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[2012] ZAKZDHC 50
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S v Lotter and Others (CC43/09) [2012] ZAKZDHC 50 (13 March 2012)
CC43/09-NB/CD
25
JUDGMENT
CASE NO
CC43/09
DATE
13 MARCH 2012
THE STATE
versus
1.
HARDUS JOHANNES LOTTER
2.
MATHEW NAIDOO
3.
NICOLETTE LOTTER
_____________________________________________________________
JUDGMENT
13 MARCH 2012
GYANDA J
The accused in this case, Hardus Johannes Lotter,
accused No 1, a 20-year old South African male of 62 Thames
Avenue, Westville;
Mathew Naidoo, accused No 2, a 21-year old
South African male of 181 Queenspark Crescent, Phoenix; and
accused No 3,
Nicolette Lotter, a 26-year old South African
female of 62 Thames Avenue, Westville, stand indicted before us on
two counts of
murder read with the provisions of section 51 and
Schedule 2 of Act 105 of 1997, in that on or about 19 July 2008
and
at or near 62 Thames Avenue, Westville in the district of
Pinetown, the accused unlawfully and intentionally killed Maria
Magdalena
Hendriena Lotter, an adult female, and on count 2, in that
at the same time and place the accused unlawfully and intentionally
killed Johannes Petrus Gerhardus Lotter, an adult male.
The accused were represented throughout this trial by counsel –
accused No 1 by Advocate Mr R
Parsotham
,
instructed by the Legal Aid Board; accused No 2 by Advocate Mr V
Sivakumoor
of the Justice Centre in Durban; and accused No 3
by Advocate Mr T
Botha,
also instructed by the Legal Aid
Board.
They pleaded not guilty, and in terms of section 115 of the Criminal
Procedure Act accused No 1 indicated through his counsel,
Mr
Parsotham,
that he lacked criminal capacity, in that
he acted under duress and on instructions from accused No 2 who
had placed accused
No 1 under duress.
Accused No 2 also pleaded not guilty and tendered a written
statement in terms of section 115 of the Criminal Procedure Act
which
is Exhibit A before the Court. The relevant portion of his
statement indicating the basis of his defence appears in
paragraph 3,
where he states:
“
I have been residing with the deceased
persons and both my co-accused at the time of the offence. During my
stay with the deceased
I had observed that there was constant
conflict between both the deceased and my co-accused. On the day in
question I was at the
Pavilion Shopping Centre. I was at the Pavilion
Shopping Centre from approximately 17:30 to approximately 22:00. I
was not involved
in the planning or the killing of both the deceased.
At the time of my arrest I did not know who had killed the deceased
persons.
I was forced by the police who had physically assaulted me
subsequent to my arrest to confess to an offence that I had no
knowledge
of. I accordingly deny the charges levelled against me and
put the State to the proof of each and every allegation against me.”
Accused No 3 elected through her counsel to remain silent and
not indicate the basis of her defence. However, as the trial
unfolded
it became apparent that the defences of both accused No 1 and
accused No 3 were the same in that they contended
that they had
been influenced by accused No 2 who had changed their religious
belief and their thinking into believing that
he, accused No 2,
was the son of God and that they were obliged, if they wanted
salvation for their souls, to follow the will
of God and kill their
parents, the deceased. It would seem in the circumstances that
accused No 3 had, like accused No 1,
raised as a defence
that they were influenced by accused No 2 to such an extent that
they were not exercising their own free
will in acting as they did.
Accused No 2, on the other hand, indicated that his defence was
that of an alibi, that he had nothing to do with the killings
and was
not involved in the planning or the perpetration of the offence.
The evidence that was led before the Court consisted mainly of that
of the police witnesses in relation to evidence recovered at
the
scene of the incident and in relation to certain letters and SMSes
that had been sent by persons to the deceased during their
lifetime,
threatening their lives, and the evidence of the three accused.
In respect of accused No 2 a trial-within-a-trial was held to
determine the admissibility of a statement he made to a captain
in
the Police Service [a Captain Delport] which he disputed that he had
made freely and voluntarily, and contended that the contents
of that
statement were dictated to him by the police immediately prior to him
being taken to the captain to whom he made the statement.
In
addition, accused No 2 disputed that he voluntarily took two
policemen, namely the investigating officer, Captain Shane
Naidoo,
and one Captain Eva, to recover certain exhibits that had been
disposed of in dustbins in the Westville area.
After hearing evidence in the trial-within-the-trial I ruled that
both the statement was admissible in evidence against accused
No 2
as having been made by him freely and voluntarily without him having
been unduly influenced in any way thereto and that
the recovery of
the exhibits was, likewise, freely and voluntarily done by the
accused in his sound and sober senses without him
having been unduly
influenced thereto in any way. In addition, I found that the
accused’s contentions of him not having been
properly apprised
of his legal and constitutional rights had no merit whatsoever.
That evidence then constituted by Exhibit P and the pointings out as
contained in the photographs and in the evidence of Captain
Eva and
Captain Shane Naidoo was admitted in evidence against the accused.
There is nothing in the subsequent evidence that has been led before
this Court that would change my view as regards the admissibility
of
the evidence contained in Exhibit P or the pointings out and the
recovery of the exhibits that was disputed by accused No 2.
