kill the
three deceased with their own weapons; spare the minor, who was with
the intruder in the house, for
no distinguishable reason from the
others; take only the elusive knife and a bundle of duplicate keys of
the very house but leave
the safe keys in the keyhole; leave R32
000,00 in cash and three wallets belonging to the three deceased
containing wads of cash;
walk away on foot when an appealing twin-cab
Isuzu (Exh B photo 8) and a Colt van, both with the keys dangling in
their ignitions,
were there for the taking and then with his mission
accomplished, discard the firearms next to the road 50 metres from
the house.
This Rambo is now once more unarmed. Perhaps when
confronted by the police or the Neighbourhood Watch he would stick up
his hands
in the air and say: “Sorry, I got lost.” If
this was true the attacker would be dubbed the dumbest farm-attacker
ever
in South Africa.
39. Fourteenth: What
betrays the minor even further is that it was common cause that there
were other firearms and lots of ammunition
in the safe. It was also
common cause that the minor was adept in handling an assortment of
firearms and had free access to them.
On a video footage headed:
“Skiet van die perd af”, the minor is seen shooting at a
target from a horse in full-flight
under the watchful eyes of his
parents. I have to agree with State counsel that if the minor
believed that an intruder was on the
prowl he would have summoned the
police from the barn and thereafter armed himself with one of the
unaffected firearms for protection
as soon as he had entered the
house.
40. Fifteenth: To
demonstrate how unlikely it was for the minor to have spotted the
firearms where they were purportedly discarded
by the “dumb”
intruder, when he (the minor) was driving at high speed, I allude to
the following testimony by him.
The photo showing the minor doing the
pointing out was taken the day after the shooting (on 07/04/2012).
He testified:
“Hof: Ek wil
net kyk na die gras self, ek weet nie hoe vinnig groei gras nie.
Goed. En kan ek net by u verneem [Mnr DD],
waar u daar staan op foto
1, was u kaalvoet of het u skoene of iets gedra aan u voete? --- U
Edele daar het ek tekkies aangehad.
Het us tekkies
aangehad. En as `n mens kyk – u kan self kyk na die skerm hier
voor my wat miskien ook beter is, blyk dit vir
my, sê maar as
ek verkeerd is, dat die tekkies nie sigbaar is nie. --- Nee Edele.
So en u sê
daardie gras of bossies, was miskien so 15 cm’s (sentimeter)
hoog? --- Dis moontlik u Edele. Ek is nie seker
nie, maar dit is
moontlik.”
The “Nee
Edele” must be understood as “Ja Edele.” The minor
had to drive off the road to pick up the firearms.
I have no
hesitation in rejecting his explanation. Like the blood of his
sister, Ms M, at point “N, he spots the unspottables.
If the highlighted
bold points from “First” to “Fifteenth”
(paras 26-40) (above) are co-incidences or sheer
luck then the minor
must have been born under the luckiest stars ever.
41. That the three
deceased were murdered is common cause. The whole exercise up to this
point has been to discover who did it.
Dr Lemainè Fouchè
is a pathologist of many years’ experience. Her expertise and
credentials and indeed her
findings were either not called into
question or were half-heartedly challenged. She gave detailed and
very enlightening evidence.
In the context of this case, for now, I
need only deal with the salient aspects of the medico-legal
post-mortem report:
41.1 In respect of
the minor’s father the doctor noted:
“Die
vernaamste lykskouingsbevindings in verband met hierdie liggaam die
volgende was –
1. Die liggaam van
`n oormassa blanke man met tekens van ontbinding. Daar was `n
inskietwond agter die linker oor, asook `n inskietwond
bokant die
regter klavikel asook `n inskietwond in die regter borskaswand. Die
brein is geswel, daar was `n defek in die 7de interkostale
spasie
regs. Daar was `n defek deur die regter deel van die diafragma met
beserings van die lewer. Daar was ook `n defek in die
onderkwab van
die linker long. Daar was 1500 ml bloed in die abdominale holte. Die
projektiele is verwyder (een vanuit die linker
long en die ander in
die linker boud weefsel) en aan die ondersoekbeampte oordandig.
OORSAAK VAN DOOD
As gevolg van my
waarnemeings het ek tot die gevolgtrekking gekom dat die
oorsaak/oorsake van die dood die volgende was:
Veelvuldige
skietwonde.”
41.2 In respect of
the minor’s mother Dr Fouchè noted:
“Die
vernaamste lykskouingsbevindings in verband met hierdie liggaam die
volgende was –
1. Die liggaam van
`n volwasse blanke vrou met `n inskietwond regs agter op die skedel,
asook ‘n inskietwond voor op die buik
en `n uitgangswond agter
op die rug. Daar was laserasies van die hilum van die linker nier
met 355 ml bloed in die buikholte.
Metaal fragmente is in die brein
gevind.
OORSAAK VAN DOOD
As gevolg van my
waarnemings het ek tot die gevolgtrekking gekom dat die
oorsaak/oorsake van die dood die volgende was:
Veelvuldige
skietwonde”
41.3 In respect of
the minor’s sister Dr Fouchè found:
“Vernaamste
lykskouingsbevindings in verband met hierdie liggaam die volgende
was-
1. Die liggaam van
`n blanke vroulike tiener met veelvoudige laserasies op die kop, oë
wat toegeswel is, defekte met die voorkoms
van inskietwonde asook `n
uitgangswond op die laterale aspek van die regter borskaswand. Daar
was ook krapmerke, kneusings en
oppervlakkige skaafwonde teenwoordig.
Daar was defekte in die regter long asook in die regter thorakale
wand.
OORSAAK VAN DOOD
As gevolg van my
waarnemeings het ek tot die gevolgtrekking gekom dat die
oorsaak/oorsake van die dood die volgende was:
Veelvuldige
skietwonde.”
All the deceased
were shot at close range.
42. Dr Fouchè
testified that the .22 gunshot wounds caused instantaneous death.
This must be so. Of immense significance
is the evidence of W/O
Phillemon Nhlapo. He is an expert on ballistics and attached to the
Ballistic Section of the Forensic Science
Laboratory of SAPS in Cape
Town. He also attended the post-mortem examination with Capt Joubert
conducted by Dr Fouchè.
The evidence of the three are
consonant where their fields of expertise converge or conflate. He
testified that each one of the
deceased were shot through his/her
body with the lighter calibre Magnum .357 first and, when they were
already prostrate, then
executed with the heavy calibre .22 rifle;
almost without exception through their heads. The following excerpts
encapsulate it
all:
“State
Counsel: Yes. And then paragraph 8. Paragraph 8 contains the
conclusions you reach as a result of what you observed
of the wounds.
=== Yes My Lord.
Yes, you can then
move to paragraph 8.1. === 8.1 will read as follows: The wound
mentioned in paragraph 5.1 was caused by the bullet
fired with a
downwards trajectory My Lord.
And just to remind
ourselves Warrant Officer Nhlapo, this wound we see on photos 20 and
22 of exhibit “FF”, is that
correct? === That’s
correct My Lord.
While we are on this
particular wound, would this be consistent if somebody who is sitting
and getting up from the sitting position
when such a wound is
inflicted? === That’s correct My Lord. The upper body of the
person being exposed to the shooter, slightly
bent into the shooter
My Lord.
Court: Bending
forward? === Forward My Lord.
Mr Cloete: And then
you can move on to paragraph 8.2 and read it out for purposes of the
record. === 8.2: The wound mentioned
in paragraph 5.2 was caused by
the bullet fired from the right with a downwards trajectory My Lord.
And again, these
are the wounds we see on photos 19 and 23 of exhibit “FF”,
namely the wound on the right side of [Mr
D], is that correct? ===
That’s correct My Lord.
And you say this was
also with a downward trajectory? === That’s correct My Lord.
Then you can move on
to paragraph 8.3. === 8.3: The wounds mentioned in paragraph 5.3 was
caused by a bullet fired from the left
to the right My Lord.
Now what is
important here, and this is the wound which we see on photo 24? ===
That’s correct My Lord.
Of exhibit “FF”.