In
fact, the evidence subsequent to the admission of Exhibit P, in my
mind, confirms and validates that Exhibit P in fact emanated
from the
accused and was in fact the narration of the truth of what had
occurred at the time. [save in one respect, namely that
accused 2
substituted himself for accused 3 as the person who stabbed Mrs
Lotter]
At the conclusion of the evidence and in the light of the admissions
made by the various accused and in the light of the evidence
of the
District Surgeon, Dr Diagasan Pillay, it is common cause that Mr and
Mrs Lotter were murdered in their home as
contended for by the
State in the indictment against the accused and the only issue
remaining to be determined was whether or not
the three accused had
perpetrated the offences in question or had participated in them in
any way.
In addition the issue between accused Nos 1 and 3 and the State
appears to lie in whether or not their minds were affected by the
influence of accused No 2 on them to such an extent that they
were not exercising their own free will, and as between accused
No 2
and the State the issue is whether he was in fact present at the
scene of the killing or, if he was not, had he planned
the
perpetration of the offence or played any part in it whatsoever.
Those are the issues, in my view, that fell to be determined on the
evidence that was led before us. I do not intend reiterating
all of
the evidence that was led, save to state that the evidence was that,
in the main part, of the three accused before Court
and that of
Professor Schlebusch, a clinical psychologist who was retained as an
expert to testify on behalf of accused Nos 1 and
3.
The first issue, in my view, that had to be determined is whether
there was any merit in the contention of accused Nos 1 and 3
that
they were influenced by accused No 2 to believe that he was the
third son of God as they claim that he had claimed to
have been.
Accused No 2 vehemently denies any such allegation. He
categorically states that he never once contended to anybody
that he
had prophetic powers or powers of recalling the past and prophesying
the future or that he pretended to be the third son
of God but if one
has regard to the evidence of accused Nos 1 and 3 it is, in my view,
abundantly clear that there is ample corroboration
between their
versions to confirm that accused No 2 had in fact portrayed
himself to them as the third son of God, as they
claimed.
At this stage I should add that this judgment is the unanimous
decision of this Court.
Validation for the claims of accused Nos 1 and 3 are to be found in
Exhibit U and the allied exhibits U1, etcetera, before this
Court
which are allegedly letters written by accused No 2 in various
documents. The first document I should refer to in this
regard is
Exhibit U1. Exhibit U1 is a letter dated 24 April 2007 from accused
No 2, Mathew to Nicky, who it is common cause
is accused No 3.
Accused No 2 admits that he wrote this letter, that it is in his
handwriting and that the contents emanate
from him. As regards the
various other exhibits or letters inscribed in the exhibit called
Exhibit U which are collectively prayers
and notes with various
headings in a book which has a label which reads: “Mathew’s
prayers, 2008”, the accused
2 commenced by denying that he
wrote this. He admitted that the handwriting looked like his but he
denied writing it. He raised
various excuses as to why he was not the
author of this book. The first was that this book contained demonic
symbols, being the
stickers of images of cartoon characters on the
cover and in various portions of the written book, and he as a devout
Christian
was prohibited from using demonic caricatures such as this,
and for this reason he said that the book in question was not his. As
against his claim in this regard we have the evidence of accused No 3
who confirmed in her version when she testified that
this was her
book, that accused No 2 had taken possession of this book when
he began living at their home and that he thereafter
wrote in this
book. As regards the cartoon characters she testified that these were
purchased by the accused and their on a trip
to Gateway, and that the
accused himself had stuck these pictures onto the book and onto the
pages. In any event, a reading of
accused No 2’s evidence
discloses that when he was cross-examined on the contents of these
various documents in Exhibit
U and in particular that there was a
striking similarity of the writing and the spelling errors in
Exhibit U when compared
with Exhibit U1, the conclusion was
irresistible that he was the author of all of these documents to
which accused No 2 adopted
the stance that the writing looked
like his, that the writing was in fact his writing but he could not
remember having written
what is contained in these various documents.
If one has regard to the content of these various letters contained
in Exhibit U, it is apparent that accused No 2 himself
refers to
himself as the son of God in the very first of these entries –
the entry dated 12 April 2008 headed “My prayer”,
which
reads:
“
My dear Lord, help me with cash but let’s
do your work on earth first for that’s what I really like.
Always show me
what I can do to help others in any way no matter how
small. Also Nicky’s birthday is coming up. Show what I can get
her.
O dear, thank you for everything. I love you always no matter
what. Amen.”
And in the next prayer dated 2 May 2008 he commences: “Oh my
dear Father and God, I need help big time.” I do not intend
reading the entire contents of this letter but it is apparent from
reading that letter and many of the others that follow in Exhibit
U
that accused No 2 addresses God the Lord as his father and
describes himself as being the son of God.
That accused No 2 in fact described himself to accused Nos 1 and
3 as the son of God with these powers to be able to predict
and
prophesies the future and tell them of events past which he had no
direct first-hand knowledge of is in fact accepted by this
Court as
being the truth. This did in fact happen. Accused No 2 did in
fact so portray himself to accused Nos 1 and 3.
The question has been asked during the trial of accused Nos 1 and 3,
“How is it possible that you, people with university
education,
sophisticated people in a middle-class family who have all of the
facilities, being a church-going family, how is it
that you could
allow yourself to be influenced in this fashion?”, and perhaps
the answer lies in the evidence of Professor
Lourens Schlebusch, who
testified that this sort of brainwashing, if I may refer to it as
such, has been used on very large scale,
even to remould and realign
the religious thinking of people who were known professionals –
lawyers, doctors, businessmen
- and get them to do things which
somebody looking from the outside, looking in, would consider stupid
and conduct which would
be severely criticised. He had given
examples, for example the Jonestown massacre where eminent people in
the community were so
brainwashed by a charismatic religious leader
that they committed mass suicide. So that when we, standing on the
outside, look
at the conduct of accused Nos 1 and 3 and then
denigrate them in that there is no basis upon which sane, educated,
university-educated
people like accused Nos 1 and 3 could be
influenced in this manner, there are examples of this happening in
the past.
How was it possible for accused No 2 to influence accused No 3
in the manner that he did? Accused No 3, in our view,
was
fertile ground in which such thought processes could have been
inculcated. She was, which is common cause and is confirmed
by the
evidence of Professor Schlebusch, at the time a troubled person. In
her own evidence, supported by that of her brother,
accused No 1,
she believed at the time that their domestic maid was practising
witchcraft on her. She felt that she was being
spiritually violated
sexually and that her hair was being ripped off her head, that there
were signs around the house that the
domestic maid was practising
witchcraft on her, and that this was adversely affecting her. She
had, it is apparent, spoken to people
about this and received advice
to seek prayer and assistance and guidance by certain pastors. At
first she went to her own pastor
to try and get some advice and
guidance and assistance with her problems but, unfortunately, her
parents at the time did not believe
that she was being affected by
black magic in any way. They felt that she was just looking for
attention and they were prompted
to phone the pastor and warn him
that accused No 3 was coming for assistance to him with a
problem but that she is merely
seeking attention, with the result she
was unable to see and confide in her own pastor and then was forced
to seek the assistance
of others. She testified that she was able to
get the assistance of a pastor somewhere in Chatsworth who had prayed
for her and
who had asked her to bring the domestic maid to him and
he had prayed for the domestic maid and apparently had removed the
demons
that were tormenting accused No 3, and that they had
returned and things were quite normal at home but after a short while
things had returned to their abnormal position. She had accused the
domestic maid of practising witchcraft based on the fact that
the
domestic maid’s son was a “sangoma”.
Whether her belief that witchcraft was being practised or not had any
merit is neither here nor there. The fact is that she believed
it and
her version of being a troubled person at this time is confirmed by
Professor Schlebusch who testified that accused No 3’s
mother had arranged for him to consult with accused No 3, that
she did attend such consultations and that she terminated this
of her
own accord. Accused No 3 did not confide in Professor Schlebusch
about her being tormented by demons and her belief
in witchcraft. She
testified that she feared that if she confided in Professor
Schlebusch about this she would be classified as
insane and may
probably end up in a mental institution and so she was left to a
large extent to try and find a solution to these
problems that were
vexing her life on her own.
It was in pursuit of finding some solace from these demons that were
occupying her life that she went to Phoenix to have prayers
done for
her and that she met accused No 2. Accused No 2 from the
outset must have seen that here is a person who is
quite depressed,
quite affected by whatever problems she has and therefore a ready
victim to practise whatever he intended to.
It is our belief that
accused No 2 was aware of the vulnerability of accused No 3
from the outset. If one has regard
to Exhibit BB, the statement of
his mother to the police, it is apparent that even at this early
stage he reported to his mother
that accused No 3 had been
abused by her father and therefore needed prayer badly. This is
something that accused No 3
had denied – abuse by her
father. She had no knowledge of any abuse by her father, and later on
when accused No 2 had
entered her life in a bigger way he
[accused 2] informed her that her father had abused her and her other
sister at a time when
they were very young and that God and the
angels had removed this memory from their memory banks to protect
them from the hurt
that they would otherwise experience if they had
full knowledge of what had occurred.
In our view, therefore, accused No 2 clearly saw the
vulnerability of accused No 3 and an opportunity to take
advantage
of her, which he exercised fully.
How did accused No 2 influence accused No 1 or get accused
No 1 to believe in him as a person who had these powers,
so much
so that he could describe himself as the third son of God? It is
common cause that accused No 1 is a person who is
shy,
introverted, had no friends and spent the majority of his life at the
computer. The reports from Dr Schlebusch indicate that
he was
ridiculed and mocked at school by his peers, called funny names, and
so he lived very much by himself. At the outset accused
No 1 was
not taken in by accused No 2. In fact he did not consider
accused No 2 to be good enough for his sister.
Although he did
not express his opinion he was wary of accused No 2 and did not
like accused No 2, in much the very same
way as his father was
not accepting accused No 2 and did not like him. That is the
reason, in our view, for accused No 2
adopting the attitude
against the father, Mr Lotter, that he should be killed. This
all stems, in our view, from his failure
to recognise and accept
accused No 2 as a proper candidate to marry or court his
daughter, accused No 3.