While we are on this particular wound. Is it possible that the
shooter was standing up and the deceased
was lying down when this
particular shot was fired which caused this wound? === That’s
correct My Lord.
Yes. And then I
would like you to move to paragraph 8.4. === 8.4: The wound mentioned
in paragraph 6.1 and 6.2 were caused by a
bullet fired from the back
to the front My Lord.
Okay. And again we
now know these were the bullets fired as recorded and the wounds
recorded on photos 15 and 16 of exhibit “FF”,
is that
correct? === That’s correct My Lord.
When one looks at
paragraph 8.5 can you just present your findings or your conclusion
in this regard? This is now the wound as we
know at the back of the
head of [Mrs C]. We are at 8.5. === The wound mentioned in paragraph
6.3 was caused by the bullet fired
from the back of the head of the
deceased towards the front My Lord.
And this is the
wound we see on photo 17 of exhibit “FF”, is that
correct? === That’s correct My Lord.
Yes. Now is it
possible that the deceased was already prone in a lying position when
she was shot in this manner? === Indeed My
Lord.
And then also –
then you can move on to paragraph 8.6. === 8.6: The wound or the
wounds mentioned in paragraph 7.1 and 7.2
were caused by a bullet
fired with a downwards trajectory.
Okay. And these are
the wounds we see in photos 3, 4, 5 and 6 of exhibit “FF”,
is that correct? === That’s correct
My Lord.
These are the wounds
[in respect of] the deceased [Ms M]. And then also you can read out
paragraph 8.7. === 8.7 read as follows;
The wound mentioned in
paragraph 7.3 was caused by the bullet fired from the back of the
head of the deceased towards the front
My Lord…
But again the
question is, from your observations and from what you can recall from
your observations. Is it possible that the deceased
was already lying
down when she was administered this particular wound? === That’s
correct My Lord”. (Emphasis added)
43. The hypothesis
or reconstruction of events or of the scene is that after the minor’s
mother was shot (back-to-front) the
minor’s sister [Ms M] was
next. The observation was that Ms M sustained “a wound with the
appearance of a bullet entrance
wound on the top area of the breast…
with the appearance of a bullet exit wound on the right side of the
ribs”. The
wound was caused by a .357 revolver. This bullet
pierced the prefabricated wall of the living area of the house,
ricocheted outside
and impaled against the barn wall, some 30 metres
away where the minor claims to have hidden. The injured Ms M fled the
house,
collapsed on the lawn at point “N”, hence the
grass that acceded to her T-shirt due to the adhesive properties of
the
blood. The girl somehow heaves herself up and returns to the
house. I enquired from Capt Joubert:
“Court: And
from the pictures drawn on this canvas, are you in a position to say
or not, the linear bloodstains on the [outside
of the door] were made
by someone exiting or entering the house? === The bloodstains on the
door, My Lord? Is that at point 1,
the castoff patter you referring
to My Lord?....
Mr Cloete: My Lord,
it is photo 22 and 21 of exhibit “B”. That is photo 4
Annexure A of exhibit “OO”. Photo
4. Annexure A, “OO”.
Court: Yes. That is
the photo that I am referring to. I am not so sure what, whether it
matters or not, maybe it does, but are you
able to respond to this
question? === I am going to try my best, My Lord. Looking at the
stain created, it is most probably created
by the right hand of the
victim, [Ms M]. For the stain to be created, she must have already
had a lot of blood on her hands and
her arm, to create that specific
[castoff patter]. And in my opinion, that is on her way into the
house, that specific stain was
created, because it took some time for
the blood to saturate on the side of the T-shirt and accumulate on
her hands and her arm,
to actually create that type of stain, My
Lord. So in my opinion it is on her way in, into the house, My Lord”.
It is apposite to
enquire once again how probable is it that the minor, if he was not
the perpetrator, could not have noticed any
of these events
unfolding?
44. I now wish to
deal comprehensively with a weighty matter: Whether Ms M was raped
and if so by whom. It is unfortunately necessary
to record all the
injuries sustained by her as noted by Dr Fouchè at para 4 (4.1
- 4.20) of the post-mortem report. Dr Fouchè
intimates that
this girl fought like a tigress to defend herself against her
assailant. The overwhelming majority of the non-fatal
injuries have
been described by the doctor as defensive injuries as she warded off
and parried the incessant blows. The doctor
recorded:
“4. Uitwendige
voorkoms van liggaam en toestand van ledemate:
4.1 ‘n
Laserasie 1,5 cm lank net links van die midlyn op die frontale been.
4.2 ‘n Defek,
6 mm x 4 mm, 1 cm bokant die mediale hoek van die linker oog. Die
randte vertoon geskroei. Die defek het die
voorkoms van ‘n
ingangswond.
4.3 Twee kneusings
wat wissel in groote (die grootste: 2 mm x 1 mm in deursnit) bokant
die regter oog in lyn met 4.2.
4.4 Beide die oë
was toegeswel en blou verkleur.
4.5 ‘n Ronde
defek, 6 mm in deursnit, waarvan die randte geskroei is net links van
die neusbrug.
4.6 ‘n
Laserasie, 2 mm lank net langs die regter neusvleuel.
4.7 Verskeie
laserasies wat wissel in lengte (1 cm -3 cm agter op die kop).
4.8 ‘n
Reelmatige defek, 6 mm in deursnit in die midlyn net onder die
(agterkop) occipitale rif. Die defek het die voorkoms
van ‘n
inganswond.
4.9 Die posisie waar
‘n chroomkleurige metaal fragment in die bra vasgesit het.
(Afkomstig van projektiel).
4.10 ‘n
Reëlmatige defek, 11 mm in deursnit, 7 cm regs van die midlyn,
langs die tepel en 130 cm van die regter hak.
Die defek het die
voorkoms van ‘n inskietwond.
4.11 ‘n Defek,
2 cm in deursnit, 18,5 cm regs van die midlyn en 126 cm van die
regter hak. Die defek het die voorkoms van
‘n uitgangswond.
4.12 ‘n
kneusing, 2 cm x 5 mm, mediaal tot 4.11.
4.13 ‘n
Oppervlakkige skaafwond, 3 cm x 2 cm op die voorkant van die linker
knie.
4.14 Oppervlakkige
krapmerke, wat wissel in lengte op die rug, bokant die linker boud.
4.15 Krapmerke op
die buitekant van die linker bo- en onderarm.
4.16 ‘n
Kneusing, 12 mm lank op die dorsum van die linker hand.
4.17 Kneusings, wat
wissel in lengte (6 mm – 7 mm) op die dorsale aspek van die
linker indeksvinger.
4.18 Klein snywonde
op die binnekant van die pinkie van die linker hand.
4.19 Radiologiese
skandering van die liggaam toon fyn radiodigte fragmente in die
skedel, regter borskas, asook ‘n projektiel
in die omgewing van
die linker oog.
4.20 Uitwendige
ondersoek van die perineum toon ‘n oppervlakkige skaafwond, 3
mm x 2 mm in die 18:00 posisie op die posterior
fouchette asook op
die fossa navicularis. Daar was ‘n “cleft” (vorige
skeur in die hymen) in die 19:00 posisie.
Geen beserings kon in die
anale area waargeneem word nie.” (Emphasis added)
45. Paras 4.14 and
4.20 in bold of the autopsy report (above) are particularly pertinent
to the rape question. In respect of para
4.20 Dr Fouchè was
emphatic that there was sexual penetration. She states that the
injuries could have been sustained because
there was no foreplay or
lubrication of the intimate genital anatomy. She was also unambiguous
that the injury was inflicted within
12 - 24 hours of the girl’s
death. This determination is made on account of the fact that the
healing capacity of this specified
sensitive genital area is
extremely quick.
46. Dr Fouchè’s
evidence is corroborated by Dr Jacobus (Trompie) Els on this aspect.
He is attached to the Department
of Health in the North West
Province, Mahikeng, as a forensic medical practitioner. His vast
experience and expertise was acknowledged.