Accused No 2, in order to win over accused No 1, thereafter
practised his wiles on a person who had nobody. He had no
friends and
very little or nobody to confide in. He manipulated accused No 1
into believing that he could inform accused No 1
about events
that had happened in the past of which he had no way of knowing. For
example, he told accused No 1 that: “You
remember that
when your mother and sister were quarrelling and you prayed for God
to send down somebody to intercede and stop them
from quarrelling”
and informed accused No 1 that he was the person that God had
sent in answer to his prayer. This captivated
accused No 1 to
some extent but what made accused No 2 be able to control
accused No 1 to the extent that he did
came not from accused
No 2 alone but from the acceptance of accused No 2 and the
powers that he had by accused No 3,
the older sister of accused
No 1, a person whom he looked up to and trusted.
Accused No 1 came to believe in accused No 2 so implicitly
that, from being a person whom he could barely tolerate, accused
No 2
became the brother that accused No 1 did not have, and this is
apparent in Exhibit S wherein he refers to accused
No 2 as his
brother. Exhibit S, in our view, clearly indicates the reason why
accused No 2 was hostile towards the deceased
Mr Lotter. In
the words of accused No 1 when he wrote this Exhibit S, the
letter dated 16 January 2008, he refers
as I said to accused No 2
as his brother and then carries on:
“
My parents are two pathetic jokes of
people. I have lost all respect for them. They hurt (or hunt) my
brother. They belittle the
authority of God. The bastards will pay.”
I do not intend reading the entire contents but it is clear in
Exhibit S that the change in attitude towards his parents with whom
he had a normal relationship began to change to one where he
considered them pathetic jokes is as a direct result of his parents,
especially his father, not accepting accused No 2 and hurting
accused No 2 by such non-acceptance.
In addition, accused No 2 preyed on accused No 1’s
emotions by claiming how he had been victimised by white people
during the apartheid era and, furthermore, that his family members
had treated him so badly that they gave him bad food to eat.
All of
this made accused No 1 susceptible to accused No 2. It made
accused No 1 pity him. It made accused No 1
like accused
No 2. Here was a brother he did not have. Here was a person who
was communicating with him on a level that had
never been done before
as a peer and, in the version of accused No 2, here was a person
that was taking him around. It is
not surprising therefore that he
was able to convince accused No 1 of who he was or claimed to
be.
In spite of this accused No 1 was sceptical of accused No 2
when he began experiencing the spirits that entered his body
and when
he spoke in the changed and altered voices of these spirits, and had
to look at his sister who then affirmed that what
accused No 2
was doing was in fact genuine, that he was not putting on a show,
that this was in fact genuine. He spoke with
the voice of God. He
spoke with the voice of the angel Matthias and whatever other angels
emanated from him, and that this was
genuine.
In these circumstances, as I say, with the fertile ground in which to
plant his ideas accused No 2 set about restructuring
the way
accused Nos 1 and 3 were believing and depending upon their
parents, to such an extent that by the time the murders
were
committed he had actually made them believe that the death of their
parents would be a good thing, in that their parents stood
in the way
of the work of God and were evil, and that evil had to be destroyed
and the evil that had to be destroyed was their
parents and their
parents had to be killed.
This idea of killing the parents did not start on 18 July, as
testified to by accused No 3, although on that night a
meeting
was held at which the plan was discussed as to how the deceased were
to be killed. In Exhibit U is a letter dated
16 July 2008
addressed to “God who am I”. It’s called “Prayer”,
and it reads:
“
Dear, I feel like shit right now. JL as to
be dead soon.”
“
As”instead of “has”.
“
God help. I so lost on what to do.”
It appears.
“
I feel low and a joke. Please let
everything work out as planned. Please. Amen.”
It is apparent at that this stage when accused No 2 wrote this
prayer, he had already planned the demise of at least Mr Johannes
Lotter, and he said so explicitly in this letter.
The fact that Mr Lotter had to die is also revealed in the
evidence of accused Nos 1 and 3 about the attempts to kill him
by
putting a poisonous sap into his whisky, which he threw away because
he realised that the whisky was discoloured, and by putting
in 90%
proof alcohol into his whisky in the hope that he would die of
alcohol poisoning, but all it had the effect of doing was
making
Mr Lotter drunker than usual.
When these two plans to kill Mr Lotter did not work, accused
No 2 announced that the deceased Mr Lotter is being
protected by Satan, strengthening the belief of accused Nos 1 and 3
in what he was saying. When Mr and Mrs Lotter were to
have gone
on a trip to their holiday flat and Mr Lotter would have gone
fishing on his boat, the trip was cancelled and there
had been a
tremendous storm and accused No 2 had informed accused Nos 1 and
3 that their father was to have been killed in
that storm but that
Satan had warned him to have prevented that. All of this made accused
Nos 1 and 3 believe that he had
these powers of prophesy. So it
is not surprising when, especially with accused No 3, her
position was subjectively much worse
than that of accused No 1,
here she felt that the maid was perpetrating acts of witchcraft on
her, that her hair was being
pulled off her head, that she was being
raped by some spirit and she had had lots of people pray for her
without success until
she met accused No 2 and when they had
sexual relations she felt that this spirit had left her and accused
No 2 had assured
her that he was going to be staying there in
her house to ensure that she would not be affected by these evil
spirits again, and
so she felt reassured by accused No 2’s
presence and the fact that he had these powers, being the son of God
and having
the voice of the angel Matthias, that he would be able to
protect her from the evil spirits.
I do not intend rehashing all of the evidence that was led in this
case. It is on record.
Dealing with accused Nos 1 and 3 and their contention that they did
not have the intent to kill their parents
per se
, that they
were acting under the coercive influence of accused No 2 and, as
counsel had argued in respect of accused Nos 1
and 3, that they had
raised, in a manner of speaking, the defence of non-pathological
mental deficiency or incapacity which is
often referred to as sane
automatism to distinguish it from pathological incapacity which is
usually regarded as insanity in some
form. This defence has been
dealt with by our Courts on numerous occasions, and one such case is
the case of
S v Di Blasi
1996 (1) SACR 1
(A) which was
referred to in his argument by Mr
Parsotham
for accused
No 1. Of importance in this case is the reference by the Court
of Appeal to the factual foundation that has to
be laid before a
Court can accept that such a defence in fact exists in the matter
under consideration. In the judgment of VIVIERS
JA at page 7 the
relevant portion of the judgment reads:
“
It is for an accused person to lay a
factual foundation for his defence that non-pathological causes
resulted in diminished criminal
responsibility and the issue is one
for the court to decide. In coming to a decision the court must have
regard not only to the
expert evidence but to all the facts in the
case, including the nature of the accused person’s actions
during the relevant
period.”
In
S v Harris
1965 (2) SA 340
(A), OGILVIE-THOMPSON JA said in
this regard at page 365B to C:
“
In the ultimate analysis the crucial issue
of the appellant’s criminal responsibility for his actions at
the relevant time
is a matter to be determined not by the
psychiatrists but by the court itself. In determining that issue
initially the trial court
and, on appeal, this court must of
necessity have regard not only to the expert medical evidence but
also to all the other facts
of the case including the reliability of
the appellant as a witness and the nature of his proved actions
throughout the relevant
period.”
These sentiments were re-stated in many decisions subsequent thereto
in our courts.
The starting point in regards to the defence raised by accused Nos 1
and 3 is obviously the reports of the clinical psychologist,
Professor Schlebusch, who was retained to represent them after having
consulted with them and prepared reports in respect of each
of them
to assist and guide this Court in coming to a proper decision as to
the mental capacity of accused Nos 1 and 3 at
the time of the
commission of the offence.
With regard to accused No 1, in Exhibit Z Professor Schlebusch
under the heading “Criminal responsibility” had
the
following to say at page 19 of Exhibit Z:
“
This refers to the defendant’s mental
state at the time of the alleged offence. The clinician has to
determine, as I did,
whether the accused at the time of the alleged
offence was unable to appreciate the nature and quality of his
actions or did not
know that the actions were wrong, by reason of
mental illness or otherwise. Given this, and despite the fact that
the patient is
currently fully mentally competent as described in
this report, aspects of his behaviour during the alleged offence do
not fall
within the realms of his usual conduct and can therefore not
be considered to be free of transient dysfunctional behaviour. This
could be aetiologically, that is causally, associated with several
variables, including the inordinate stress he was exposed to
and his
dysfunctional religious beliefs as noted earlier and as further
discussed in the report.”
Professor Schlebusch, when he testified, indicated that in the light
of the regrooming of accused No 1’s thought processes
by
accused No 2 it would have been difficult for him to act in any
other manner but in a manner that followed the instructions
of
accused No 2, but he indicated that although such action on the
part of accused No 1 would be difficult it would not
have been
impossible.
Similar comments are made by Professor Laubscher in relation to
accused No 3 in his report on her as contained in Exhibit
AA.
Under the heading of “Criminal responsibility” at page 18
he states:
“
This refers to the defendant’s mental
state at the time of the alleged offence. The clinician has to
determine, as I did,
whether the accused at the time of the alleged
offence was unable to appreciate the nature and quality of her
actions or did not
know that the actions were wrong by reason of
mental illness or otherwise. Given this and despite the fact that the
patient is
currently fully mentally competent as described in this
report, aspects of her behaviour during the alleged offence do not
fall
within the realms of her usual conduct and can therefore not be
considered to be free of transient dysfunctional behaviour. This
could be aetiologically, that is causally, associated with several
variables, including her inordinately stressful relationship
with her
boyfriend, Mr Mathew Naidoo, at the time of her dysfunctional
religious beliefs as noted earlier and as further discussed
in this
report.”
With accused No 3 as well Professor Schlebusch was of the view
that she was able to distinguish between right and wrong and
conduct
her actions in accordance with such appreciation at the time of the
commission of the offence.
In fact both accused Nos 1 and 3 in their evidence stated quite
categorically that they knew that it was wrong to kill and that
the
killing of their parents was a crime and they fully appreciated that,
but that they persisted in their conduct in killing their
parents
because accused No 2 had inculcated in them the belief that
their parents were evil and had to be destroyed in the
interests of
the work of God and that they, their parents, the two deceased in
this case, were standing in the way of God’s
work.
There are aspects in the evidence in relation to accused No 1
which, in our view, indicate that he was not so controlled and
possessed by the instructions of accused No 1 so as not to act
in accordance with an appreciation of the wrongfulness of his
conduct, and these are that he verbalised at the Botanical Gardens
his reluctance to participate in the killing of his parents,
and when
he had shown his reluctance to accused Nos 2 and 3 they had
shunned him until he felt that he was obliged to co-operate
with them
in the plan to kill the deceased.