He was furnished with five
colour photos of the genital anatomy of the rape victim, Ms M. He
explained in detail the precautions
taken to work from such colour
photographs and the disadvantages that lurk. His methodology was not
questioned.
47. The State went
to this length because full sexual intercourse did not take place nor
was there any semen ejaculated into the
girl’s genitalia. It is
in this context that the following remarks by Dr Els should be
understood (Exh “V”):
“Commentary on
the redness of the fossa navicularis – 04:00 via 06:00 to
08:00:
Commentary on colour
changes visible on a photograph should be treated with great
circumspection. Structural changes as seen with
the hymeneal cleft
can be validated. However, the red area under discussion, differ from
the immediate surroundings.
The possibilities
are:
• The photo
could have been tampered with. The photographer can testify that
these exposures were not subjected to tampering.
• Real redness
due to trauma inflicted. This observation can only be confirmed by
the Pathologist who performed the autopsy.
[Four bullet points
omitted in view of confirmation of all six variables]
If all the variables
are excluded the real redness due to trauma survives the test of time
the commentary will be as follows:
i. If an imaginary
horizontal line is drawn through the middle of the vaginal entrance –
the 03:00 to 09:00 line, injuries
below this line are considered
sexual assault related until proven otherwise. The opposite is also
true – if injuries are
detected above this imaginary line the
consideration is not sexual assault related until the contrary is
proven.
ii. The fossa
navicularis and the posterior fourchette are susceptible to sexual
assault related injuries because it forms the area
of ‘first
contact.’
iii. Due to the lack
of lubrication (absent when foreplay was absent) and non-cooperative
insertion, friction will be present.
As a result of friction,
bruising and even tearing can occur.
iv. Thus, if the
existence of this redness can be confirmed, the opinion is that
non-cooperative penetration or attempted vaginal
penetration
transpired. The object responsible for the penetration remains
debatable.”
48. Dr Fouchè,
the pathologist, confirmed the integrity of the photos. In the event
Dr Els was forthright with his opinion
that sexual penetration took
place. His evidence under cross-examination is even more elucidatory:
“So die
besering kon self toegedien gewees het? --- Ek dink ek het so probeer
aandui u Edele. Ek het sover as moontlik probeer
om te kyk wat die
moontlike oorsake daarvan kan wees en dit nie net bloot gedig aan
penetrasie nie. Ek dink nie my verklaring het
dit op geslags
penetrasie vasgepen nie.
Enige vorm van
penetrasie? --- Korrek Edele.
Verby die groot
skaamlippe dan nou? --- Juis.
Dis nie
intra-vaginaal, hierdie penetrasie nie? –-- Nee Edele.
Intra-vaginaal,
daar’s penetrasie in die vagina in nie, om dit so te stel? ---
Ja ons moet net die begrip penetrasie dan net
definieer, dink ek is
die woord, die regs definisie daarvan is die geringste penetrasie.
Ons wat uit die ouer skool kom het altyd
gesê enige iets wat
verby die groot skaamlippe sou gaan word beskou as mediese
penetrasie. Regs penetrasie, die geringste
penetrasie sê die
nuwe Sexual Offences Act en hierdie area is beslis verby die groter
skaamlippe. So dit word regstegnies
as penetrasie beskou.”
49. In S v Johny
Carter Case No: CA&R 37/2013: Delivered 27/09/2013 (Unreported)
(Kgomo JP et Mamosebo AJ) the Full Bench
of this Court had this to
say in an analogous situation at paras 17 and 20:
“[17] What
seems to have blindsided the constitutive Court is their unawareness
that the slightest penetration of an orifice
(per vagina or anally)
constitutes rape. Milton JLR, South African Criminal Law and
Procedure, Common Law Crimes, Vol 2, 3rd Ed,
Juta, at page 448
pertaining to sexual intercourse, records:
“The slightest
penetration is sufficient. Once penetration has occurred the
necessary element for liability of the male is
established”.
Milton refers to S v F
1990 (1) SACR 238
(A) at 248 g-i where
Kumleben JA raised the following:
“Die
afwesigheid van semen is wel ‘n aanduiding dat gemeenskap nie
plaasgevind het nie. Maar hierdie feit, of veronderstelling,
doen nie
noodwending afbreuk aan die afleiding dat daar tog penetrasie was
nie. Dr Lamprecht se getuienis in diè verband
is tot dien
effek:
“…(B)eteken
die feit dat ʼn persoon nie volledige of volle, ʼn
manspersoon nie volle of volledige ereksie kan
bewerkstellig nie,
beteken dit noodwendig dat daar geen penetrasie was nie?--- Sekerlik
nie. ʼn Man hoef nie volledige ereksie
te kry om te kan penetreer
nie. Inteendeel ʼn geringe mate van ereksie sal seker tot ʼn
kleiner mate van penetrasie kan
aanleiding gee. Hoe suksesvol
gemeenskap dan kan plaasvind is natuurlik ʼn ander vraag, maar ʼn
mate van penetrasie kan
sekerlik nog plaasvind”.
At para 20 the Court
in the Carter-case stated:
“[20] What
should be added to the raft of oversights already enumerated is the
fact that a focused mind would have alerted
the prosecutor and the
Magistrate that it is immaterial whether the rapist’s erect
penis or a finger or a sexual aid hurt
the complainant. Such act
still conforms to the definition of rape as contemplated in s 1 read
with s 3 of the Criminal Law Amendment
Act (Sexual Offences and
Related Matters) Act, 32 of 2007, which defines rape as:
“Rape occurs
when one intentionally commits an act of sexual penetration with
another, without that person’s consent.
‘Sexual
penetration’ includes any act which causes penetration by –
• The genital
organs into the genital organs, anus or mouth or;
• Any other
part of body or, any object, into the genital organs or anus; or
• The genital
organs of an animal into the mouth.”
The rape took place
on 23/24 December 2007 and the quoted provision came into operation
on 16 December 2007. The inexcusable aspect
is that the conviction
and sentence took place on 30 July 2009.”
50. I am accordingly
satisfied that this teenage girl was raped (not for the first time).
I make bold to say that whoever raped
the innocent girl on the second
occasion also perpetrated the murders, regard being had to the
time-line and other factors. Let
us examine her movements briefly
from the time her school in Bloemfontein closed on 23 March 2012. The
schools were due to re-open
on 10 April 2012, but it never did for
her. It is common cause that she and the minor spent the weekend and
period of 02 –
06 April 2012 on the family farm, Naauwhoek,
with their parents. Their domestic helper, Ms Watermond, was there or
thereabouts
most of the time. None of the children had a friend on
the farm during the latter crucial period.
51. On the fateful
Good Friday the entire family attended a church service and
thereafter visited one of their families and returned
home. It seems
fairly acceptable that there was some horse-riding by the minor and
his sister elsewhere on Naauwhoek Farm, away
from the glare and stare
of their parents. It is also common cause that during his effort to
piece together what really happened
on 06 April 2012, to enable him
to track down the perpetrator(s) of the crime, the minor was asked by
Col De Waal, with his guardian
in attendance, to explain the scratch
mark on his neck. He reported to the colonel that he fought with his
deceased sister on the
afternoon in question. He claimed loss of
memory on what instigated the fight. Even when he testified he stuck
to that position.
I am satisfied that the minor could not have
forgotten what instigated the alleged “fight” with his
sister a few hours
earlier. Surely the incident was still very fresh
in his memory, more so that the physical evidence, the excoriation on
the neck,
was captured on photos 1 and 2 of Exh “B” the
same night.
52. It is convenient
to point out at this stage that the minor was unable to explain how
his own blood came to lodge on his pants,
in front and at the back.
Capt Joubert was of the view that the most probable source of the
blood was that the minor had a nose-bleed
as he did not sustain any
cut wounds that bled. It was suggested that this could have happened
when Ms M defended herself against
the minor’s onslaught on
her. This, in my view, is a logical inference to make if regard is
had to the other factors, some
of which are adverted to later.
53. As pointed out
earlier, para 4.14 of Dr Fouchè’s autopsy report
records:
“Oppervlakkige
krapmerke, wat wissel in lengte op die rug, bokant die linker boud.”