Furthermore, in the evidence of accused No 3, it is apparent
that accused No 1 was reluctant and unable to use the stun
gun
to stun his mother to the extent that she would become unconscious
for her to be bound and gagged, and that is how the entire
plan to
kill the deceased went haywire due to the reluctance of accused No 1
to proceed with the plan as agreed.
These facts, in our view, indicate that he still had the ability to
differentiate between right and wrong and act in accordance
with such
an appreciation, but that he failed to do so at the crucial time. He
was able to take instructions from accused No 2
as to how to
kill his father, by getting hold of a cord, by breaking two sticks to
tie to either end of the cord and by tightening
the noose around his
father’s neck until he was dead. Accused No 1 was also
able, in our view, to appreciate the threat
from accused No 3
that if he did not hold his mother down he would go to gaol.
These instances in the evidence of accused No 1 support the
version by Professor Schlebusch that accused No 1 had criminal
responsibility at the time of the commission of the offence, and this
applies to accused No 3 as well. The facts which in
her case
underline and confirm Professor Schlebusch’s opinion is that
she was able to think for herself when the plan started
going wrong,
to take the Taser and try and assist accused No 1 in stunning
her mother, to take the needle which accused No 2
was supposed
to use to inject the air bubble into her mother’s vein and to
try and do it herself. She was making calls to
accused No 2 in
desperation, seeking guidance and she was able to verbalise a threat
to accused No 1 that if he did not
hold down his mother he would
go to gaol. She was able to recollect accused No 2 pushing
accused No 1 up against the
wall and threatening him to strangle
his father or else he would go to gaol and she was able, although
throughout her testimony
she indicated that she could not tell
accused No 2 anything or challenge any of his instructions
because it was the will of
God and to do so would result in her being
assaulted and abused by accused No 2, she did intercede on
behalf of accused No 1
to ask accused No 2 if he could not
speak to God to arrange a lesser punishment for accused No 1
when accused No 2
suggested that accused No 1 must now
plead guilty and plead insanity. These are aspects in her evidence
which, as I say, underscore
the fact that she was still able to act
in accordance with her appreciation between right and wrong.
Their belief in the powers of accused No 2, at best for accused
Nos 1 and 3, are mitigating circumstances that may or
may not
have resulted in a diminished criminal capacity in respect of both
accused Nos 1 and 3 but they certainly do not excuse
accused Nos 1
and 3 from liability on the basis that they lacked the necessary
criminal responsibility. The evidence in this regard
is quite
overwhelming.
Dealing with accused No 2’s alibi, accused No 2
indicated that he had the tickets of the movie house to confirm
that
he and accused No 3 were going to the movies, and accused No 3
had called him from the home of the Lotters to tell
him that there
was a family meeting and that she was unable to meet him, that he
tried to get a refund of the ticket that he had
bought for her and he
explained the various instances of correspondence between him and
accused No 3 by SMS on the basis that
they were communicating as
to whether she was coming, what time she was coming, where he was
seated, etcetera, and that is why
there was this communication.
Accused No 3, on the other hand, stated quite clearly and
categorically that she had been communicating with accused No 2
to get directions as to what to do in certain instances when the plan
was not working and she is supported in this by accused 1.
That the deceased were to be killed had been planned is the evidence
of accused Nos 1 and 3. They support each other perfectly
in this
regard. Their statements were written shortly after their arrest and
without them having had the opportunity of putting
their minds
together to come up with this common version if they were to be
challenged on that aspect. They did not have the opportunity.
Accused No 3’s statement is voluminous. It is in her own
handwriting and it covers a great deal of detail. Accused No 1’s
statement is, likewise, quite voluminous and covers a great amount of
detail. It would be surprising in the extreme that these
two people
could come up with a common version containing so much of detail and
fabricate this version just to implicate accused
No 2. But if
they were implicating accused No 2, it was clearly not, as
accused No 2 contends it was, to exonerate
themselves and to
implicate accused No 2. They were implicating themselves. They
were confessing to the killing of the deceased.
They confessed fully
to the parts they played in the killing of the deceased. They were
not fabricating a version to extricate
themselves and implicate
accused No 2, and that is another reason for accepting the
reliability of their versions.
Accused No 2 was a glib character. He always fancied himself
with his ego as being cleverer than everybody else, including
the
police. He was arrogant and boastful. A perfect example is Exhibit I,
a letter that was written and left for the police to
find at the
Lotters’ residence, which reads:
“
To whom it may concern. I have done what I
said I was going to do. To any investigators that are investigating
this, you have three
suspects to choose from in my opinion –
Nicky, Nicolette, or whatever it is, Hardus Johannes and of course
the boyfriend,
Mathew, Matthias. So who is it? If you find out tell
me. Job 3 verse 16 to 19.”
A reading of the evidence of accused No 2 under
cross-examination confirms that he had this great opinion of himself
and
that he thought everybody else was quite stupid. He was arrogant
to counsel for accused No 1 when cross-examined. For example,
on
one occasion counsel indicated to him that he was going to question
him on a certain aspect, and he retorts to counsel: “Go
for
it”. Another retort indicating his arrogance and his belief in
his superiority over others is, for example, his exclamation
when
confronted with a problem in cross-examination, the words: “Oh,
come on”. Examples like this are to be found in
an examination
of his evidence during cross-examination.