53.1 On testifying
on this aspect Dr Fouchè elaborated as follows, in-chief:
“Dan wil ek u
verwys na die bevindings wat u gemaak het op paragraaf 4.14, die
opervlakkige krapmerke. Ons het reeds ‘n
foto voor sy Edele
geplaas wat huidiglik as bewysstuk “AA1” voor die Hof
dien. Hierdie oppervlakkige krapmerke, as
ons kyk na die posisie
daarvan, sou dit inpas by ‘n beweging waar ‘n person die
broek van iemand anders aftrek? ---
Ja dit sou.”
53.2 Under
cross-examination of the doctor the following emerged: The recording
starts at p 1274(14) of the record and ends at 1276(21).
Only the
salient aspects thereof are abstracted:
“Is dit die
besering, as ek u kan help, 4.14? --- 4.14. Dat ek net by kom. Ja.
Nou as u praat van
krapmerke, watter spesifieke gedeelte van hierdie besering verwys u
na? As u moontlik net weer die Hof kan help
en ‘n kringetjie
om trek om hierdie area? --- Goed. ---.
Goed. Is dit
moontlik dat hierdie beserings byvoorbeeld opgedoen kon word as sy
sou gelê het op ‘n grond area en beweeg
het daar? ---
Nee.
Hoekom sê u
so? ---. Weet u wat, ‘n krapmerk, die definisie van ‘n
krapmerk sou ‘n mens sê dit is
oppervlakkige liniêre
laserasie, want dit is eintlik wat dit is of eintlik ‘n
skaafwond. ‘n Oppervlakkige liniêre
skaafwond en in
hierdie geval het hy amper ‘n parallelle patroon, want daar is
omtrent 3 [drie] merkies. ---.
Hof: Afwaarts? –
Ja, afwaarts.
Me Erasmus: Die
getuie illistreer afwaarts. --- Afwaarts.
Hof: Afwaarts. ---
Want U Edele, die skaafwondjies het ‘n afwaartse patroon gehad
van die vel wat daarop gelê het.
Want onthou nou, dit is die
loskom van die oppervlakkige vel lagie.
Me Erasmus: En in so
‘n geval sou ‘n mens nael skraapsels [vind] --- onder so
‘n persoon se naels? --- Dit, afhangende
van hoe lank die naels
is, is dit moontlik ja.
Nou as u ‘n
tyd moet koppel aan die krapmerke wat u waargennem het? --- Dit was
die tye of voor die, as ek nou reg kan onthou,
dit was daar, maar dit
was nie vreeslik rooi en geswel nie. So hy was al, die swelling se
reaksie was al besig om te sak. So
12 ure. I do not, dit is moeilik
om te sê want u weet, weereens die herstel van ‘n wond
wissel van persoon tot persoon.
Want daar is baie faktore wat
daartoe bydra.”
In short the rapist
scratched the rape victim with his nails when he forcefully undressed
her of her shorts and panty.
54. In para 7.1 of
their written submissions the initial defence counsel, experienced as
they are, make the startling revelation
that “dit is ons
instruksies om die volgende voor te hou” (it is our
instructions to make the following submissions),
pertaining to the
rape, inter alia:
54.1 AD PARA 10.1.1:
If an incestuous relationship existed between the minor accused and
his 14-year old sister there would not
have been any motive for the
girl to report the prior sexual activity to her parents.
This submission was
ostensibly made to counter the State’s theory that the murders
were perpetrated to conceal the rape. This
submission is baseless
because at no stage did the State suggest the existence of an
incestuous love relationship between the minor
and his sister. The
State accuses the minor of rape. More fundamentally, it is not the
defence’s case that an incestuous
love relationship was extant
and that consensual sexual intercourse took place. Besides nothing
approximating this waffle was put
to any of the witnesses nor did the
minor broach the subject in his testimony. See President of the
Republic of South Africa v
South African Rugby and Football Union
2000 (1) SA 1
(CC) at 36J – 37J (paras 61 - 63).
54.2. AD PARA
10.1.2: The further submission is made by counsel (Adv Coetzee and
his junior) that the evidence does not establish
that the only
reasonable inference is that the minor caused the injury to the teen
girl’s private parts. “It could
as well, for example,
also have been caused by the deceased Mr D [the minor’s
father]. It could also have been him [Mr D]
who was responsible for
the pre-existing rupture of Ms M’s hymen”. (The
translation is mine)
It is futile and
unacceptable for counsel to try and hide behind instructions which
they purport were given to them on what argument
to present (clearly
after the horse had already bolted). Mr Coetzee had no answer to the
dictum in R v Matonsi
1958 (2) SA 450
(A) at 456 A - D which I put to
him. Where the Appellate Division stated:
“Such Roman
Dutch writers as I have consulted emphasise the importance and high
status of the advocate and I see no reason
to doubt that his
authority over the conduct of the case which he had been instructed
to fight on behalf of a client was quite
as full as that of the
English barrister (cf. Klopper v van Rensburg
1920 E.D.L. 239
at p.
242). The English cases show that in general, trials cannot be
conducted partly by the client and partly by counsel. Once
the client
has placed his case in the hands of counsel the latter has complete
control and it is he who must decide whether a particular
witness,
including the client, is to be called or not. So in Seinfen v Lord
Chelmsford
157 E.R. 1436
at p. 1449, POLLOCK, C.B., states the
Court’s view that,
“a counsel has
complete authority over the suit, the mode of conducting it, and all
that is incident to it – such as
withdrawing the record,
withdrawing a juror, calling no witnesses, or selecting such as, in
his discretion, he thinks ought to
be called, and other matters which
properly belong to the suit and the management and conduct of the
trial”.
See also S v Majola
1982 (1) SA 125
(A) at 133 D - G.
55. Perhaps it is
worth revisiting briefly the practice and the law pertaining to the
duties and responsibilities of an advocate
or an attorney for that
matter. The following extracts from the Law of South Africa (LAWSA),
First Reissue, VOL 14, Para 277 at
pp 276 and 277 are apposite:
55.1 “Upon
receipt of instructions the duty of the advocate is firstly to
ascertain carefully the true facts, obtaining at
the same time the
proof of them. Secondly, as far as the law is concerned, s/he should
determine whether there is a cause of action
or defence”;
55.2 “Counsel
who has no belief in the truth of an assertion and knows s/he has no
evidence to support it is not entitled
to put it to a witness during
cross-examination”;
55.3 “Counsel
is not a mere agent of the client; his duty to the court overrides
his obligations to his client, subject to
his duty not to disclose
the confidences of his client”;
55.4 “An
advocate is not entitled in defending a client to attribute to
another person the crime with which his client is
charged wantonly or
recklessly, unless the facts or circumstances given in the evidence
or rational inferences drawn from them
raise at least a reasonable
suspicion that the crime may have been committed by the person to
whom the guilt is so imputed”.
To impugn the
character, dignity and the memory of the deceased Mr D at such a late
stage and so unfairly is inappropriate as it
is hurtful to his family
and friends.
56. As can be
discerned the State relies on circumstantial evidence. This is how
the Supreme Court of Appeal approached such evidence
if an accused
person could be convicted of an offence. S v Reddy and Others 1996(2)
SACR 1 (A) at 8 c – 9 e captures it all:
“In assessing
circumstantial evidence one needs to be careful not to approach such
evidence upon a piece-meal basis and to
subject each individual piece
of evidence to a consideration of whether it excludes the reasonable
possibility that the explanation
given by an accused is true. The
evidence needs to be considered in its totality. It is only then that
one can apply the oft-quoted
dictum in R v Blom
1939 AD 188
at 202-3,
where reference is made to two cardinal rules of logic which cannot
be ignored. These are, firstly, that the inference
sought to be drawn
must be consistent with all the proved facts and, secondly, the
proved facts should be such 'that they exclude
every reasonable
inference from them save the one sought to be drawn'. The matter is
well put in the following remarks of Davis
AJA in R v De Villiers
1944 AD 493
at 508-9:
'The Court must not
take each circumstance separately and give the accused the benefit of
any reasonable doubt as to the inference
to be drawn from each one so
taken. It must carefully weigh the cumulative effect of all of them
together, and it is only after
it has done so that the accused is
entitled to the benefit of any reasonable doubt which it may have as
to whether the inference
of guilt is the only inference which can
reasonably be drawn. To put the matter in another way; the Crown must
satisfy the Court,
not that each separate fact is inconsistent with
the innocence of the accused, but that the evidence as a whole is
beyond reasonable
doubt inconsistent with such innocence.'
Best on Evidence
10th ed 297 at 261 puts the matter thus:
'The elements, or
links, which compose a chain of presumptive proof, are certain moral
and physical coincidences, which individually
indicate the principal
fact; and the probative force of the whole depends on the number,
weight, independence, and consistency
of those elementary
circumstances.
A number of
circumstances, each individually very slight, may so tally with and
confirm each other as to leave no room for doubt
of the fact which
they tend to establish. . . . Not to speak of greater numbers, even
two articles of circumstantial evidence,
though each taken by itself
weigh but as a feather, join them together, you will find them
pressing on a delinquent with the weight
of a mill-stone. . . .
Lord Coleridge, in R
v Dickman (Newcastle Summer Assizes, 1910 - referred to in Wills on
Circumstantial Evidence 7th ed at 46 and
452-60), made the following
observations concerning the proper approach to circumstantial
evidence:
'It is perfectly
true that this is a case of circumstantial evidence and
circumstantial evidence alone. Now circumstantial evidence
varies
infinitely in its strength in proportion to the character, the
variety, the cogency, the independence, one of another,
of the
circumstances. I think one might describe it as a network of facts
cast around the accused man. That network may be a mere
gossamer
thread, as light and as unsubstantial as the air itself. It may
vanish at a touch. It may be that, strong as it is in
part, it
leaves great gaps and rents through which the accused is entitled to
pass in safety. It may be so close, so stringent,
so coherent in its
texture, that no efforts on the part of the accused can break
through. It may come to nothing - on the other
hand it may be
absolutely convincing. . . . The law does not demand that you should
act upon certainties alone. . . . In our lives,
in our acts, in our
thoughts we do not deal with certainties; we ought to act upon just
and reasonable convictions founded upon
just and reasonable grounds.
. . . The law asks for no more and the law demands no less.'”
57. This is the
approach which I was constrained to adopt. What the minor and the
defence advanced was far-fetched conjecture. This
was not helped by
the fact that the minor, sadly, was an extremely poor witness. He was
evasive and was totally discredited under
cross-examination. Not only
that but he was, unfortunately, at his age, an unmitigated liar. If,
as I hereby do, reject his postulated
visits to and hiding in the
barn, as his alibi, his evidence must then be treated as if he never
testified. See S v Shabalala
1986 (4) SA 734
(A) at 736 C-D; R v
Dhlomo 1961 (1) PH H54, and S v Thebus and Another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) at 353 d-f (para 76).
58. It makes logical
sense to me that the torture (“die marteling”) of the
teenage deceased preceded the execution-style
killing of all the
deceased. I can’t imagine that the killer would sadistically
torture the girl merely to derive pleasure
in inflicting pain on her.
The pictures and photos presented to Court are gruesome even with the
blood washed off Ms M’s
head and face. Why did the minor escape
totally unscathed? Why was the killer so kind-hearted towards the
accused minor? “Waarom
was die aanvaller u so goedgesind?”
State counsel enquired from the minor in cross-examination.
Nonchalantly, he replied
that he does not know. Mr Coetzee argued
that it is for the State to supply the answer to its own questions.
The State is not required
to prove a negative or what was peculiarly
within the contemplation of an accused’s mind at all relevant
times. In S v Van
Aardt
2009 (1) SACR 648
(SCA) at 659 d-h (para 39)
the Supreme Court of Appeal cited with approval the following dictum
by the Namibian Supreme Court of
Appeal in S v Van Wyk
1992 (1) SACR
147
(NmS) at 161 e-h:
“The State is,
from the nature of things, seldom able to offer direct evidence of
the accused’s state of mind at the
time of assaulting the
deceased and must therefore rely on inferences to be drawn from the
circumstances of the assault (including
its nature and duration), the
nature of any weapons used and the nature, position and extent of
injuries inflicted. These must
in turn be weighed up against any
other circumstances…. This does not involve any piecemeal
assessment or process of reasoning.
All the relevant facts which bear
on the accused’s state of mind and intention must be
cumulatively assessed and a conclusion
reached as to whether an
inference beyond reasonable doubt can be drawn from these facts….
On the medical
evidence the injuries which caused [the] death were the blows to the
head. It is not possible to link up particular
fist blows or kicks
with particular injuries, nor is the trier of fact required to do so.
Once it is established that [the accused]
killed the deceased, and it
has rightly been so found by the Court a quo, the trier of fact can
look at the assault as a whole
in order to determine what [the
accused’s] intention was.
In a case such as
the present the trier of fact is not required to enquire into the
subjective state of mind of the accused as he
inflicted each injury.
Neither principle nor common sense requires this.”
59. I have
deliberately refrained from commenting adversely or attaching any
significance to the minor’s demeanour in the
witness stand due
to the length of the trial and that at 17 he is but a child who was
subjected to searching but fair cross-examination.
Except that I must
say this: In the witness stand he showed no emotions. He has a strong
voice and was assertive and confident.
Even when he was painted into
a corner he was not flushed. He never stammered or tripped over his
words, even when he lied blatantly.
He has a strong character. He is
certainly not a wilting violet. I adopted this approach as advised in
S v Kelly
1980 (3) SA 301
(A) at 308 B - D where Diemont JA held:
“There can be
little profit in comparing the demeanour only of one witness with
that of another in seeking the truth. In any
event, as counsel
conceded in a homely metaphor, demeanour is, at best, a tricky horse
to ride. There is no doubt that demeanour
- 'that vague and
indefinable factor in estimating a witness's credibility' (per
HORWITZ AJ in R v Lekaota
1947 (4) SA 258
(O) at 263) - can be most
misleading. The hallmark of a truthful witness is not always a
confident and courteous manner or an appearance
of frankness and
candour. As was stated by WESSELS JA in Estate Kaluza v Braeuer
1926
AD 243
at 266 more than half a century ago in this Court:
'A crafty witness
may simulate an honest demeanour and the Judge had often but little
before him to enable him to penetrate the
armour of a witness who
tells a plausible story.'
On the other hand an
honest witness may be shy or nervous by nature, and in the
witness-box show such hesitation and discomfort
as to lead the court
into concluding, wrongly, that he is not a truthful person.”
THE DEFENCE CASE
60. Having regard to
the conspectus of the entire evidence in the trial it is evident that
the minor’s most intractable concern
was to give a plausible
account of how his clothing came to be contaminated with his deceased
sister’s blood. Hence his irreconcilable
and therefore
materially conflicting reports that Ms M died lovingly in his arms
and, self-contradictorily, that he pushed her
away violently because
he was nauseated as she was awash with blood. The latter part of the
statement was meant to explain how
his T-shirt that he discarded in
his bedroom before he reported the incident to the police was torn.