However, when the wheels started coming off for accused No 2 he
realised that the game was up, that nobody is being taken
in by his
lies, and he made an about-turn and indicated that he wanted to plead
guilty. As he was under cross-examination at the
time he could not
speak to his counsel without the presence of the other counsel and
counsel for the State, so although he had
asked to consult with his
counsel he could not do so because the other counsel would be
present. He then requested permission to
speak to an independent
counsel, and the Court arranged for the Bar Council to send an
independent counsel to advise accused No 2,
and a counsel who is
quite senior amongst the advocates in Durban, Advocate Wolmarans, was
sent to consult and counsel accused
No 2 in his predicament.
Mr Wolmarans is a person who had been a Magistrate for many
years before he joined the Bar and
has immense experience as a
criminal lawyer. Having consulted with Advocate Wolmarans, accused
No 2 returned to court and
advised the Court that he had now
decided that he was pleading guilty. He was given an opportunity for
the matter to stand down
so that his counsel, Mr
Sivakumoor
,
could compile a statement or a list of admissions in terms of section
220 to encompass his plea of guilty. Mr
Sivakumoor
returned to the Court and in chambers and advised that he could not
get instructions from accused No 2. When accused No 2
was
called back into the witness box and continued his testimony he
indicated that he did not plan or participate in the commission
of
the murders of the two deceased but that he wanted to plead guilty
because he helped cover it up. Accordingly no plea of guilty
could be
entered.
This, in my view, was another indication of the behaviour on the part
of accused No 2 who felt that he was a person of so
much
intelligence and ability that he could lead and mislead counsel for
the defence, counsel for the State and even an independent
counsel.
He was merely trying his very best to get out of a tight spot, and
the tight spot was that it became apparent under cross-examination
that he had no answer for the contents of Exhibit U which was written
by him, and he could not explain.
The detailed plan to kill the two deceased was hatched on the night
of 18 July 2008. According to the evidence of accused
Nos 1 and
3 which we accept as being the truth, they were in the room of
accused No 3. Accused No 2 was seated on the
bed and they,
the disciples, had to be seated on the floor. Accused No 2 took
umbrage to the fact that they were not kneeling
and slapped both of
them and ordered them to kneel and then demanded from them to come up
with a plan for the killing of the deceased,
and when they were
unable to come up with any plan he outlined the plan to kill them. He
outlined the need to buy the syringes
with which to inject air
bubbles into their veins to cause them to die of what would appear to
be a heart attack and that cable
ties were to be obtained to tie them
up. He bought an electric Taser which would be used to knock out the
two deceased and bind
them to allow him to come and administer the
fatal injections that would kill them and rubber gloves or surgical
gloves be purchased
so that no fingerprints would be left. It is our
belief that all along accused No 2 was fully aware that if two
people died
of a heart attack it would call for investigations and
post-mortem examinations. Although it was not unheard of that two
people
will die of a heart attack at the same time it would be
something that would require investigation. Accused No 2 said so
in
his evidence – he would not be that stupid to come up with a
plan like this which would clearly call for post-mortem examinations
to be performed. He knew about this. He appreciated it but he had his
reasons for carrying on with it nonetheless. He had in accused
No 1
a “fall guy”, a person who would take the rap, and that
is why when this plan went haywire and it could not
be put into
operation, the Taser was unable to knock out Mrs Lotter that the
other plans had been put into place.
The fact that accused No 2 is aware of the killings and the
number of times that the deceased Mrs Lotter was stabbed confirms
that he was present at the killing. Accused No 3, when she
testified, denied and disputed the version contained in the
statement,
Exhibit BB, from accused No 2’s mother, that
she informed accused No 2’s mother of the number of times
that
the deceased was stabbed. She denied having any such discussion
with her. If that was the case then one wonders where accused No 2’s
mother got this information that the deceased was stabbed five times
because accused No 2 when he testified said he could
not stand
looking at the deceased. In fact when he covered their bodies he held
the sheet up to cover his eyes so he did not need
to look at them
and, from a distance, threw the sheets over their bodies because he
was overwhelmed with grief at having seen a
woman he called mother
and a person whom he called his buddy lying dead on the floor as he
found them. So he couldn’t have
seen how many times Mrs Lotter
was stabbed, and yet in his statement, Exhibit P, he told the captain
taking down his statement,
Captain Delport, that the deceased was
stabbed about four times. How would he know about this? He did not
see the bodies. He did
not say he was told she was stabbed four
times. But there is an explanation in the evidence of accused No 3,
that when the
deceased was not killed by the injecting of the air
bubble by accused No 3, accused No 2 was seated in her room
and he
told her that she must now take a knife and stab the deceased
and indicated to her which knife she must use and told her that she
must stab the deceased once on the one side of the neck, then on the
other side of the neck, then in the middle of the neck and
then in
the chest – a minimum of four stab wounds, which he would have
known because he ordered her to stab the deceased
in that fashion.
What is more, in Exhibit P which he subsequently tried to dispute, he
informed the captain who took down his statement
that he was present
when the offence was committed.