61. The ultimate
version of the minor on this aspect was put as follows by Mr Coetzee
to Capt Vermeulen, the expert on material
analysis attached to the
Scientific Analysis Section of the Forensic Science Laboratory in
Pretoria, who examined the torn T-shirt:
“Die
instruksies van die beskuldigde is dat met betrekking tot sy weergawe
van hoe hierdie skeure aan die hemp plaasgevind
het of gebeur het,
wat dit veroorsaak het. Hy het op die betrokke aand van buite af
ingekom en hy het om die toonbankie, u het
nou miskien nie die toneel
gesien nie, maar dit is nie nodig vir doeleindes van hierdie stelling
nie, en hy het – vir [Me
M] opgemerk waar sy – ʼn
mens kan dit amper beskryf as sit/lê dis moeilik om dit te
beskryf, maar op haar regterkanste
boud, heup gedeelte op die grond
was en die indruk wat hy gekry het was dat sy haar bolyf gestut het
met haar regterarm. Dat hy
nader aan haar beweeg het tot by haar en
hy sê wat hy – hy kan nie onthou of sy hom vasgehou het
aan sy T-hemp en haar
opgetrek en die hemp toe geskeur het nie, en of
sy op ʼn stadium toe sy weer – asof haar bene onder haar
padgegee het,
en aan sy T-hemp gehang het en weer grond toe gegaan
het, en daar gaan lê het. Sou dit inpas met so ʼn weergawe
wat u
nou gegee het op u bevindinge? === U Edele soos ek reeds getuig
het, die rigting van die krag wat op die T-hemp uitgevoer was is
in ʼn
afwaartse rigting teenaan die lyf van ʼn person wat die T-hemp
sou gedra het indien dit die scenario was dat die
T-hemp wel deur die
beskuldigde gedra was. So dit was nie weg van die liggaam af nie. As
hy in ʼn regop posisie was sou dit
ooreenstem met die bewering
dat dit in ʼn afwaartse rigting was.
In ʼn afwaatse
rigting. Dankie Edele, ek het dan geen verdere vrae aan hierdie
getuie nie”.
62. Under
re-examination by State counsel the following emerged:
“Welke tipe
beweging sal ʼn mens verwag van die oorledene dan wat die hemp
sou geskeur het met die afwaartse beweging
om die hemp te kan skeur?
=== U Edele dit sou waarskynlik ʼn ruk-aksie gewees het of ʼn
vinnige aksie gewees het afhangende
van die toestand van die hemp.
Maar as ek in gedagte hou dat dit nie sommer maklik is om ʼn
materiaal, veral T-hemp materiaal
so te skeur nie, moes dit ʼn
vinnige ruk-aksie gewees het wat die hemp geskeur het. En ek kan
miskien net daar byvoeg Edele,
die feit dat die skade of die skeure
aan beide kante soortgelyk is, die hoeveelheid skade is soortgelyk,
sê vir my dat die
hande altwee – as dit ʼn person was
[wat] die T-hemp vasgehou het, altwee weerskante van die skouers
vasgehou het toe
die skeur-aksie plaasgevind het.”
63. Having also
assessed the minor’s evidence on how the T-shirt was torn I am
persuaded that Capt Vermeulen’s evidence
is credible and
reliable, and I accept it. The captain’s evidence is not
isolated in that, as will be adverted to in due
course, Capt Joubert,
the forensic biology crime scene expert, and Dr Fouchè, the
pathologist, add a further dimension to
this scenario which
compellingly lead to the conclusion that the T-shirt could not have
been torn inside the house, but outside,
and not in the manner
postulated by the defence. In his evidence-in-chief the minor
testifies in this manner on this point:
“Mnr Coetzee:
Indien wel, hoe het sy [Ms M] regop gekom? --- U Edele sy was, sy het
regop gekom tot op haar voete. Ek weet
nie presies hoe regop was haar
lyf gewees nie, maar sy was op haar voete.
Wat gebeur toe? ---
U Edele, ek was teen haar, sy het weer - vandat ek by haar gekom
totdat ek geloop het, of totdat sy geval het
by my, het sy my gesê
sy gaan doodgaan en dat sy lief is vir my en nadat sy opgestaan het,
sy was teen my en my hemp in die
proses êrens geskeur, ek dink
met die val.” (Emphasis added)
It is noteworthy
that there is no mention by the minor concerning pushing his sister
away. In my view the inescapable implication
is that it was not
necessary to push Ms M away as her body was already limp and sagged
to the floor by itself and that the minor
and his clothes were
contaminated with Ms M’s blood outside the house.
64. Under
cross-examination the minor made the following concession:
“Mnr Cloete:
Maar op daai stadium, uit die aard van die saak, weet u nie wat hier
gebeur het nie, behalwe dat hier ʼn
skietery in die huis was wat
klaarblyklik baie ernstig is, as dit wat u sê waar is. --- Ja
Edele.
Maar nou is daar ʼn
persoon wat vir u kan vertel wat gebeur het. --- Ja Edele.
En dis Me M. --- Ja
Edele.
U vra nie vir haar
wat het gebeur nie? --- Ek het nie gevra nie en sy het nie gesê
nie Edele.”
This behaviour is
incomprehensible for a concerned boy.
65. The
reconstruction of the scene and the sequence of the events from the
time of the shooting has been sketched as follows by
Capt Joubert
from my enquiry that it appears that the minor’s parents: “may
have been unaware of an imminent attack
on them, an impending attack
on them. It seems that they were seated, they were relaxed. Also
taking into account the blood trail
and so forth and also the noise
made by a firearm, if not fitted with a silencer, what would you say
to try and assist the Court,
if you can? === My Lord, I do agree
with you, My Lord with the victims, [the minor’s parents], were
caught unaware when
the attack took place. If we look at the victim,
[Mrs C], she was not facing the attacker at that stage, due to the
entrance and
exit wounds to her body. Also there was, I could not
find any movement of the victim, [Mrs C], within that specific area.
The same
with the male victim, [Mr D]. He also received his injuries
and went down in the position that we found him. And talking about
the noise made by a .357 Magnum, in my opinion it would have been you
could have heard it. I have not tested it, but you should
have
actually, could have actually heard that specific firearms going off
and also if you look at the firearms that were used,
it is firearms
used from their own safe and also to get access to that safe. It [the
safe] is attached this way that it is in view
of the living room, in
view of the TV room, where the victims were actually sitting at that
specific time. And there was no forced
entry at the house.
In other words, what
you are saying is that if what is known, that they were shot with
their, let me say their own firearms, is
that the position? ===
Excuse me, My Lord?
You are working on
the basis that the firearms belonged to the [minor’s parents]?
=== That is correct, My Lord.
Yes. Yes, carry on?
=== And also looking at the victim, [Ms M], we have established more
or less the route that she actually took
on her way back, into the
house and in my opinion she was actually trying to call for help and
at the phone she did not actually
get the opportunity to make that
call. And that ended up in the position that she was found”.
“Court: And is
it possible at all to then say who the first victim or victims of the
assault were and why? === My Lord, in
my opinion the first victim
would have been [Mrs C]. She was sitting on a chair, facing away,
unaware and shot in the back. If
she actually was aware, I think in
my opinion, the entrance would have been in the front and then she
would have been aware of
her attacker. In my opinion that is the most
likely scenario that she did not know about her attacker and she was
the first one
shot, in my opinion, My Lord. Looking at the second
victim, it is a possibility that the victim [Ms M], was also in that
living
room area, when she received the first shot through the chest.
I have not any actually any forensic evidence that can actually
support that, but in my opinion it is the most likely second victim
in that scenario. The third is the victim, [Mr D]. He is a big
man.
Maybe he was on the couch, watching TV, trying to get up, looking at
the entrance wounds, it is more likely that he will be
in an almost
upright position, facing the attacker when he was shot. I cannot say
the distance, I am not an expert on that specific
wounds, but he was
actually charging or not charging, but in line with the attacker when
he was shot”. (Emphasis added)
66. State counsel
has adverted to various pieces of evidence which he submitted are
indicative that the minor either witnessed the
shootings or was in
fact the shooter. For me the following is the most telling:
66.1 Within an hour
or so of the three deceased having been murdered he reported to Ms
Henriëtte De Villiers (see para 20 in
bold type above):
“Hy het ook
gesê dat dit gelyk het asof sy pa opgespring het want hy het
nie meer op die bank by die televisie gesit
nie, hy het op die vloer
gelê.”
66.2 The minor
informed Ms Marianne Smith the day after the shooting (Saturday, 07
April 2012) – see para 23 in bold type:
“En hy het
gesê my pa het daar by die eetkamertafel gelê. Sy woorde
was: ‘Dit het gelyk of pa wou keer en
toe het hy gegly in die
bloed en geval.”
66.3 The two
statements of what the minor observed tallies remarkably with the
evidence of the pathologist, Dr Fouchè and
that of W/O Nhlapo,
the ballistics expert. The latter testified at para 41 (above):
“State
Counsel: While we are on this particular wound, would this be
consistent if somebody who is sitting and getting up
from the sitting
position when such a wound is inflicted? === That’s correct My
Lord. The upper body of the person being
exposed to the shooter,
slightly bent into the shooter My Lord.
Court: Bending
forward? === Forward My Lord.”
66.4 Capt Joubert,
the forensic biology crime scene expert, sealed the convergence by
stating at the end of para 65 (above) (in
bold type):
“Maybe he was
on the couch, watching TV, trying to get up, looking at the entrance
wounds, it is more likely that he will
be in an almost upright
position, facing the attacker when he was shot. I cannot say the
distance, I am not an expert on that specific
wounds, but he was
actually charging or not charging, but in line with the attacker when
he was shot.”
In this respect, for
the umpteenth time, the minor unwittingly betrayed himself.
67. In my view the
torturer wanted to achieve something; and THAT something on the
evidence was to have sexual intercourse with
the girl. The girl
refused and defended her modesty. In consequence she was tortured,
raped and murdered to prevent her from reporting
to her parents that
she was raped. Because the girl’s parents would bear witness
against the perpetrator they too had to
be eliminated, and were.
This is the most plausible motive for the murders. In the leading
case on the relevance of motive for
purposes of proving intention or
identity Innes CJ held in R v Khumalo and Nkosi
1918 AD 500
at 504:
“The ordinary
man does not perpetrate a grave criminal offence without a motive;
and although it is not essential, nor always
possible, to ascertain
what it was, the matter is often of considerable importance. A crime
for which no motive likely to affect
the person charged can be
assigned is difficult to bring home. So that the presence of such a
motive is an element in favour of
the Crown, and its absence an
element in favour of the accused. Now it is seldom that direct
evidence on the point, such as would
be afforded by the accused's own
statement, can be produced. In the majority of cases the probable
existence or non-existence of
motive must be deduced from external
circumstances. And such circumstances may as a general rule be proved
if they are relevant
- that is to say if they are circumstances from
which the presence or absence of the particular motive may be
reasonably inferred.
Thus, if a husband were charged with the murder
of his wife, evidence that he had formed an adulterous connection
with another
woman would be admissible as showing a possible motive
for the crime. On the other hand proof might be properly given of
affectionate
marital relations in order to negative motive.”
DEFEATING THE
COURSE OF JUSTICE: COUNT 5
68. If the minor is
guilty on the count of rape and the other three counts of murder and
having regard to the evidence adduced,
in particular at para 14
(above), paraphrased below, then it follows that he ought to be
guilty of defeating the ends of justice.
In that:
The police officers
and their colleagues at the police station understood the minor to
convey to them unambiguously that he was
reporting farm murders. The
minor caused the police machinery to click into gear and the big guns
to be mobilised forthwith. First
to be contacted was W/O Mofokeng,
the Detective Branch Commander, who had just knocked off duty and was
on his way home. He made
a U-turn. Then followed Major General De
Waal (Ms) who was the officer on duty at a provincial level. Col De
Waal, the investigating
officer, who features prominently throughout
the investigation, was dispatched and took charge of the
investigation from the evening
of the murders with a large police
contingent under him. A helicopter was commissioned which
reconnoitred and scoured the skies
for suspects. Police stations in
the surrounding areas were put on alert.
69. The minor sent
the police on a wild goose chase and let them on a merry-go-round. He
falsely implicated Mr Kgoronyane and put
the spotlight on Mr Deerling
who transacted a deal with his father a day before the murder
(05/04/2012). The accusation that the
intruder-murderer made off with
R60 000 – R80 000 perpetuated the lie. The purported robbery
was given as part of the reason
for the murders. The implication
therefore was that because there was no intruder or robber false
aspersions were per force cast
on the police as suspects in respect
of the alleged missing money. However, the evidence has revealed that
there is no grain of
truth that any money went missing. The recovery
of R32 000 and the wallets containing money bears this out.
70. The minor was
given the benefit of the doubt from 06 April 2012 until 12 August
2012 when Col De Waal stopped the charade by
charging the accused
minor with the offences listed in the indictment, after a full,
thorough, scientific and fair investigation
was carried out. From 12
August 2012 nothing said or done by the minor in respect of the
defeating the ends of justice count can
be held against him as he was
an accused and had the right to remain silent.
71. In S v Pakane
and Others
2008 (1) SACR 518
(SCA) the Supreme Court of Appeal
observed at 532 a - c (para 34):
“I turn to
deal with the second appellant's challenge of his conviction for
defeating the ends of justice. This offence consists
in unlawfully
and intentionally engaging in conduct which defeats the course or
administration of justice. In this respect the
State relied on the
following - the contact shot, the swapping of the R4 rifles, the torn
pages of the occurrence book and second
appellant's instructions to
Ngxumza to rewrite entries without informing a superior officer about
the state of the book. State
counsel argued that the appellants had
fabricated a version for their return to the police station, knew
that rifle 295 would be
swapped and that documentary evidence linking
the second appellant to it would be altered or destroyed with the
deliberate intent
to defeat the course of justice.”
At 533 c-f [para 38]
the Court went on:
“Equally
striking is the fact that the torn pages related to fresh events of
that very morning. A perusal of the relevant
entries, starting from
the previous evening, shows that but for the Lang report, it was an
uneventful shift. For what conceivable
reason then could one remove
the missing pages and who else (except someone involved in the
contentious shooting incident) in the
circumstances would have an
interest in those pages? ---. There is no doubt in my mind that
[second appellant’s] version
in this regard is false. I agree
with the conclusion of the court below that he tampered with the
occurrence book to remove proof
that he had booked out rifle 295,
which, very conveniently, was subsequently not sent for a ballistics
test. Therefore, his conviction
for defeating the course of justice
was proper.”
See also Minister of
Justice and Constitutional Development & Others v Moleko
2009 (2)
SACR 585
(SCA) at paras 21 & 22 where the SCA stated:
“[21] Mr
Moleko was charged with defeating or obstructing the course of
justice. The essential elements of this crime at
common law are
described by JRL Milton South African Criminal Law and Procedure vol
II Common Law Crimes 3 ed (1996) as follows
(p 102):
'Defeating or
obstructing the course of justice consists in unlawfully doing an act
which is intended to defeat or obstruct and
which does defeat or
obstruct the due administration of justice.' [Footnote omitted.]
It is immaterial
whether the alleged conduct has merely a tendency to defeat or
obstruct the course of justice or is capable of
defeating or
obstructing the course of justice.
[22] Counsel for the
appellants pointed out that the actus reus which forms the basis of a
charge of defeating or obstructing the
course of justice may take a
number of different forms, and contended that the unlawful and
unprocedural release by a judicial
officer of an accused person may
fall within the type of conduct which may be characterised as
defeating or obstructing the course
of justice….”
72. I cannot
therefore agree with the submission by (the initial) defence counsel
and the concession by the State that the minor’s
conduct merely
constitutes an attempt to defeat the ends of justice. If the minor’s
conduct does not constitute the substantive
offence of defeating the
ends of justice then this crime may as well be abrogated. A
concession erroneously made on facts and/or
the law is not binding on
a presiding judicial officer. See Matatiele Municipality and Others v
President of the RSA and Others
2006 (5) SA 47
(CC) at para 67 the
Court held:
“[67] Here, we
are concerned with a legal concession. It is trite that this Court is
not bound by a legal concession if it
considers the concession to be
wrong in law. Indeed, in Azanian Peoples Organisation (AZAPO) and
Others v President of the Republic
of South Africa and Others, this
Court firmly rejected the proposition that it is bound by an
incorrect legal concession, holding
that, ‘if that concession
was wrong in law [it], would have no hesitation whatsoever in
rejecting it’. Were it to be
otherwise, this could lead to an
intolerable situation where this Court would be bound by a mistake of
law on the part of a litigant.
The result would be the certification
of law or conduct as consistent with the Constitution when the law or
conduct, in fact, is
inconsistent with the Constitution. This would
be contrary to the provisions of s 2 of the Constitution which
provides that the
‘Constitution is the supreme law of the
Republic; law or conduct inconsistent with it is invalid.’”