On a question, No 23, to the accused by Captain Delport who took
down the statement: “Is the statement that you wish
to make
about the facts which you yourself have experienced or is it about
facts which the police or anyone else has dictated to
you to come and
tell me?” “Answer: I was there, I saw it”. And as
we have found this statement was in fact made
by the accused freely
and voluntarily, without him having been unduly influenced thereto
and we rejected as false his contention
that the contents thereof
came from the police. It raises the question – why would
accused No 2, who did not stab the
deceased himself, claim that
he stabbed the deceased? The answer is simple. It is keeping in line
with what accused No 3 testified
about, that accused No 2
told her that he would protect her. He will take responsibility for
the stabbing because she cannot
go to gaol, and she was arguing with
him: “But you cannot go to gaol because you are the son of God,
you have got to do the
work of God”. It is for this reason that
he claimed to have stabbed the deceased. Maybe in his arrogance he
believed that
he would get away even with this admission on his part,
as he tried to do by claiming that this statement emanated from the
police,
it was dictated to him and that he was drilled as to what to
say, and that what he said did not come from him and that he had been
assaulted to say what he did - all of which, as I have said, we found
to be false.
Unless accused No 3 gets carried away with the fact that accused
No 2 was willing to take this blame for her on her behalf
because he loved her in our view he had to protect accused No 3.
If accused No 1 was the “fall guy” he would
be
eliminated. Without accused No 3 accused No 2’s plans
were worthless because his hope of inheriting from the
deceased
estate could only come to him via accused No 3, and with accused
No 1 out of the way he had to ensure the safety
of accused No 3.
There is no evidence before us that he had any relationship with the
other daughter of the deceased so, in
our view, he had to ensure that
no harm befell accused No 3, to protect his expectations of her
inheriting from the deceased
estate and for him to be able to control
her finances.
We accept the evidence of accused No 3 that accused No 2
controlled the finances. He contributed nothing to this venture.
He
became a co-owner of Entertainment Rebirth. As the person in charge
of the finances he had her bank card, he had her wallet.
When she
objected to there being a single wallet and suggested that they have
two wallets he became angry and abusive towards her,
with the result
that she let him have his way. He expected that his plan would go
through, that even the so-called stupid plan
as he called it of
killing the deceased with an air bubble had a ready-made fall guy,
accused No 1 who was either going to
plead insanity or going to
kill himself, one way or the other, so he would be out of the way. So
accused No 2 had to protect
accused No 3 in order that he
be able to inherit.
It is our view that this entire killing of the deceased may
originally have started from the fact that accused No 2 did not
like the manner in which the deceased Mr Lotter refused to
accept him as a companion or consort or fiancé of accused
No 3
but that with time it outgrew this. The other turning point in their
relationship came on 13 June when, after monies
had been stolen from
the accounts of the Lotters and Mrs Lotter’s handbag, the
police were called in and accused No 2
gave to accused No 3
an ultimatum whether she was going to go with him or stay there, and
they left, and Exhibit U covers
this particular aspect about the
quarrel with Mrs Lotter. Accused No 2’s version that he
was living in the house with
the full knowledge of Mr and Mrs Lotter
and that he was in fact paying rent to Mr Lotter is a blatant
lie. Accused No 2
is what can only be termed a pathological
liar, so much so that when he was confronted by accused No 3 at
the Cato Manor Police
Station about the lies that he made her believe
he in fact said to her: “I am a blatant liar”.
His entire evidence in this case and the manner in which he went
about trying to fleece the Lotters is the conduct of a con artist,
a
person who obtains information from people at a moment of weakness,
uses it later on in circumstances and at a time when they
have
forgotten that they themselves had been the source of this
information and gets them to believe that he is such a great spirit
that he could recall incidents when he was not there, that he can
forecast the future and that he has these powers from God.
Although the ordinary man in the street may find that this belief by
accused Nos 1 and 3 is laughable and ridiculous, as I
have said
earlier on we have the expert testimony that thousands of people have
been conned by charismatic leaders into believing
that they had these
supernatural powers from God that could change the world, change
their lives and change everything around them.
In the end that they
were all sold something that was useless and many of them lost their
lives for their stupidity and their beliefs.
We are satisfied therefore that all three accused are guilty of
murder as charged on counts 1 and 2. Accused Nos 1, 2 and 3 are
found
GUILTY
on both counts, 1 and 2, of murder as charged.
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-
IN
THE HIGH COURT OF SOUTH AFRICA
DURBAN
AND COAST LOCAL DIVISION
HELD AT DURBAN
CASE NO
:
CC43/09
DATE
: 2012/03/13
THE STATE versus 1. HARDUS JOHANNES LOTTER
2. MATHEW NAIDOO
3. NICOLETTE LOTTER
BEFORE THE HONOURABLE MR JUSTICE GYANDA
ASSESSORS
: MR M SEWPAL
MS N JASAT
ON BEHALF OF THE STATE
: MS R MINA WITH
MS S RAMOUTHAR
ON BEHALF OF THE DEFENCE
: MR R PARSOTHAM
(On behalf of accused 1)
MR V SIVAKUMOOR
(On behalf of accused 2,
instructed by the Legal Aid Board)
MR T BOTHA
(On behalf of accused 3)
INTERPRETER
: MR A V NOBEKA/MR MTSHIZANA
DRAFT JUDGMENT
on 13 March 2012