See also Government
of the Republic of South Africa and Others v Von Abo
2011 (5) SA 262
(SCA) paras 18 and 19; and Paddock Motors (Pty) Ltd v Igesund
1976
(3) SA 16
(A) at
23 F.
73.
Having dismissed
the minor’s application for the re-opening of the defence case
on 18 March 2014 brought by his new legal
representative, attorney Mr
Riaan Bode of the firm Engelsman Magabane, I gave the following
directive:
“5. Counsel
for the minor is free to re-argue the entire case, mainly on aspects
which he wishes to emphasize or aspecs that
may not have been argued
before. State counsel may then reply.”
74. Mr Bode, filed
comprehensive written submissions (31 pages) which cover large
portions of matters covered by the former legal
team. I have
integrated the submissions of both sets of defence teams without
always identifying the source. State counsel also
replied more
conservatively.
75. One aspect
raised by Mr Bode though requires special attention. He questions
the propriety of the Investigating Officer Col
De Waal in requesting
the minor on the same evening of the incident “om sy weergawe
aan my voor te hou voor ek vir hom uigevra
het.” He then
questions the fact that the photo that depics the scratch mark on the
minor’s neck was taken; the testing
for propellant powder
residue (which incidentally was found on the minor’s shorts);
the confiscation of the said shorts
and the discarded T-shirt; the
taking possession of the murder weapons (the firearms); and that the
minor’s guardian at the
time (Mr Andries Steenkamp) demanded
that an attorney be in attendance when the minor’s statement
was obtained. Mr Bode
concludes this aspect as follows in his
written submissions:
“10.4 Die
toelaatbaarheid van hierdie getuienis in soverre dit deur die
betrokke offisier in die Hof aangebied is en in soverre
die
Beskuldigde daaromtrent gekruisondervra is, het moontlik sy
grondwetlike regte tot `n billike verhoor geskend.”
76. State counsel
has countered this argument as follows in his Heads:
“61. Die
verrassende submissies ten aansien van die toelaatbaarheid van die
getuienis is, met eerbied, sonder substansie.
62. Selfs die
verdediging aanvaar dat die polisie bona fide opgetree het. In lig
van die feite kan daar ook nie iets anders argumenteer
word nie.
Sien paragraaf 10.5
van Beskuldigde se aanvullende hoofde.
63. Hierdie
onverwagse argument laat die volgende heeltemal buite rekening;
63.1 Die beskuldigde
is na die polisiestasie toe;
63.2 Hy het `n
weergawe aan die polisie voorgehou;
63.3 Hy het die hulp
van die polisie ingeroep;
63.4 Hy het homself
as die enigste oorlewende van `n treurspel aan die polisie
voorgestel;
63.5 Hy het homself
dus as die enigste en belangrikste getuie aan die polisie voorgehou.
64. Alles wat hierop
gevolg het is die noodwendige gevolg van dit wat hy die polisie
meegedeel het.”
77. What need to be
added is that it was common cause that during that initial interview
(not an interrogation) the minor’s
then guardian, Mr Andries
Steenkamp, was present and suggested the presence of an attorney
during the statement-taking. It is
common cause that Adv Sharon
Erasmus, the minor’s counsel since then (07 April 2012) until
she was shown the “trekpas”
on 12 December 2013, spoke to
Col De Waal and was satisfied that the interview may go ahead as long
as it was a witness-statement,
and not a warning statement, that was
intended to be recorded. The subsequent conversation between lead
defence counsel, Adv Coetzee,
and Col De Waal did not end that
amicably because De Waal stated that he terminated the telephonic
conversation as he reckoned
that Mr Coetzee is setting unreasonable
demands that hamper the proper investigation. Adv Coetzee
nevertheless spoke to the minor
on the minor’s cellphone and
advised him what to do or how to handle the situation. Mr Coetzee
later arrived on the farm
and was satisfied that nothing untoward to
prejudice the minor was done. On the contrary Mr Coetzee did not
even cross-examine
Col De Waal on this aspect of the evidence. Both
the former and current legal teams were satisfied that the minor
throughout exculpated
himself and there was no prejudice that
redounded against the minor out of this part of the investigation.
The minor was a witness
and not a suspect. Hence no application for
a trial-within-a-trial was asked for or held because there was no
need. Mr Bode’s
reliance on S v Sebejan and Others
1997 (1)
SACR 626
(W) was therefore misplaced. The headnote captures it
succinctly as follows at 627 a - d:
“As to the
question of what constituted a suspect, it was held that a suspect
was one about whom there was some apprehension
that he or she may be
implicated in the offence under investigation and, it could further
be, whose version of events was mistrusted
or disbelieved. In
determining the rights of a suspect it was noted that the
Constitution Act was silent with regard to the rights
of a suspect
who was neither detained nor arrested. Regard was however had to the
1931 Judges' Rules, which although they were
only regarded as
administrative rules of fairness to be observed by the police, were
not completely without effect. According to
these rules, non-suspects
could be questioned without any cautions or warnings whereas
suspects, even in circumstances where
answers to questions could
establish their innocence, should receive the benefit of a caution or
warning. (H)eld that a suspect
who became an accused was entitled to
fair pre-trial procedures which included the rights under s25(3) of
the Constitution
Act accruing to an
accused when arrested. (H)eld that the accused was not a suspect at
the time that the statement was taken because
the statement was
taken as a result of what had happened to the accused's husband and
because there were no suspects until that
evening when statement B
was taken, which implicated the accused.” (Emphasis added).
See further S v
Orrie
2005 (1) SACR 63
(C) from 67h-70c.
I therefore find
that until 12 August 2012 when he was arrested the accused was not
regarded or treated as a suspect since the occurrences
of 06 April
2012.
78. I have decided
to write a separate judgment on the minor’s application to
re-open the defence case which I turned down
on 18 March 2014 and
reserved my reasons. That judgment is fairly lengthy and would have
encumbered this judgment unduly. The
ruling will be delivered in the
motion court when it is ready.
79. All that need to
be stated concerning the application to adduce fresh evidence is that
it was done for spurious motives. It
was a subterfuge to counter the
State’s argument delivered on 12 December 2013, which was in
any event put to the minor in
cross-examination, that the minor’s
motive for the killing was to silence the girl from reporting and to
eliminate his parents
for fear of bearing witness against him.
80. Mr Bode argued
at length that the minor accused did not instruct his former legal
team to intimate that the minor’s deceased
father could have
sexually penetrated her on a previous occasion and on or about 06
April 2012. However, the minor refrained or
omitted to say so on
oath in the application to re-open the defence case. The argument by
Mr Bode is therefore baseless.
81. In conclusion: I
am satisfied that none other than the minor accused whose identity,
for what it is worth, can still not be
disclosed, committed all the
offences listed in the indictment as the State in fact proved them,
not only beyond a reasonable doubt,
but beyond any shadow of doubt.
To deal with all aspects proved against the minor would amount to an
overkill.
The murders were not
only pre-meditated but were in fact planned and executed with the
direct intent to murder.
82. The minor
accused is accordingly found guilty as follows:
1. Count 1: The
Rape of his sister (Ms M): Guilty as charged.
2. Count 2: The
Murder of his father (Mr D): Guilty as charged.
3. Count 3: The
Murder of his mother (Mrs C): Guilty as charged.
4. Count 4: The
Murder of his sister (Ms M): Guilty as charged.
5. Count 5:
Defeating the ends of justice: Guilty as charged.
F DIALE KGOMO
JUDGE PRESIDENT
Northern Cape
Division, Kimberley
On behalf of the
State: Adv J J Cloete
Assisted
by: Adv Q Hollander
Instructed
by: Director Public Prosecutions
On behalf of the
Accused: Adv W J Coetzee
Assisted
by: Adv S L Erasmus
Instructed
by: De Jager Attorneys
Thereafter:
On behalf of the
Accused: Mr R Bode (as from 09/12/2013)
Instructed
by: Engelsman Magabane Attorneys